Allowed

V.Sathikumar v. the State of Kerala

Kerala HC7 Mar 2018WP(C)/7011/2012

Case brief

AI extract

What is this about?

Court held that Government order rejecting Board's regularization recommendation without reasons was arbitrary. Petitioner's continuous daily wage service qualified for regularization. Order set aside and Government directed to reconsider within three months.

What did the court decide?

Ext.P11 order set aside; Government directed to reconsider petitioner's regularization request within three months.

V.Sathikumar Vs the State of Kerala — Pension and Retirement Benefits | Kerala HC (2018)

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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 DEVAN RAMACHANDRAN

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WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939

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WP(C).No. 7011 of 2012

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PETITIONER(S)

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V. SATHIKUMAR, AGED 47 YEARS, S/O. VELAPPAN PILLAI, KOCHUVADAKKATHIL VEEDU, VENGANNOOR THERUVU, PUNNAMOODU, PALLICHAL, P.O. THIRUVANANTHAPURAM.

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BY ADVS.SRI.D.SAJEEV SRI.BABU POTHENCODE SMT.LIGEY ANTONY.

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RESPONDENT(S):

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1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2. THE SECRETARY TO GOVERNMENT, AGRICULTURE(NCA)DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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3. TH DIRECTOR OF AGRICULTURE, DIRECTORATE OF AGRICULTURE, THIRUVANANTHAPURAM -695 001.

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4. THE SECRETARY, STATE AGRICULTURAL PRICES BOARD, STATUE ROAD, THIRUVANANTHAPURAM-695 001.

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BY GOVT. PLEADER SRI.JESTIN MATHEW.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs. 15/03/2018.

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WP(C).No. 7011 of 2012

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1	COPY OF THE RELEVANT PAGE OF THE LOG BOOK OF THE CAR BEARING REGISTRATION NO.KL-01-H-7060.
EXT.P2	COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE CHAIRMAN AND MEMBERS OF THE STATE AGRICULTURAL PRICES BOARD DATED 25/03/2010.
EXT.P3	COPY OF THE STATE AGRICULTURAL PRICES BOARD DATED 29/03/2010 ALONG WITH THE COVERING LETTER OF THE CHAIRMAN.
EXT.P4	COPY OF THE LETTER BEARING NO.SPB/37/2011 DATED 28/02/2011 ISSUED BY THE CHAIRMAN BEFORE THE HONOURABLE MINISTER FOR AGRICULTURE.
EXT.P5	COPY OF THE LETTER BEARING NO.SH(2)13894/11 DATED 06/06/2011 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.
EXT.P6	COPY OF THE LETTER BEARING NO.SPB/37/2011 DATED 18/07/2011 ISSUED BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT.
EXT.P7	COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE CHIEF MINISTER OF KERALA DATED 22/09/2011.
EXT.P8	COPY OF THE LETTER DATED 17/08/2009 ISSUED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVT. (TU) DEPARTMENT TO THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM.
EXT.P9	COPY OF THE ORDER NO.GO(MS) 42/ID DATED 17/02/2011 ISSUED BY THE ADDL. CHIEF SECRETARY TO GOVERNMENT.
EXT.P10	COPY OF THE ORDER NO.E4.3430/2011 DATED 28/02/2011 ISSUE DBY THE DIRECTOR OF THE DEPARTMENT OF TOURISM.
EXT.P11	COPY OF THE ORDER NO.8072/NCA1/2011/AD DATED 20/01/2012 OF THE 2ND RESPONDENT.

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RESPONDENT'S EXHIBITS: NIL.

//TRUE COPY//

P.S. TO JUDGE

rs. 15/03/2018.

DEVAN RAMACHANDRAN, J.

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-----------------------------------------------W.P.C.No.7011 of 2012

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Dated this the 7^th day of March, 2018

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J U D G M E N T

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The petitioner says that he was employed as a driver on daily wages in the service of the Kerala State Agricultural Prices Board (hereinafter referred to as 'Board', for short) from 23.08.2000 and that he was continuing in serve without break until about 2012. According to him, since he had worked for such a long period of time, he was entitled to be regularized and that he has been requesting consistently to the Board for such regularization.

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The petitioner says that every request made by him before the Board was, in fact, considered in his favour and that the Board had recommended his regularization to the competent authority of the Government, as is evidenced from Ext.P3 and P4 resolutions taken by them. The grievance of the petitioner is that in spite of all these, Ext.P11 order of the Government, which was issued on 20.01.2012, has mechanically rejected his request and the recommendations of the Board for his regularization, without assigning any reason whatsoever. The petitioner has

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W.P.C.No.7011 of 2012

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thus filed this writ petition impugning Ext.P11 as being illegal, unlawful and unconstitutional.

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I have heard the learned counsel for the petitioner and the learned Government Pleader for respondents 1, 2 and 3.

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The petitioner's specific assertion is that he had been working in the services of the Board from 2000 till about 2012. He concedes that he was terminated from service prior to filing of this writ petition and according to him, he was constrained to approach this Court because the Government did not accede to the recommendations of the Board but had issued Ext.P11 in a rather mechanical manner. According to Sri.D.Sajeev, learned counsel appearing for the petitioner, this is a case of complete non application of the mind by the Government, since as is evident from Ext.P4, the Board had recommended his regularization in explicit terms.

