Sobhana vs State of Kerala

Sreedharan, J.—Petitioners challenge the appointment given to respondents 3 to 11 in the service under the 2nd respondent, Kerala Tourism Development Corporation.

The material averments made by the petitioners are as follows: Petitioners are unemployed graduates. They are fully qualified to be appointed as Tourist Guides, Information Assistants or other similar posts under the Corporation. Second respondent is a Corporation fully owned, controlled and administered by the Government of Kerala. In 1967 the 2nd respondent has framed and published rules called Kerala Tourism Development Corporation Service Rules, hereinafter referred to as ''the Rules'' to define and regulate the recruitment and conditions of service of its employees. As per Rule 8, recruitment to the service shall be made by direct appointment, promotion or deputation from other services. Direct appointments are to be made from out of the names sent on request of the Corporation by the Employment Exchange or S.S. and A. Board or from among others on the basis of applications received in pursuance of advertisement in newspapers. In 1970 the State Legislature passed the Kerala Public Service Commission (Additional Functions as respects certain Corporations and Companies) Act, 1970. Thereafter direct appointments to the service in the Corporation have to be made on the advice of the Public Service Commission. As per Rule 2-A of the Kerala Public Service Commission (Consultation by Corporations and Companies) Rules, 1971, no appointment to posts brought under the purview of the Commission shall be made except on the advice of the Commission. The Corporation could make only temporary appointments and that too for a total period not exceeding three months. Some time in 1981 the 2nd respondent appointed respondents 3 to 8 on daily wages as casual employees. They were subsequently designated as Information Assistants. These appointments were made secretly. Those posts were never advertised in newspapers, nor was it notified to the Employment Exchange. The Public Service Commission was also not requested to select candidates for the posts. Respondents 3 to 8 are not graduates. Nor are they qualified in guide training. They were appointed on extraneous considerations. On 1st April, 1982 the Board of Directors of the 2nd respondent decided to absorb respondents 3 to 8 in permanent service in violation of the Rules. Respondents 9 to 11 are now appointed as Information Assistants on daily wages. Those posts were not notified to the Employment Exchange or advertised in newspapers. Second respondent is taking steps to regularise their services and absorb them as regular employees. The petitioners, therefore, pray for the issue of writ of quo-warranto or any appropriate writ or direction declaring that the appointment of respondents 3 to 11 to the service of the 2nd respondent is illegal and void, to oust them and to direct the 2nd respondent to fill up the posts in accordance with the Rules framed for the said purpose.

On behalf of the State, a Section Officer in General Administration (Political-B) Department has sworn to an affidavit. In the affidavit it is admitted that the petitioners had complained before the Government in April 1982, against the appointment of six lady candidates as Information Assistants, that the Managing Director in his report dated 16th July, 1983 stated that the Board was competent to make appointments to the post of Information Assistants as those posts were outside the purview of the Kerala Public Service Commission, that they were appointed initially on daily wages and were subsequently regularised, that smartness, intelligence and ability to converse with the public were considered more important than prescribing any fixed qualification to the post and that if their services are to be dispensed with it would create serious administrative problems in the Company. It is further averred that the appointments in question were made without the knowledge of the Government and that in view of the lapse of time the Government have decided not to interfere with the appointments made by the 2nd respondent.

A Senior Superintendent (Administration) in the office the 2nd respondent has filed a counter affidavit dated 10th October, 1988. The contentions raised therein are that the Corporation is governed by its own service rules in the matter of service conditions of its employees including recruitment, that Rule-8 relates to regular appointment, that the rule does not prohibit appointments other than what is provided therein, that there is no restriction in appointing casual employees on daily wages, that observance of Rule 8 for appointment of casual employees on daily wages is neither necessary nor feasible, that large number of casual employees were engaged, that those employees organised themselves and agitated for being absorbed in the regular service, that the Board of Directors were constrained to absorb most of them in the service of the Corporation, that the post of Information Assistant is not one coming within the purview of the Public Service Commission, that respondents 3 to 8 are neither qualified nor competent to function as guides, that the allegation that respondents 3 to 11 were appointed on extraneous consideration is baseless, that the service of respondents 3 to 8 were regularised as early as on 1st April, 1982 and that the appointment of respondents 3 to 11 are not violative of the provisions contained in Article 16 of the Constitution of India.

At the time of the final hearing of this petition, it was conceded before me that respondents 3 to 11 were not appointed through Employment Exchange. It was further agreed that the posts held by them were never published in any of the newspapers or media. Respondents 3 to 11, it is claimed by 2nd respondent, were appointed on daily wage basis. They were not appointed depending on the requirements of short term duration. From the date of engagement as casual labourer on daily wages respondents 3 to 8 continued in service uninterruptedly till their services were regularised. In the case of respondents 9 to 11 it is conceded by the learned counsel representing the 2nd respondent that they are continuing in service uninterruptedly from the date they were engaged on daily wages.

