Disposed

The Administrator v. Shihabudheen C.A.

Kerala HC26 Jul 2016WP(C)/34762/2007

Case brief

AI extract

What is this about?

Contract-appointed Post Graduate Teachers in Lakshadweep schools obtained a CAT direction asking the Administration to seek a Ministry policy decision on regularisation while continuing them. The High Court found no positive direction to regularise or amend the recruitment rules, held regularisation cannot be claimed as of course, and dismissed the Administration's writ petitions.

What did the court decide?

Writ petitions dismissed; O.P.(CAT) No.50 of 2016 disposed of, with no interference with the Tribunal's orders and no direction to regularise or amend the recruitment rules.

The Administrator Vs Shihabudheen C.A. — Education and Admissions | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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TUESDAY, THE 26TH DAY OF JULY 2016/4TH SRAVANA, 1938

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WP(C).No. 34762 of 2007 (Z)

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OA 163/2006 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

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PETITIONER(S):

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1. THE ADMINISTRATOR, UT OF LAKSHADWEEP, KAVARATTI.

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2. THE DIRECTOR OF EDUCATION, DEPARTMENT OF EDUCATION, UT OF LAKSHADWEEP, KAVARATTI.

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BY SRI.S.RADHAKRISHNAN, SC

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RESPONDENT(S):

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1.SHIHABUDHEEN C.A., S/O.C.M.ABOOBACKER, POST GRADUATE TEACHER (POLITICAL SCIENCE), MGSS ANDROTH, UT OF LAKSHADWEEP, REISIDING AT ANDROTH.

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2.SURABHI A.R., D/O.RAMAKRISHNAN, POST GRADUATE TEACHER (GEOGRAPHY), MGSS ANDROTH, UT OF LAKSHADWEEP, REISIDING AT ANDROTH.

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3.SATHEESH C.K.,S/O.C.V.KRISHNAN, POST GRADUATE TEACHER (GEOGRAPHY), MGSS ANDROTH, UT OF LAKSHADWEEP, REISIDING AT ANDROTH.

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4.SUDHEESH K.B.,S/O.BHUVANENDRAN, POST GRADUATE TEACHER (COMMERCE), MGSS ANDROTH, UT OF LAKSHADWEEP, REISIDING AT ANDROTH.

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--2--

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--2--

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WP(C).No. 34762 of 2007 (Z)

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5.BALAKRISHNAN.V., S/O.KUNHIKANNAN, POST GRADUATE TEACHER(ECONOMICS), MGSS ANDROTH, UT OF LAKSHADWEEP, REISIDING AT ANDROTH.

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6.SHONA P.K. D/O.KUNHIMON.T.K., POST GRADUATE TEACHER(GEOGRAPHY), GOVERNMENT SENIOR BASIC SECONDARY SCHOOL, KAVARATTI, UT OF LAKSHADWEEP, REISIDING AT KAVARATTI.

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*ADDL. R7 IMPLEADED

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SHAMEEMA MAKKUTTATHIL, POST GRADUATE TEACHER(MALAYALAM), J.N.SENIOR SECONDARY SCHOOL, KADAMAT, UNION TERRITORY OF LAKSHADWEEP, RESIDING AT RAMLATH MANZIL, ANDROTH, UNION TERRITORY OF LAKSHADWEEP.

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ADDL. R7 IS IMPLEADED AS PER ORDER DATED 26.07.2016 IN IA.8635/2010.

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R1 TO R5 BY ADV. SRI.ABRAHAM JOHN R6 BY ADV. SRI.BIJU.P.N. ADDL.R7 BY ADVS.SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN SMT.T.RESMI DAMODARAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-06-2016 ALONG WITH WPC.21568/2009 & CONNECTION CASES, THE COURT ON 26-07-2016 DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 34762 of 2007 (Z)

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APPENDIX

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PETITIONERS’ EXHIBITS:

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EXT. P1	: TRUE COPY OF THE ORIGINAL APPLICATION NO.163/2006 FILED BEFORE THE CAT, ERNAKULAM BENCH.
EXT. P2	: TRUE COPY OF THE REPLY STATEMENT DATED 31.7.2006 IN ORIGINAL APPLICATION 163/2006 FILED BY THE RESPONDENTS/PETITIONERS HEREIN.
EXT. P3	: TRUE COPY OF THE M.A.NO.445/2006 FILED BEFORE THE TRIBUNAL.
EXT. P4	: TRUE COPY OF THE M.A.NO.446/2006 FILED BEFORE THE TRIBUNAL.
EXT. P5	: TRUE COPY OF THE REPLY STATEMENT DATED 2.9.2006 FILED IN M.A.NO.446/2006 BEFORE THE C.A.T ERNAKULAM BENCH IN O.A.NO.163/2006.
EXT. P6	: TRUE COPY OF THE ORDER DATED 21.9.2007 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH IN OA.NO.163/2006.
EXT. P7	: TRUE COPY OF THE RECRUITMENT RULES PUBLISHED AS PER NOTIFICATION F.N.2/8/93-GENL.(1) NO.46 VOL.XXIX DATED 1.2.1994.
EXT. P8	: A TRUE COPY OF THE ORDER F.NO.18/44/90-EDN. DATED 6.10.1992.
RESPONDE	NTS' EXHIBITS :

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EXT.P7(A): TRUE COPY OF THE ORDER DATED 77.2009 IN OA.NO.477/2008
OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.

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//TRUE COPY//

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P.S. TO JUDGE

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mbr/

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P.R. RAMACHANDRA MENON &

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ANIL K. NARENDRAN, JJ.

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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Dated this the 26^th July, 2016

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JUDGMENT

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P.R. Ramachandra Menon, J.

