w w w . L a w y e r S e r v i c e s . i n

Joy Joseph & Another v/s Institute of Human Resources Development (IHRD), Thiruvananthapuram, Represented by Its Director & Others

Company & Directors' Information:- V RESOURCES INDIA PVT LTD [Active] CIN = U51102MH2006PTC159669

Company & Directors' Information:- K K RESOURCES PRIVATE LIMITED [Active] CIN = U55101OR2008PTC009726

Company & Directors' Information:- K. T. RESOURCES PVT. LTD. [Active] CIN = U65993WB1995PTC075053

Company & Directors' Information:- S R D RESOURCES PRIVATE LIMITED [Strike Off] CIN = U65910DL1996PTC082218

Company & Directors' Information:- K I C RESOURCES LTD [Active] CIN = U70109WB1991PLC053497

Company & Directors' Information:- A TO Z RESOURCES PVT. LTD. [Strike Off] CIN = U65910WB1993PTC059975

Company & Directors' Information:- E T RESOURCES PRIVATE LIMITED [Active] CIN = U65993WB1991PTC051304

Company & Directors' Information:- B. D. RESOURCES PVT. LTD. [Active] CIN = U70109WB1995PTC067039

Company & Directors' Information:- K S L RESOURCES PRIVATE LIMITED [Active] CIN = U51109WB1981PTC034306

Company & Directors' Information:- K S K RESOURCES PRIVATE LIMITED [Active] CIN = U14200WB1986PTC041012

Company & Directors' Information:- K. D. RESOURCES PRIVATE LIMITED [Active] CIN = U45200CT2007PTC020422

Company & Directors' Information:- R B RESOURCES PRIVATE LIMITED [Active] CIN = U74900MH2013PTC247723

Company & Directors' Information:- J R N INSTITUTE PRIVATE LIMITED [Active] CIN = U80302DL2004PTC127742

Company & Directors' Information:- G R RESOURCES PVT LTD [Strike Off] CIN = U45309AS1988PTC003046

Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- P H B RESOURCES PVT LTD [Active] CIN = U70109WB1985PTC038888

Company & Directors' Information:- J M RESOURCES PVT LTD [Strike Off] CIN = U70101WB1985PTC038887

Company & Directors' Information:- S S F RESOURCES PVT LTD [Strike Off] CIN = U70101WB1985PTC039324

Company & Directors' Information:- S V M RESOURCES PRIVATE LIMITED [Strike Off] CIN = U51101TG2010PTC068353

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

Company & Directors' Information:- U AND I RESOURCES PRIVATE LIMITED [Active] CIN = U72200GJ2006PTC048258

Company & Directors' Information:- H S & E INSTITUTE PRIVATE LIMITED [Active] CIN = U80301KL2011PTC029468

Company & Directors' Information:- A AND P HUMAN RESOURCES PRIVATE LIMITED [Strike Off] CIN = U74910DL1996PTC075509

Company & Directors' Information:- H M RESOURCES PVT LTD [Strike Off] CIN = U70101WB1985PTC038561

Company & Directors' Information:- K V R INSTITUTE PRIVATE LIMITED [Strike Off] CIN = U80903TN2001PTC046438

Company & Directors' Information:- G S RESOURCES PRIVATE LIMITED [Strike Off] CIN = U74900KA2008PTC048480

Company & Directors' Information:- G I RESOURCES PRIVATE LIMITED [Active] CIN = U74910TG2007PTC054452

Company & Directors' Information:- B. N. HUMAN RESOURCES PRIVATE LIMITED [Strike Off] CIN = U74140PB2009PTC032579

Company & Directors' Information:- Y V R RESOURCES PRIVATE LIMITED [Strike Off] CIN = U74120TG2015PTC100651

Company & Directors' Information:- G M RESOURCES PRIVATE LIMITED [Strike Off] CIN = U74120UP2012PTC053963

Company & Directors' Information:- RESOURCES DEVELOPMENT PVT LTD [Strike Off] CIN = U74210WB1978PTC031463

