Shajan Abraham v. State of Kerala — 1998 DIGILAW 295 (KER)

Judgment :- A.R. Lakshmanan, J. Heard Mr. K.M. Joseph, learned counsel appearing for the appellant and Mr. Antony Dominic, learned counsel for the second respondent-company. 2, The Writ Appeal is preferred against the judgment in O.P. 15404 of 1997 of a learned single judge dated 25.9.1997 rejecting the Original Petition filed by the appellant. Appellant filed the OP for a mandamus directing the second respondent-management to appoint him and to quash Ext. P5 dated 17.2. 1997 under which the representation dated 9.10.1996 submitted by the appellant before the Honourable Minister for Industries and Social Welfare, rejecting the same on the ground that the appellant's appointment as temporary helper was not by virtue of his being a handicapped person. 3. Appellant's case is that he is a physically handicapped person and his 45% disability was assessed and found by a duly constituted medical board. He has enrolled for the ITI course and passed the same in Electrician trade. He registered himself with the Employment Exchange in 1990 as a physically handicapped person. In 1992, he was recruited as a temporary helper under the second respondent. He was originally appointed as a helper on 21.5.1992 and continued till 20.11.1992. Thereafter, he again worked from 23.11.1992 to 22.1.1993,16.8.1993 to 15.2.1994 and his last in it was from 18.2.94 to 22.8.1996. Contending that he is entitled for regularisation on account of the employment being in respect of a permanent post, appellant, along with several other employees, had approached this Court by filing O.P. 10357/94. An order was passed prohibiting termination dated 3.8.1994 of the appellant along with others. The said Original Petition was ultimately dismissed. Against the same, he has filed WA 1698 of 1996 and the same is pending. While so, the State of Kerala brought out Ext. P2 Government Order dated 30.3.1995 and directed regularisation of all physically handicapped provisional temporary employees. In pursuance of the same, the appellant, who admittedly worked during the period in question, made a representation to the second respondent dated 14.8.1995, which did not evoke any response. His representation was also rejected by the Government. Therefore, the appellant filed the present Original Petition with the prayers mentioned supra. "4. The learned single judge dismissed the O.P. on the ground that the appellant was ousted from service on completion of 180 days of service or on account of abolition of his post. As pointed out in Ext. His representation was also rejected by the Government. Therefore, the appellant filed the present Original Petition with the prayers mentioned supra. "4. The learned single judge dismissed the O.P. on the ground that the appellant was ousted from service on completion of 180 days of service or on account of abolition of his post. As pointed out in Ext. P5, the appellant was not appointed temporarily on account of the fact that he was a handicapped person. The learned judge also held that only persons who were appointed provisionally from among the physically handicapped persons can avail themselves of the benefit of Ext. P2 Government Order. 5. Before us, it is now contended by learned counsel for the appellant that in view of the fact that the appellant is a handicapped person and that he has registered his name in the Employment Exchange as a handicapped person and in the event of there being no dispute about his having worked during the relevant period, the second respondent ought to have continued his employment and the action of respondents 1 and 2 in not appointing the appellant is arbitrary, illegal and against the tenor of Ext. P2. According to the learned counsel, the reasoning of the learned judge that only persons appointed provisionally from among the physically handicapped persons can avail the benefit of Ext. P2 is correct if it is understood as meaning that the person who is appointed to be a physically handicapped person within the meaning of the Government Order. Our attention was drawn to Ext. P2. The said Government Order was in respect of considering the question of regularisation of the services of the physically handicapped provisional (temporary) employees who were engaged in service during the SAARC year of the handicapped. Pending final decision and orders in the matter, the following instructions were made in the circular dated 28.10.1994: "(i) The physically handicapped provisional (temporary) employees who were engaged in Public Service through the Employment Exchanges under R.9(a)(i) of the Kerala State and Subordinate Service Rules, 1958 during the period from 1.1.1993 to 31.7.1994 and who are still continuing in service will be retained in service on a purely provisional basis until further orders. (ii) The physically handicapped provisional (temporary) employees who were engaged in Public Service through the Employment Exchanges under R.9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 during the period from 1.1.1993 to 31.7.1994 and ousted from service (on completion of 180 days of service or on account of expiry of vacancies consequent on joining duty of nominees of P.S.C. or for such other reasons) will be reappointed on a purely provisional basis and allowed to continue until further orders. (iii) The reappointment of such retrenched physically