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The challenge is against the verdict passed by the CAT, directing the petitioners/Lakshadweep Administration to take up

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the question of regularisation of the applicants (who are working as Post Graduate Teachers in the schools belonging to the Administration on contract basis), with the Ministry of Human Affairs as done in the case of Trained Graduate Teachers in 1998, for taking a policy decision in respect of such persons who have been continuously working for a period of more than 'two' years on regular basis, even if their initial appointment was

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based on contract basis . It has also been observed that the

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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recruitment rules may be reviewed to enable regular appointment of qualified personnel, irrespective of nativity, at least for sometime more, (in the light of observations made therein) and till a final decision is taken as aforesaid, the applicants have been ordered to be continued in the post, on the same terms and conditions as stipulated in the contract and that their services shall not be dispensed with in the meanwhile.

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W.P.(C)No.34762 of 2007 is treated as the lead case

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and a copy of the order passed by the Tribunal in this regard has been produced as Ext.P6, which is under challenge therein. The other cases are virtually in relation to extension of benefits flowing from Ext.P6 order passed in O.A.163 of 2006 to the concerned applicants as well. The parties and proceedings are referred to, as given in W.P.(C)34762 of 2007, except where it is separately mentioned in the given context.

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O.A.163 of 2006 was filed by six applicants who

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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belonged to the mainland (in short mainlanders, not being the islanders). Pursuant to the notification issued by the Lakshadweep Administration for appointment to the post of Post Graduate Teachers in the educational institutions belonging to the Administration, they applied for the post and on coming out successful in the process of selection, they were appointed on 'contract basis', as per the terms and conditions stipulated in the appointment orders. A copy of the appointment order dated 15.10.2003 has been produced as Annexure A1. By virtue of the terms of appointment, they were to continue till 31.12.2003 or till regular hands joined duty, whichever was earlier.

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It has to be borne in mind, that the appointment on 'contract basis' was being effected by the Administration in the context of de-linking Pre-degree from colleges. There was only one college in the Union Territory of Administration and pursuant to de-linking of Pre-degree, the junior lecturers appointed in the

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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college had to be shifted to the 'Plus 2' segment in various schools. The vacancies in the relevant disciplines were sought to to be filled up by taking up the matter before the controlling Ministry. The Ministry, however did not grant en-bloc sanction, but for passing different orders at different points of time, providing sanction to fill up the regular posts to a lessser extent. The Administration conducted regular selection in respect of such sanctioned posts and Teachers were appointed accordingly. But considering the number of schools and students, it was very much obligatory for the Administration to ensure that the students were not adversely affected and to meet the need of the hour, the Administration was constrained to make appointment on 'contract basis'. It was accordingly, that the applicants also came to be appointed as aforesaid.

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The applicants approached the Tribunal by filing O.A.No.163 of 2006, to direct the respondents to regularise

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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their service as Post Graduate Teachers in the Department of Education in the Union Territory of Lakshadweep with all consequential benefits and such other reliefs. It was contended by them, particularly in paragraphs 8 and 9 of the O.A., that as per the Lakshadweep Education Department (Post Graduate Teacher-Group B) (Non Gazetted) Recruitment Rules, 1993, as amended by Notification dated 18.03.2000, 50% of the vacancies were to be filled up by 'Direct Recruitment' and the remaining 50% by 'Promotion' and failing both, by 'Deputation' including short term contract. It is also pointed out that the Ministry (MoPT) vide letter No. 12016/1/99-ESTT(L) dated 07.05.1999 had clarified that the appointment on 'contract basis' was a method of recruitment and could be resorted to, when sanctioned posts were available and Recruitment Rules provided for the same.

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A detailed reply statement was filed from the part of the

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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Administration resisting the claim for regularisation raising various contentions. It was also asserted therein that as per Ext.P7 Recruitment Rules, 50% was by Direct Recruitment and the remaining 50% was by 'Promotion' and failing both, it was to be filled up by 'Deputation'. The words “ including short term

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contract” as given by the applicants in paragraph 8 of the O.A. showing it also as a method of recruitment, was a contribution of the applicants themselves and that the same was never part of the rules (paragraph 8 of Ext.P2 reply statement).

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According to the petitioners/Administration, this vital aspect was never considered by the Tribunal, who passed Ext.P6 order providing for regularisation of the applicants as aforesaid, also with a direction to amend the recruitment rules, which is per se wrong and unsustainable in all respects, and contrary to the law laid down by the Apex Court in Secretary, State of Karnataka and others vs. Umadevi (3) [ ( 2006) 4 SCC 1] and

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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several other verdicts. It was also contended, with reference to the rulings rendered by the Apex Court, that no power or jurisdiction is vested with the Tribunal to direct the Administration/Legislature to formulate or amend the recruitment rules, that too, in a particular manner and that, no writ will lie in this regard, as made clear by the Apex Court in AIR 1992 SC 1546 . Reliance is also sought to be placed on the verdicts passed by the Supreme Court in State of Rajasthan and others vs. Daya Lal and others [ (2011)2 SCC 429 ], Satya Prakash and others vs. State of Bihar and other s [ (2010) 4SCC 179] , Official Liquidator vs. Dayanand and others [ (2008)10SCC 1 ], Asif Hameed vs. State of J & K. (AIR 1989 SC 1899) , B.N.Sinha vs. Union of India ((1998) 3 SCC 157) , Harminder Kaur and others vs. Union of India and others [ (2009)13 SCC 90] , State of Karnataka and others vs. M.L. Kesari and others [( 2010)9 SCC 247 ] with regard to

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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scope of interference by Court, on the question of regularisation of employees and with regard to the power of Court to direct the Legislature to legislate upon a subject.

