Reji Joseph vs K.S. E. B. and another

Usha, J.—The challenge in this original petition is against the termination of service of the petitioner at Pharmacist under the respondents. Admittedly, he was appointed on a provisional basis under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules. The petitioner''s case is that his service cannot be terminated except for appointing a candidate regularly recruited through the Public Service Commission. The petitioner further contends that the view taken in the decision of a Division Bench of this Court in W.A. 358/90 against similar claims put forward by employees appointed provisionally under Rule 9(a)(i) of K.S. & S.S.R. is liable to be reconsidered in the light of a recent decision of the Supreme Court in Civil Appeal No. 2979/92 dt. 12th August, 1992. A photo copy of the judgment of the Supreme Court was made available to this Court by learned counsel appearing on behalf of the petitioner. The learned Single Judge, before whom the original petition came up for admission, referred the petition for being considered by a Division Bench.

The petitioner was appointed under Ext. P1 order dt. 16-1-1992 through Employment Exchange as a Pharmacist purely on a provisional basis. His appointment was under Rule 9(a)(i) of K.S. & S.S.R. for a period of 179 days or till P.S.C. hands report for duty or till the Board deems it necessary to terminate the service otherwise, whichever is earlier. It was also made clear in the order of appointment that the temporary appointment will not be extended or made permanent under any circumstances and that he will not be entitled to any preferential claim for future appointment against any category in the service of the Board by virtue of the temporary appointment. It was further made clear that he will not be entitled to any notice or pay in lieu of notice or any retrenchment compensation when the temporary engagement is stopped. Accepting all these conditions, the petitioner joined service under the 2nd respondent as pharmacist on a provisional basis. On completion of the period of 179 days, his service was terminated on 23-7-1992. Thereafter, he was reappointed for a further period of 50 days from 26-7-1992 under Ext. P2 order. The above appointment was subject to all the conditions contained in the first order of appointment and it was also made clear that the appointment was for a period of 50 days or till new employment exchange/P.S.C. hand joins duty, whichever is earlier. The order contained a further condition that the petitioner''s appointment will be automatically terminated on expiry of 50 days from the date of joining duty of P.S.C. recruit/new employment exchange hand, whichever is earlier and he will not be given notice of termination in this regard.

The petitioner accepted the above mentioned conditions and joined duty as provisional pharmacist and on the expiry of 50 days, his service was terminated on 14-9-1992. It is alleged in the original petition that in his vacancy, another candidate recruited through the employment exchange is being appointed.

The main thrust of the argument of the petitioners that petitioner''s service cannot be terminated in order to accommodate another temporary candidate and that he can be replaced only by regularly appointed candidate selected through the P.S.C. The above question was subject matter of consideration in a number of decisions of this Court. In Remlath v. State of Kerala & Others, 1984 KLT 312, a Division Bench of this Court rejected the contention put forward by an appointee under Rule 9(a)(i) of K.S. & S.S.R. that her services cannot be terminated even after the expiry of 180 days for which period she was granted appointment, so long as candidates advised by the Kerala Public Service Commission are not available to substitute her. Same was the view taken by another Division Bench of this Court in S. Parimalom v. State of Kerala, 1985 KLT 624. After referring to the decision of the Supreme Court in Narayani''s case (1984 KLT 17), it was held that a candidate appointed under Rule 9(a)(i) has no legal right to continue in service beyond the period for which such appointment was made and the observations and directions contained in Narayani''s case would not make any difference in the above legal position.

While disposing of Writ Petition (C) Nos. 353, 112, 935/87, 1574 & 1790/86, the Supreme Court gave a direction to the State Government to take steps as early as possible to ascertain the number of vacancies that will have to be filled up by resorting to recruitment through P.S.C. and to allow the ad hoc employees who were then working in those posts to continue till P.S.C. candidates join duty (vide Sasankan & Others v. State of Kerala & Others 1987 (2) KLT 347.) It was made clear by the Supreme Court that the above order does not confer any other type of right on the ad hoc employees.

Reliance was placed on the above directions given by the Supreme Court in subsequent cases which came up for consideration before this Court to contend that candidates sponsored by the employment exchange and appointed provisionally for 179 days under Rule 9(a)(i) of K.S. & S.S.R. are entitled to continue in service till regular hands join duty.

In Sini P. Kuriakose v. State of Kerala, 1987 (2) KLT 425, a Division Bench of this Court rejected such a prayer holding that the order of the Supreme Court in Sasankan''s case (1987 (2) KLT 347) cannot be understood to have laid down in principle contrary to the decisions in 1984 KLT 312 and 1985 KLT 624. SLP No. 12345/87 filed against Sini P. Kuriakose''s case was dismissed by the Supreme Court. W. A. 858/90 was preferred against the judgment in O. P. 10544/90. The Division Bench, after considering the impact of the judgment of the Supreme Court in Jacob v. State of Kerala, 1990 (2) KLT 673, affirmed the decision of the learned Single Judge holding that an appointee under Rule 9(a)(i) of K.S. & S. R. has no claim for being regularized in service. Civil Appeal from the above judgment was disposed of by the Supreme Court on 3-5-1991, giving certain directions on the consent of counsel appearing for the State of Kerala (C.A. No. 2310/91). In the above order also, there is no finding that those who were appointed under Rule 9(a)(i) of K.S. & S. S. R. can be replaced only by candidates selected through P. S. C.

