Petitioners challenging prospective regularization of their ad hoc service sought retrospective effect. Court held regularization is a concession and cannot affect rights of subsequent regular appointees, dismissing the petition.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938
WP(C).No. 4061 of 2011 (G)
PETITIONER(S):
1. B. SATHEESAN, 3RD GRADE OVERSEER, TRAVANCORE DEVASWOM BOARD, ASSISTANT ENGINEER'S OFFICE, KOTTARAKKARA.
2. R. ANILKUMAR, 3RD GRADE OVERSEER, TRAVANCORE DEVASWOM BOARD, ASSISTANT ENGINEER'S OFFICE, KOTTAYAM.
3. K.R. GOPAKUMAR, 3RD GRADE OVERSEER, TRAVANCORE DEVASWOM BOARD, ASSISTANT ENGINEER'S OFFICE, NILACKAL.
BY ADVS.SRI.B.GOPAKUMAR, SMT.CHINCY GOPAKUMAR.
RESPONDENT(S):
1. THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-1.
2. THE CHIEF ENGINEER (GENERAL), TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM-1.
3. G. MANOJKUMAR, AGED 40 YEARS, S/O.K.N. GOPALA KRISHNA PILLAI, RESIDING AT NILACKAL KRISHNAPRIYA, THONALLOOR, PANDALAM, PATHANAMTHITTA DISTRICT, (WORKING AS II GRADE OVERSEER, OFFICE OF THE ASSISTANT ENGINEER, DEVASWOM BOARD, THIRUVALLA).
WP(C).No. 4061 of 2011 (G)
4. K. HAREESHKUMAR, AGED 36 YEARS, S/O.C. KRISHNAN NAIR, 'SREYAS', POIKAKKADA, KODUVAZHANNOOR. P.O., PULIMATH (VIA), THIRUVANANTHAPURAM, (WORKING AS III GRADE OVERSEER, OFFICE OF THE ASSISTANT ENGINEER, DEVASWOM BOARD, VARKALA).
5. HARISH, AGED 30 YEARS, S/O.T.C. UNNIKRISHNAN NAIR, 'HARISREE', PATHIRAPPALLY. P.O., ALAPPUZHA. (WORKING AS III GRADE OVERSEER, OFFICE OF THE ASSISTANT ENGINEER, DEVASWOM BOARD, SABARIMALA).
6. ARUNKUMAR. A.R., AGED 27 YEARS, S/O.LATE C.ASHOK KUMAR, CHANDRAMANGALATHU VEEDU, T.C.NO.50/991, THALIYAL, KARAMANA. P.O., THIRUVANANTHAPURAM. (WORKING AS III GRADE OVERSEER, OFFICE OF THE ASSISTANT ENGINEER, DEVASWOM BOARD, SABARIMALA).
7. SREERAM. P.S., AGED 29 YEARS, S/O.SUBRAMANYA IYER, PULICKAL MADOM, THEKKENADA. P.O., VAIKOM. (WORKING AS III GRADE OVERSEER, OFFICE OF THE ASSISTANT ENGINEER, DEVASWOM BOARD, VAIKOM).
R1 & R2 BY ADV. SRI.P.GOPAL, SC. ADDL. R3 TO R7 BY ADV. SRI.K.R.RADHAKRISHNAN NAIR.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2016, THE COURT ON 25/11/2016 DELIVERED THE FOLLOWING:
rs.
WP(C).No. 4061 of 2011 (G)
APPENDIX
PETITIONER'S EXHIBITS:-
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S. TO JUDGE
rs.
ANU SIVARAMAN, J.
= == = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of November, 2016
JUDGMENT
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petitioners had sought creation of such posts, or their accommodation to the post of 3rd Grade Overseer in view of their service. They had approached this Court by filing an original petition seeking consideration of their claim for regularization. By an interim order in the said original petition, this Court had directed the consideration of the petitioner's claim for appointment against three leave vacancies. By Exhibits P1 and P2 orders dated 14.09.1999 and 17.09.1999 the petitioners were accommodated against the said leave vacancies of 3rd Grade Overseers. The original petition was disposed of by Exhibit P3 judgment on the following terms.
