Petitioner sought regularisation as a kung-fu instructor with over ten years service. Court held that sanctioned post requires competitive selection per rules; no automatic regularisation of daily wage employee without proper selection process.
Writ petition dismissed; petitioner directed to participate in selection process if post notified.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 1ST DAY OF NOVEMBER 2016/10TH KARTHIKA, 1938
WP(C).No. 4443 of 2016 (E)
PETITIONER :
XAVIER.T.J., S/O.JACOB, AGED 45 YEARS, THERMADAOM HOUSE, MANNALI P.O.,CHERANELLUR, VIA KECHERY,THRISSUR DISTRICT,PIN-680 501
BY ADVS.SRI.C.A.CHACKO
SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER
RESPONDENT(S):
1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF CULTURAL AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM-695 001
2. THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF CULTURAL AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM-695 001
3. JAWAHAR BAL BHAVAN, REPRESENTED BY EXECUTIVE DIRECTOR,
CHEMBUKKAVU,THRISSUR-680 020
4. THE CHAIRMAN (DISTRICT COLLECTOR), JAWAHAR BAL BHAVAN, CHEMBUKKAVU, THRISSUR-680 020
5. THE EXECUTIVE DIRECTOR,
JAWAHAR BAL BHAVAN, CHEMBUKKAVU,THRISSUR-680 020
R1 & R2 BY GOVERNMENT PLEADER SRI.S.KANNAN R3 TO R5 BY ADV. SRI.P.M.MANOJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
WP(C).No. 4443 of 2016 (E)
APPENDIX
PETITIONER(S)' EXHIBITS
| EXT.P1: | TRUE COPY OF CERTIFICATE OF REGISTRATION OF 3RD RESPONDENT |
|---|---|
| EXT.P2: | TRUE COPY OF BYE-LAWS OF 3RD RESPONDENT |
| EXT.P3: | TRUE COPY OF PETITIONER'S EXPERIENCE CERTIFICATE DATED 05.07.2003 AND 25.07.2004 |
| EXT.P4: | TRUE COPY OF RELEVANT PAGES OF SERVICE BOOK OF PETITIONER |
| EXT.P5: | TRUE COPY OF SALARY DETAILS OF STAFFS OF 3RD RESPONDENT |
| EXT.P6: | TRUE COPY OF NEWS ITEM REGARDING ELECTION OF PETITIONER AS THE BEST INSTRUCTOR. |
| EXT.P7: | TRUE COPY OF CERTIFICATE ISSUED FROM INTERNATIONAL UNIVERSITY OF HIGHER MARTIAL ARTS EDUCATION |
| EXT.P8: | TRUE COPY OF DETAILS OF CHILDREN STUDYING UNDER THE 3RD RESPONDENT |
| EXT.P9: | TRUE COPY OF CERTIFICATE ISSUED FROM NATIONAL BAL BHAVAN |
| EXT.P10: | TRUE COPY OF PROCEEDINGS OF 3RD RESPONDENT DATED 14.05.2011 |
| EXT.P11: | TRUE COPY OF COMMUNICATION DATED 08.05.2012 |
| EXT.P12: | TRUE COPY OF COMMUNICATION OF 3RD RESPONDENT DATED 27.03.2012 TO THE 2ND RESPONDENT |
| EXT.P13: | TRUE COPY OF REPRESENTATION DATED 20.11.2015 TO THE 2ND RESPONDENT |
| EXT.P14: | TRUE COPY GO(MS)NO.15/2016/CLAD DATED 21/4/2016. |
RESPONDENT(S)' EXHIBITS: NIL
/TRUE COPY/
P.A.TO JUDGE
sts
SHAJI P. CHALY, J.
W.P.(C). NO. 4443 OF 2016
Dated this the 01st day of November, 2016
JUDGMENT
This writ petition is filed by the petitioner seeking direction to respondents 1 and 2 to recognise kung-fu as a subject, under the third respondent and regularise the service of petitioner as kung-fu instructor by considering the length of his service, experience, and recommendation made by the fourth respondent as per Ext. P12 and for other related reliefs. Material facts for the disposal of this writ petition are as follows:-
Petitioner has been working as kung-fu instructor under the third respondent for the last more than ten years. Initially, petitioner was appointed on daily wages and now he is paid consolidated monthly salary of Rs. 6,300/-. Several children who got training under the petitioner won commendable achievements in several competitions, even in national level and the petitioner was selected as the best
W.P.(C). NO. 4443 OF 2016 2
instructor in 39th National Martial Art Championship held at Chennai. It is also stated, petitioner represented the third respondent in various training programs conducted by National Bal Bhavan and other Non-Governmental Organisations.
W.P.(C). NO. 4443 OF 2016
3
affidavit, disputing the claims and demands raised made by the petitioner. Among other things, it is stated that as per Clause 9 of Service Rules of Jawahar Bal Bhavan, recognised by GO.(MS.) No. 44/97/CAD, dated 31.07.1997, the vacancy against the permanent post shall be filled up from the candidates sponsored by employment exchange. In the absence of any qualified hands, the appointment can be made by conducting interview of candidates, who apply on advertisement being published in the news papers. However, in the case at hand, the kung-fu instruction is not a subject recognised by government and thereby, there is no such post in the Jawahar Bal Bhavan. Therefore, petitioner was paid from the available funds of Jawahar Bal Bhavan. It is also stated, only when the state regularise the post of kung-fu instructor, he could be regularised against that post, following procedure prescribed by Clause 9 of Service Rules of Jawahar Bal Bhavan. Therefore, it is contended, petitioner has not made out a case warranting
W.P.(C). NO. 4443 OF 2016 4
any interference of this Court, under the power conferred under Article 226 of the Constitution of India.
W.P.(C). NO. 4443 OF 2016 5
W.P.(C). NO. 4443 OF 2016 6
selection process transparent and without any arbitrariness
or illegality.
Writ petition is disposed of accordingly.
SHAJI P. CHALY JUDGE
DCS
2 issues framed by the court
Whether the petitioner entitled to regularisation of service as kung-fu instructor in view of long standing service rendered by him
Whether writ jurisdiction should be exercised to recognise a new subject where state has sanctioned post only through competitive selection
1 provisions across 1 enactments
Xavier.T.J.
State of Kerala
Jawahar Bal Bhavan
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
