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2018 DIGILAW 754 (KER)

Dinaraj D. v. State of Kerala

2018-09-24

DEVAN RAMACHANDRAN, P.R.RAMACHANDRA MENON

body2018
JUDGMENT : Devan Ramachandran, J. 1. These appeals have been preferred by the writ petitioners who were sought to be terminated from service as Assistants and Class IV employees by the Kerala State Warehousing Corporation (for short, 'the Corporation'). 2. The sum and substance of the allegations of the writ petitioners/appellants is that they have been appointed as Assistants and Class IV employees validly after undergoing a procedure sanctioned in law and therefore, that their orders of termination are illegal and unlawful. According to them, they have right to be appointed under the services of the Corporation particularly because some of them had obtained orders from the Labour Court/Tribunal, wherein such appointments have been allegedly directed. 3. However, the learned Single Judge, who considered the writ petitions, dismissed all of them finding that the appointments of the writ petitioners/appellants are not as per law and that it was intended to circumvent earlier judgments of this Court. 4. An assessment of the bare minimum factual circumstances in these cases would show that the writ petitioners were all initially appointed in the year 2005 against certain posts identified by the Corporation at that time, which was, however, subsequently found to be illegal by the Government. The singular reason why such appointments were found to be unlawful was because there were not enough vacancies to appoint all of them and because the identification of the said vacancies was also done by the Corporation even though they had no legal competence to do so. When such termination was challenged before this Court in a writ petition, namely W.P. (C) No. 18395/2010, a learned Judge of this Court dismissed it, granting approval for the orders of termination. This judgment was taken in appeal by filing W.A. No. 1320/2010, wherein again the termination was found legally valid. We are told that a Special Leave Petition was filed against the appellate judgment before the Hon'ble Supreme Court and that the said petition was, however, withdrawn with liberty to file a representation before the Corporation. 5. It appears that subsequently, a writ petition numbered as 15537/13 was filed by one among the writ petitioners, which is disposed of by this Court directing the Corporation to consider the representation made by the said petitioner. 5. It appears that subsequently, a writ petition numbered as 15537/13 was filed by one among the writ petitioners, which is disposed of by this Court directing the Corporation to consider the representation made by the said petitioner. It transpires that pursuant to those directions, the person involved in the said writ petition as well as several others, including the appellants, were appointed through an order of the Corporation, dated 11.05.2015. It is this order of appointment which is now sought to be terminated by the Corporation through their subsequent order dated 16.6.2017. 6. We notice that the issues raised by the writ petitioners/appellants were considered in extenso by the learned Single Judge who found that the appointments of the writ petitioners in the year 2015 in the afore manner had been done without inviting other eligible candidates or without publishing a notification and thus allegedly confining the field of choice to only those persons who had been appointed in the year 2007 and terminated in the above noticed manner. The learned Single Judge found that none of the petitioners could be construed to be retrenched employees, consequent to their termination in the year 2007, entitled to any preference for appointment to future vacancies and therefore, that the action of the Corporation in having appointed them under the guise of the judgment of this Court obtained by one among them was not permissible or legally tenable. It was also found that the posts to which the writ petitioners were appointed were, in fact, converted from other posts, which again have been done by the Corporation without authority. 7. When these appeals were considered by us earlier on 07.09.2018, we posed a query to the learned senior counsel as also the various counsel appearing for the various appellants as to how they can assail the judgment of the learned Single Judge specially when none of them have been able to demonstrate that they were retrenched in the year 2007 or that they have a statutory or other vested right for being appointed to the vacancies identified in the year 2015. The learned senior counsel and other learned counsel took time to make submissions in this issue and we adjourned the hearing of these appeals to this date. 8. When this matter was taken up today, Sri. N.N. Sugunapalan, Dr. K.P. Satheesan and Sri. The learned senior counsel and other learned counsel took time to make submissions in this issue and we adjourned the hearing of these appeals to this date. 8. When this matter was taken up today, Sri. N.N. Sugunapalan, Dr. K.P. Satheesan and Sri. T.A. Shaji, the learned senior counsel appearing for the appellants as also various other counsel appearing along with them, conceded that the appellants cannot claim to have been retrenched in the year 2007 and added that many of their clients have now filed fresh representations before the Corporation and prayed that even if this Court is inclined to approve the judgment of the learned Single Judge, the said representations may be directed to be disposed of by the Corporation in an affirmative manner so that their clients can be appointed at least to vacancies that are presently available. The learned senior counsel and the learned counsel submit that their clients are willing to go through a process of selection if the present vacancies are notified and that even if we are to find in favour of the judgment impugned before us, their clients would find some succor by being allowed to participate in the process and thereby being hopeful of an appointment at least in the future. 