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Mr.Abraham John, the learned Counsel appearing on behalf of the party respondents/claimants in W.P.(C)No.34762 of 2007 submits that the said respondents were actually appointed when the Administration was in dire necessity to have Teachers for taking classes to the students in the concerned schools. The Administration had also admittedly alerted the Ministry, as to the number of vacancies available, seeking for their formal sanction (to be given by the controlling Ministry, though the Lakshadweep Administration itself was the employer, being a Union Territory administered by the Administrator). The Ministry gave formal sanction to fill up the vacancies as intimated at different points of time, instead of granting permission en bloc , which could not have placed any hurdle against the rights of the applicants to get

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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their service regularised. It was also pointed out that the applicants had undergone full-fledged new process of selection and were selected accordingly, though the initial appointment was on 'contract basis' as borne by Annexure -A1. In so far as the regular appointment was also possible to be channelised through contract appointment, there is nothing wrong on the part of the Tribunal in having ordered the matter to be considered by the Ministry; and that the observations made by the Apex Court in Umadevi's case or other judgments sought to be relied on from the part of the petitioners/Administration can in no way adversely affect the rights of the applicants in the said circumstances. It is further submitted that there is no dispute with regard to the scope of interference to be made by Courts in directing the Legislature to legislate or to amend the recruitment rules. In the instant case, no such positive direction has been given by the Tribunal and the only direction given to the

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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Administration is to take necessary steps to bring the facts to the notice of the Ministry, to take a 'policy decision' for settling the grievances of the applicants; simultaneously alerting the petitioners that, the Administration may amend the recruitment rules to an appropriate extent. The only tangible relief granted to the applicants is that, they have been permitted to continue on 'contract basis' till a final decision is taken as aforesaid and that's all.

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Yet another aspect to be noted is that,the Lakshadweep Education Department(Post Graduate Teacher Group 'B') (Non-Gazetted) Recruitment Rule, 1993 were amended pursuant to the Government of India clarification dated 07.05.1999 , as per the proceedings dated 18.03.2000 , as averred in paragraphs 8 and 9 of the O.A. This being the position, the very foundation of the case projected by the petitioners to have the order of the Tribunal challenged before this Court

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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crumbles down and no interference is warranted, submits the learned counsel for the respondents/applicants.

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The factual position involved in O.P.(CAT) 50 of 2012

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arising from the O.A. 181 of 2015 is almost similar . The prayers in the O.A. were to declare that the applicant was entitled to be appointed as Post Graduate Teacher in Malayalam for the academic year 2015-16. Challenge raised was against Annexure-A10 order, whereby appointment was given in favour of the 4^th respondent. The relative rights between the applicant and the fourth respondent before the Tribunal (who happens to be the petitioner in this Original Petition) came to be decided by the Tribunal by passing Ext.P1 order, whereby the selection and appointment of the 4^th respondent therein, i.e., the present petitioner, was set aside and direction was given to the second respondent/Administrator to pass consequential orders. The petitioner herein is a 'mainlander', who got married to an

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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'islander' and she had scored 59.62% marks, whereas the applicant in the O.A., who is an islander had scored 64.18% marks. A declaration was made in Ext.P1 that the petitioner (the 4^th respondent in the O.A.) being not an 'islander' is not entitled to be selected to the post in question. The Original Petition is filed in the said circumstance, seeking to set aside Ext.P1 order; also pointing out that she is the person who is actually entitled to have similar relief as granted in O.A.163 of 2006. The prayer in this regard is sought to be resisted by the contesting respondent, who points out that she is the deserving hand to get the benefit of regularisation, if at all any.

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The prayers raised in the O.A. No.181 of 2015 are as follows:

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i) call for the records leading to issuance of Annexure A10 order issued in favour of 4^th respondnet. ii) declare that applicant is entitled to be appointed as Post Graduate Teacher (Malayalam) on contract basis for the year 2015-2016 pursuant to

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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Annexure A1 Notification read with Annexure A2 Final List against 8^th vacancy.

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iii) Declare that annexure A10 is unsustainable in the eyes of law

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iv) issue appropriate order or direction quashing Annexure A10.

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v) Issue appropriate order or direction to the 3^rd respondent to issue necessary orders of appointment to the applicant as Post Graduate Teacher (Malayalam) for the academic year 2015-2016 against 8^th vacancy notified within a reasonable time.

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vi) issue such other appropriate order or direction as the Hon'ble Tribunal may deem fit and necessary in the interest of justice and fair play; AND

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vii) grant cost of this Original Application.”

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The operative portion of Ext.P1 judgment is as follows:

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“It is the admitted case that the 4^th respondent secured only 59.62 percentage of marks and the applicant scored 64.18 percentage of marks. Not only that the 4^th respondent is not an islander and as such she is not entitled to be selected. Applicant is an Islander. On both grounds the applicant should have been selected against the 8^th post notified by the 2^nd respondent. 4^th respondent

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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cannot resist the claim of the applicant projecting Annexure A3 order to which the applicant was not a party. Therefore, we have no hesitation to hold that the selection and appointment of the 4^th respondent is illegal. It is hence set aside. Consequent orders shall be passed by the 2^nd respondent within one month from the date of receipt of the copy of this order. “

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The prayers raised in this Original Petition (O.P.(CAT)No.50

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of 2016) are to the following effect:

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“a) call for the records leading to the issue of Exhibit P1 and quash the same duly dismissing the O.A No.181/00074/2015 on the files of the learned Central Administrative Tribunal, Ernakulam Bench;

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b) Award costs of and incidental to this Original Petition; and

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c) pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case. ” .

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Going by the prayers, it is seen that the matter has virtually

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become 'infructuous' as the selection concerned was in respect

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of the year '2015-2016' and nothing more. But in view of the

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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declaration given by the Tribunal as per O.A.163 of 2006, the right to continue on contract basis and the benefit of regularisation, if at all ordered by the Ministry (pursuant to the verdict passed in O.A.163 of 2006) will be a matter of relevance, to be considered and as such, this matter is also heard along with

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other cases.

