Kerala High Court
Bijumon P.J.,S/O. Joseph vs State Of Kerala on 18 June, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
OP(KAT) NO. 97 OF 2025 -:1:-
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 18TH DAY OF JUNE 2025 / 28TH JYAISHTA, 1947
OP(KAT) NO. 97 OF 2025
AGAINST THE ORDER DATED 6.11.2024 IN OA NO.1338 OF 2022 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/S:
1 BIJUMON P.J.,S/O. JOSEPH,
AGED 51 YEARS
WORKING AS PROTECTION WATCHER (EDC), THEKKADY RANGE, PERIYAR
TIGER RESERVE EAST, KUMALI, THEKKADY, IDUKKI DISTRICT-685
509, RESIDING AT PULIKKACHALIL, AMARAVATHI PO, KUMILY,
IDUKKI
2 MANIKANDAN S,
AGED 46 YEARS
S/O. SHANMUGHAM,WORKING AS PROTECTION WATCHER (EDC),
THEKKADY ECCO DEVELOPMENT RANGE, PERIYAR TIGER RESERVE EAST,
KUMALI, THEKKADY, IDUKKI DISTRICT - 685 509, RESIDING AT
LAKSHMI BHAVAN,GANDHI NAGAR COLONY, THEKKADY PO, IDUKKI, PIN
- 685536
3 M. SARAVANAN,
AGED 48 YEARS
S/O. A. MAHALINGAM, WORKING AS PROTECTION WATCHER (EDC),
THEKKADY RANGE, PERIYAR TIGER RESERVE EAST, KUMALI,
THEKKADY, IDUKKI DISTRICT - 685 509, RESIDING AT GATTINGAL
HOUSE, THEKKADI PO, IDUKKI, PIN - 685536
4 MADHUKUMAR M.C.,
AGED 47 YEARS
S/O. M.K. CHELLAPPAN, WORKING AS PROTECTION WATCHER (EDC),
THEKKADY RANGE, PERIYAR TIGER RESERVE EAST, KUMALI,
THEKKADY, IDUKKI DISTRICT - 685 509, RESIDING MAMMOOTTIL
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HOUSE, ROSAPPUKANDAM, KUMILY PO, IDUKKI
5 S. MANI @ MANIKANDAN,
AGED 46 YEARS
S/O. SUBBAIAH, WORKING AS PROTECTION WATCHER (EDC),],
THEKKADY RANGE, PERIYAR TIGER RESERVE EAST, KUMALI,
THEKKADY, IDUKKI DISTRICT - 685509, RESIDING AT KAALIYAMMAN
COVIL STREET, 4/102, NAINAGARAM, THIRUNELVELI, TAMILNADU,
PIN - 627113
6 JOSE V.S.,
AGED 46 YEARS
S/O. SCARIYA, WORKING AS PROTECTION WATCHER, THEKKADY RANGE,
PERIYAR TIGER RESERVE EAST, KUMALI, THEKKADY, IDUKKI
DISTRICT - 685 509.RESIDING AT VERAMPLACKAL HOUSE,
ANAVILASAM PO, VALLIYAMTHADAM, IDUKKI, PIN - 685535
7 M. VIJAYAN,S/O. K. MURALI,
AGED 53 YEARS
WORKING AS PROTECTION WATCHER, THEKKADY RANGE, PERIYAR TIGER
RESERVE EAST, KUMALI, THEKKADY, IDUKKI DISTRICT - 685509,
RESIDING AT GANDHI NAGAR COLONY, THEKKADY P.O., IDUKKI, PIN
- 685536
8 KUNJUMON P.G. @ SABU GEORGE,
AGED 51 YEARS
S/O. GEORGE, WORKING AS PROTECTION FOREST WATCHER [EDC],
PERIYAR TIGER RESERVE EAST, THEKKADY EAST DIVISION, IDUKKI
DISTRICT - 685509. RESIDING AT PALLIKIZHAKKETHIL,
ROSAPPOOKUNDAM, KUMILY PO, IDUKKI
9 DHANUSH P.K. ALIAS DHANUSHKODI,
AGED 52 YEARS
S/O. KUPPUSWAMY, WORKING AS PROTECTION WATCHER, CHINNAR WILD
LIFE SANCTUARY, CHINNAR PO,MUNNAR, IDUKKI -685601 RESIDING
AT PUNNAKKARA, MARAYOOR PO., DEVIKULAM TALUK, IDUKKI DIST,
PIN - 685620
10 KANAKAVELSAMY,
AGED 54 YEARS
S/O. MARUTHIAH THEVAR WORKING AS PROTECTION WATCHER, SHOLAR
NATIONAL PARK RANGE, POOPPARA, IDUKKI - 685619, RESIDING AT
PALLANADU, MARAYOOR PO, DEVIKULAM TALUK, IDUKKI DIST., PIN -
685620
11 THANKAPPAN,
AGED 55 YEARS
S/O. KESAVAN,WORKING AS FOREST WATCHER, CHINNAR WILD LIFE
SANCTUARY, CHINNAR PO,MUNNAR, IDUKKI -685601, RESIDING AT
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CHEMBAKKADU TRIBEL, KANTHALLUR PANCHAYATH KEEZHAMKOOR
VILLAGE, IDUKKI DIST, PIN - 685620
12 SELVAKUMAR M.,
AGED 44 YEARS
S/O. MICHELE, WORKING AS PROTECTION WATCHER, ERAVIKULAM
NATIONAL PARK, MUNNAR, IDUKKI - 685 612 , RESIDING AT LAKKAM
COLONY, VAGUVURRAI ESTATE, TALAYAR PO, IDUKKI DIST, PIN -
685614
BY ADV SHRI.K.SANDESH RAJA