9. We have considered the submissions made by the learned senior counsel as well as the learned counsel for the parties and we are of the view that the conclusions and holdings of the learned Single Judge, relating to the termination of the writ petitioners, cannot be disturbed because factually they do not have a case that they were retrenched in the year 2007, thus entitled to be appointed to future vacancies under the provisions of the Industrial Disputes Act. 10. Of course, we see that Sri. T.A. Shaji, the learned Senior Counsel appearing for some of the appellants has an assertion that his clients had been sent out of the service in the year 2007 only due to technical reasons and not because they were found disqualified. He says that the sole reason for termination in that year was because the identification of the vacancies was found to be irregular and not because the writ petitioners were in any manner found wanting. He, therefore, contends that the present termination cannot obtain support in law. 11. We are also aware of the submissions made before us by Dr. He says that the sole reason for termination in that year was because the identification of the vacancies was found to be irregular and not because the writ petitioners were in any manner found wanting. He, therefore, contends that the present termination cannot obtain support in law. 11. We are also aware of the submissions made before us by Dr. K.P. Satheesan, the learned senior counsel that some of the writ petitioners have, in fact, obtained orders from the Labour Court subsequent to the afore mentioned judgments of this Court and therefore, that they have a right to be preferentially appointed. 12. We are afraid that we cannot accede to the above submissions made by Sri. T.A. Shaji and Dr. K.P. Satheesan at all because all these issues have been conclusively concluded by this Court through the earlier judgments and the Special Leave Petition filed against those judgment was withdrawn by the petitioners specifically seeking liberty to approach the Corporation by filing a representation. Obviously therefore, the contention that the petitioners were either retrenched from service in the year 2007 or that they had a right for preferential appointment consequent to a subsequent judgment of the Labour Court cannot be accepted or granted imprimatur. 13. Though we are considering all these 9 cases together because we are of the view that they involve analogous facts, the learned counsel appearing for the appellant in W.A. No. 888/2018 says that the facts involved therein are slightly different. According to him, all his clients were appointed pursuant to a rehabilitation package approved by the Cabinet of the Government of Kerala in the year 2001 and therefore, that their present appointment cannot be found faulted. Even though we hear the submissions, made by the learned counsel, the fact remains that these individuals were also terminated in the year 2007 which were approved by this Court through the aforementioned judgments. Therefore, even though their initial appointment may have been through a different process, their case also falls into the same bracket as the other writ petitioners in the other appeals. We are guided to this opinion also because once these petitioners were terminated in the year 2007, then their contention that they were appointed under a rehabilitation package ceases to be any relevance. 14. We are guided to this opinion also because once these petitioners were terminated in the year 2007, then their contention that they were appointed under a rehabilitation package ceases to be any relevance. 14. In the afore circumstances, we order these appeals, confirming the judgment of the learned Single Judge impugned before us, however, granting liberty to the writ petitioners/appellants either to make fresh representations before the Corporation, if they have not done so already, as also to pursue such representations, if they have been made already before the Corporation, as per law. Consequently, the Corporation will be enjoined to consider those representations and to consider appointment of the appellants, after notifying the available vacancies, as per the applicable procedures, if they are otherwise eligible and selected through the said process, without in any manner being prejudiced or hampered by any of these proceedings. 15. Dr. K.P. Satheesan, the learned senior counsel at this time prays that the further consideration of the representations be directed to be done untrammeled by the observations of the learned Single Judge. We are afraid that we cannot accede to this because we are in approval of the judgment impugned. However, we clarify that since we are ordering the consideration of the appellants' appointment in future as per law, which will be a fresh appointment, nothing contained in these proceedings will affect their rights for being so considered. 16. After we concluded dictation of this judgment, Sri. N.N. Sugunapalan, the learned senior counsel brings to our attention to another apprehension of the appellants that when the new notification is made by the Corporation pursuant to the directions herein, many of them would become barred by age for fresh appointment. He prays that the Corporation be directed to consider granting them relaxation in age in the ensuing notification. This is not a matter that we can state conclusively upon; however, we deem it fit to direct the Corporation to consider this also when a new notification is issued taking note of the rather peculiar circumstances involved in these cases. These appeals are thus disposed of with the afore directions.