handicapped persons mentioned above will be in the same department and against the same category of post. (iv In case of such retrenched personnel as mentioned above had worked in more than one department during the period from 1.1.199 3 to 31.7.1994, there appointment will be in the department where he had worked last." It is seen from clause (3) that the question of regularisation of the services of the physically handicapped provisional employees covered by the circular was examined by the Government in consultation with the Kerala Public Service Commission and the Public Service Commission has declined to agree with the proposal. Clause (3) relates to the consideration of the views expressed by the Public Service Commission in the matter. It reads thus: "The service of the physically handicapped provisional employees who were in service during the international year of the Disabled', ie., in 1981,wereregularisedinthepast. It was, therefore, felt that it is only appropriate to extend a similar treatment to the physically handicapped provisional employees in connection with the S AARC Year of the Physically Handicapped also. Having examined all the relevant aspects in humanitarian angle, Government are pleased to issue the following orders over-ruling the advice of the Public Service Commission. (i) The services of the physically handicapped provisional employees covered by the circular read above will be regularised with effect from the date of this order or from the date on which the physically handicapped rejoined/rejoin duty consequent on reappointment, which ever is later. (ii) Such regularisation shall be in the same category of post and in the same Department where the physically handicapped provisional employees were allowed to continue or reappointed. (iii) Candidate, if any, advised by the Public Service Commission on the date of regularisation of the services of the physically handicapped provisional employees will be declared as their seniors. (ii) Such regularisation shall be in the same category of post and in the same Department where the physically handicapped provisional employees were allowed to continue or reappointed. (iii) Candidate, if any, advised by the Public Service Commission on the date of regularisation of the services of the physically handicapped provisional employees will be declared as their seniors. (iv) The interse-seniority of the physically handicapped provisional employees will be fixed with reference to length of service in the same department and in the same category of post." Clause (5) is very important. The said clause gives the authority to the Public Sector Undertakings, Local Bodies and autonomous bodies to take a decision by themselves with reference to the regularisation of the services of the physically handicapped employees taking into consideration the interest of the organisation. To that extent, permissive sanction was also granted by the Government to them. Thus, clause (5) of Ext. P2 gives a discretion to the Public Sector Undertakings, Local bodies and autonomous bodies to take a decision in regard to regularisation or not of the physically handicapped persons by also taking into consideration the interest of the organisation. 6. As noticed earlier, the appellant, who has registered his name with the Employment Exchange as a physically handicapped person, was appointed temporarily under the second respondent. During the period from 1.1.1993 to 31.7.1994 he was continuing in the service of the second respondent. Since the appellant worked during the relevant period, learned counsel for the appellant submitted that he should be retained in service by the second respondent under Ext. P2 Government Order. Appellant also satisfies clause (ii) of the Government Order since he was ousted from service on completion of 180 days or on account of expiry of vacancies. Since he was ousted from service on completion of 180 days, learned counsel for appellant submitted that the appellant should be reappointed on a provisional basis or atleast allowed to continue until further orders. He was further submitted that the re-appointment of the appellant should be in the same department and in the same post as per clause (iii) of the Government Order. 7. We are of the view that clauses (i) to (iv) quoted above are subject to clause (5). He was further submitted that the re-appointment of the appellant should be in the same department and in the same post as per clause (iii) of the Government Order. 7. We are of the view that clauses (i) to (iv) quoted above are subject to clause (5). Clause (5) clearly gives the discretion to the second respondent-management, which is a Public Sector Undertaking, to regularise the services of a physically handicapped employee taking into consideration the interest of the organisation. Therefore, we have to see whether the second respondent has exercised its discretion given to them under clause (5) of Ext. P2 Government Order. 