State Of Kerala vs K.Murukan

P.Krishna Kumar, J

O.P.(KAT)No.343/2017

The respondent, a physically challenged person having 40% permanent disability, after being selected through Employment Exchange was provisionally appointed as a Sweeper in the Government Central Press, Thiruvananthapuram by the Director of Printing, the second petitioner herein, for a maximum period of 179 days or till appointing a permanent hand, as per Annexure A2. Later, the respondent approached the Kerala Administrative Tribunal seeking a declaration that he has been appointed on a regular basis and hence he should be regularised in the service with retrospective effect.

Referring to Rule 4 (b)of the Special Rules for the Kerala Last Grade Service (‘the Special

Rules’, for short) and following the earlier decision of the Tribunal in M.Murukan v. The Principal, Government College, Attappady & Another

(KAT Reporter Volume 4 (2015) Part I Page78), the declaration as sought for was granted finding that the case of the respondent is identical to the petitioner in the said case. The Tribunal further followed the decision of this court in W.A.No.96/2000, wherein a similar appointment of Hospital Attendants Grade II was approved by this court.

O.P(KAT)No.344/2017

In this case, two Sanitation Workers were appointed in the Government Central Press, Thiruvananthapuram, as per Annexure A2 for a period of 179 days under Rule 9(a)(i) of Part II of the Kerala State and Subordinate Services Rules, 1958, based on the list received from the District Employment Exchange. They approached the Tribunal contending that the post of Sanitation Worker is included in the Special Rules and one of the methods for appointment is through the Employment Exchange and that they were accordingly appointed against substantive vacancies by their Head of the Department, in the absence of a common seniority list of Part-time contingent employees maintained by the District Collector for appointment by promotion.

The Tribunal directed the second respondent to verify whether there was any such common seniority list and whether any eligible claimant was available on the date of occurrence of the vacancy or appointment and if not, the appointment of the respondents should be treated as regular.

The State challenges the findings of the Tribunal mainly on the following grounds:

(i) As per the Special Rules, the competent authority to make regular appointment to the post of Sweeper under category 4, is the District Collector, Thiruvananthapuram and not the Director of Printing.

(ii) Appointment made under Annexure A2 (in O.P(KAT)No.343/2017) and Annexure A1 in the other case was on a provisional basis and for 179 days alone and hence it cannot be considered as a permanent appointment to a substantive vacancy.

(iii) For the mere reason that an appointment is made from a list forwarded from the Employment Exchange, it would not become a permanent appointment, as contemplated under Rule 4.

(iv) The Tribunal went wrong in following the above said decisions for the reason that the cases involved therein were in respect of appointment of Sweepers in Health Service, Medical Colleges Employees’ State Insurance, Indian Systems of Medicine, Animal Husbandry etc., where the District Collector is not the appointing authority.

We heard the learned Senior Government Pleader and the learned counsel appearing for the respondents.

The learned Senior Government Pleader vehemently contended that when the appointing authority is the District Collector, the appointment made by the Director of Printing can only be treated as a temporary arrangement in the exigencies of service and hence the Tribunal committed grave error in holding that the said appointment is regular. Even in the cases of posts where regular appointments can be made through the Employment Exchange, provisional appointments are usually made in contingencies of service, he added.

On the other hand, the learned counsel appearing for the respondents contended that at the time of their appointment, there was no common seniority list for filling up the post by promotion. It is also contended that the candidates were appointed after conducting an interview as envisaged in the Special Rules and also after following the rotation for community reservation.

As the main issue in this matter revolves around the understanding of Rule 4 of the Special Rules, the said provision is set out hereunder for the ease of reference:

“Appointing Authority – The District Collector of the concerned District shall be the Appointing Authority for all posts coming under Category 4 in the offices and institutions in the District except those in the Departments of the Health Services, Medical Colleges Employees' State Insurance, Indian Systems of Medicine (including Ayurveda Colleges), Homoeo, Animal Husbandry, Museums and Zoos, Governor's Secretariat, Departments of the Secretariat including Law, Legislature [The appointment in the Legislature Secretariat is governed by “The Kerala Legislature Secretariat (Recruitment and Conditions of Service) Rules 1979”] and Finance, Judicial Department, Public Service Commission and Office of the Advocate General. The Appointing Authority for all the posts in Category 4 in the Departments specified above and for other categories in the offices and institutions specified in column (1) of the table below shall be the authority specified in the corresponding entry in column (2) thereof.