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Coming to W.P.(C)No.21568 of 2009 and 36213 of

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2009 , they arise from the very same cause of action, i.e., by virtue of the order passed by the Tribunal in O.A. No.19 of 2007. The prayers in the said O.A. are as follows:

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“i) quash Annexure A19

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ii) to declare that the applicant continues in service on the basis of his appointment as per Annexure A1 order with all consequential benefits and to direct the respondents to grant him all consequential monetary benefits and continuingly of service

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iii) to direct the respondents to regularise the services of the applicant and permit him to continue either as Lecturer or Post Graduate Teacher in Physics under

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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the 2^nd respondent.

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iv) grant such other reliefs as may be prayed for

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and the court may deem fit to grant and

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v) grant the costs of this Original Application.”

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The operative portion of the judgment as it appears in paragraph 12 is to the following effect:

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“Applicant has prayed for quashing of Annexure A-19 communication whereby this request for regularisation has been rejected. In view of our decision vide preceding paragraphs, applicant's past services can be taken into account only for age relaxation. However, with a view to secure ends of justice, invoking provisions of Rule 24 of the CAT Procedure Rules, we feel it appropriate that the orders passed in O.A.No.163/2003 may be followed in this case as well and corresponding directions given, notwithstanding the fact that the same are not the exact reliefs sought by the applicant. As this case also warrants review of Recruitment Rules for regular appointments of qualified personnel, the department may consider review of the same and till such time, such a review takes place and a decision arrived at, the applicant shall be allowed to continue on contract basis with attendant terms and conditions thereof. The respondents shall also permit the

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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applicant to compete in regular selection, if any, to be held for recruitment to the post of PGT , Physics, if he is otherwise eligible, granting age relaxation to the extent of the services rendered from 7.7.97 to 31.03.2006. Ordered accordingly. No costs.:

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The said verdict is sought to be challenged by the applicant, contending that the relief granted by the Tribunal is quite inadequate; in so far as it only directs consideration of the matter in relation to the benefits flowing from O.A. 163 of 2003. It is contended that the applicants' case stands entirely on a different footing. The challenge raised by the Administration against the very same verdict, as raised in W.P.(C)No.36213 of 2009 is against 'age relaxation' ordered to be given to the applicant.

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The petitioner in O.P.21568 of 2009 (i.e. the respondent in the other case W.P.(C)No.36213 of 2009) was in fact working as a Senior Observer (against a regular post) in the Observatory, at Amini. He is a Post Graduate in Physics and hence he had registered for better employment, in Employment Exchange.

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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While so, a person by name Venkitachalam, who was a lecturer in Physics, working in an educational institution of the Administration went on deputation. On notification, the petitioner's name was sponsored from the Employment Exchange for being appointed as Post Graduate Teacher in Physics and accordingly, he resigned from the regular post of Senior Observer and joined duty against the deputation vacancy, vide Annexue A1 in Ext.P2. The learned counsel for the petitioner employee submits that, lecturers in Lakshadweep Administration claimed UGC status from 2000-2001 pursuant to implementation of UGC with effect from 1996. The matter went even upto the Supreme Court and as per the verdict dated 29.04.1997, UGC scale was ordered to be paid to the lecturers, though the educational institution of the Lakshadweep Administration was only a junior college. It was pursuant to the same that Annexure-A2 order was passed giving the benefit to the requisite extent. Pursuant

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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to de-linking of Pre-Degree and transfer of lecturers of junior colleges to 'Plus 2' segment of the concerned schools, (as per Annexure-A3), the petitioner employee was also transferred. When the pay of the other lecturers was protected, it was not so in the case of the petitioner in W.P.(C)No. 21568 of 2009 and he

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was given only the pay of a 'Trained Graduate Teacher'.

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The main case projected from the part of the Administration is that the Tribunal, as per the order under challenge has directed the Administration to take necessary steps for regularising the service of the applicants and that too, by causing the relevant recruitment rule to be amended. It is also emphasised that the Tribunal was virtually sought to be misled by the applicants, to have passed such an order, by wrongly quoting the recruitment rules in paragraph 8 of the OA., whereby the words “.. including short term contract” were also added as an alternate mode of recruitment, in the case of any failure in

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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respect of clauses (1) and (2), i.e., 50% by Direct recruitment and 50% by Promotion. This Court finds it difficult to draw any such inference for various reasons as given below:

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At the very outset, it is to be noted that, no positive direction has been given by the Tribunal to regularise the service of the applicants, stand contrary to the law laid down by the Apex Court in Umadevi's case (cited supra) and such other binding precedents. So also, there is no positive direction to amend the Recruitment Rules by the Lakshadweep Administration, so as to meet the requirements. The operative portion of the Order as contained in paragraph 11 is reproduced below:

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“11. We are , therefore of the considered view that the Union Territory Administration shall take up the matter with the Ministry of Home Affairs as had been done in the case of Trained Graduate Teachers in 1998, for taking a policy decision in the matter to consider the appointment of those Post Graduate Teachers, who have

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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been continuously working for a period of more than two years on a regular basis, even if their initial

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appointments were made on contract basis. The Recruitment Rules may also be reviewed to enable regular appointment of qualified personnel irrespective of nativity at least for some time more, in the context of our observations above. Till such consideration is made and a final decision is taken, we direct that the applicants herein shall be allowed to continue on the terms and conditions as stipulated in the contract and their services shall not be dispensed with till such a final decision is taken.”

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From the above, it is quite obvious, that referring to the sequence of events and the factual situation prevailing in the islands; and also taking note of the similar instances as pursued earlier (based on the instruction given by the Government in the year 1998), the Tribunal only directed the matter to be taken up by the Administration before the Ministry, for taking a 'policy decision' and that's all. The only concession given by the Tribunal is by enabling the applicants to have the benefit of 'status quo',

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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i.e., by permitting to continue in the posts on 'contract basis', till such a decision is taken by the Ministry. There is no declaration to the effect that the applicants were entitled to have the benefit of regularisation; whereas the direction is only to have the matter considered by the Ministry, as it may require a 'policy decision'.