8. According to the second respondent, the appellant, who was sponsored by the Employment Exchange in response to a requisition sent to them on 29.2.1992 for sponsoring candidates for appointment to the post of helper in the trade of Electrician, was interviewed along with others on 6.5.1992 and 7.5.1992. Appellant, who worked for different durations, was also allowed to take part in the written test held for the purpose of making regular appointment. Appellant was not successful in the test and, therefore, he was not allowed to take part in the interview. At that stage, he, along with similar appointees, filed O.P. 10357 of 1994 which was dismissed by this Court by judgment dated 22.8.1996 and against which W A1698 of 1996 had been filed in which the present appellant is appellant No. 4. The claim raised in the O.P. and this W.A. is that the appellant, being a physically handicapped person, is entitled to the benefit of Ext. P2 Government Order. But it is submitted that the requisition sent in response to which the appellant's name was sponsored was not for sponsoring physically handicapped person. As far as Ext. P2 GO is concerned, it does not by itself apply to Public Sector Undertakings like the second respondent which, by virtue of clause (5), has been given the discretion and freedom to decide the question as to whether the services of physically handicapped employees, who have put in provisional service, should be regularised or not. It is further submitted that the second respondent-management has not so far taken any decision to extend the benefit of Ext. P2 to any handicapped person. It is further submitted that the second respondent-management has not so far taken any decision to extend the benefit of Ext. P2 to any handicapped person. Therefore, it is submitted that as the appellant was not appointed considering his being a physically handicapped person and for the reason that since the second respondent has not taken a decision to regularise the services of physically handicapped employees, the appellant is not entitled to any relief. 9. Learned counsel for the appellant submitted, by way of reply, that the contention of the second respondent that it has not taken any decision to extend the benefit of Ext. P2 in the company is arbitrary and illegal. It is not for the second respondent to consider whether the appellant was appointed as a physically handicapped person or not, which is immaterial. With reference to the earlier O.P. and the pendency of the Writ Appeal, learned counsel for the appellant submitted that the cause of action of both the O. Ps is different and the earlier proceedings will not bar the appellant from initiating the present proceedings on the fresh development. It is further stated in the reply that Ext. P5 is proceeded on the basis that the appellant was not appointed by virtue of being a handicapped person, but it does not say that Ext. P2 order is not impleaded in the second respondent-company. 10. We are unable to countenance the contention of the appellant in his reply. Second respondent has specifically stated that the said company has not taken any decision to extend the benefit of Ext. P2 in favour of any physically handicapped person. Under Clause (5) of Ext. P2, though freedom is given to decide the question as to whether the services of physically handicapped employees, who have put in provisional service, should be regularised or not, the second respondent has not taken any decision in this regard. 11. It is not in dispute that the appellant was appointed purely on temporary basis. Court have held that where the appointment is contractual, by efflux of time the appointment comes to an end and the appointees would have no right to continue in the post. 11. It is not in dispute that the appellant was appointed purely on temporary basis. Court have held that where the appointment is contractual, by efflux of time the appointment comes to an end and the appointees would have no right to continue in the post. As the appointment is purely on adhoc basis and is contractual, the appointment comes to an end as soon as the work is over and the person holding such post can have no legal rights to continue in the post, Temporary employees have no right to ask for continuance in the post till the employees are regularly appointed by the P.S.C., or for regularisation, as the seasonal employees are not recruited in the manner contemplated in the Rules. The conditions precedent for regularisation is that the appointment should be on regular basis after selection according to Rules. In this case, it is clear from the records that the appointment of the appellant was contractual and by efflux of time, the appointment came to an end and the appellant can have no right to continue in the post. We are of the view that the appellant has no legal right to continue in service beyond the period for which he was appointed in terms of R.9(a)(i) of the Kerala State and Subordinate Services Rules. A similar view was taken by a Division Bench of this Court in Vinod v. State of Kerala (1998 (1) KLT 607). As the appellant was sponsored in response to a vacancy notification without considering his being a physically handicapped person, on the strength of which he was appointed, we are of the view that the appellant is not entitled to claim the benefit of Ext. P2 Government Order. Even otherwise, as Ext. P2 has not been impleaded by the second respondent, the appellant cannot claim the benefit thereunder. 12. The Writ Appeal, therefore, fails and it is accordingly dismissed. However, it is open to the appellant to make a fresh application to the second respondent for consideration of his claim for appointment and it is for the second respondent-management to consider his claim and pass appropriate orders in accordance with law. No costs.