C A INDIRA Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners were temporary appointees under Rule 9(a)(i) of Part II of the Kerala State and Subordinate Services Rules, 1958 (for short 'the Rules'). They were appointed as Junior Public Health Nurse at various Primary Health Centers under the Health Department. In the year 1999 their services were terminator. Similarly situated persons assailed the order of termination. Ultimately the said matter went up to the Hon'ble Apex Court. The entitlement of such person for appointment was considered by the Hon'ble Apex Court as per Ext. P1 order dated 22.4.2003. Admitedly, the petitioners were not parties before the Hon'ble Apex Court. The appeals and the write petition were disposed of as hereunder:-

(2.) As already noticed hereinbefore, the petitioners herein were not parties to Ext. P1 However, it is claiming extension of the benefits granted to the second category of the appellant/petitioners in Ext. P1 order that a approached the respondents. Pursuant to Ext. P4 judgment, the claims of the petitions were considered and as per Ext. P5 dated 26.9.2008 the same were rejected. However, the petitioners have not chosen to challenge the same within a reasonable time. They have again approached the first respondent on getting information that certain similarly situated persons were given regularization. Ext. P6 representation submitted thereafter, seeking re-appointment was rejected as per Ext. P7 dated 20.6.2011. As stated earlier, the petitioners were appointees under Rule 9 (a)(i) of part II of the Rules, Their services where terminated as early as in the year 1999. Thereafter, they had not challenged the order of termination in time. They moved the Government seeking appointment the said claim was rejected as per Ext. P5 dated 26.9.2008 and thereupon, they fell in slumber. It is the news of regularization of certain allegedly similarly situated persons that acted as the wakener. However, that was also a vain attempt It is thereafter, that this writ petition has been filed. In that context, it is to be noted that the Hon'ble Apex Court in Ext. P1 order issued only a direction for consideration in case of availability of vacancies even in the case of those who were parties before the Hon'ble Apex Court but approached the Court only after termination of service viz., the second category. It is true that the claim of the petitioners were directed to be considered in accordance with law, by this Court as per Ext. P4 judgment. Obviously, after such consideration, it was rejected as per Ext. P7 order dated 20.6.2011. The claim of the petitioners is, admittedly, founded on Ext. P1 order which was rendered by the Hon'ble Apex Court on 22.4.2003, prior to the decision in Secretary, State of. Karnataka and others v. Umadevi (3) and others, 2006 4 SCC 1 and also the claim that some similarly placed persons were given regularization subsequent to Ext. P5. In the context of the contentions, it is relevant to refer to the decision of the Hon'ble Apex Court in Indian Drugs & Pharmaceuticals Ltd., v. Workmen, Indian Drugs & Pharmaceuticals Ltd, 2007 1 SCC 408. It was held therein that mare directions given in a case without laying down a principle of law did not constitute a precedent and such directions could only be treated as one given under Article 142 of the Constitution of India. As regards the decision of Hon'ble Apex Court in Umadevi (3) undoubtedly, it is binding on all parties in view of India. It was rendered by the Hon'ble Apex Court after considering such claims in the light of the constitutional scheme for public employment Going by the decision in Umadevi (3) the petitioners cannot legally claim for re-appointment or for regularization in service. In fact, the petitioners did not dispute this position. In the context of the case, it is also relevant to refer to the decision of the Hon'ble Apex Court in Pinaki Chatterjee v. Union of India, 2009 5 SCC 193. In fact, that was a case where regularization reling on departmental instructions issued prior to and contrary to the law laid down in Umadevi (3) was sought It was held that concern Railway Board Circular which supported the case, issued long before law laid down in Umadevi (3) case, could not be relied on to effect recruitment contrary to statutory recruitment rules and in violation: of Articles 14 and 16 of the Constitution of India. The contention that similarly situated persons have been appointed/absorbed cannot be a reason for issuance of a writ of mandamus as the petitioners got to legal right and the State got to corresponding obligation and there cannot be equality in illegality. After considering the decision in Umadevi (3) such a view was taken by the Hon'ble Apex Court in Union of India v. Arulmozhi Iniarasu, 2011 7 SCC 397. In this case, it is stated in Ext. P7 that in tune with the relevant recruitment rules ranked lists have been drawn and published by the Kerala Public Service Commission for appointment to the Concerned post and they- are in force. In the light of the above discussion, I am of the considered view that the petitioner cannot legally claim for re-appointment. I am also persuaded to come to the same conclusion claim on the decision of this Court in State of Kerala v. Thirumeni In the latter decision, it was held that those who have not challenged the impugned action even if similarly placed, would hot be entitled to the benefits as they have slept over their right. In this case, the petitioners were terminated from service as far back in the year 1999, It is without challenging their termination at the appropriate time that the petitioners now, seek reappointment relying on Ext. P1. For the forgoing reasons, the petitioners are not entitled to the reliefs sought for. There is no merit in this writ petition, Accordingly, it is dismissed.