Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH MONDAY, THE 10TH DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 WP(C) NO. 4526 OF 2018 PETITIONER: SANDHYA V.V, AGED 44 YEARS W/O. ANISH, PART TIME SWEEPER, HEAD OFFICE, KERALA STATE WAREHOUSING CORPORTATION, KOCHI. BY ADVS. P.K.BABU MANOJ GEORGE RESPONDENTS:
1 MANAGING DIRECTOR, KERALA STATE WAREHOUSING CORPORATION P.B NO.1727, KOCHI - 682 016. 2 KERALA STATE WAREHOUSING CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, P.B NO.1727, KOCHI - 682 016. 3 ADDL. R3. THE ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT (BUILDINGS), ERNAKULAM -682011 IS SUO MOTU IMPLEADED AS ADDL. R3 AS PER ORDER DATED 19.09.2022 IN WP(C) BY ADV SHRI.MAJNU KOMATH, SC, K.S.W.C. ANIMA M GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 10th day of April, 2023 The petitioner was appointed as a Part Time Sweeper under
the 2nd respondent on 30.07.2014. The petitioner would submit that she was appointed against an existing vacancy after undergoing an interview and selection process. On 02.02.2015, as per Ext.P4, the petitioner was regularised as Part Time Sweeper. Thereafter, on 26.02.2015, the probation of the petitioner was declared as per Ext.P5.
2. The petitioner states that to the surprise and
predicament of the petitioner, she was issued with Ext.P6 show cause notice dated 21.08.2017, alleging that the appointment given to the petitioner is illegal, as the petitioner was appointed against a vacancy, which was not a sanctioned vacancy. Though the petitioner submitted Ext.P7 reply, the service of the petitioner
was terminated as per the decision contained in Ext.P9.
3. The petitioner would argue that there was a substantive
vacancy when the petitioner was appointed, which would be evidenced from the staff pattern. The petitioner was appointed following all due processes of selection and after an interview. The probation of the petitioner was also declared. Thereafter, her service was terminated on an allegation that she was appointed against a non-existing post. The petitioner would contend that Ext.R1(a) Guidelines issued by the Government will not ipso facto apply to the respondents. The respondents have to consider such
guidelines in a meeting of the Board of Directors and only when
the Board of Directors approves the said Guidelines, the same can be followed.
4. The petitioner contended that Ext.R1(a) Guidelines
were not placed before the Board of Directors. No amendments were carried out to the Staff Regulations, 1963. In the circumstances, the termination of service of the petitioner is highly illegal and unsustainable.
5. Standing Counsel entered appearance on behalf of the
1st respondent. A counter affidavit was filed on behalf of the 1 st respondent. In the counter affidavit, it is admitted that the petitioner commenced service from 02.08.2014 as Part Time Sweeper in the Head Office of the Kerala State Warehousing Corporation. The regularisation of the service of the petitioner as per Ext.P4 is also admitted. The respondents would contend that the said appointment was illegal for the reason that Ext.R1(a) Government Order provided for criteria for appointment of Part Time Sweepers and taking into consideration the area of the building to be sweeped, the respondents could have appointed only two Part Time Sweepers. When the petitioner was appointed, there were already two Part Time Sweepers working under the respondents and therefore, the petitioner could not have been
appointed as a Third Part Time Sweeper as there was no vacancy.
6. The respondents pointed out that the respondents have
sought a list from the Employment Exchange for appointment of a Third Part Time Sweeper. A list was provided. The said list was returned by the respondents to the Employment Officer as per Ext.R1(b) dated 10.01.2013 stating that it is doubtful whether a third Part Time Sweeper can be engaged with the present sweeping area, as per the Guidelines. In spite of Ext.R1(b), the petitioner was appointed illegally by the then authorities of the
respondents. Such appointment was highly illegal and unsustainable, contended the respondents.
7. The respondents further pointed out that there are
Government Orders which state that the appointment of Part Time Sweepers can be done only through paper publication or from persons sponsored by the Employment Exchange. The petitioner was appointed without resorting to any paper publication or nomination from the Employment Exchange.