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT FOREST
&WILD LIFE DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM, PIN -
695001
2 HEAD OF FOREST FORCE,
FOREST HEAD QUARTERS VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN -
695014
3 THE ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FORESTS
[ADM.],
FOREST HEAD QUARTERS VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN -
695014
4 THE CHIEF CONSERVATOR OF FORESTS AND FIELD DIRECTOR [PROJECT
TIGER]
KOTTAYAM P.O., KOTTAYAM, PIN - 686001
5 THE DEPUTY DIRECTOR [PROJECT TIGER] ,
PERIYAR EAST DIVISION, KUMALI, THEKKADY, IDUKKI DISTRICT,
PIN - 685509
6 THE WILD LIFE WARDEN, MUNNAR,
OFFICE OF THE WILD LIFE WARDEN,MUNNAR, IDUKKI, PIN - 685531
7 THE DEPUTY DIRECTOR [PROJECT TIGER],
PERIYAR WEST DIVISION, PEERUMEDU, IDUKKI DISTRICT, PIN -
685509
SENIOR GOVERNMENT PLEADER SHRI A.J. VARGHESE
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON
16.06.2025, THE COURT ON 18.06.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
A.Muhamed Mustaque, J.
The Government of Kerala, following the judgment in State of
Karnataka v. Uma Devi [(2006) 4 SCC 1], regularised certain
temporary employees working in the Forest Department by its order
dated 14/05/2015. The Government considered the employees, who
have completed 20 years of service as on 12/09/2013, for such
regularisation.
2. A proposal was forwarded by the fifth respondent to the
fourth respondent containing the list of employees who can be
regularised as watchers, which included the names of the petitioners
herein. Later on, representations were submitted by the petitioners
before the Government seeking regularisation, which stood rejected
as per order dated 30/09/2021. This triggered the present litigation.
The Tribunal dismissed the challenge.
3. The petitioners would rely on Uma Devi’s case (supra)
and would argue that the Apex Court in that case directed to
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regularise workers who had ten or more years of service as a one
time measure and contends that it created a right for the watchers
like the petitioners herein who have more than 10 years of service to
be regularised and therefore, the Government could not have
rejected their claim for regularisation. Further, relying on another
judgment of the Apex Court in Jagoo v. Union of India [2024 KHC
6750], the petitioners would submit that Uma Devi’s case never
intended to penalise the employees who have rendered long years of
service, fulfilling the necessary functions of the State
instrumentalities. Therefore, they would submit that the petitioners,
having put in more than 25 years of service, are entitled to
regularisation as a matter of right.
4. Per contra, the learned Government Pleader relied on the
judgments of the Apex Court in State of Maharashtra v. R. S
Bhonde [(2005) SCC 751], Aravali Golf Club v. Chander Hass,
(2008) 1 SCC 683, and Union of India v. Ilmo Devi [(2021) 20
SCC 290]; and argued that in the absence of any sanctioned post,
the Court cannot direct sanction of any post to accommodate the
petitioners. It is submitted that the petitioners were engaged as a
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part of the implementation of the India Eco Development project
(IEDP) through the Eco Development Committees (EDC). It is
submitted that the EDC has no authority to make permanent
appointments.