(emphasis added)

TABLE

Office or Institution

Appointing Authority

1

2

(a)Governor's Secretariat

(a)Secretary to the Governor

(b) Law Department

(b) Secretary to Government, Law Department

(c)Finance Department

(c)  Secretary to Government,        Finance Department

(d)Other Departments

(d)Secretary  to Government,    Public Department  or  any  other Officer authorised in this behalf   by   the   Chief Secretary to Government.

xx  xx xx  xx xx  xx

HINDU RELIGIOUS & CHARITABLE ENDOWMENTS DEPARTMENT COMMISSIONER OF HINDU RELIGIOUS AND

CHARITABLE ENDOWMENT

OTHER DEPARTMENTS

(a) Offices of the Heads of Departments

(a)The    Head    of    the Department   concerned   or any  other  officer  having jurisdiction    over    the office           concerned authorised in this behalf by   the   Head   of   the Department

(b)Offices  and Institutions  in the Districts

(b)The Highest Officer of the     District     having jurisdiction    over    the office or the Institution concerned,

(c)Institutions      over which  District  Officers have no jurisdiction

(c)Head of the Institution concerned.

Sweeper and Sanitation Workers are included in Category 4 of the Special Rules. Rule 4 provides that the District Collector shall be the appointing authority for all posts coming under Category 4 in the offices and institutions in the district except the departments mentioned in the main clause. It is also provided therein that the appointing authority for all posts in Category 4 in the offices and institutions specified in column (1) of the table given under the main clause of Rule 4 will be the authority specified in the corresponding entry in column (2). In the said table after describing the appointing authority in the Secretariat, Revenue Department, Law Officer’s Department and Judicial Department, the description of the departments is shown as Hindu Religious and Charitable Endowments Department, Commissioner of Hindu Religious and Charitable Endowment and Other Departments. Under the said category, column(1) consists of three offices viz., (a)Offices of the Heads of Departments (b) Offices and Institutions in the Districts and (c) Institutions over which District Officers have no jurisdiction. From Column No.2, it is evident that in the case of the Office of the Heads of Departments, the authority competent to appoint Sweepers/Sanitation workers is the Head of Department or an officer authorised by him. For the institutions over which District Officers have no jurisdiction, the competent appointing authority is the Head of the institution concerned.

According to the respondent, the Director of Printing, the second petitioner, is the Head of the Department and that Government Central Press is an institution over which the District Officers have no jurisdiction. If the second petitioner is the Head of Department/Institution for the Government Central Press, we cannot uphold the contention advanced by the learned Government Pleader. In addition, the table further provides that, with respect to the “other departments” which are mentioned in the table, the District Collector is not the appointing authority. Neither in the counter filed before the Tribunal nor in the original petition filed before this Court, the State did not raise a contention that the second petitioner is not the Head of the Department or that the Government Central Press does not come within the fold of ‘other departments’.

The learned counsel appearing for the respondents guided us through an interim order passed by this Court on 14/09/2017 in the present case. The said order reads as follows:

“The learned Government Pleader submits that the main dispute in this original petition is with regard to the fact that the appointment order issued is by the Director of Printing, who is not the competent authority by virtue of the mandate of Rule 4 of the Special Rules for the Kerala Last Grade Service as it is vested in the District Collector.

Sri.K.P.Rajeevan,  the  learned counsel appearing for the respondents submits that in respect of persons working in the institution over which the District Officers have no jurisdiction as in the case of Directorate and as dealt with in the table given, which was referred to in the relevant Rule extracted in Ground (e) of the original petition, the Head of the Institution is none other than the Director and hence, the appointment order is perfectly valid in all respects.

The learned Government Pleader seeks for time to file an affidavit on behalf of the 1st petitioner/Secretary of the Printing Department to resolve the issue.”

The learned Senior Government Pleader conceded that the petitioners did not submit any affidavit in that regard. In view of the above facts and circumstances, we find no reason to accept the contentions of the learned Senior Government Pleader that it was the District Collector who was the competent authority to make the appointment.

What remains now is the propriety of treating Annexure A2 appointment made by the Director of Printing as a regular appointment even though it was ex-facie a provisional arrangement for 179 days. Rule 5(a) of the Special Rules deals with the appointment to various categories or posts under the said service. Rule 5(a) under the heading Category 4 provides that in respect of posts in departments other than those mentioned in the opening paragraph of Rule 4, the appointment should be made by promotion of Part-time contingent employees from the common seniority list prepared by the District Collectors on revenue district-wise basis. It is further provided that in the absence of such suitable hands, the appointment has to be made by direct recruitment through the Employment Exchange.

From Annexure A2, undisputedly the appointment is for a period of 179 days under Rule 9(a)(i) of Part II of the Kerala State and Subordinate Services Rules, 1958. However, the candidates appointed were included in the list prepared by the District Employment Exchange, Thiruvananthapuram and they were found eligible by the Interview Board. Annexure A6 (in O.P. (KAT)No.343/2017) further indicates that the appointment was made against two substantive vacancies. Annexure A9 (in O.P.(KAT)No.343/2017) shows that one of the respondents (Sri.Murugan K.) was directed to appear for interview on 17/08/2016 with documents showing educational qualifications, age, caste, non-creamy layer certificate etc., if applicable. The respondents project these aspects as proof of their claim that the appointment was made as a regular appointment, though it was styled as provisional.

