Kerala High Court
Baburajan Kuruppath vs State Of Kerala Represented By The on 9 April, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
WEDNESDAY, THE 14TH DAY OF MARCH 2012/24TH PHALGUNA 1933
WA.No. 1508 of 2010
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AGAINST THE JUDGMENT IN WPC.31046/2008 DATED 09-04-2010
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APPELLANT/PETITIONER:
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BABURAJAN KURUPPATH,
KURUPPATH HOUSE, CHERUKARA P.O., MALAPPURAM.
BY ADVS.SRI.N.DHARMADAN (SR.)
SMT.D.P.RENU
RESPONDENTS/RESPONDENTS:
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1. STATE OF KERALA REPRESENTED BY THE
SECRETARY TO THE GOVERNMENT, LOCAL ADMINISTRATION
GOVT. SECRETRIAT, THIRUVANANTHAPURAM.
2. THE SECRETARY,PERINTHALMANNA
MUNCIPALITY,PERINTHALMANNA.
3. DIRECTOR OF MUNCIPALITIES,
OFFICE OF THE DIRECTORATE OF MUNCIPALITIES
THIRUVANANTHAPURAM.
R1 & R3 BY SPL. GOVERNMENT PLEADER, SMT. GIRIJA GOPAL
R2 BY SRI.P.K.VIJAYAMOHANAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Manjula Chellur, Ag. C.J. & V. Chitambaresh, J.
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W.A. No. 1508 OF 2010
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Dated this the 14th day of March, 2012
JUDGMENT
Manjula Chellur, Ag. C.J.
The appellant is before us aggrieved by the judgment dated 09.04.2010 in W.P.(C) No. 31046 of 2008. The brief facts that led to the filing of the present appeal are as under.
2. It is not in dispute that the appellant joined as CLR Public Works Overseer at Perinthalmanna Municipality on a provisional basis for a period of 179 days with effect from 27.10.1997, after his name was sponsored by the Employment Exchange. It is also not in dispute that he continued in the said post till he was terminated on 19.10.2006. Subsequently, he gave a representation to the Secretary of the Perinthalmanna Municipality for regularisation of his employment as per Ext.R2(a) dated 20.10.2006 as Pubic Works Overseer Gr.II or an equivalent post in the Perinthalmanna Municipality.
3. Subsequently, he approached the High Court when his application was not considered, and this Court in W.P.(C) No. W.A. No. 1508 of 2010 -:2:- 31083 of 2006, issued writ of mandamus directing the respondents to consider the application or representation given by him. Subsequent to the disposal of the writ petition, another detailed representation Ext.P6 dated 29.02.2008 came to be submitted claiming benefit of Section 47 of the Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short known as 'Act'). When no response whatsoever was given on Ext.P6, again the petitioner approached this Court in W.P.(C) No.31046 of 2008. The first contention of the petitioner before the learned Single Judge was, when the appellant inducted into service through Employment Exchange it was a proper channel to enter the service and by virtue of orders of the Government, Exts.P5(a) and P5(b), he was entitled to be regularised in the post in which he worked in 1997. The second argument of the writ petitioner before the learned Single Judge was by virtue of Section 47 of the above Act, the respondent authorities had no right to terminate the services of the appellant as they would have provided any other job which would have entitled him to continue in service as a person suffering with physical disability.
W.A. No. 1508 of 2010 -:3:-
4. The learned Single Judge after referring to various contentions including Section 47 of the Act observed that the appellant is not entitled for such regularisation in view of the law laid down by the Apex Court in the case of Secretary, State of Karnataka & others v. Umadevi (3) and others [(2006) 4 SCC 1]. Aggrieved by the said judgment, the appeal is filed contending that in view of the law laid down subsequent to Umadevi's case another judgment of the Apex Court reported in State of Karnataka & others v. M.L. Keasri & others [AIR 2010 SCC 2587], the appeal has to be allowed. If the appellant was not terminated or removed from service on 19.10.2006 the period of 10 years would have been completed. Apart from this argument all other contentions raised before the learned Single Judge were also raised in the present appeal.