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As a matter of fact, the employer is none other than the Lakshadweep Administration and the clearance to be obtained from the Ministry is only by virtue of the fact that it happens to be the controlling Ministry, giving appropriate instructions as to the manner of administration required. In so far as there is no direction to grant regularisation, but for the direction given to the Lakshadweep Administration to take up the matter before the Ministry for a 'policy decision', the Administration need not feel aggrieved in any manner with regard to such directions. There cannot be any dispute as to the position prevailing on date, by

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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virtue of the declaration of law made by the Apex Court in Umadevi's case. There cannot be any regularisation of temporary hands or contract employees, dispensing with the means of regular selection and appointment, adversely affecting the rights and interests of other eligible hands who are waiting in

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the queue. The only benefit given by the Apex Court as discernible from paragraph 53 of the verdict in Umadevi's case is to consider the case of persons who had already rendered 10 years or more service and were working against sanctioned posts, if they were otherwise eligible/qualified. The Apex Court has subsequently made it clear, that there is an ocean of difference between 'illegal appointments' and 'irregular appointments'. In the case of 'illegal appointments', it is regarded as a back-door entry, without any regard to the existence of actual vacancies, relevant qualification and such other basic norms; whereas in the case of 'irregular

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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appointments' , it is only by way of accommodating the otherwise qualified hands against sanctioned posts, though the process of recruitment was not regular.

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The learned Standing Counsel for the

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petitioner/Administration is perfectly justified in contending that regularisation cannot be ordered as a matter of course, which otherwise will violate the law declared by the Apex court in Umadevi's case. The learned counsel is further justified in saying that there cannot be any positive direction to the Legislature/Executive to form, amend or revise the recruitment rules, which comes within the prerogative of the Legislature/Executive. The factual position in the instant case has to be examined in the above background; to find whether any distinction is there.

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It has been the consistent case of the applicants that

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they were selected and appointed pursuant to the proceedings of

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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a duly constituted selection committee and there is no dispute from the part of the Administration in this regard. Even going by the pleadings of the Administration, it had to tide over the situation, pursuant to de-linking of pre-degree from the one and only college in the Islands. Accordingly, based on the verdict passed by the Supreme court in C.A.No.913 of 1987, the lecturers who were attached to the junior college were ordered to be accommodated in the higher secondary segment of the schools and they were permitted to have protection of higher scale; making it clear that they would be treated as a dying cadre . There were as many as 11 schools in the Islands and 'Plus 2' segment had to be provided in all these schools to protect the interest of students; which made it inevitable to appoint sufficient hands to take classes. Even though the requisite extent of vacancies and the need to fill up those vacancies were brought to the notice of the Ministry, requesting for formal sanction, the

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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sanction did not come 'en bloc' but by stage by stage. In the said circumstance, there was no other alternative for the Administration, but to engage Teachers on 'contract basis' and renewing the contract every year, by way of appropriate proceedings.

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The very terms contained in the appointment order like Annexure-A1 produced in W.P.(C)No.34762 of 2007, clearly show that the appointment on contract basis was till 31.12.2003 or till a regular hand joined duty . The necessity to have engaged a regular hand and the need to fill up the vacancy on a regular basis, is discernible from the said proceedings itself. In other words, since the Administration did not have a case that the applicants were not duly qualified; since it did not have a case that, no regular appointment was necessary; that no regular vacancies were available; that the applicants were not selected pursuant to proper selection

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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exercise by the concerned Committee and further since the Administration did not have a case that qualified hands were available to be appointed or to be promoted, the Administration cannot be heard to say that the requirement was only a temporary one.

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The next question to be considered is whether the persons who came to be appointed like the applicants, on 'contract basis' have got any right to be considered for regularisation. The Lakshadweep Education Department (Post Graduate Teacher Group 'B')(Non-Gazetted) Recruitment Rules,1993, according to the applicants, were amended in the year 2000, as per which, engagement on 'contract basis' is also a stream to be considered for regular appointment, as contended in paragraph 8 of the O.A. This is vehemently opposed by the Administration in the reply statement, stating that it is not so and

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that the words “ including short term contract ” were

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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consciously added by the applicants in paragraph '8' of the O.A. to mislead the Tribunal. It is because of such interpolation/ misdescription of the rules, that the Tribunal came to direct that the matter to be taken up before the Ministry for regularisation.

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As mentioned already, the Ministry as per the proceedings bearing No.12616/1/99.Estt.(L) dated 07.05.1999 had instructed the Administration (as contained in paragraph 9 of the O.A.) that appointment on short term contract can be considered for regularisation subject to availability of necessary provisions in the Recruitment Rules. Obviously, no such provision was available in 1993 rules, a copy of which has been produced by the Administration as Ext.P7 (item 11 of AnnexureP7). But pursuant to the Ministry's letter dated 07.05.1999, it appears that the Recruitment Rules were amended by the Administration, as per the proceedings in the year 2000, incorporating the words “ including short term contract ” also

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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as part of clause (iii) as extracted in paragraph '8' of the O.A.

