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2006 DIGILAW 580 (KER)

K. R. Manoj v. Kerala State Beverages Corporation

2006-08-31

J.B.KOSHY, M.SASIDHARAN NAMBIAR

body2006
Judgment :- Koshy, J. Petitioners in O.P.21971/02 and W.P.(C) No.25183/05 are employed persons. Their main grievance is that in Kerala State Beverages Corporation and in Kerala State Co-operative Consumer Federation, appointments are made through back door by which respondents’ favourites are appointed violating rules. As regular appointments are not made petitioners’ chances will be lost. It is also submitted that employees were appointed on daily wages without any norms. By Ext.P8 in O.P.21971/02 a proposal is made to regularize their services provided they are working six months continuously. According to petitioners due to back door appointments, they will not get a chance for applying to such posts and this is gross violation or Article 14 of the Constitution of India. In C.M.P.37671/2002 in O.P.21971/02 it was ordered on 7/8/2003 that if any further casual employees are required, candidates sponsored by Employment Exchange can be appointed and regular vacancies shall be filled up on the basis of selection, following a fair procedure. As per order dated 16/3/2005 respondents were directed not to regularize the services of workers engaged by them except after selection through Kerala Public Service Commission. (Ext.P3 in W.P.C.7947/2006). The complaint in the above writ petition (W.P.C.7947/2006) is that by Ext.P4 dated 1/3/2006 daily wages workers were ordered to be covered under the Abkari Workers Welfare Fund Scheme automatically from the date on which they complete three months of continuous service. According to the petitioners this is violation of interim orders passed by this court and this is equivalent to regularization of their services. Writ petition (Civil) No.21026/2006 is filed by the daily wages workers to implement the order dated 1/3/2006 to enlist them in Abkari Workers Welfare Fund Scheme. 2. It is not disputed that regular appointments are to be made through Public Service Commission in the Kerala Beverages Corporation as well as in Kerala State Co-operative Consumer Federation. But their submission is that with regard to the posts that should be appointed through P.S.C there are some discussions as they made a demand that appointment of last grade employees should be left to them. It is further submitted that in the case of exigencies of circumstances, after making public notice, eligible persons were appointed, but such employees were not regularized in violation of the interim orders. It is further submitted that in the case of exigencies of circumstances, after making public notice, eligible persons were appointed, but such employees were not regularized in violation of the interim orders. As far as Ext.P8 is concerned, it is stated that it is only an advice given by the Government to the Corporation to regularize the daily rated workers who are working in the above establishment and who were educationally qualified as service of experienced workers can be made utilised by the establishment. It is also submitted on behalf of some of respondent workers impleaded that they are working for long time and therefore if their services are dispensed with, they will not get a chance to get employment elsewhere. Learned Advocate General submitted that policy of the Government is to appoint persons through regular channel only and Ext.P8 may be treated only as a proposal. But no such workers were regularized so far. We shall discuss the right of regularization of such workers, after considering the question of enrollment of daily rated workers under the Abkari Workers Welfare Fund Scheme. 3. Ext.P4 in W.P.C.7947/06 is not a regularization order at all. By Ext.P4 daily wages workers were offered temporary membership under Abkari Workers Welfare Fund Scheme. Above order read as follows; “In view of the above facts Government are pleased to accord sanction to enroll the daily wage employees of the Corporation in the Kerala Abkari Worker’s Welfare Fund Scheme subject to the condition that they will be dispensed with Employees Provident Fund Scheme and will be fully governed by the service condition as envisaged in the service rule of the Kerala State Beverages (M & M) Corporation. The accumulations of the Employees Provident Fund in respect of the said employees will be transferred to the Abkari Workers Welfare Fund Scheme under clause 32 of the said scheme. The coverage of the daily wage employees of the Kerala State Beverages Corporation under the Abkari Workers Welfare Fund Scheme will not entail claim for regularization of employment in Corporation”. Order specifically stated that because of membership they will not entail claim for regularization in the Corporation. By the above order Abkari workers who are working temporarily on daily wages are entitled to get into Abkari Workers Welfare Fund Scheme. It cannot be termed as a regularization order. Order specifically stated that because of membership they will not entail claim for regularization in the Corporation. By the above order Abkari workers who are working temporarily on daily wages are entitled to get into Abkari Workers Welfare Fund Scheme. It cannot be termed as a regularization order. Ext.P4 is not order in violation of interim order passed by this court. Hence there is no merit in the writ petition No.7947 of 2006 and is liable to be dismissed. Under Section 24 of the Kerala Abkari Workers Welfare Fund Act 1990, every workers who had completed continuous work for a period of 3 months is entitled to become a member of the K A W W F Scheme. Hence Government is bound to implement the above order (Ext.P3 in W.P.(Civil) No.21026/06). Hence Writ Petition (Civil) No.21026/06 is allowed to the above extent. 4. The question of regularization of casual employees in Public Departments is finally settled by the decision of Constitution Bench of the Honourable Supreme Court in Secretary, State of Karnataka and Others v. Umadevi and Others (2006 (4) SCC 1). Honourable Apex court after considering all relevant previous files clearly held that daily wages employees who are appointed in dehors rules cannot be regularized dehors the constitutional scheme of public employment. At para 43, Apex court held as follows; “43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointments, do not acquire any right.” It was further held in para 45 that “The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution”. In that decision the Apex court also held that duly qualified persons who were irregularly appointed can be regularized as a one time measurement provided such temporary employees are working for ten years. At para 53, it was observed as follows; “In that context, the Union of India the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened bases on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme”. 5. It is submitted by counsel for the Beverages Corporation that in certain festival seasons engagement of more casual workers are necessary even though no regular posts are not available and on such time getting workers from Employment Exchange will not be practical. In such circumstances, engagement for three months or six months is not necessary, instead employment by one week or at the maximum ten days is sufficient. But we cannot assume festival continuous for five years or six years. Even in such circumstances, date of festival is known earlier itself and for engaging casual employees for very short periods for 7 or 10 days for a festival, lit should be notified to the Employment Exchange and public notice also shall be made. They cannot violate the provisions in the Employment Exchange (Compulsory Notification of Vacancies) Act 1957. But no appointment can be made in regular post dehors the rules. 6. We also refer another decision of Supreme Court in Pankaj Gupta and others v. State of J & K and others (2004 (8) SCC 353) where following directions were made. “1. All the vacant posts shall be notified for appointment and applications called for in accordance with the rules within six months from the date of receipt of this judgment. 2. All the appellants herein may be permitted to submit application for appointment against such notification. 3. As regards the upper age-limit, these appellants shall be given relaxation but there shall not be any relaxation in the matter of the basic qualifications for appointment to Class IV posts. 4. The appellants may be allowed to continue in service till such regular recruitments are made and these posts are filled up by a regular process of appointment.” We also refer the decision of apex court in National Fertilizers Ltd. And Others v. Somvir Singh (2006 (5) SCC 493). 4. The appellants may be allowed to continue in service till such regular recruitments are made and these posts are filled up by a regular process of appointment.” We also refer the decision of apex court in National Fertilizers Ltd. And Others v. Somvir Singh (2006 (5) SCC 493). In that decision it was held that for regular appointment, if any appointments are made through back door they cannot be allowed to continue in service even though they may be considered for future appointment and remuneration paid to them shall not be recovered. 7. Counsel for the respondent Corporation submitted that none of the daily wages workers were not regularized so far. Therefore, so long as no regular appointments were made it cannot be said that illegal appointments were made violating interim order of this court. Even for temporary appointments legal procedures were not followed. It is submitted that before making the daily appointments on temporary basis public notices were made and only educationally qualified persons were appointed on temporary vacancies on daily wages. We on the facts and circumstances of the case make the following directions. (1) All regular posts vacant should be notified for appointment. All regular posts now held by temporary hands shall be reported in accordance with the rules. (2) No temporary hands shall be appointed to the regular vacancy. (3) All vacancies shall be reported to the Public Service Commission within six months from the date of receipt of copy of this judgment. All posts manned by temporary employees for more than one year continuously shall be treated as permanent post. (4) As far as upper age limit is concerned for regular appointments, the temporary employees who are working in the Corporation for more than six months, shall be given age relaxation. But there shall not be any relaxation in the matter of basic qualifications. (5) The temporary employees working in the regular post shall be allowed to continue in service only until these posts are filled up by regular appointments. (6) If any casual or other employees are necessary hereafter, they can be appointed only through employment exchange and such employees will not get any right for regularization on any account as they shall not be allowed to work for more than six months. (6) If any casual or other employees are necessary hereafter, they can be appointed only through employment exchange and such employees will not get any right for regularization on any account as they shall not be allowed to work for more than six months. We further make it clear that regular vacancies should be notified and regular appointments should be made as expeditiously as possible. With these directions the writ petitions are disposed of.