Rule 8 of the Rules, provides for the method of appointment. For a proper understanding of that Rule, I read the same:

"The method of recruitment: (1) Subject to the provisions in the Articles of Association, recruitment to the service of the Corporation shall ordinarily be made by:

(a) Direct Appointment: Direct appointment shall be made out of the names sent on request of the Corporation by the Employment Exchange or S.S. & A Board or from among others on the basis of applications received in pursuance of advertisements in newspapers,

(b) Promotion : Promotions from the personnel in the service of the Corporation.

(c) Deputation from other services: Deputation from the service of the State or Central Government or from the service of Statutory Bodies.

(2) Selection of candidates for appointment to posts under the Corporation shall be made by the Staff Selection Committee of the-Board constituted for the purpose, with the Chairman, the Managing Director and not more than 3 other Directors nominated by the Board.

Provided that the Managing Director or any Officer authorised by him shall be empowered to select candidates for provisional appointment through Employment Exchanges for a period not exceeding 89 days.

Provided also that the Managing Director shall be appointing authority in respect of all posts (including posts coming under the purview of the Kerala Public Service Commission).

Recruitment to the categories of the posts would be subject to the principle of communal rotation as laid down in Rules 14 to 17 of the Kerala State and Subordinate Services Rules Part II, as far as practicable, subject to the condition that reservation for SC/STs be treated as a compulsory requirement as in Government while making appointments to posts under the Corporation".

The above Rule makes it clear that even provisional appointments for a period not exceeding 89 days can be made only through Employment Exchange. If respondents 3 to 11 were appointed provisionally they could have been so appointed only through Employment Exchange. It is admitted that they were appointed without reference to Employment Exchange. Nor was it in pursuance to any notification or advertisement in newspapers or media. To get over the provisions of Rule-8 it is now urged by the 2nd respondent that the appointments were on a casual basis on daily wages. For making such appointments it is contended that no advertisement of the posts in the media was required and that Employment Exchange was not required to be consulted. The employees so appointed were engaged continuously and uninterruptedly for years together. Such appointments were against Rule 8 and all notions of appointment to public services.

On the facts and circumstances of this case, it cannot but be held that 2nd respondent is an ''other authority'' within the meaning of Article 12 of the Constitution of India. This fact is not in dispute either. The 2nd respondent is, hence duty bound to follow the service rules framed for the conduct of its affairs. Adherence to those rules would avoid arbitrariness. Rule-8 referred to earlier regulates the method of appointment to the service of the Corporation even on provisional basis. That provision has been flouted in this case contending that the appointments of casual employees on daily wages will not fall within the purview of the said rule. The stand is taken by the 2nd respondent only to act according to its whims and fancies. The 2nd respondent cannot claim any unguided or unbridled power in making appointments to posts in its service. The assumption made by the 2nd respondent that it has got unbridled power and unguided discretion in making appointments to posts by describing it to be casual on daily wages is ill-founded and it cannot be supported. If such a power is recognised it will confer arbitrary power on 2nd respondent to make appointments to public service.

Compliance with the service rules framed by the 2nd respondent is necessary in the interest of fair-play. If there arose vacancies in the service of the 2nd respondent, such vacancies should have been published in newspapers or intimated to Employment Exchange. Persons eligible for the post could have applied. In that case, the field of consideration would have been enlarged and the 2nd respondent would have had a much larger field for them to choose the best available person. Such a procedure would have removed all doubts of arbitrariness from the minds of those who were eligible for the posts. If there had been due publicity as required by Rule-8 framed by the 2nd respondent, the petitioners and many others would have applied for the posts. The petitioners could not have any grievance in such a case if their cases were duly considered. It is virtually admitted by the 2nd respondent that the appointments given to respondents 3 to 11 were effected secretly. The 2nd respondent has no case that any process of selection had been undergone prior to the appointments of respondents 3 to 11. The 2nd respondent appointed respondents 3 to 11 in its service in an arbitrary manner, against all notions of fair-play.

For the foregoing reasons the petitioners are entitled to succeed. The Original Petition is accordingly allowed. The appointments of respondents 3 to 11 are set aside. The 2nd respondent is directed to fill up the posts strictly in compliance with the terms of Rule-8 of the Kerala Tourism Development Corporation Service Rules framed by them. The parties are directed to suffer their respective costs.

Issue photo copy of the judgment to the parties on usual terms.