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1987 DIGILAW 409 (KER)

SINI P. KURIAKOSE v. STATE OF KERALA

1987-08-19

K.BASKARAN, MALIMATH

body1987
Judgment :- 1. The appellant, who was sponsored by the Employment Exchange, was appointed provisionally as a Head Draughtsman "for 179 days from the date of joining duty or till a regular hand joins duty whichever is earlier", by order of the Executive Engineer (Agril.), Regional Office, Calicut, dated 24-11-1986 (Ext. P1). When her services were about to be terminated on the basis of the appointment order itself and on the strength of the Kerala State and Subordinate Services Rules, especially R.9(a)(i) of the Rules, she approached this court for a direction that her services may not be terminated and that she may allowed to continue in service. This court has in a series of decisions held that the appellant and persons similarity situated are not entitled to the protection of the Industrial Disputes Act in view of the specific amendment to the Kerala Public Services Act, made with effect from 1st October. 1981, stating "notwithstanding anything contained in Chap.S-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." 2. When the case of provisional hands came up before the Supreme Court in the decision reported in 1984 KLT 17 between Narayani v. State of Kerala, the Supreme Court observed: On one hand are the difficulties in which the petitioners find themselves as a result of the impending termination of their services: On the other are the exigencies of service which require that persons who have been selected by the Public Service Commission on merits must take change of their posts. In order not to aggravate this problem, it is necessary that the examination should be held by the Public Service Commission expeditiously." The Supreme Court therefore directed that the petitioners therein and persons similarly situated will be permitted to appear for the next examination which the Public Service Commission may hold. In order not to aggravate this problem, it is necessary that the examination should be held by the Public Service Commission expeditiously." The Supreme Court therefore directed that the petitioners therein and persons similarly situated will be permitted to appear for the next examination which the Public Service Commission may hold. It was also specifically observed that: "We would like to make it clear that the order which we are passing to-day will not confer any right on the petitioners and the others who are similarly situated to continue in service, or of being selected by the Public Service Commission otherwise than in accordance with the relevant rules and regulations. We must also clarify that the order will not be construed as or operate as a stay of the appointment of candidates who have already been selected or who may hereafter be selected by the Public Service Commission." 3. Pursuant to the directions of the Supreme Court, the Government issued 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 Exchange after 24-11-1983 as well. This is not the intention of the 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 24-11-1983 will be governed by the provisions contained in R.9(a)(i) of the Kerala State and Subordinate Services Rules, 1958." 4. The validity of this Circular and the right of the provisional hands appointed subsequent to the decision of the Supreme Court to continue in service notwithstanding the provisions contained in R.9(a) (i) of the Kerala State and Subordinate Services Rules came up for consideration in a batch of writ petitions before this court and this court has since then consistently held that the provisional employees have no statutory right to continue in service and they cannot be allowed to remain in service against the provisions of the statutory rules. It is pertinent to observe that in OP No. 4508/85, (1985 KLT 624), a Division Bench of this court construing the decision of the Supreme court reported in 1984 KLT 17 between Narayani v. State of Kerala and the Circular issued by the Government dated 3rd May, 1984, observed thus: "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 3-5-84 issued by the Government reflects correctly the opinion of the Supreme Court in the decision in 1984 KLT 17". 5. We are not aware whether these decisions have been placed before the Supreme Court when the Writ Petition (Civil) Nos. 410,1574,1790/86 and 874/87 (1987 (2) KLT 347) were deposed of by the Supreme Court by its order dated 6th August, 1987, a copy of which has been produced by the appellant along with the writ appeal as Ext. P5. In this order also, the Supreme Court has stated that the "appropriate order to be passed in this case should be in the same terms as in P. K. Narayani v. State of Kerala and Others (AIR 1984 SC 534:1984 KLT. 17).11 6. It is not possible to agree with the contention of the learned counsel for the appellant that any principle has been laid down by the Supreme Court contrary to the decisions of this Court reported in 1984 KLT 312 and 1985 KLT 624. 17).11 6. It is not possible to agree with the contention of the learned counsel for the appellant that any principle has been laid down by the Supreme Court contrary to the decisions of this Court reported in 1984 KLT 312 and 1985 KLT 624. When appointments are made under statutory provisions for a definite period it is not possible to spell out any law to the effect that contrary to the said statute the appointee is entitled to continue in service beyond the period for which he was appointed in accordance with the statute. The power of this court is to keep within bounds of law and not to issue directions contrary to law. We are not inclined to take the view that the Supreme Court has taken any decision contrary to what we have said in the aforesaid decisions. The decision of the learned single judge not to interfere is in our view right. The appeal fails and is dismissed.