5. It is appropriate to refer to the following judgments cited by
the learned Government Pleader regarding the mandate that for
seeking regularisation, there must be sanctioned posts.
5.1. The Apex Court in Aravali Golf Club v. Chander Hass,
[(2008) 1 SCC 683] has held as follows:
“15. The court cannot direct the creation of posts. Creation and sanction
of posts is a prerogative of the executive or legislative authorities and the
court cannot arrogate to itself this purely executive or legislative function,
and direct creation of posts in any organisation. This Court has time and again
pointed out that the creation of a post is an executive or legislative function
and it involves economic factors. Hence the courts cannot take upon
themselves the power of creation of a post. Therefore, the directions given
by the High Court and the first appellate court to create the posts of tractor
driver and regularise the services of the respondents against the said posts
cannot be sustained and are hereby set aside.”
5.2. The Apex Court in State of Maharashtra v. R. S. Bhonde,
[(2005) 6 SCC 751] has held as follows:
“7. Additionally, as observed by this Court in Mahatma Phule Agricultural
University v. Nasik Zilla Sheth Kamgar Union [(2001) 7 SCC 346 : 2001 SCC
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(L&S) 1180] the status of permanency cannot be granted when there is no post.
Again in Gram Sevak Prashikshan Kendra v. Workmen [(2001) 7 SCC 346 at 356
(cited case), in para 3] , it was held that mere continuance every year of
seasonal work obviously during the period when the work was available does not
constitute a permanent status unless there exists post and regularisation is
done.”
5.3. The Apex Court in Union of India v. Ilmo Devi [(2021) 20
SCC 290] held as follows:
“16. Thus, as per the law laid down by this Court in the aforesaid decisions
part-time employees are not entitled to seek regularisation as they are not
working against any sanctioned post and there cannot be any permanent
continuance of part-time temporary employees as held. Part-time temporary
employees in a Government run institution cannot claim parity in salary with
regular employees of the Government on the principle of equal pay for equal
work.
17. Applying the law laid down by this Court in the aforesaid decisions, the
directions issued by the High Court in the impugned judgment and order [Union
of India v. Ilmo Devi, 2015 SCC OnLine P&H 5144] , more particularly, directions
in paras 22 and 23 are unsustainable and beyond the power of the judicial review
of the High Court in exercise of the power under Article 226 of the Constitution.
Even otherwise, it is required to be noted that in the present case, the Union of
India/Department subsequently came out with a regularisation policy dated 30-
6-2014, which is absolutely in consonance with the law laid down by this Court
in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] , which does not apply to the part-time workers who do not work on
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the sanctioned post. As per the settled preposition of law, the regularisation can
be only as per the regularisation policy declared by the State/Government and
nobody can claim the regularisation as a matter of right dehors the regularisation
policy. Therefore, in absence of any sanctioned post and considering the fact
that the respondents were serving as a contingent paid part-time Safai
Karamcharies, even otherwise, they were not entitled for the benefit of
regularisation under the regularisation policy dated 30-6-2014.”
5.4. Further, this court, by a judgment in W. A. No. 2084 of 2018,
dated 08/08/2018, in a similar instance, has reiterated the principle
evolved in Uma Devi’s case(supra) as follows:
“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) do not see how any authority can violate those directions and issue
orders of regularization contrary to the principles laid down in that judgment…”
6. On a conspectus reading of the above judgments, we are not
impressed with the arguments of the learned counsel for the
petitioners, Shri Sandesh Raja, that Uma Devi’s case (supra) would
mandate regularisation of employees who have put in 10 years of
continuous service. In Uma Devi’s case, the Apex Court considered
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regularisation of temporary employees as a one-time measure, as
evident in Para 53 of the judgment. That does not mean that the
Government is bound to regularise every such employee.