In the judgment dt. 1-2-1991 in W. A. 97/91, another Division Bench of this Court took the view that those who were appointed under Rule 9(a)(i) of K.S. and S. S. R. on provisional basis cannot claim any right either for regularizations of their services or for continuance in service contrary to the statutory mandate beyond the period of 180 days. In coming to the above conclusion this Court relied on the following observation of the Supreme Court in A.K. Bhatnagar and Others Vs. Union of India (UOI) and Others, ;

...the rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution and solemn rules having binding effect. Acting in a manner contrary to the rules does create problem and dislocation. Very often Government themselves get trapped on account of their own mistakes or actions in excess of what is provided in the rules. We take serious view of these lapses and hope and trust that the Government both at the Centre and in the State would take note of this position and refrain from acting in a manner not contemplated by their own rules.

Special Leave Petition No. 17742/91 filed before the Supreme Court from the above judgment of the Division Bench was dismissed by order dt. 20-2-1992.

In Lakshmikutty and Another Vs. State of Kerala and Others, , the prescription of 180 days in the second proviso to Rule 9(a)(i) was challenged as arbitrary and violative of Art. 14 of the Constitution. The above challenge was repelled holding that it is highly necessary to fix a particular term for a temporary appointment under Rule 9(a)(i) and if the Government thought it fit to fix the period as 180 days, it cannot be considered as arbitrary and it is not for the court to substitute that period with another, on the ground that it will be more appropriate.

In O.P. 5541/91, the prayer made was for issue of a writ of mandamus directing the respondents not to terminate the service of the petitioner till the P.S.C. hands join duty. The above original petition was dismissed in limine under judgment dt. 29-5-1991 holding that the petitioner has no legal right to continue in service till P.S.C. recruits join duty in view of the fact that he was appointed purely on a temporary basis for a period of 180 days. SLP No. 13240/91 filed before the Supreme Court from the above judgment was dismissed.

In Rajan v. Kerala State Electricity Board, 1992(1) KLT 98, after referring to all the earlier decisions of this Court as also the decisions of the Supreme Court in Narayani''s case (1984 KLT 17), Sasankan''s case 1987 (2) KLT 347 and Jacob''s case (1990 (2) KLT 873) a Division Bench of this Court reiterated the view that no writ of mandamus can be issued for continuance of the employees temporarily appointed under Rule 9(a) (i) of K.S. & S.S.R. after the expiry of the term of their appointment.

From the above, it is clear that this Court has been taking a uniform view that appointees under Rule 9(a)(i) of K.S. & S.S.R. have no legal right to continue in service beyond the period of their appointment, that they have no right to insist that they can be substituted only by candidates selected through the P. S. C. for regular appointment and that they have no right to claim regularizations in the post in which they were appointed on a provisional basis. The above view was being expressed by this court taking into consideration the elaborate statutory provisions contained under Rule 9 of Kerala State and Subordinate Services Rules. The above rule dealing with temporary appointments, empowers the appointing authority to appoint a person otherwise than in accordance with the general rules and special rules where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with the general rules and the special rules. After giving such a power under rule 9(a)(i) to the appointing authority, detailed provisions are made in the remaining portion of rule 9 as to how the above power has to be exercised. It has laid down provisions for appointment of different types of posts and also for appointment of different categories of persons like members of scheduled castes and scheduled tribes and handicapped persons. Provisions regarding seniority or preference for appointment and also the order in which their services are to be terminated are also contained under rule

The petitioner has not been able to place before us any decision of the Supreme Court holding that provisionally appointed employees can be sent out of service only by substituting candidates recruited through P.S.C., after considering the provisions contained under rule 9 of K.S. and S.S.R. or similar provisions under other service rules.

The only question to be then considered is whether the latest decision of the Supreme Court in Civil Appeal No. 2979/92 has made any such consideration necessitating a deviation from the interpretation given to the provisions contained in Rule 9 of K.S. and S.S.R. by this court in the series of decisions referred earlier. It is clear from the following statement in paragraph 2 of the judgment of the Supreme Court that the appointments considered by the court were not made in accordance with any statutory provisions:

Over the last several years a large number of appointments were made to Class III and IV services in the States of Punjab and Haryana on ad hoc basis i.e. without reference to Public Service Commission or the Subordinate Services Selection Board, and without adhering to employment exchange requirements. They were initially appointed for a period of six months or so but were continued for years together under orders passed from time to time. (In so far as the State of Haryana is concerned, most of the class III posts in the Education Department were kept out of the purview of the S.S.S.B. during the period 1970 to 1987. For a period of 10 years, it is stated, there was no Board in existence in the State. Only in March 1987, almost all the posts in Education Department and other Departments were brought within the purview of the S.S.S.B.) As a result of the above policy, a large number of ad hoc employees came into existence in both the States, who were continuing over several years without being regularised and were agitating for their regularisation. To meet the situation, both the Governments issued orders from time to time for regularisation of such employees subject to certain conditions.