Company & Directors' Information:- S 2 RESOURCES PRIVATE LIMITED [Active] CIN = U18204DL2006PTC155720

Company & Directors' Information:- R S HUMAN RESOURCES PRIVATE LIMITED [Strike Off] CIN = U74140DL2013PTC259486

Company & Directors' Information:- S B HUMAN RESOURCES PRIVATE LIMITED [Active] CIN = U74999DL2013PTC246983

Company & Directors' Information:- A. S. RESOURCES PRIVATE LIMITED [Strike Off] CIN = U74900DL2009PTC192062

Company & Directors' Information:- A & N RESOURCES PRIVATE LIMITED [Active] CIN = U74900DL2016PTC291446

Company & Directors' Information:- S P V RESOURCES PRIVATE LIMITED [Strike Off] CIN = U74140KA2013PTC069966

Company & Directors' Information:- J AND D RESOURCES PRIVATE LIMITED [Strike Off] CIN = U74140KL2013PTC035588

Company & Directors' Information:- J. Y. RESOURCES PRIVATE LIMITED [Active] CIN = U45201GJ2007PTC050894

Company & Directors' Information:- S. K. RESOURCES PRIVATE LIMITED [Active] CIN = U70109GJ2016PTC092408

Company & Directors' Information:- N K JOY AND CO PVT LTD [Strike Off] CIN = U99999DL1972PTC006045

    W.A. No. 2084 of 2018

    Decided On, 22 February 2021

    At, High Court of Kerala


    For the Appellants: K. Jaju Babu, Sr. Advocate, M.U. Vijayalakshmi, Brijesh Mohan, Advocates. For the Respondents: R1, Deepu Thankan, SC, Ummul Fida, Advocate.