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Existence of such an amendment is seriously disputed by the Administration. But it is to be noted that a copy of the amendment has been produced as part of Ext.P7 in W.P.(C) No.12060 of 2010 , which has been filed by the mainlanders challenging the act on the part of the Administration in restricting the appointment to the local people/islanders providing 100% reservation, which is stated as against the constitutional mandate. The aforesaid case was also being tagged on with these cases and was listed before this Court on the last date of hearing; but subsequently based on the submissions of the learned Standing Counsel for the Administration, it came to be adjourned, to be listed after two months, based on the contention that question/scope of appropriate extent of reservation was pending before the Government. On going through the files of the said case and on going through the

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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contents of Ext.P7 therein, the pleadings raised by the applicants in paragraph '8' of the O.A. (in W.P.(C)No.34762 of 2007) that the rules were amended in the year 2000 appears to be perfectly valid and proper, which is not specifically denied or disproved by the Administration in the reply statement or elsewhere in W.P.(C)

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12060 of 2010. It is despite the factual position as to the amendment of the rules in the year 2000 as aforesaid, that the officers of the Administration showed the temerity to file a reply statement in O.A.163 of 2006 (paragraph 8), to the effect that such an amendment was not in existence and that the addition of words “including short term contract” was a contribution of the applicants with intent to mislead the Tribunal.

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The above unconscionable mistake has been repeated by the Administration in their pleadings in W.P.(C)No.34762 of 2007 as well, which forms the basic contention/ground raised to intercept the verdict passed by the Tribunal. In view of the fact

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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that such an amendment was there in the year 2000, enabling short term contract recruitment as well, as part of regular process of selection, and since such a course was permissible in view of the 'policy decision' taken by the Government, as stated in paragraph 9 of the O.A., also with reference to the course of

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action as ordered in the year 1977 (as discernible from Annexure- R7), the Tribunal rightly thought it fit and proper to cause the matter to be considered by the Ministry, for taking a 'policy decision' in the instant cases as well. It is only in the said circumstance, that the Lakshadweep Administration has been directed to take necessary steps to bring the matter to the notice of the Ministry and to finalise the same in accordance with law as stipulated in paragraph 11 and that's all. The stand taken by the Administration/its officers raising a pleading without any regard to existence of Ext.P7 in W.P(C)No.12060 of 2010 as to the amendment of the Recruitment Rules brought

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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about in the year 2000 and seeking to contest the matter to the contrary, virtually amounts to misrepresentation. The course of action cannot but be deprecated in the strongest possible words; more so, when the Administration has to act as a 'model employer' in all respects and have a duty to verify the factual particulars with precision and accuracy. When the Administration says that they were not aware of their own amendment, it only reflects a sad state of affairs.

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With regard to the alleged direction stated as given by the Tribunal to amend the Recruitment rules, what has been stated in paragraph 11 of Ext.P6 order( W.P.(C)No.34762 of 2007) is only that the Administration may review the recruitment rules, permitting recruitment of mainlanders, i.e., without any regard to nativity, at least for a considerable period. The circumstance under which the said observation has been made, is discernible from the previous paragraph of the order. The said

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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observation does not amount to any direction at all. Even otherwise, whether any Recruitment rule could have been framed by the Government/Administration, earmarking 100% reservation in respect of the post in question to the islanders, excluding all others from the zone of consideration and whether such Rule be in conformity with the Constitutional mandate, even on giving the widest explanation to the term 'reservation', envisaged in the Constitution of India is a different matter to be considered (which issue is pending consideration in W.P.(C) No.12060 of 2010) and hence we are not dealing with the said issue, for the time being.

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However, it will be worthwhile to note, whether any such stipulation is there in the existing rules(Ext.P7)so as to provide/earmark the recruitment and field of consideration only to the islanders. Admittedly, the Rule applicable is the Lakshadweep Education Department (Post Graduate Teacher

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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Group B)(Non Gazetted)Recruitment Rules, 1993 and the post in question is evidently a Group B post. The stand taken by the Administration, as disclosed from their reply statement is that, the Ministry has instructed the Lakshadweep Administration that, considering the topography and peculiar features in the islands, as far as possible Group 'C' and 'D' posts may be reserved to be filled up by the islanders/locals. This by itself shows that such course of action was intended only in respect of Group 'C' and 'D ' posts which are in the lowest levels and not in respect of any Group 'B' post as involved herein . That apart, nowhere in Ext. P7 Rules , is there a stipulation that recruitment has to be made solely from the islanders. In so far as there is nothing in Ext.P7 rules ( as amended in the year 2000, as brought about in W.P.(C)No.12060 of 2010), the observation made by the Tribunal as to the feasibility of amending the recruitment rules is rather irrelevant or insignificant. As such, the idea and understanding of

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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the Administration with regard to the so called direction given by the Tribunal, is also of no consequence and does not persuade this Court to call for interference and hence W.P.(C)No.34762 of 2007 is liable to be dismissed.

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O.A.No.19/2007 was filed by the petitioner in W.P(C) No.21568 of 2009 seeking for the benefit of regularisation in service and to permit him to continue as lecturer or Post Graduate Teacher in Physics in the Lakshadweep Administration. The petitioner/applicant in the said writ petition was originally working as a Senior Observor in the Observatory at Amini, holding a regular post. By virtue of the Post Graduation in Physics, he was eligible to be appointed in better/higher posts and had registered for better employment in the Employment Exchange. While so, one Venkitachalam, who was working as a lecturer in Physics in the junior college of the Administration went on deputation, whereupon the name of the said

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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petitioner/applicant was sponsored from the Employment Exchange. Accordingly, he resigned from the post of Observor (Regular post) and was appointed against a deputation vacancy. Later, pursuant to the de-linking of Pre-degree from the college and starting of 'Plus 2' level/higher secondary schools, the posts came to be transferred to such schools and the pay of the lecturers was protected by virtue of the order passed by the Supreme Court, treating them as a dying cadre. Unlike this, the pay of the petitioner/applicant in the instant case was only that of a 'Trained Graduate Teacher' and not that of a lecturer and he was drawing the salary accordingly.

