Regularisation of employees in non-sanctioned posts is not legally tenable, as affirmed by the Supreme Court, emphasizing the need for genuine sanctioned posts.

JUDGMENT :

Muralee Krishna, J.

1. The respondents in O.A.No.1984 of 2015 on the file of the Kerala Administrative Tribunal (the ‘Tribunal’ in short) filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, challenging Ext.P3 order dated 10.04.2017 passed by the Tribunal in that original application.

2. Going by the averments in the original application, the respondent-applicant is presently working as a Casual Sweeper/Sanitation employee in the Taluk Headquarters Hospital, Karunagappally. The respondent commenced her service in the said hospital in 1998 as a hand receipt sweeper. Originally, there was no attendance register. Later, she was formally appointed as a casual sweeper from 01.01.2004 in the said hospital through the Hospital Development Committee (‘HDC’, in short) on a daily wage basis. She continued as a daily waged sweeper and thereafter, from 01.06.2010, as a sanitation employee, as per the recommendations of the HDC. By Annexure A7 order, the 2^nd petitioner rejected the claim of the respondent for regularisation on the ground that she was a casual sweeper appointed through HDC. Being aggrieved by the issuance of the said order, the respondent filed O.A. No.135 of 2014 before the Tribunal and the Tribunal disposed of the said O.A. by Annexure A8 order dated 01.12.2014, directing the Government to take a decision in the matter based on Annexure A9 Judgment of the Hon’ble Supreme Court. Subsequently, the 1^st petitioner issued Annexure A10 Government Order dated 08.10.2015 rejecting the request of the respondent for regularisation. Hence, the respondent filed the original application before the Tribunal under Section 19 of the Administrative Tribunals Act 1985, seeking the following reliefs:

“(i) Call for the records leading to Annexures A7 and A10 orders and set aside the same.

(ii) Issue a direction to the respondents 1 and 2 to regularize the applicant as Sweeper/Part time contingent sweeper in the Taluk Headquarters Hospital, Karunagappally, w.e.f. 01.01.2004 and disburse her all consequential monitory benefits.

(iii) Declare that the applicant is entitled to be regularized as Sweeper/Part time Contingent sweeper in the Taluk Headquarters Hospital, Karunagappally”

3. Before the Tribunal, the learned counsel for the 1^st petitioner State filed a reply statement dated 16.08.2016 opposing the reliefs sought in the original application.

4. By the impugned Ext.P3 order dated 10.04.2017, the Tribunal disposed of the original application by setting aside Annexures A7 and A10 orders and directing to regularise the service of the respondent as a part-time sweeper with effect from 01.01.2004 with all consequential benefits. The petitioners were further directed to issue consequential necessary orders within two months from the date of receipt of a copy of that order. Being aggrieved, the petitioners filed this original petition.

5. Heard the learned Senior Government Pleader for the petitioners and the learned counsel for the respondent.

6. The learned Senior Government Pleader would submit that the Tribunal failed to appreciate the fact that the respondent was not appointed in a sanctioned post, and the only sanctioned post available in the hospital is not vacant. The fact that the respondent is engaged temporarily by the HDC was overlooked by the Tribunal while passing the impugned order. The learned Senior Government Pleader relied on the judgments of the Apex Court in Jaggo v. Union of India [2024 SCC Online SC 3826], State of Maharashtra v. R.S Bhonde [(2005) 6 SCC 751] and that of a Division Bench of this Court d