Regularisation falls within the policy domain of the Government. The
posts claimed by the petitioners are not sanctioned posts. The Apex
Court in the above judgments declared that the court cannot order
regularisation of employees in non sanctioned posts. Therefore, this
Court and the Tribunal cannot order the regularisation of employees
like the petitioners, without there being sanctioned posts to
accommodate the petitioners. We do not find any merit in these
original petitions, and they are accordingly dismissed.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
JOHNSON JOHN, JUDGE
ms
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APPENDIX OF OP(KAT) 97/2025
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE G.O.[MS] NO.29/2015/FOREST DATED
14/5/2015
Annexure A2 TRUE COPY OF THE COVERING LETTER NO.E2-4911/2013
DATED 25-07-2015 ALONG WITH THE LIST OF DAILY WAGE
EMPLOYEES HAVING 10 YEARS OF SERVICE AS ON
01.01.201 FORWARDED BY THE 5TH RESPONDENT TO THE
4TH RESPONDENT
Annexure A3 TRUE COPY OF THE COVERING LETTER NO.E2-4832/19/540
DATED 18/2/2020 ALONG WITH THE LIST OF DAILY WAGE
EMPLOYEES WHO ARE HAVING 20 YEARS KEPT IN THE
OFFICE OF THE DEPUTY DIRECTOR, [PROJECT TIGER
RESERVES] RECEIVED BY THE APPLICANTS UNDER THE
RIGHT TO INFORMATION ACT
Annexure A4 TRUE COPY OF THE COVERING LETTER NO.E2/4832/19/540
DATED 17/8/2020 AND PROFORMA ISSUED BY THE 4TH
RESPONDENT TO THE 5TH RESPONDENT
Annexure A5 ANNEXURE A5: TRUE COPY OF THE LETTER NO.E2-
4832/19/961 DATED 15/2/2021 OF THE 5TH RESPONDENT
ISSUED TO THE 4TH RESPONDENT ALONG WITH THE
PROFORMA
Annexure A6 TRUE COPY OF THE G.O.[MS] NO.312/2021/FOREST DATED
30/9/2021
Annexure A7 TRUE COPY OF THE REPRESENTATION DATED 2/3/2022
SUBMITTED BY 1ST APPLICANT TO THE 5TH RESPONDENT
Annexure A7(a) TRUE COPY OF THE REPRESENTATION DATED 2/3/2022
SUBMITTED BY 2ND APPLICANT TO THE 5TH RESPONDENT
Annexure A7(b) TRUE COPY OF THE REPRESENTATION DATED 28/02/2021
SUBMITTED BY 3RD APPLICANT TO THE 5TH RESPONDENT
Annexure A7(c) TRUE COPY OF THE REPRESENTATION DATED 02/03/2022
SUBMITTED BY 4TH APPLICANT TO THE 5TH RESPONDENT
Annexure A7(d) TRUE COPY OF THE REPRESENTATION DATED 02/03/2022
SUBMITTED BY 5TH APPLICANT TO THE 5TH RESPONDENT
Annexure A7(e) TRUE COPY OF THE REPRESENTATION DATED 02/03/2022
SUBMITTED BY 6TH APPLICANT TO THE 5TH RESPONDENT
Annexure A7(f) TRUE COPY OF THE REPRESENTATION DATED 02/03/2022
SUBMITTED BY 7TH APPLICANT TO THE 5TH RESPONDENT
Annexure A7(g) TRUE COPY OF THE REPRESENTATION DATED 02/03/2022
SUBMITTED BY 8TH APPLICANT TO THE 5TH RESPONDENT
Annexure A8 TRUE COPY OF THE LIST OF DAILY WAGE EMPLOYEE WHO
ARE HAVING 20 YEARS OF SERVICE AS ON 1/1/2020
Annexure A9 TRUE COPY OF THE REPRESENTATION DATED 17/02/2022
GIVEN BY THE 16TH APPLICANT TO THE 6TH RESPONDENT
Annexure R1(a) TRUE COPY OF THE LETTER NO.387/F1/2018/FOREST
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DATED 31/07/2021
Annexure R1(b) TRUE COPY OF THE G.O.[MS] NO.110/2015/F&WLD DATED
28/12/2015
Exhibit P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.1338/2022
DATED 26/07/2022 ALONG WITH ANNEXURES FILED BEFORE
THE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM
Exhibit P2 TRUE COPY OF THE STATEMENT DATED 27/12/2022 ALONG
WITH ANNEXURE FILED BY THE 1ST RESPONDENT
Exhibit P3 TRUE COPY OF THE REPLY STATEMENT DATED 20/4/2023
ALONG WITH ANNEXURE FILED BY 1ST RESPONDENT DATED
20/4/2023
Exhibit P4 TRUE COPY OF THE ORDER DATED 6/11/2024 IN O.A.
NO.1338/2022 OF THE HON’BLE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM