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2007 DIGILAW 369 (KER)

Dileep, Palakkad District v. The Kerala State Warehousing Corporation Limited, Rep by Its Managing Director

2007-06-20

THOTTATHIL B.RADHAKRISHNAN

body2007
Judgment :- The petitioners in these writ petitions are similarly situated and their contentions are similar. The respondents’ contentions in defence are also similar. Accordingly, these matters are consolidated for consideration, heard and are being disposed of by this common judgement. 1. The first respondent engaged the petitioners as Assistants on contract basis, for a period of six years, on monthly lump sum payment. Such appointments were made without making any selection. By the impugned orders, the engagement of the petitioners has ceased. The petitioners challenge it. 2. According to the respondents, the petitioners’ engagements on contract basis, that too, for six years, have been made by the then Managing Director in colourable exercise of the authority, while there were not even available vacancies to make such engagements. 3. Regulations 6 and 7 of the Kerala State Warehousing Corporation Staff Regulations, 1963, hereinafter referred to as the “Regulations”, read as follows: “6. Manner of appointment and promotion: (1) Appointment to various posts shall be made by promotion or by direct recruitment or by borrowing personnel from the State or Central Government or a Government institution in accordance with such terms and conditions as the Board of Directors may lay down from time to time. The Board of Directors may also appoint person on contract and the period; pay, etc. may be according to the terms of the contract. Provided that the Managing Director, appointments to posts in Class I, shall make the appointments to posts in Class 4 Class ii and Class iii shall be made by Executive Committee. (2) The appointing authority ma appoint a sub-committee or selection committee for drawing up a panel of names for the posts concerned for consideration of the appointing authority. 7. Manner of Selection and Publicity for posts available for direct recruitment: All posts available for direct recruitment shall for posts available for direct recruitment: All posts available for direct recruitment shall be given due publicity and in particular the following steps may be taken. (i) In respect of posts under Class-I, ii and iii, an advertisement incorporating the necessary minimum qualifications and experience may be inserted in such of the leading newspapers as the Managing Director may consider necessary. (ii) Posts under Class iv shall be filled up through Employment Exchange. (i) In respect of posts under Class-I, ii and iii, an advertisement incorporating the necessary minimum qualifications and experience may be inserted in such of the leading newspapers as the Managing Director may consider necessary. (ii) Posts under Class iv shall be filled up through Employment Exchange. (iii) The principles of reservation of appointments for Scheduled Castes and Scheduled Tribes and other backward classes as applicable to appointments under the Government of Kerala shall be followed in the matter of all appointments under the Government of Kerala shall be followed in the matter of all appointments under the Corporation and the Corporation may recruit candidates exclusively from Scheduled Castes Scheduled Tribes by special recruitment for filling up vacancies in all the categories of staff when the representation of Scheduled Castes and Scheduled Tribes falls short of the minimum number of representatives in each of the categories required by the rules regarding such representation as applicable to appointments under the Government of Kerala”. 4. Regulation 6 quoted above provides that the appointment to various posts shall be made by promotion or by direct recruitment or by borrowing personnel from the State or Central Government or a Government institution in accordance with such terms and conditions as the Board of Directors may lay down from time to time. This provision in Clause (1) of Regulation 6 is immediately followed by the provision in the same Clause that the Board of Directors may also appoint person on contract and the period, pay, etc. May be according to the terms of the contract. Regulation 7 provides the manner of selection and publicity for the posts available for direct recruitment. The warehousing Corporation is a statutory body. The purpose of its constitution is to achieve the objects sought to be achieved by the Warehousing Corporations Act, 1962, hereinafter referred to as the “Act”, for short, namely, making provisions for warehousing of agricultural produce and certain other commodities and for matters connected therewith. The shareholding in the Corporation is with the State Government and the Central Warehousing Corporation and regulated b Chapter ii of the Act. The Regulations are framed in exercise of power under Section 42 of the Act, in particular, sub-section 2(a) thereof, for the purpose of giving effect to the provisions of the Act. Such Regulations shall not be inconsistent with the Act. The Act stands because it is consistent with the Constitution. The Regulations are framed in exercise of power under Section 42 of the Act, in particular, sub-section 2(a) thereof, for the purpose of giving effect to the provisions of the Act. Such Regulations shall not be inconsistent with the Act. The Act stands because it is consistent with the Constitution. The Regulations have to be consistent with the Constitution. Article 16 of the Constitution of India, which is a spread of Article 14 thereof, guarantees equality of opportunity in matters relating to employment or appointment to any office under the State. The Corporation is state for the purpose of Article 12. Therefore, equality of opportunity in the matter of employment or appointment in the Warehousing Corporation is guaranteed by Articles 14 and 16 of the Constitution. The attainment of the guarantee of equality of opportunity is to be by providing equal opportunity in competing to enter the employment, thereby meaning equal opportunity, within the format of the Constitution, to be considered for appointment. If the provision in Clause (1) of Regulation 6 empowering the Board of Directors to appoint for long periods against posts for which direct recruitment is prescribed in the earlier part of that Clause, it would militate against Articles 14 and 16 of the Constitution. This is all the more so because the overwhelming thrust of the provision in Clause (7) is that the selection should be transparent. Direct recruitment shall be made after giving due publicity, as regards posts under Class I, ii and iii. In so far as Class iv posts are concerned, they are to be filled up through Employment Exchange. If that be so, the provision in Regulation 6(1) empowering the Board to appoint persons on contract on long durations. Therefore, the provision in Clause (1) of Regulation 6, providing for appointment on contract, cannot, in the content, be resorted to, to deplete the availability of vacancies for direct recruitment. It cannot also be resorted as a substitution of the requirement to recruit Class 1v personnel through Employment Exchange. Profitable reference in this regard could be had to the precedent, particularly to the facts of that case and directions issued therein, which case relates to the same institution. 5. The quality of engagement, on the basis of which the petitioners claim, is only one of contract. Profitable reference in this regard could be had to the precedent, particularly to the facts of that case and directions issued therein, which case relates to the same institution. 5. The quality of engagement, on the basis of which the petitioners claim, is only one of contract. The uncontroverted stand in the counter affidavit is that, the continuance of the petitioners as excess hands is unnecessary for the Corporation. Apparently, the situation in hand is also similar to the case of the writ petitioners in W.P.© NO.5183 OF 2007, which related to Class iv employees, which I have dismissed by judgement dated 2-4-2007. In the aforesaid situation, the impugned order cannot be found fault with. 6. The terms of appointment, according to the petitioners, cannot come to an end without letting them have a notice of termination. The impugned orders were issued on 3-2-2007 and the petitioners are continuing in engagement. So much so, by now, any absence of pre-decisional notice also stands cured, particularly when, on adjudication, this Court finds no grounds for the petitioners to continue. Writ petitions fail. They are, hence, dismissed. No costs.