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The learned Government Pleader appearing on behalf of respondents 1 to 3, submits that Ext.P11 was issued because it is the policy of the Government to fill up the post of the drivers only through the employment exchange or the Public Service Commission. According to him, the attempt of the Board to

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W.P.C.No.7011 of 2012

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regularize the petitioner, as is voiced in Exts.P3 and P4, cannot, therefore, obtain legal sanction. The learned Government Pleader also says that the petitioner is no longer in service and therefore, cannot be granted the benefit of regularization at this point of time.

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It is obvious that the petitioner had been working on daily wages for about 11 to 12 years continuously, at least, there is no challenge to this averment made by him in the writ petition. I notice that a counter affidavit has been filed by the 3^rd respondent, wherein the assertions are as under:

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“2. It is submitted that the petitioner has worked as Driver on daily wages in the State Agricultural Prices Board from 23.08.2000 without giving any formal appointment orders. Since he has worked on daily wages in the Board his service cannot be treated as Continuous Service and he was not paid holiday wages. 3. It is submitted that the petitioner was permitted to work as Driver in the Board of the car bearing Reg.No.KL-0I-H-7060 which was allotted to the Chairman for official purpose of journey only and the Log Book and the materials were kept with the petitioner. Making entries in the log book etc are routine formality of a Driver.

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It is submitted that the personal details of the

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W.P.C.No.7011 of 2012

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petitioner were not kept in the Board and the details in his application were already forwarded to Government. The petitioner has filed a representation before the Chairman and Members of the Board and the above matters with his application wa forwarded to the Government to regularize the petitioner in the post on humanitarian consideration. Considering the grievances of the petitioner the Board meeting held on 29.3.2010 has decided to request the Government to regularize the petitioner in the existing vacancy of Driver and the above matters with his application was forwarded to the Government for its consideration.

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It is submitted that considering his plight the Board has already passed a resolution to request the Government to take steps to regularise the service of the petitioner in the post of Driver on humanitarian consideration. The 3^rd respondent has offered remarks vide Ext.P5 and requested Government to take appropriate decision to regularise the service of the petitioner as Driver in the existing vacancy of the Board.

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It is submitted that the details of the representation given by the petitioner to AM are not available in this Department. Considering the grievances of the petitioner, the Board meeting held on 29.3.2010 has decided to request the Government to regularise Sri.V.Sathi Kumar in the existing vacancy of Driver in the Board. Accordingly, proposals were sent to Government, which was declined as per letter

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W.P.C.No.7011 of 2012

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No.8072/NCAI/2011/AD dated 20.1.2012 of Agriculture (NCA) Department. Proiposals for regularization of service of Sri.V.Sathi Kumar, Driver on daily wages in the Board has been forwarded to the Government vide letter No.SH(2) 12894/12 dated 12.12.2011, byt the same has been declined by the Government as per letter No.8072/NCAI/2011/AD dated 20.1.2012. Proposals for regularization of service of Sri.V.Sathi Kumar, Driver on daily wages in the Board forwarded to the Government have been declined by the Government.”

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It is indubitable from the above extracted portion of the counter affidavit that the Government does not say why the petitioner has not been granted the benefit of regularization except stating that the Government has rejected the request and proposal for regularization of the Board through Ext.P11. In fact, Ext.P11 also does not say why the petitioner's request has been rejected and why the recommendations of the Board cannot be accepted by the Government. All that I have been able to understand from the submissions of the learned Government Pleader at the Bar today is that that this is on account of the policy of the Government to fill up such posts only through Exmployment Exchange or by the Public Service Commission.

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W.P.C.No.7011 of 2012

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However, even this submission does not find a place in the counter affidavit.

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I am therefore, of the view that both Exts.P11 order and the counter affidavit filed on behalf of the 3^rd respondent are lacking in material information and therefore, cannot obtain favour in law. I am certain that it is incumbent upon the Secretary to the Government to issue a proper order explaining why the petitioner's request and the resolutions of the Board, to grant the petitioner regularization, has not been accepted. This is was the minimum necessity, from the touch stone of the principles of natural justice as well as the requirement of fairness and transparency in Governmental Action.

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In such circumstances, in order to pave way for a fresh consideration of the petitioner's claim based on Exts.P3 and P4 resolutions of the Board, I set aside Ext.P11 and consequentially direct the competent Secretary of the Government of Kerala to take up the petitioner's request, adhering to the resolution of the Board and pass an appropriate order. This exercise shall be completed by the competent Secretary, as early as possible, but not later than three months

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W.P.C.No.7011 of 2012

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from the date of receipt of a copy of this judgment, in accordance with the relevant Rules of regularization and method of

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appointment in the service.

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This writ petition is thus ordered.

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Sd/-

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DEVAN RAMACHANDRAN JUDGE

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True copy

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P.A to Judge

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V.Sathikumar v. the State of Kerala

Case brief

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V.Sathikumar v. the State of Kerala

Case brief

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