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2025 DIGILAW 1340 (KER)

Shaik Davood S/o Shaik Ali v. State of Kerala

2025-05-22

S.A.DHARMADHIKARI, SYAM KUMAR V.M.

body2025
JUDGMENT : Syam Kumar V.M., J. The appeal is filed challenging the judgment dated 04-04-2025 in W.P.(C) No.44581 of 2024 of the learned Single Judge. Appellant was the petitioner in the W.P.(C) and respondents were the respondents therein. Parties are hereinafter referred to as per their status in the W.P.(C). 2. The Writ Petition had been filed by the petitioner inter alia seeking to quash Ext.P4 and for a direction to the respondents to allow the petitioner to continue in service of the 2 nd respondent viz., the Kerala State Poverty Eradication Mission (Kudumbashree), till the attainment of the age of 58 years or till cessation of the project. By Ext.P4, the 1 st respondent had informed the 3 rd respondent that since the appointment of Kudumbashree employees is on a contract basis under Rule 9 of the KS & SSR and since the service of contract employees is to be terminated on completion of contract period, it was not possible to extend the term of the contract employees in accordance with the retirement age of regular employees. The request made to extend the service duration of the contract employees of Kudumbashree was thus declined. 3. The learned Single Judge had in the impugned judgment, after taking note of the fact that the petitioner's engagement had not been renewed after he completed 56 years of age, which is the age limit prescribed by the Government for drivers, concluded that the petitioner was employed on contractual basis and the terms and conditions of contract does not stipulate that the petitioner shall continue till the project of Mission gets completed. There are three eventualities mentioned in clause 1 for termination of the contract and completion of the project is one among them. Since the respondent had decided not to continue the petitioner after he had attained the age of 56 years, the same being the age of retirement for the Government drivers and such decision was in terms of the agreement, the learned Judge concluded that there is no error of law in taking such a decision as seen in Ext.P4. Holding thus, the Writ Petition was dismissed by the learned Single Judge. The petitioner impugns the same in this appeal. 4. Heard Sri.Muhamood T.T., Advocate for the appellant (petitioner) and Sri.Sunil Kumar Kuriakose, the learned Government Pleader for the respondents. 5. Holding thus, the Writ Petition was dismissed by the learned Single Judge. The petitioner impugns the same in this appeal. 4. Heard Sri.Muhamood T.T., Advocate for the appellant (petitioner) and Sri.Sunil Kumar Kuriakose, the learned Government Pleader for the respondents. 5. The learned counsel for the petitioner placed reliance on Ext.P5 judgment, rendered by a Single Bench of this Court and strenuously contended that the petitioner does not fall into any of the three categories mentioned in clause 3.1 of Ext.P2 which enumerates the manner in which the services of an employee can be terminated and that since in clause 1 of the agreement, it has been stated that petitioner and similarly placed persons will work till they remains in service or till the winding up of the Mission, whichever is earlier, the same can only mean that the petitioner will be construed to be in service until they are terminated as per clause 3.1 or till the Mission is wound up as per the law. The age of the retirement as per the KSR cannot have any relevance in view of the said specific contractual position. 6. Per contra, the learned Government Pleader submitted that the purported reliance placed on the dictum in Ext.P5 judgment to contend that the petitioner should be engaged till the project got completed is devoid of sustainability in view of the change in circumstances. The said fact had engaged the attention of the learned Single Judge as is revealed from para 5 of the impugned judgment, wherein it had been noted that the State Government had rejected the request forwarded by the Mission for extending the employment of the employees working under the Mission up to 60 years on the ground that the employees working under the Mission are contractual employees and their terms of engagement shall be governed by the terms and conditions of the contract of employment. Reliance is also placed on clause 14 of Ext.P2 agreement, which states as follows: “In respect of any matter in regard to which no provision has been made in this agreement, the provisions of the Kerala Service Rules shall apply to the extent to which they are applicable to the service hereby provided for and the decision of the Mission as to their applicability shall be final.” Relying on the same, it is contended that the KSR envisages retirement for employees similarly situated as the petitioner at 56 years of age and hence the decision not to renew the engagement of the petitioner after he completed 56 years of age as per the age limit prescribed by the Government for drivers is valid and legal. 7. We have heard both sides in detail and considered the respective contentions put forth. Petitioner has been employed and has joined for duty pursuant to and based on Ext.P2 agreement. It thus binds the petitioner. The said agreement contains clause 3.1 which enumerates the situations which would entitle the Mission to terminate the services of the petitioner. Clause 14 thereof, reproduced herein above, stipulates that for any matter in regard to which no provision has been made in the agreement, the provisions of the Kerala Service Rules shall apply. Petitioners contention is that as per the terms of the agreement, his engagement is till the winding up of the Mission. He also contends in the alternative that since the Mission has already made a recommendation to the State Government seeking the retirement age to be fixed at 60 years, he is entitled to continue in service at least till the age of 60 years as long as the Mission is functional and since no person has been appointed to his post on deputation. These contentions cannot be sustained for more than one reason. Firstly, the agreement does not envisage or provide for continuation in service of employees till the winding up of the Mission irrespective of retirement age. Secondly the contention based on clause 1 of the agreement that the same entitles the petitioner to remain in service till the winding up of the Mission is erroneous and misplaced. Firstly, the agreement does not envisage or provide for continuation in service of employees till the winding up of the Mission irrespective of retirement age. Secondly the contention based on clause 1 of the agreement that the same entitles the petitioner to remain in service till the winding up of the Mission is erroneous and misplaced. The said provision, we note, mandates that the employee shall submit himself to the orders of the Mission and its officers and authorities till he remains in service or till the winding up of the Mission whichever is earlier. The said provision cannot by any stretch of imagination be termed as an entitlement to remain in service till the winding up of the Mission. Clause 3.1 of the agreement envisages termination upon the happening of any of the situations enumerated therein. This cannot be held to mean that if no such situation for termination during employment arises, the petitioner shall continue in service up till the winding up of the Mission. Clause 14 of the agreement which provides for any matter in regard to which no provision has been made in the agreement, the provisions of the Kerala Service Rules shall continue to apply as per the relevant mandates of law, appointment to the Mission being on contract basis, the service of the contract employees will be terminated on completion of contract period. As regards the contention that the Mission itself had recommended for retirement age to be fixed at 60 years and hence the petitioner is entitled to continue till he attains 60 years cannot be sustained since as stated by the learned Single Judge, the State Government has rejected the request on the ground that the employees working under the Mission are contractual employees and their terms of engagement shall be governed by the terms and conditions of the contract of employment. The learned Single Judge had thus rightly concluded that the agreement does not envisage that the petitioner shall continue to be employed in the Mission till the project gets completed and that completion of the project is one of the eventualities on which the petitioner’s employment will come to an end. We find no reason to interfere with the finding of the learned Single Judge that the decision taken by the Mission not to permit the petitioner to continue after 56 years does not suffer from any illegality. We find no reason to interfere with the finding of the learned Single Judge that the decision taken by the Mission not to permit the petitioner to continue after 56 years does not suffer from any illegality. In view of the above, the Writ Appeal is devoid of merits and is dismissed. No cost.