Services of certain persons who satisfied the conditions prescribed in those executive orders were regularised; those who could not satisfy one or other of the conditions prescribed in the said orders and therefore could not get the benefit of regularisation of their services were allowed to continue as provisional employees. It is this category of employees who approached the High Court of Punjab and Haryana praying for issue of a writ, order or direction for regularisation of their service. A Division Bench of the High Court of Punjab and Haryana allowed the original petitions and gave eight different directions for regularising the services of the petitioners. After elaborately considering the contentions put forward on both sides and the earlier decisions, the Supreme Court set aside six directions out of the eight given by the High Court. The two directions sustained by the Supreme Court are the following;

1) The ad hoc temporary employees in temporary organisations like the Adult Education Scheme and integrated Child Development Scheme, covered by Group IV, who have continued in service for more than one year with notional breaks would be entitled to the benefits of service and benefit of the directions issued by the Supreme Court in Bhagwan Dass''s case supra, and the service of none of them would be terminated except on abandonment of the scheme.

2) In case some posts are abolished or some persona are found surplus, junior-most would be out on the rule of last come first go, But if later on vacancies arise or posts are created, they will have to be called back first in the order of seniority, that is, on the rule of last go first come and if still some vacancies remain, new incumbents through SSSB may be accommodated".

What is relied on by the petitioner in the present original petition is the observation contained in paragraph 25 of the judgment. It reads as follows:

Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of ad hoc/temporary employees in government service.

The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.

Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority."

The above observation of the Supreme Court has to be understood in the light of the facts of the case considered in the civil appeals and the detailed statutory provisions made under Rule 9 of K.S. and S.S.R. governing the appointment of temporary employees. As mentioned earlier, the appointments which were subject matter of the appeal were made not under any statutory rule or regulation. They were appointed on an ad hoc basis on the whims and fancies of the appointing authorities Such method of ad hoc appointments would certainly lead to arbitrary action. But, when the provisions of rule 9 are examined, it can be seen that that there will be no scope for any arbitrary action. The condition that the provisional appointment shall be for a period not exceeding 180 days is applicable to all provisional employees except categories specifically exempted under the rule. Provisional appointment can be made only through employment exchange. Sufficient provisions are made in the general rules to avoid arbitrariness in the matter of appointment of provisional employees.

So long as the provisions contained in the general rules are not found lacking in necessary safeguards suggested by the Supreme Court, the general observations contained in paragraph 25 of the civil appeal by itself would not give support to the contention of the petitioner that he is entitled to continue in service beyond the period of his appointment and till regular candidates through P. S. C. join duty. On an anxious consideration of the latest decision of the Supreme Court, we are not persuaded to hold that the earlier decisions of this Court holding that a provisional appointee under rule 9(a)(i) of K.S. and S.S.R. is not entitled to continue in service beyond the period of his appointment and till candidate selected through P.S.C. joins duty, is liable to be reconsidered. It is true that while disposing of soma of the Special Leave Petitions or civil appeals, the Supreme Court has directed the appointing authorities to allow provisional employees to continue in service till regular appointments are made. But as mentioned earlier, in none of these cases the Supreme Court has considered the provisions contained in Rule 9 of Kerala State and Subordinate Services Rules which is a complete code in itself and held that inspite of the provisions contained therein a provisional appointee under Rule 9(a)(i) can continue in service till regular appointment is made. Under these circumstances, it is not open to this court exercising jurisdiction under Article 226 of the Constitution to grant the prayer made by the petition herein to allow him to continue in service till candidates selected through the P. S. C. join duty. In State of Punjab and others Vs. Surinder Kumar and others, , the limitation of jurisdiction of the High Courts under Article 226 of the Constitution to pass such orders has been made clear. In the above case, judgment of the High Court of Punjab and Haryana directing the State Government to allow petitioners who were appointed on part-time basis to continue until regular appointments were made on the recommendation of the P. S. C. was under challenge before the Supreme Court, In order to sustain the impugned direction, reliance was placed before the Supreme Court on the directions issued by the apex court in several cases for absorption of temporary or ad hoc Government servants on permanent basis, the Supreme Court held that the High Court has no jurisdiction to pass such orders unlike the Supreme Court which is empowered under Article 142 of the Constitution to make such orders as may be necessary for doing complete justice in any case or matter pending before it. In the present case the petitioner has not made out a ease that the termination of his service on the expiry of the period of appointment is in violation of any of his legal rights or fundamental rights. In the result, the Original Petition fails and it is dismissed.