DIVYA GOPINATH v. MANAGING DIRECTOR, KERALA STATE CO-OP. AGRI. & RURAL DEVELOPMENT BANK LTD.
2016-06-17
SHAJI P.CHALY
body2016
DigiLaw.ai
JUDGMENT : SHAJI P. CHALY, J. This writ petition is filed by the petitioner seeking direction to respondents 1 and 2 to continue to engage the petitioner on daily wage basis as System Administrator in the 2nd respondent's office till a regular employee is appointed to the said post. Brief facts for the disposal of the writ petition are as follows: 2. Petitioner appeared for the selection process for the appointment of System Administrator on contract basis in the various offices of the 1st respondent. The Lal Bahadur Sastri Centre for Science and Technology, Thiruvananthapuram conducted the test and the petitioner figured as Sl.No.11 in the rank list. Petitioner was appointed as System Administrator of the 2nd respondent on 22.09.2009 on contract basis. In accordance with the provisions of Rule 185(A) of the Kerala Co-operative Societies Rules, petitioner continued for a period of five years without break. Hence, after the expiry of five years, petitioner was directed to continue on daily wage basis. Accordingly, petitioner has been continuing on daily wage basis. Now, there is a proposal to discontinue the service of the petitioner on daily wages and to employ other persons who are not test qualified, on daily wages basis, to the post held by the petitioner. It is thus apprehending action of termination of her service, petitioner has filed this writ petition. 3. Respondents 1 and 2 have filed counter affidavit refuting the allegations and claims and demands made by the petitioner. That apart, it is contended that based on sanction from the State Government, vide an order dated 25.05.2004, Bank had engaged the petitioner for one year by proceedings dated 14.09.2009. The said period was extended successively by one year with maximum permissible extensions up to 5 years. In accordance with clause 5 of Ext.P1 agreement executed between the Bank and the petitioner, it was agreed that contract engagement being purely temporary, that would not confer any right upon the petitioner for future regular appointment in the vacancies arising in the Bank. That apart, it is contended that, petitioner was further engaged on daily wages at Regional Office, Alappuzha, as a stop gap arrangement even after her termination as a contract worker. It is urged that Ext.P-2 certificate was issued based on her contract appointment during the period between 22.09.2009 to 20.09.2014 and not for the service on daily wages.
That apart, it is contended that, petitioner was further engaged on daily wages at Regional Office, Alappuzha, as a stop gap arrangement even after her termination as a contract worker. It is urged that Ext.P-2 certificate was issued based on her contract appointment during the period between 22.09.2009 to 20.09.2014 and not for the service on daily wages. It is also contended that, the service of the petitioner during the period of daily wages was highly unsatisfactory. It is also contended that, the question of appointment of System Administrator at the Bank was a subject matter of challenge before this Court in W.P.(C) No.28767 of 2012 and other connected matters. The said writ petitions were disposed of upholding the power of the Bank to effect direct appointments, pursuant to which, Bank shall soon be adopting steps to fill up the post on regular basis, subject to obtaining necessary approval from the Government in this regard. If the petitioner is otherwise qualified, petitioner is entitled to participate in the selection process and her experience will be considered along with other participants. 4. It is also contended that, since the work load at the Alappuzha Regional Office being less at present, the services of the petitioner is not utilised and that apart, it is also the contention of the respondents that the appointment of the petitioner as System Administrator on daily wages was only a temporary arrangement and Bank has every right to disengage such employees. Therefore, it is contended that the writ petition has no merits and the same is only to be dismissed. 5. Heard learned counsel for the petitioner and learned counsel appearing for the respondents, perused the pleadings and documents on record. 6. The question to be considered in this case is whether the petitioner has got any legal right to insist that she should be engaged as a casual employee with the respondents. The thrust of the contention advanced by learned counsel for the petitioner is that, even though she was appointed as a contract employee under Rule 185(A) of the Co-operative Societies Rules for a period of one year, successively the same was extended in accordance with the powers under the said Rules, and accordingly she continued for a period of 5 years without any service break.
