S. PARIMALOM v. STATE OF KERALA — 1985 DIGILAW 200 (KER)

Judgment :- 1. The sole question that falls for decision in this O.P. is whether the petitioner, sponsored by the employment exchange and appointed by the 2nd respondent, the Executive Engineer, by his proceedings Ext. P1 dated 12-11-1984 purely on a temporary basis under R.9 (a) (i) of the Kerala State and Subordinate Services Rules, 1958 (the Rules) for a period of 180 days or till regular appointment through Public Service Commission is made, whichever is earlier, is entitled to continue in the post even after the expiry of 180 days beyond which in terms of Ext. P1 appointment order she could not remain in the post. When the stay petition, C.M.P No. 13473 of 1985, came up for consideration, our learned brother Kalliath J., referred the matter to a Division Bench in view of the apparent divergence in approach made by John Mathew, J., & Radhakrishna Menon, J., on the one hand and Sukumaran J., on the other. 2. R.9 (a) (i) of the Rules reads as follows: "9. Temporary appointments. (a) (i) Where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may appoint a person, otherwise than in accordance with the said rules, temporarily;" The second proviso to R.9(a) (i) reads as follows: "Provided further that a person appointed under this clause by direct recruitment to a post other than teaching post and a post covered by the proviso to clause (iii) of R.10(b) shall not be allowed to continue in such post for a period exceeding one hundred and eighty days".. (emphasis supplied) That the petitioner is not entitled to continue in service beyond the period of 180 days either in terms of Ext. P1 appointment order or in accordance with the provisions contained in R.9(a) (i), admits of no doubt. We had also ruled in Remlath's case (1984 KLT. (emphasis supplied) That the petitioner is not entitled to continue in service beyond the period of 180 days either in terms of Ext. P1 appointment order or in accordance with the provisions contained in R.9(a) (i), admits of no doubt. We had also ruled in Remlath's case (1984 KLT. 312): "It is true that a person appointed under clause (i) shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post; that does not, however, mean that unless such candidate reports for duty, the service of the temporary hand employed to meet the emergency and as a stop-gap arrangement, could not be terminated even after the lapse of the period for which he or she was appointed in terms of the appointment order issued to him or her under R.9(a) (i) of the Rules." In fact, the petitioner has no case that in terms of the appointment order or by virtue of R.9 (a) (i) of the rules she is entitled to continue in the post after the expiry of the period of 180 days. The sole ground raised in the writ petition is in terms of the decision of the Supreme Court in Narayani's case (1984 K.L.T. 17) she was entitled to continue in service till a regular hand advised by the Public Service Commission reported for duty in the post occupied by her. 3. A large number of writ petitions challenging the termination of service of the petitioners were filed in this Court contending that they were workmen within the definition of that term in S.2 (8) of the Industrial Disputes Act, 1947 and the termination of their services amounted to retrenchment under S.2 (oo) of that Act, and therefore, such termination was invalid for non-compliance with the provisions contained in Chapter V-A of the Industrial Disputes Act, 1947. The question was decided by a Full Bench of this Court in Umayammal's case (1982 K.L.T. 829 (F.B.)). The same question came up before the Supreme Court and the decision relied on (1984 K.L.T. 17) is the one rendered by the Supreme Court while disposing of the appeals. 4. The question was decided by a Full Bench of this Court in Umayammal's case (1982 K.L.T. 829 (F.B.)). The same question came up before the Supreme Court and the decision relied on (1984 K.L.T. 17) is the one rendered by the Supreme Court while disposing of the appeals. 4. Before proceeding further, we may notice two things: the State of Kerala has amended the Kerala Public Services Act, 1968 by the Kerala Public Services (Amendment) Act, 1983 (Act 4 of 1984) with retrospective effect from 1st October, 1981 as provided for in S.1 (2) of the Amending Act. By S.2 of the Amending Act, a new section has been inserted in the Kerala Public Services Act as S.4, which laid down that nothwithstanding anything contained in Chapter V-A or in any other provision of the Industrial Disputes Act, 1947 (Central Act 14 of 1947) or in any other law for the time being in force, or in any judgment, decree or order of any Court, the appointment of any person to any public service or post in connection with the affairs of the State of Kerala and the conditions of service (including termination of service) of any person appointed to any such service or post shall be governed by the provisions of this Act and the rules made or deemed to have been made thereunder. Thus, the conditions of service including termination of a person appointed to public service would be governed by the provisions of the Kerala Public Services Act, not the Industrial Disputes Act. The Government have also issued a Circular dated 3rd May, 1984, stating therein in Para.2 as follows: "It has come to the notice of Government that the benefit of continuing in service beyond 180 days is allowed not only to provisional employees who have been in continuous employment on the date of the judgment of the Supreme Court viz., 24-11-1983, but also to those appointed through Employment Exchanges after 24-11-1983 as well. This is not the intention of Government in issuing circulars dated 5-12-1983 and 9-1-1984. The benefit of continuance beyond 180 days till regular hands advised by the Kerala Public Service Commission join duty is allowed only to those temporary (provisional) employees who have been in continuous employment on 24-11-1983, the date of Supreme Court judgment. This is not the intention of Government in issuing circulars dated 5-12-1983 and 9-1-1984. The benefit of continuance beyond 180 days till regular hands advised by the Kerala Public Service Commission join duty is allowed only to those temporary (provisional) employees who have been in continuous employment on 24-11-1983, the date of Supreme Court judgment. The temporary (provisional) appointments made after 25-11-1983 will be governed by the provisions contained in R.9 (a) (i) of the Kerala State and Subordinate Services Rules, 1958." In short, our task in this writ petition is to see whether this circular issued by the Government could be sustained in the light of the decision rendered by the Supreme Court in Narayani's case (1984 KLT.17). 