“If Devaswom Board has regular vacancies for the post of Overseers, we see no reason why petitioners should not be regularised as they were continuing for over ten years in service of the Board. We therefore, dispose of the OP with direction to the Devaswom Board to consider regularisation of the petitioners in service. If Overseer's post is not available on regular basis, the Board can consider petitioners for appointment to other suitable posts.”
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service against available vacancies, taking note of their long years of service. The belated order of regularisation, that too with effect from the date of joining service is, therefore, totally unsustainable. It is contended that the writ petitioners are entitled to regularisation as recommended in Exhibit P5, and to all service benefits on the said basis.
6.The learned counsel appearing for the respondent Travancore Devaswom Board would submit that the petitioners had preferred C.M.P.No.32789 of 1996 in O.P.No.3821 of 1990 which was the matter relating to administration of Travancore Devaswom Board, seeking regularisation in service. The said application was dismissed. It was thereafter the petitioners had preferred an original petition, seeking consideration of their claim for regularisation. O.P.No.24204 of 1998 was also filed without disclosing the fact of dismissal of the said C.M.P., and orders were obtained directing the consideration of their claim for appointment in leave vacancies. It is contended the petitioners have absolutely no claim for appointment in
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accordance with law, since regularisation is not a method of appointment contemplated in the recruitment process. Since the regularization of service itself was a concession extended to the petitioners, it is contented that, it can have only prospective effect.
7.The learned counsel appearing on behalf of the impleaded respondents would submit that his clients were appointed in accordance with law to open vacancies, which were in existence in the Board in 2005, at a time when the petitioners were working only on a provisional basis against leave vacancies on the strength of Exhibits P1 and P2 orders. Being ad hoc appointees, the petitioners would have no claim whatsoever against persons appointed on a regular basis through a proper selection procedure, even before the date of Exhibit P3 judgment. The regularization of the petitioners with effect from any earlier date would seriously prejudice the rights of the contesting respondents, it is contended.
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8.I have considered the contentions advanced on all sides. On going through the pleadings and the materials on record, I find that though the claim of the petitioners was directed to be considered by Exhibit P3 judgment. The claim was considered and ordered only by Exhibit P6 order. The contesting respondents, who had been appointed on a regular basis by Exhibit P4 in the year 2005, cannot be affected by the petitioners' regularization on the basis of Exhibit P3 judgment, which has been rendered only in the year 2008. Moreover, this writ petition was filed without impleading any of the persons who are likely to be affected by retrospective regularization of the petitioners. Even now, apart from the impleaded additional respondents, who have themselves come on the party array, it is not clear whether there are other persons whose rights would be affected if the petitioners are granted retrospective regularisation.
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Chief Engineer stating that the petitioners had continued against leave vacancies from 17.9.1999 and 7.6.2002 respectively. In the absence of any claim by the petitioners for regularization with effect from any anterior date, I am of the considered opinion that such recommendation cannot have any binding effect on the decision of the Board, which was the competent authority for considering the claim for regularization. Since the petitioners were only ad hoc appointees whose claim for regularisation had once been rejected by a Division Bench of this Court, I am of the opinion that their claim could, at best, arise only from 19.08.2008, the date of Exhibit P3 judgment. The said judgment was complied with and Exhibit P6 order was issued in December, 2010, regularizing the petitioners' service from the date of the said order. It is trite law that in the absence of a clear right for regularization in service with effect from an anterior date, an order of regularization, which is essentially a concession granted to ad hoc appointees, can have only prospective effect and such orders cannot affect the accrued rights of appointees
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in service who have been selected and appointed in accordance with law. In the above circumstances, I see no illegality or legal infirmity in the order of the Board regularising the services of the petitioners only prospectively.
The writ petition fails and is accordingly dismissed.
sd/- Anu Sivaraman, Judge
sj
3 issues framed by the court
Whether an order of regularization of ad hoc appointees can be retrospective when the claim was once rejected and other regular appointees have accrued rights.
Whether a recommendation for regularization from a specific date binds the competent authority.
Whether the impugned order regularizing the petitioners' service prospectively or retrospectively is legal.
B. Satheesan
R. Anilkumar
K.R. Gopakumar
The Travancore Devaswom Board
The Chief Engineer (General), Travancore Devaswom Board
G. Manojkumar
Anu Sivaraman
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