Therefore, it is urged that on account of the work rendered by the petitioner during the contract period, she is entitled to be engaged as a casual employee continuously. Yet another contention advanced by learned counsel for the petitioner is that, she was appointed as per Ext.P-1 agreement of contract on the basis of a test conducted by an authorised institution and therefore any manner of engagement made by the respondents of any person without the qualification prescribed for a System Administrator, the appointment so proposed to make will be bad and illegal. That apart, it is contended by the petitioner that, even though petitioner continued as a contract employee for a period of 5 years, the said period is a sufficiently long tenure of service rendered by the petitioner entitling to get regularization in the said post. 7. On the other hand, learned counsel for the respondents contended that petitioner was appointed as per Ext.P-1 agreement by which petitioner is bound by the terms and conditions incorporated thereon. It is also contended that, as per the agreement, it is a fixed term employment and on the basis of the said agreement petitioner is not entitled to make any claim in future on the basis of the said appointment made. Therefore, it is contended that petitioner is bound by the terms of contract. That apart, it is contended by learned counsel that such contract appointment is recognized in terms of the provisions of the Kerala Co-operative Societies Act, 1969 and Rule 185A and such appointees are not entitled for regularization or continued appointment after the period of the contract appointment. That apart, it is the prime contention of the respondents that petitioner's service during the period of daily wages was highly unsatisfactory. It is also contended by the counsel that since the petitioner was qualified only, she was engaged as a casual employee after her termination of service as a contract employee. Yet another contention advanced is that, merely because petitioner continued for a period of five years as a contract employee, she is not entitled to insist the respondents to continuously employ her on daily wages. However, it is contended by the respondents that, petitioner can certainly participate in the selection process for permanent appointment to the post of System Administrator. 8.
However, it is contended by the respondents that, petitioner can certainly participate in the selection process for permanent appointment to the post of System Administrator. 8. On an evaluation of the arguments advanced across the Bar and other attendant circumstances, I am of the considered opinion that, the reliefs sought for by the petitioner is only seeking a direction to the respondents to continue to engage the petitioner on daily wages as a System Administrator in the office of the 2nd respondent till a regular employee is appointed to the said post. Petitioner has not projected any case claiming regularization of her service on the basis of the continuous contract employment for a period of five years. That apart, petitioner was appointed on the basis of Rule 185A of the Kerala Co-operative Societies Rules, which provision is enacted on the basis of Sec.80(B)(4) of the Act. Rule 185A reads thus: "185A. Notwithstanding anything contained in these rules the committee of a society may, with the prior approval of the Registrar, appoint persons who are technically or professionally qualified or persons with experience and expertise, by way of deputation or on a contract basis for a specified period not exceeding five years: Provided that no such contract appointment shall be made to the posts mentioned in sub-rule (2), (3) and (4) of rule 185 or to any other post in any Society, which is engaged in banking business: Provided further that the Co-operative Medical Colleges constituted by any duly registered Co- operative Institution may, with the prior approval of Registrar of Co-operative Societies, appoint Professors retired from Government Medical Colleges as Professors on annual contract basis." 9. On a reading of Rule 185A, it is categoric and clear that the committee of the Society is vested with powers with the prior approval of the Registrar to appoint persons who are technically or professionally qualified or persons with experience and expertise by way of deputation or on contract for a specified period, however, not exceeding five years. Therefore, when petitioner was appointed on the basis of an agreement by the respondents, in accordance with Rule 185A, the petitioner as well as the respondents are bound by the terms of the contract. The Society is vested with power to specify the period of such appointments subject to a maximum period of five years.
Therefore, when petitioner was appointed on the basis of an agreement by the respondents, in accordance with Rule 185A, the petitioner as well as the respondents are bound by the terms of the contract. The Society is vested with power to specify the period of such appointments subject to a maximum period of five years. Therefore, the petitioner cannot turn around and say that merely because petitioner was appointed on contract basis, she is entitled to continue in service as of right. It is true, petitioner is engaged after termination on casual basis. Petitioner has not stated the extend of period she was engaged on casual basis. However, the engagement so made also will not enure any right to the petitioner, either under the Kerala Co-operative Societies Act or the Rules. But however, learned counsel for the petitioner urged that, continuous contract employment for a period of five years, entitles the petitioner to get regularization. As I pointed out earlier, there is no pleading or relief sought for by the petitioner to that effect. One material contention advanced by the petitioner is that, she is a qualified person and therefore only qualified persons can be appointed to the post of System Administrator as prescribed under Rule 185A. But however, I find that the said argument advanced by the petitioner cannot be sustained under law for the reason that Rule 185A provides for other manner of appointments also. 10. Advancing an argument to the effect that petitioner is entitled to get her service regularized, learned counsel has invited my attention to the judgment of the Apex Court in 'State of Haryana and others v. Piara Singh and others' [ AIR 1992 SC 2130 ] and canvassed the proposition that a long continuous service for a period of five years entitles her to get her services regularized. But however, it is to be noted that, the appointment of the petitioner was purely on contract basis on the basis of a provision made under the Kerala Co-operative Societies Rules for a definite period. It is the contention of the petitioner that, petitioner was engaged for a period of five years successively. Therefore, the petitioner cannot claim that on the basis of the same she is entitled to get regularization.