8. The respondents further submitted that the Principal
Accountant General from the office of the Accountant General had reported that the Part Time Sweeper appointed in July 2014 on temporary basis and regularised in the year 2015 was without the concurrence of the Government. For all the above reasons, the termination of the service of the petitioner is justified. The petitioner does not have a legal right to continue as Part Time Sweeper, urged the respondents.
9. I have heard learned counsel for the petitioner, the learned Standing Counsel representing the 1st respondent and the learned Government Pleader representing the 3rd respondent.
10. Ext.P1 would show that there was an advertisement in
Mathrubhumi Daily in respect of appointment to the post of Part Time Sweeper. Ext.P2 would show that the petitioner was required to attend an interview for the post. Therefore, it is evident that the petitioner was selected after a paper publication and an interview. The petitioner has pointed out that she was appointed as Part Time Sweeper by the proceedings of the Managing Director of the 2nd respondent-Corporation as is evident from Ext.P3.
11. Ext.P4 would show that the petitioner was considered
by the respondents and by a resolution dated 29.01.2015, it was decided to regularise the service of the petitioner as Part Time Sweeper against a retirement vacancy in the existing scale of pay of Part Time Sweeper. Ext.P5 would show that the probation of the petitioner was declared on 26.02.2016. It is thereafter that the petitioner was terminated from the service pursuant to Ext.P6 show cause notice.
12. The respondents would contend that in view of
Ext.R1(a) Guidelines, taking into consideration the total sweeping area available, only two Part Time Sweepers could have been appointed and the petitioner was appointed against a non-existing vacancy. Ext.R1(b) communication would show that there was no vacancy to be filled up. A list sent by the Employment Exchange was returned to the Employment Officer. The Principal Accountant General has also noted that the appointment of the petitioner was without the concurrence of Government.
13. However, from Ext.P13 series of staff patterns fixed by
the respondents, I find that the approved strength of the Part Time Sweeper in the Kerala State Warehousing Corporation was three/four from the year 2009-2018. The petitioner was appointed against the 3rd vacancy. Therefore, the respondents cannot be heard to contend that in view of Ext.R1(a), the petitioner should not have been appointed.
14. The fact remains that the petitioner was appointed as
Part Time Sweeper on 30.07.2014, pursuant to her application submitted in response to a paper publication. The petitioner was interviewed by a competent authority. The petitioner was regularised as Part Time Sweeper as per Ext.P4. The petitioner's probation was also declared as per Ext.P5. While the facts being so, the service of the petitioner could not have been terminated solely on the basis of Ext.R1(a) Guidelines issued by the Government.
15. It is not evident from the pleadings that Ext.R1(a)
Guidelines are accepted by the 2 nd respondent-Corporation
through a decision taken by its Board. The observation made by the Principal Accountant General in Ext.R1(e) states that Part Time Sweeper was appointed without the concurrence of the Government. Non obtaining of concurrence from the Government cannot adversely affect the petitioner.
15. The petitioner was appointed pursuant to a notification. She was appointed after a due selection process. The services were regularised and probation was declared. In such circumstances, the respondents are not justified in terminating the service of the petitioner as per Ext.P6. The writ petition is therefore allowed. Exts.P6 and P9 are set
aside. There will be a direction to the respondents to reinstate the petitioner in service and permit the petitioner to continue as Part Time Sweeper. Since the petitioner has not actually worked during the period, the petitioner will not be entitled to any arrears of pay. The services of the petitioner from the date of termination of service till reinstatement as directed above, shall count for all other service benefits.
Sd/- N. NAGARESH JUDGE ams APPENDIX OF WP(C) 4526/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 16-6- 2014 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT/CORPORATION. EXHIBIT P2 TRUE COPY OF THE CALL LETTER DATED 5-7- 2014 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE APPOINTMENT LETTER DATED 30-7-2014.