5. Subsequent to Umadevi's case in 2006 there was some deviation of so far as the principle in Umadevi's case, but however, a clarification was made in M.L. Kesari's case. In other words, the law laid down in Umadevi's case again came to be reaffirmed in M.L. Kesari's case. In order to consider the case of the appellant to extend the benefit envisaged under Exts.P5(a) W.A. No. 1508 of 2010 -:4:- and P5(b) which came into existence as early as 2007, both these orders refer to the issue whether physically handicapped persons who were provisionally appointed in Government service between 15.08.1998 and 15.08.1999 and who had completed service of 179 days, are entitled for regularisation. The claim of the appellant is also for regularisation of service by placing reliance on the law laid down in Umadevi's case.
6. According to the learned counsel for the appellant, having served as an Overseer for almost 9 years but for the intervention of the department, removing him on 19.10.2006, he would have completed 10 years. The controversy before us is whether by virtue of the law laid down in Umadevi's case, was appellant entitled for regularisation of service. Paragraph 53 of (2006) 4 SCC 1 is relevant which reads as under:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Narayanappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of W.A. No. 1508 of 2010 -:5:- the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
7. While reaffirming the law laid down in Umadevi's case by referring to paragraph 53, their Lordships in M.L. Kesari's case at paragraph 8 clarified and emphasised the actual position which reads as under:
"8. The object behind the said direction in para 53 of Umadevi(AIR 2006SC 1806: 2006 AIR SCW 1991, para 44) is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi 2006 AIR SCW 1991 was rendered, are considered for regularisation in view of their long service. W.A. No. 1508 of 2010 -:6:- Section is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily wage/ad hoc/ casual for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating th constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.04.2006(the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."
8. It is discernible from these paras who should get the benefit of the law laid down by the Apex Court and what should be the condition to give such benefit. The cut off date or criterion fixed was, one must have worked for more than 10 years as on 10.04.2006 in vacant post possessing the requisite qualification without interference of any interim order of a Court either in the capacity of a temporary worker, daily wager, provisional basis or stop-gap arrangement or exigency situation. W.A. No. 1508 of 2010 -:7:- As on 10.04.2006 whether the appellant had completed 10 years of service in the post, he claims to have joined in the year 1997? It is not in dispute that in May 1997 he joined through Employment Exchange in the department concerned, as an Overseer for a period of 179 days initially and he continued to work so till 19.10.2006. If it is not till May 2007, it would be less than 10 years of period. Therefore, the very first condition of completion of more than 10 years as on 10.04.2006 is not satisfied in the present case, therefore, claiming any benefit by virtue of the law laid down in Umadevi's case would arise as it is not applicable to the appellant even though other conditions might have been complied with.
9. Then coming to the benefit under Exts.P5(a) and P5(b), this benefit was offered to all those persons who joined duty initially as a person suffering with physical disability. They read as under:
"English translation of Ext.P5 (a):
As per reference (1) cited orders were issued for reappointment of those physically handicapped Government employees who were provisionally appointed in Government service between 15.8.1998 and 15.8.1999 and who have completed service for 179 days during the above period itself.
(2) But Government had received representations from W.A. No. 1508 of 2010 -:8:- several persons those who were not given re-appointment service period of completion of 179 days was beyond 15.8.1999 through they were appointed between 15.8.1998. Most of them are above the age of 40-45 years and have no chance for getting an employment.
(3) Several physically handicapped persons filed Writ petitions before the Hon'ble High Court against the condition insisting for completion of 170 days between 15.8.1998 and 15.8.1999 and the Hon'ble High Court announced judgment to give 43-appointment for them. Cases of contempt of court were also filed as court judgment could not be implemented in certain cases. Writ petitions are coming up again on this subject.
(4) On the basis of detailed examination of the case by Government it is hereby ordered to give re-appointment and regularization in service by extending the benefits of G.O(P) 33/05/SWD dt.5.3.2005 for those physically handicapped employees who have worked in Government service, Local Self Government Institutions, Board, Corporation, Public Sector undertakings Co-operative Institutions etc. on provisional appointment through Employment Exchange under KSSR Rule 9
(a)(i) and who were not regularized till now.
(5) Re-appointment will be made by adjusting against the posts reserved for the physically handicapped persons and remaining unfilled as backlog. In the departments where there are no vacancies now re-appointment of eligible physically handicapped persons will be made to the first arising vacancies.