It is the contention of the petitioner that, petitioner was engaged for a period of five years successively. Therefore, the petitioner cannot claim that on the basis of the same she is entitled to get regularization. Nor such period is to be counted for any regularization of service, since the appointment was purely on contract basis as per the provisions of the Act and the Rules. 11. Going through the judgment cited supra, it is found that, question of short period of employment was considered and held that such engagements for short period cannot be taken into account. Therefore, even if the petitioner worked on casual basis, she is not entitled to continue in service on the basis of such engagement. Moreover, petitioner has not stated anywhere the tenure of service rendered by her as a casual employee. In the said judgment, regularization of service of work-charged employees, daily wage workers and casual labour who are not 'workmen' under the Industrial Disputes Act was also considered and held that blanket direction to regularize such employees on completion of one year service is unsustainable. Moreover, it was also held that regularization of persons of above specified categories who are workmen on completion of four or five years of service is also unsustainable. That apart, the Apex Court has held that the power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India or [in the absence of such Rules], by issuing Rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. That apart, it is held that the main concern of the Court in such matters is to ensure the rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with requirements of Articles 14 and 16. It is also held that the State must be a model employer and it is for this reason that a person should not be kept in a temporary or ad hoc status for long and when temporary or ad hoc appointment is continued for long, the Court presumes that there is need and warrant for a regular post and accordingly directs regularization.
Here, in this case, petitioner could not point out any such eventualities. That apart, I am of the considered opinion that the employer is vested with powers to make suitable Rules with respect to the conditions of service and the facts reveal that, petitioner was appointed on the basis of Rule 185A read with Sec.80(B)(4) for a definite period, but on the basis of such appointment or subsequent causal employment, petitioner is not entitled to make any claim as of right. 12. On the other hand, learned Standing Counsel for the respondents has invited my attention to the judgment in 'Secretary, State of Karnataka and others v. Umadevi (3) and others' [ (2006) 4 SCC 1 ] and specifically to paragraph 52, and contended that the persons who are appointed on temporary basis cannot approach the court seeking a writ of mandamus and further that, a mandamus may be issued to compel the authorities to do something, when the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. Therefore, it can be seen that, the appointment was on the basis of a provision contained under the Rules for a specified period and the petitioner cannot make any claim over and above the same. 13. In my considered opinion, Rule 185(A) read with Sec.80(B)(4) is introduced to provide employment for short periods with the avowed object of ensuring that unemployment is eradicated to a limited extent. Merely because such a provision is made under law, that will not confer any legal right to a person appointed, to claim regularization. The said rule, in my view, has a rational nexus with the object sought to be achieved in the matter of eliminating unemployment to a certain extent. When that was the intention of the Legislature, it should not be made burdensome to the employer in any manner of whatsoever nature. That apart, there is no scheme or provision under law to regularise such services. 14. Taking into account the factual and legal circumstances discussed above, I am satisfied that petitioner has not made out any case warranting interference of this Court, exercising the discretionary jurisdiction conferred under Article 226 of the Constitution of India.
That apart, there is no scheme or provision under law to regularise such services. 14. Taking into account the factual and legal circumstances discussed above, I am satisfied that petitioner has not made out any case warranting interference of this Court, exercising the discretionary jurisdiction conferred under Article 226 of the Constitution of India. Moreover, petitioner has not approached the respondents seeking any such relief and therefore petitioner is not entitled to seek a writ of mandamus to regularise her service based on contract appointment under the Act and Rules. Resultantly, writ petition fails and accordingly same is dismissed.