EXHIBIT P4 TRUE COPY OF THE REGULARISATION ORDER
DATED 2-2-2015 OF THE RESPONDENT/CORPORATION. EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS DATED 26-2- 2016 BY THE 1ST RESPONDENT. EXHIBIT P6 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 21-8-2017. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 29- 08-2017 BEFORE THE 1ST RESPONDENT. EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WRIT PETITION (C) 29262/17 DATED 19-12-2017. EXHIBIT P9 TRUE COPY OF THE MINUTES OF THE MEETING
HELD ON 4-12-2017 BY THE BOARD OF
DIRECTORS OF THE 2ND RESPONDENT CORPORATION. EXHIBIT P10 TRUE COPY OF THE PHOTOGRAPHS OF THE HEAD OFFICE OF THE 2ND RESPONDENT CORPORATION. RESPONDENT EXHIBITS EXHIBIT R1(A) THE COPY OF THE G.O.(P) NO.412/2011/FIN DATED 03.09.2011. EXHIBIT R1(B) THE COPY OF THE LETTER DATED 10.01.2013 SENT BY THE THEN MANAGING DIRECTOR SRI.K.SUBAIR KHAN TO THE EMPLOYMENT OFFICER, ERNAKULAM. EXHIBIT R1(C) COPY OF THE LIST OF THE APPLICANTS FOR PART TIME SWEEPER. EXHIBIT R1(D) THE COPY OF THE LETTER FROM DISTRICT
EMPLOYMENT EXCHANGE OFFICER ENCLOSING CIRCULAR NO.25941/G2/2013/LBR DATED 05.02.2014 FROM THE LABOUR & REHABILITATION (G) DEPARTMENT, GOVERNMENT OF KERALA.
EXHIBIT R1(E) THE EXTRACT COPY OF THE DRAFT COMPLIANCE REPORT DATED NOVEMBER 2016. EXHIBIT R1(F) THE EXTRACT COPY OF THE INSPECTION REPORT OF THE SENIOR AUDIT OFFICER, PRINCIPAL ACCOUNTANT GENERAL (E & RSA) RECEIVE ON 23.01.2017. EXHIBIT R1(g) CERTIFICATE OF MEASUREMENT ISSUED BY THE ASSISTANT ENGINEER P.W.D. BUILDINGS SECTION ERNAKULAM. PETITIONER EXHIBITS Exhibit P11 TRUE COPY OF THE EXTRACT OF CHAPTER II CLAUSE 5 TO 7 OF KSWC GENERAL AND STAFF REGULATIONS 1963. Exhibit P12 TRUE COPY OF THE G.O.(MS) NO.111/91 AD DATED 19.3.1991. Exhibit P13 TRUE COPY OF THE STAFF POSITION, STAFF JANUARY, 2009 DATED 01/11/2009 Exhibit P13(a) TRUE COPY OF THE STAFF POSITION, STAFF DECEMBER, 2011 DATED 01/12/2011 RESPONDENT EXHIBITS Exhibit R1(g)) Copy of the order G.O.(MS)No. 212/13/AD Dated 26/6/2013 issued by the Secretary to government PETITIONER EXHIBITS Exhibit P13(b) TRUE COPY OF THE STAFF POSITION, STAFF JANUARY, 2012 DATED 01/01/2012 Exhibit P13(c) TRUE COPY OF THE STAFF POSITION, STAFF APRIL, 2013 DATED 01/04/2013 Exhibit P13(d) TRUE COPY OF THE STAFF POSITION, STAFF FEBRUARY, 2015 DATED 01/02/2015 Exhibit P13(e) TRUE COPY OF THE STAFF POSITION, STAFF MAY, 2016 DATED 01/05/2016 Exhibit P13(f) TRUE COPY OF THE STAFF POSITION, STAFF MAY, 2018 DATED 01/05/2018 Exhibit P14 TRUE COPY OF THE MINUTES OF 212TH EXECUTIVE COMMITTEE MEETING OF THE RESPONDENT BOARD MEETING