Jyothi, S.S. vs State of Kerala and Others

K.A. Abdul Gafoor, J.—The Petitioner has approached this Court challenging Exts. P-1 and P-2 circulars. Ext. P-2 circular, dated 9th March 1995 directed all appointing authorities not to terminate the temporary appointees under Rule 9(a)(i) of the General Rule in K.S. and S.S.R. in service as on 13th January 1995. The intention as is revealed by Est. P-2 is to consider the question of regularisation of the provisional employees.

Ext, P-I is a circular, dated 17th March 1998 again issued by the Government, as is revealed from it, for collecting certain details of temporary appointees in the Government service as well as in the service of the Public Sector undertaking upto 1st January 1994 and who have completed 3 years service for the purpose of regularisation in service. When such temporary appointees are regularised in service, the equality of opportunity as enshrined in Article 16 of the Constitution of India for public employment, to the persons at large who are unemployed will be defeated. Temporary employees are appointed mainly through employment exchange depending upon seniority of registration and not based on suitability or rendering opportunity to all the qualified hands. In such circumstances persons who could accidently get some temporary employment and could continue because of some concessions made by the appointing authorities or the Government cannot be allowed to cash out that temporary/casual appointment to permanent appointment in civil service, defeating the equality of opportunity guaranteed m Part III of the Constitution to others possessing equal or more qualification suitability and entitlement than such temporary appointees.

As per Article 320 of the Constitution of India it is mandatory for any appointing authority of Government to consult the Public Service Commission to effect substantive appointments to the civil service. Employment in civil service gives certain protection to the incumbents not only during the service period but also during the retired life, and even after death in the form of family pension to the dependents and minor children. Equality of opportunity as enshrined in Article 16 of the Constitution shall be given to all the aspirants to compete in the recruitment process for regular appointment. That right will be defeated if regularisation as envisaged in Ext. P-1 and P-2 is allowed to be materialised.

As per the Kerala Public Service Commission (Consultation) Regulations, it is mandatory that the State Government and appointing authorities shall cousult that constitutional body before making appointment to Public Service Rule 3 of the General Rules in the K.S. and S.S.R. makes it clear that;

All first appointments to the service shall be made by the appointing authority on the advice of the Commission in respect of posts falling within the purview of the Commission.

The posts in Government Service against which temporary appointments are effected under Rule 9(a)(i) are the posts within the purview of the Commission. When that is the mandate of the rules. Government cannot ignore that mandatory Rule and direct regularisation of temporary appointees.

Temporary appointments on direct recruitment in Government service is permissible under Rule 9(a)(i) of the General Rules.

Where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy.

and when there would be undue delay in making such appointments in accordance with rules. So the temporary appointments are appointments made otherwise than in accordance with the rules to meet certain emergent requirement. Such appointments effected otherwise than in accordance with the Rules of recruitment cannot be regularised. They have to be "replaced as soon as possible by...an approved candidates," mentioned in Rule 3 thereof, as provided in Rule 9(a)(iii) itself. So temporary appointees are not eligible to be regularised in service.

Any temporary appointment can only be for 179 days in ordinary case or for one year in the case of teaching posts or post in Health Department going by the scheme in Rule 9 of the General Rules in K.S. and S.S.R. Appointment for a further term is not permissible in terms of last proviso to Rule, 9(a)(i). In such circumstances there arise no situation, going by the rules, for continuance of temporary hand for three years as mentioned in Ext. P-1 or for "continuing in service for a long time" as mentioned in Ext. P-2. Such continuance if happened is in flagrant violation of the provisions in Rule 9(a)(i). There is no case that, regularisation thought of in Exts. P-1 and P-2 is in respect of any category, where there is dearth of qualified hands. Violation of rule by certain appointing authorities cannot benefit the appointees.

It seems that the Government is totally unaware of the provisions in Clause 5 of the Kerala Public Service Commission (Consultation) Regulations. Sub-clause (1) provides that it shall not be necessary to consult the Commission for temporary appointments not exceeding 180 days, meaning, thereby consultation is obligatory for appointments, beyond that period. The Respondents have no case that such temporary appointees are continued years together on consultation with the Commission. Sub-clause (2) reads as follows:

In addition to the concurrence to be obtained under Clause (i) for the continuance of the temporary appointment of a person beyond the first one hundred and eighty days a second concurrence of the Commission shall be obtained sufficiently in advance, if in any individual case, it becomes essential to continue such appointment beyond three hundred and sixty days.

Thus apart from 1st consultation for continuance beyond 180 days, a 2nd concurrence also is necessary for appointment beyond 360 days. Thus continuance of temporary appointees for years together without such consultations is totally illegal violating all provisions of law to safeguard Constitutional mandates. Consultation with the Commission is not an empty formality. It is a constitutional requirement in terms of Article 320 and 321 of the Constitution of India. A Government regulated by rule of law cannot think of such illegal continuance of temporaly appointees. Much more is then, the attempt to regularise them in service, simply because of such illegal continuance violating several provisions of law as discussed above.

As per the Kerala Public Service (Additional Functions) Acts of 1963, 1970 and 1973 appointments to most of the public sector undertakings, companies and local bodies in the State shall also be from the list drawn up by the P.S.C. and consultation is statutorily made mandatory in tune with Article 321 of the Constitution of India. Therefore the attempt of the Government to regularise the temporary hands in public sector as proposed in Ext. P-2 is illegal.

The contention of the Government Pleader is that there happened certain provisional employees to be continued for long and that certain temporary employees had to be appointed in certain Public Sector undertakings before appointment was left to the P.S.C. Rules promulgated by Government say that there cannot have such continuance. Even then it shall not be a reason to avoid constitutional and statutory mandates, as mentioned above, to regularise the services of the temporary appointees who were continued even beyond the time violating several of the rules made to ensure equality of opportunity in public employment as mandated by the Constitution of India.

Thus the attempt for regularisation of temporary employees on the ground that they had continued for three years or they are in service for a long time is ultravires, illegal and arbitrary. In such circumstances, the attempt to regularise temporary hands as per Exts. P-1 and P-2 is violative of the right for equality of opportunity as enshrined in Article 16 of the Constitution of India and it militates against the constitutional and statutory requirements and mandates as mentioned above. Moreover this Court as well as Supreme Court in several decisions pointed out that temporary hands will not have any right for regularisation. In the decision reported in Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava, the apex court has made it clear that stop gap appointees or temporary appointees do not have any right for continuance or for regularisation.

Exts. P-1 and P-2 are violative of Article 14 of Constitution of India and ate arbitrary as well, on the aforesaid reason. It is beyond the power of the Government. Government themselves allowed the temporary hands to continue for long violating several mandatory provisions of law. Persons illegally continued cannot steal a premium. Nobody can be conferred a benefit on the basis of an illegality. Apart from that Government cannot violate the rights of other persons for equal consideration. It is thus beyond the power of Government. Accordingly, Exts. P-1 and P-2 are quashed. The temporary employees now continuing service shall be forthwith terminated to ensure adherence to the legal provisions, as mentioned above, regulating such appointments. Such vacancies shall be immediately reported to the Public Service Commission for making regular appointment. In case there is no list prepared by the Public Service Commission in respect of any category or department, fresh appointment under Rule 9(a)(i) shall be made limiting such appointment to the period mentioned in the said rule.

Government shall see that these directions are complied with by all the appointing authorities under it and by the public sector/autonomous/local bodies and Universities.

O.P. is allowed.