5. We would now extract certain relevant portions from the decision the Supreme Court (1984 KLT.17) to ascertain whether the Supreme Court had in mind anything contrary to the view expressed by the Government in the circular to which reference has already been made. Para 2 "We are of the opinion that the best solution, in the circumstances of the case, is to ask and allow the petitioners to appear for the next Public Service Commission examination." Para 3 "The petitioners will be entitled to appear for that examination along with the other candidates who may be due to appear for the examination." Para 4 "We direct that the petitioners and others similarly situated will be allowed to appear for the next examination by a similar relaxation of the age restriction provided that they have been in continuous employment. Such relaxation will be limited to and available for the next examination only." The observations of the Supreme Court in Para.6 that "the petitioners and all others who are similarly situated may be allowed to continue in service, provided that there are vacancies in which they can be allowed to continue to work." has to be read and understood in the context of what the judges had expressed in the earlier paragraphs of the judgment. The petitioner herself has not canvassed the validity of R.9 (a) (i) of the Rules; and it could never have been the intention of the Supreme Court, in effect, to nullify the second proviso to the said rule which prohibited the continuation of the person appointed under that clause in the post for a period exceeding 180 days. The petitioner herself has not canvassed the validity of R.9 (a) (i) of the Rules; and it could never have been the intention of the Supreme Court, in effect, to nullify the second proviso to the said rule which prohibited the continuation of the person appointed under that clause in the post for a period exceeding 180 days. The directions in Para.6 of the judgment has to be appreciated and understood in the context and the circumstances in which it happened to be given, bearing particularly in mind, the restrictions carefully imposed by the learned judges themselves in regard to the scope and ambit of the directions in the previous paragraphs. It would be totally untrue to the spirit of the directions contained in the judgment if we are to construe that the Supreme Court permitted a perpetual violation of R.9(a) (i), with particular reference to the second proviso thereto, which prohibited the continuation of the persons so appointed in service for a period exceeding 180 days. In our view, the circular dated 3-5-1984 issued by the Government reflects correctly the opinion of the Supreme Court in the decision in 1984 K.L.T. 17. 6. The counsel for the petitioner sought to reply on certain observations made by a Division Bench of this Court in the judgment in O. P. Nos. 5041/84 and connected cases. That decision, according to us, could not be cited in support of the stand taken by the petitioner in this case. That is a case of temporary employment in a newly formed statutory Corporation known as The Kerala Water and Waste Water Authority. The question as to whether the provisional hands, who were appointed after 24-11-1983, the date of the judgment of the Supreme Court in 1984 K.L.T. 17 were entitled to continue in service notwithstanding R.9(a) (i) of the Rules, does not appear to have either been raised or gone into by the Division Bench. It has also to be noticed that the question as to whether the conditions of service applicable to the employees of statutory Corporations would be applicable to the employees in Government service was also not before the Division Bench. It has also to be noticed that the question as to whether the conditions of service applicable to the employees of statutory Corporations would be applicable to the employees in Government service was also not before the Division Bench. The Advocate-General, during the course of the hearing of this case, submitted that in that case the judges found that the petitioners had no legal right to continue in service beyond the period stipulated in the appointment orders; all the same, on a concession made by him (Advocate-General) in view of the fact that not only no selection of personnel for regular appointment had been made, but even the rules for making such appointments also not having been made, the Court made the observations that "all those persons who are now working on provisional basis will be allowed to continue until such time as regular hands are appointed and they report for duty." Surely, what is said of a particular category of provisional employees of a statutory Corporation, which had not made rules or regulations for selection and appointment to that category, and that too on a concession stated to have been made by the Advocate-General, could not be the yardstick for deciding the correctness or otherwise of the Government's view as reflected in the Circular dated 3rd May 1984. The writ petition is misconceived. The petitioner has no legal right to continue in service beyond the period for which appointment was made in Ext. P1 either in terms of R.9 (a) (i) of the rules or by virtue of the observations or directions contained in the decision of the Supreme Court in Narayani's case (1984 K.L.T. 17). The result, therefore, is that the writ petition is dismissed. No costs. Dismissed.