Judgment Text

P. Gopinath, J.1. This appeal is filed challenging the judgment of a learned Single Judge of this Court in W.P.(C).No.2660/2017. The appellants, who were the writ petitioners, claimed that they were entitled to regularization of their services under the 1st respondent, the Institute of Human Resources Development [hereinafter referred to as the 'IHRD']. Their claim having been rejected by the Learned Single Judge, they are in appeal before us.2. The appellants had, together with certain others, earlier approached this Court through W.P.(C).No.2115/2010, which resulted in Ext.P5 judgment, whereby, a Division Bench of this Court had disposed of the matter observing that the IHRD had to take appropriate decision in the matter by “........ applying the same yardstick that had been adopted in the case of other similarly placed employees…...”. The learned counsel appearing for the appellants/writ petitioners would contend that Exts.P7 and P8 orders will show that the IHRD had regularized services of similarly placed persons, and that, the impugned Ext.P15 proceedings will show that in the case of the appellants/writ petitioners, a completely different yardstick had been adopted by the IHRD. He would submit that this is completely contrary and in violation of the directions issued by this Court in Ext.P5 judgment. He would also point out that the reasons mentioned in Ext.P15 are completely incorrect and contrary to the actual facts. He would submit that there are sanctioned posts available, and even after finalization of the Special Rules, certain employees who are similarly placed like his clients, have also been regularized.3. The learned counsel appearing for the IHRD, on the other hand, submits that the IHRD has not taken any decision regarding regularization of provisional employees, and that there are several matters pending before this Court where similarly placed persons have sought regularization. He would submit that the cases of regularization pointed out by the appellants were made in the peculiar facts and circumstances of those cases, and those cannot be treated as a precedent enabling the appellants to claim that a similar treatment must be extended to them.4. We have considered the contentions raised by either side. It is settled law that an employee cannot claim regularization merely because he has been working in a post for some time. In A. Umarani v. Coop. Societies; (2004) 7 SCC 112, it was held: -“39. Regularisation, in our considered opinion, is not and cannot be the mode of recruitment by any “State” within the meaning of Article 12 of the Constitution of India or anybody or authority governed by a statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (See State of H.P. v. Suresh Kumar Verma [(1996) 7 SCC 562 : 1996 SCC (L&S) 645 : (1996) 33 ATC 336] .)”In Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd.; (2007) 1 SCC 408, referring to Secretary, State of Karnataka and Others v. Uma Devi and Others; (2006) 4 SCC 1, it was held: -“30. In paras 46 to 48 of the judgment, this Court also observed that temporary, contractual, casual or daily wage ad hoc employees appointed dehors the constitutional scheme to public employment have no legitimate expectation to be absorbed or, regularised or granted permanent continuation in service on the ground that they have continued for a long time in service. It was observed by this Court that non-grant of permanent continuation in service of such employees does not violate Article 21 of the Constitution and such employees do not have any enforceable legal right to be permanently absorbed, nor to be paid salary of regular employees. A regular process of recruitment or employment has to be resorted to when regular vacancies and posts are to be filled up. This Court further observed that public employment must comply with Articles 14 and 16 of the Constitution as the rule of equality in public employment is a basic feature of the Constitution.Paragraphs 31-36 “ …………..”37. Creation and abolition of posts and regularisation are purely executive functions vide P.U. Joshi v. Accountant General [(2003) 2 SCC 632 : 2003 SCC (L&S) 191] . Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay the salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits.”Any regularization that has been granted by the IHRD, is contrary to the law laid down by a Constitution Bench of the Supreme Court in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra). Paragraph 53 of the aforesaid judgment reads as follows:“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V. Narayanappa (AIR 1967 SC 1071), R.N. Nanjundappa v. T. Thimmiah ((1972) 1 SCC 409) and B.N. Nagarajan v. State of Karnataka ((1979) 4 SCC 507), and referred to in paragraph 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 courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred 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 regularize 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.”(Emphasis is ours)5. The law laid down by the Supreme Court is the law of the land. Any deviation therefrom is only to be deprecated. When a Constitution Bench of the Supreme Court has declared that regularization should be permitted only as a one-time measure subject to the conditions mentioned in paragraph 53 of the judgment in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra) we do not see how any authority can violate those directions and issue orders of regularization contrary to the principles laid down in that judgment. We refrain from making any order declaring that the regularizations already granted by the IHRD are illegal only on account of the fact that the persons who were regularized are not parties to these proceedings.6. The learned Single Judge had found that if the appellants/writ petitioners have any claim relatable to the rights of employees under the Industrial Disputes Act, it is open to them to raise such claim before the Labour Court in duly constituted proceedings under the Industrial Disputes Act. We are also of the opinion that if the appellants/writ petitioners have any claim, supported by facts, to any right of theirs protected under the provisions of the Industrial Disputes Act or any other Industrial/Labour Statutes, it is for them to establish such claim under the provisions of those Statutes, and in the manner prescribed therein, before the competent forum.7. Since we have found that any regularization of employees contrary to the principles in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra) is illegal and against the law declared by the Supreme Court and since we have noticed that orders are being issued contrary to the law declared by the Supreme Court in that Judgment, we deem it appropriate to suo-motu implead the Chief Secretary to the Government of Kerala, Government Secretariat, Thiruvananthapuram - 695 001 as additional 3rd respondent to this Writ Appeal. The Registry shall carry out necessary amendments to the cause title. The Registry shall forward a certified copy of this Judgment to the Additional 3rd respondent who shall upon its receipt take note of the fact that no regularization can be granted to any temporary employee in the Government / its Departments / Statutory bodies including Local Self - Gover

Please Login To View The Full Judgment!

nment Institutions / Government Companies / Statutory Corporations / or in any institution like the IHRD where there is ‘deep and pervasive state control’ / special purpose vehicles formed for implementing specific projects / institutions of public importance and related to governmental functions etc. contrary to the express directions in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra) which we have referred to and extracted in this judgment. The Additional 3rd respondent shall taking note of the above issue instructions, in such form and manner that he may decide, to all institutions of the nature indicated above indicating clearly that no regularization shall be permitted contrary to the directions of the Supreme Court in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra). Let this be done by the Additional 3rd respondent within an outer time limit of 3 weeks from the date of receipt of a copy of this Judgment.The Writ Appeal will stand dismissed. No costs.