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While so, the person by name Venkitachalam came back to join duty in the school, whereupon Annexure-A4 notice (dated 27.11.2001) was issued to terminate the service of the petitioner/applicant. In the meanwhile, as per Annexure-A5, Mr. Venkitachalam was posted as an 'officer on special duty' and in

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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the said circumstance, as per Annexure-A6 order dated 11.12.2001, Annexure-A4 notice issued to the petitioner/applicant was withdrawn and the petitioner was permitted to continue in service; who filed several representations as Annexures-A7/A8 seeking for regularisation in service. As per Annexure-A9, the

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petitioner was even sent for in-service training. While so, Venkitachalam retired from the service on 31.03.2006. As per Annexure-A10 order dated 10.03.2006, the Principal of concerned school sought for some clarification from the Director of Lakshadweep Administration, referring to the retirement of Mr.Venkitachalam from the post, where the petitioner/applicant was stated as continuing on 'ad hoc service'. As per AnnexureA11 dated 19.04.2016, the principal wrote again to the Director of Education as to the further course of action, wherein continuance of the petitioner/applicant for more than 8 years was also referred to. The Directorate permitted the

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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petitioner/applicant to continue 'till re-opening of the school' and thereafter, he was not permitted to rejoin on duty, which led to the filing of O.A. before the Tribunal. The said O.A. was disposed of, as per Annexure-A17 dated 01.09.2006 directing the respondents to consider the matter. The petitioner in the meanwhile was permitted to work as Trained Graduate Teacher (Physics) on 'contract basis' as per Annexure-A18 dated 13.11.2006. But later, the representation preferred by the petitioner came to be rejected as per Annexure-A19 (Ext.R1(a) in W.P.(C)No.21568 of 2009), simply stating that Mr. Venkitachalam was continuing as a lecturer, which was to be treated as a 'dying cadre' and by virtue of the retirement of Venkitachalam, there was no post to accommodate the petitioner/applicant. This was sought to be challenged by filing O.A.19 of 2007, which led to Ext.P1 order passed by the Tribunal.

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As per Ext.P1 order, the Tribunal ordered extension of

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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similar benefits as granted to the applicant in O.A.163/03, i.e., causing the Administration to take up the matter before the Ministry to take a 'policy decision' for regularisation and to permit the applicant to continue on contract basis till such time. The Tribunal also permitted the applicant/petitioner to participate in the regular process of selection, pursuant to the notification granting the benefit of age relaxation. The benefit of continuance in service could not be availed by the petitioner as he was already out having not been permitted to join duty on re-opening of the school. The relief given by the Tribunal was quite inadequate and unsatisfactory and hence under challenge in W.P. (C)No.21568/2009 preferred by the petitioner/applicant. At the same time, the Lakshadweep Administration has also sought to challenge the said verdict, on being aggrieved of the 'age relaxation' given to the petitioner and on such other grounds by way of W.P.(C)No. 36213 of 2009.

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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Mr.M.R. Hariraj, the learned counsel appearing for the petitioner/applicant submits that the case of the

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petitioner/applicant stands entirely on a different footing and that he was the only Post Graduate Teacher in Physics available in the islands, being an 'islander' and that he was duly qualified

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to be appointed against the post then and there on a regular basis. In fact, the petitioner/applicant was holding a regular post of Observer in the Observatory at Amini and it was only to facilitate to have better employment, pursuant to sponsoring from Employment Exchange, that he was compelled to resign from the regular post and joined the service as a Post Graduate Teacher (Physics) on contract basis. By virtue of the credentials of the applicant, the Tribunal ought to have ordered regularisation. The prayer is vehemently opposed by the learned Standing Counsel for the Lakshadweep Administration, who is the petitioner in the other case. Similar grounds as raised in W.P.(C)

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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No.34762 of 2007 have been advanced and addressed. The learned counsel also submits that no direction could have been given by the Tribunal to regularise the service of the applicant, in view of the law declared by the Supreme Court in Umadevi's case and such other verdicts as referred to herein before. Similarly, no direction ought to have been passed by the Tribunal to amend the recruitment rules, as no such power is vested with the Tribunal in view of binding precedents

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After hearing both the sides, this Court finds that, by virtue of the law declared by the Supreme Court, regularisation cannot be granted as a matter of course, but under exceptional circumstances. There is no positive direction given by the Tribunal to regularise the service of the petitioner/applicant and there is no direction to amend the Recruitment Rules as well, but for the desirability expressed with reference to the course and events and the matter has been directed to be taken up by the

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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Administration before the Ministry, who is to pass final orders, taking it as a matter of 'policy decision'. The issue involved in these two cases stands squarely covered by the discussion made by this Court in the previous paragraphs in relation to W.P.(C) No.34762 of 2007 and the same are to be applied here as well with equal force. This being the position, no interference with the verdict is warranted in these two writ petitions and they are to be dismissed accordingly.

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In so far as O.P.(CAT)No.50 of 2016 is concerned, the petitioner/applicant was appointed as a Post Graduate Teacher (Malayalam) in the Govt.Higher Secondary School at Agatti, under the Lakshadweep Administration, right from the year 2003; pursuant to the selection conducted by the competent authority/selection committee. The engagement was on 'contract basis' and she moved the Administration for regularisation of her service. Finally, she moved the Tribunal as well, by filing O.A.