(6) Those who are eligible for appointment as above should apply to the District Employment Officer with documents proving eligibility within two weeks of the orders of the District Employment Officer. List of eligible candidates with remarks will be submitted to the Secretary, Social Welfare Department within one month. Candidates for re-appointment need not apply to Government direct in this case. Only the applications routed through the District Employment Officer will be considered.
(7) On examining the above applications re-appointment orders will be issued in respective departments/institutions incorporating necessary conditions.
(8) Accurate details regarding backlog for appointment of physically handicapped in Class-3, Class-4 posts should reach the state commissioner for physically handicapped (commissionerate for P.H) before 31.8.2007.
(9) Physically handicapped employees who have got appointment after 15.8.1999 will not be considered for regularization."
W.A. No. 1508 of 2010 -:9:-
English translation of Ext.P5(b):
As per reference cited orders were issued for re- appointment of those physically handicapped persons who were provisionally appointed through Employment Exchanges under KSSR -Part-I, 9(a)(i) and who had completed provisional service of 179 days between 15.8.1998 to 15.8.1999.
As per reference (2) cited Government had ordered for regularization of those physically handicapped persons who have worked in Government service, Local Self Government Institutions, Board, Corporations, Public sector undertakings Co- op. Institutions etc. on provisional appointment through Employment Exchanges under KSSR Rule 9(a)(i).
Lists of physically handicapped persons applied for re- appointment by Government from the 14 District Employment Officers as per reference (3)to (16) cited. Government have examined the above lists and the details of persons found eligible on preliminary verification have been shown in appendix. The appointing authorities should convince the eligibility of the physically handicapped persons for re-appointment as listed in Appendix and give appointment immediately against the posts and Departments remaining vacant and reserved for physically handicapped persons. In the departments where no vacancies are existing appointment will be made to the first arising vacancies for filling up backlog.
The condition that person who got provisional appointment first during the period between 15.8.1998 and 15.8.99 should get regular appointment first will be fulfilled.
In the case of physically handicapped persons appointed after 15.8.99 regularization will not be made and applications will not be considered.
10. The contents of representation at Ext.P6 are relevant which indicates as under:
" I entered service under Perintalmanna Municipality in May 1997 as works superintend on daily wages, later I was posted as public works overseer grade I as introduced by Employment Exchange.
While continuing so I acquired disability due to W.A. No. 1508 of 2010 -:10:- Hemiplegia, as a result of heavy duties involving the works. Voters list renewal, wards allocation etc. in connection with Election 2005. My services were terminated on 20.10.2006.
On 17.11.2006 I requested Government for absorbing me as P.W. Overseer Grade II or an allied category. My request did not evoke any response."
11. Reading of Ext.P6 clearly shows while continuing his work as an Overseer Grade I, he acquired disability due to 'Hemiplegia' as a result of heavy duties involving the election works. In other words, he complains of physical stress and the burden involving his work as Overseer and complains that on account of such heavy duty, he developed the disability of 'Hemiplegia'. Therefore, he cannot claim the benefit under Exts.P5(a) and P5(b) as he did not join duty on provisional basis as a person suffering from physical disability against a post meant for such physically disabled persons. Therefore, none of the benefits under Exts.P5(a) and P5(b) would flow to the appellant herein.
12. Then coming to Section 47 of the Act concerned, it reads as under:
"Section 47. Non-discrimination in Government employment.- (1) No establishment shall dispense with, or W.A. No. 1508 of 2010 -:11:- reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
Reading of Section 47 only indicates either removal or termination of a person on the ground of disability or lowering the cadre of the employee on the ground of physical disability is not permissible. In the present case the appellant was not removed from service on the ground of physical disability, therefore, the question of applying Section 47 would not arise.
13. As a matter of fact, the learned Judge was justified in saying, Section 47 is only meant to safeguard or protect the rights of the persons who are in service suffering some physical disability. In the present case, the appellant did W.A. No. 1508 of 2010 -:12:- not join the service against a post meant for physically disabled person, he did not complete 10 years service as on 10.04.2006, he did not join duty as a physically disabled person and is not removed from duty on account of his physical disability, therefore none of the grounds raised by the appellant are of any assistance to the appellant, hence the appeal deserves to be dismissed. Accordingly dismissed.
Manjula Chellur, Ag. Chief Justice.
V. Chitambaresh, Judge.
ttb/15/03