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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477 of 2008, which was disposed of as per Annexure-A3 judgment dated 07.07.2009, extending similar benefits as flowing from the verdict passed in O.A.No.163/2003. The said order has become final having not been challenged by the Administration. While so, the Lakshadweep Administration issued a fresh notification for selection and appointment to the post in question, on 'contract basis', for the year 2015-16. In the process of so called selection, the first respondent in this Original Petition was found as having more marks than the petitioner in the said case. But no appointment was given to the first respondent and the petitioner herein was permitted to continue, by virtue of the verdict passed by the Tribunal earlier, ordering the claim for regularisation to be considered by the Ministry permitting the petitioner/applicant to continue in service on the existing terms till such time. This was sought to be challenged before the Tribunal by filing O.A.No.181 of 2015. The

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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Tribunal observed that the applicant in the said case, ie., the first respondent herein, was having better marks; that she was to be treated as a 'local candidate' and that she belonged to Scheduled Tribe. The petitioner herein, who was shown as 4^th respondent in the said O.A. was a 'mainlander' belonging to 'OBC' category and it was held that, marriage with an 'islander' and the continued residence in the island would not make her eligible to be called as an 'islander'. Since the notification was for the purpose of recruitment from 'local candidates', there was no right for the 4^th respondent to contest for the post and it was declared accordingly, directing the Administration to appoint the applicant in O.A.No.181 of 2015. The said verdict is under challenge in O.P.(CAT)No.50 of 2016 preferred by the applicant in O.A.No.477 of 2008, contending that her rights and liberties having already been declared by the Tribunal vide Annexure-A3 order, the same could not have been watered down by the

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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Tribunal as per the subsequent order in O.A.No.181 of 2015. It is contended that the petitioner is entitled to continue till final orders are passed by the Ministry, pursuant to Annexure-A3 order in O.A.No.477 of 2008, as extended to the applicants in O.A.No.163 of 2006.

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The learned Standing Counsel for the Administration sought to oppose the reliefs sought for adopting the very same submissions and contentions as raised in W.P.(C)No.34762 of 2007. According to the learned Counsel for the 4^th respondent, since the Tribunal has declared the concerned applicants' eligibility to be appointed in O.A.No.181 of 2015, her claim has to be considered for regularisation.

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The prayers raised in O.A.No.181 of 2015 are in the following terms:

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“i. Call for the records leading to issuance of AnnexureA10 order issued in favour of 4^th respondent. ii. Declare that applicant is entitled to be appointed as

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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Post Graduate Teacher (Malayalam) on contract basis for the year 2015-2016 pursuant to Annexure-A1 Notification read with Annexure-A2 Final List against 8^th vacancy, iii. Declare that Annexure-A10 is unsustainable in the eyes of law;

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iv. Issue appropriate order or direction quashing Annexure-A10;

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v. Issue appropriate order or direction to the 3^rd respondent to issue necessary orders of appointment to the applicant as Post Graduate Teacher (Malayalam) for the academic year 2015-2016 against 8^th vacancy notified within a reasonable time.

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vi. Issue such other appropriate order or direction as the Hon'ble Tribunal may deem fit and necessary in the interest of justice and fair play;

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AND

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vii. Grant cost of this Original Application.”

¶242

The directions given by the Tribunal as per Ext.P1 order was to appoint the said applicant against the post in question on contract basis for concerned period. The Tribunal itself has observed in Ext.P1 order that the appointment of the 4^th

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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respondent on the earlier instance was only for a particular period, ie., for one academic year 2015-16, which is equally applicable to the case of the applicant in O.A.No.181 of 2015 as well. If this be the position, there cannot be any further claim for the applicant in O.A. 181/2015 to continue in service after the closure of the academic year 2015-16, as the academic year 2016-17 has already been started. As such, the relief granted in Ext.P1 itself has become 'infructuous' and similar is the position with regard to the reliefs sought for in the present O.P. as well. However, it has to be noted that there are some positive observations made by the Tribunal in Ext.P1 order as to the status of the 'mainlanders' to get appointed under the Administration with reference to the distinction between the 'mainlanders' and 'islanders', as if the selection and appointment had to be confined only for local recruits. (The Recruitment Rules, as already dealt with in W.P.(C)No.34762 of 2007 do not provide

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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for exclusive reservation of a ' Group B' post to be filled up by locals). The issue with regard to the scope of Recruitment Rules, whether any recruitment rules or orders have been issued by the Ministry enabling the Group B post to be exclusively reserved for islanders, but for the instruction given by the Ministry to fill

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up the Group 'C' and 'D' posts, 'as far as possible ' from the

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locals/islanders and such other incidental issues have already been discussed in the previous paragraphs.

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Whether a 'mainlander' is entitled to be appointed or not or whether exclusive reservation to 'islanders' in respect of Group B post was possible or not, was not a point mooted before the Tribunal and as such, the observations made in this regard, in relation to the eligibility of the candidates concerned will adversely affect the rights and interests of the parties, more so when the issue is pending consideration in W.P.(C)No.12060 of 2010. In any view of the matter, in view of the reasoning

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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given by the Tribunal that the selection was only for a period of one academic year, the reliefs sought for in O.A.No.181 of 2015 and the directions given in this regard as per Ext.P1, can only be confined for one year. Even otherwise, the benefits already granted by the Tribunal as per Annexure-A3 could not have been watered down by the Tribunal, simply saying that the applicant in O.A.No.181 of 2015 was not a party to the said case. If the applicant in O.A.No.181 of 2015 was not a party and if the verdict passed by the Tribunal in O.A.No.477 of 2008 ( AnnexureA3 order) was standing detrimental to her rights and interests, the proper course of action for the aggrieved party was to cause the same to be reviewed or challenged by way of other appropriate proceedings. As such, this Court finds that Ext.P1 order can in no way further be operated in favour of the applicant in the said case, as against the right of the applicant in O.A. 477 of 2008, to continue in service 'on contract basis' and to get the

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W.P.(C)Nos.34762 OF 2007 , 21568 & 36213 of 2009 & O.P.(CAT)No.50 of 2016

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service regularised, if ordered to be so, in terms of the verdict passed in OA.No.163 of 2006.

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The crux of the discussions as above is that W.P.(C) Nos.34762 of 2007, 21568 and 36213 of 2009 are dismissed. O.P.(CAT) 50 of 2016 is disposed of.

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P.R. RAMACHANDRA MENON, JUDGE

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ANIL K. NARENDRAN, JUDGE

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