In fact, it is no more res integra that even if the appointment in Category 4 of the Last Grade Service was shown as provisional, it could be considered a regular appointment in certain circumstances. This Court considered such an issue in Sreekala v. Superintendent, Oldage Home (2008 2 KHC 84). After adverting to Rule 5 of the Rules and various other provisions in the said Rules, this court opined as follows:

“9. Thus, going by the Special Rules, appointment through Employment Exchange is one of the methods prescribed for the post of Cook. But, whether the appellant was appointed on a regular basis or provisionally, will depend upon the facts of the case. The appointment order says that the appointment is temporary and for a period of 179 days. The mention in an appointment order that it is provisional or temporary, may not be conclusive. Even in the case of regular appointments, it is stated by some appointing authorities that the appointment is temporary. But, in this case, we notice that as pointed out by the learned Government Pleader, the procedure followed was that of provisional appointment and not of regular appointment. The candidates from all the Employment Exchanges in the Kottayam District were not sponsored. The appointment order was not issued by the Head of the Department, who is the appointing authority, but by the Superintendent of the Old Age Home, Ithithanam, who is only the Head of the office / institution concerned. The unit of appointment being the District, the Head of the institution can never make regular appointment. Further, the rules of reservation were also not followed. Therefore, the contention of the learned counsel for the appellant that her appointment is regular, cannot be accepted.”

Again  this  Court  considered  the  issue  in State of Kerala v. Sunitha Beevi S. and Others v. State of Kerala (2019 KHC 19), wherein a similar decision of the Kerala Administrative Tribunal was challenged by the State before this Court. After referring to the ratio in Sreekala’s case (supra), this court found that mere mention in the appointment order that it is provisional or temporary would not be conclusive and what is relevant is the procedure that was followed for effecting the appointment (paragraph 16). The learned counsel for the respondents also referred to a decision of this court in W.A. No. 96, 152 and 491 of 2000, dated 20.02.2003, wherein this court accepted similar claims raised by the petitioners in those cases.

The respondents strenuously assert that there was no common seniority list maintained by the District Collector on a revenue district-wise basis for effecting appointment by promotion from Part-time contingent employees to the post of Sweeper/Sanitation Worker and that is why the Head of the Institution opted for the alternate course viz., direct recruitment through Employment Exchange. It is interesting to note that, in paragraph 5 of the reply statement filed on behalf of the second respondent in O.A.(Ekm)No.554/2017, it is stated that provisional appointment to the post of Sanitation Worker/Sweeper through the Employment Exchange was resorted to in the absence of a common seniority list prepared by the District Collector for the Part-time contingent employees. Nevertheless, we did not find any such statement in the other case (O.A.(Ekm)No.499/2017).

In the impugned order in O.P. (KAT)No.343/2017, the Tribunal issued a direction to regularise the appointment as Sweeper, but in the impugned order in O.P.(KAT)No.344/2017, the direction was to verify whether there was any such common seniority list of Part-time contingent employees maintained by the District Collector and whether any eligible claimant was available on the date of occurrence of vacancy or on the date of appointment of the applicants. It was further directed that if it is not available, the applicants are to be treated as regular appointees. In view of the factual situations we noted above, this direction aligns more closely with the statutory rules and such verification is even otherwise necessary not only to consider the existence of the said list but also to see that the appointment was made after following other formalities as mentioned above in Sreekala’s case (supra).

Before concluding, a fundamental principle must be restated for the sake of clarity. The regularization of an appointment in public employment is not permissible if the initial employment itself contravened the applicable rules or was intended merely as a provisional arrangement to address exigencies of service due to unfilled vacancies. Regularization or ratification of the initial appointment is possible only if the act in question falls within the appointing authority's power and province. If the initial action, although labelled as a provisional appointment, was actually made after following all the formalities required for a regular appointment and without contravening the rules governing the mode of appointment, it can be regularised.

For the above reasons, we are of the view that in both cases, a verification as ordered by the Tribunal in O.P.(KAT)No.344/2017 is necessary as to certain factual aspects such as availability of common seniority list of Part-time contingent employees maintained by the District Collector at the relevant period of time, availability of substantive vacancies during the relevant period and compliance of rules relating to communal reservation. It can also be verified whether the District Employment Exchange consulted other Employment Exchanges in the district before forwarding the list, if relevant data is still available. The question that whether the second petitioner is the Head of the Institution within the meaning of the last clause in the table attached to Rule 4 also can be looked into in this process.

However, we wish to clarify that if the petitioners are unable to find the records pertaining to the above matters due to the passage of time or other reasons, the respondents' service shall be regularized, and they shall be entitled to the corresponding benefits as directed by the Tribunal. This is because the petitioners' pleadings in one of the above cases and the documents referred to above fairly indicate that there is substance in the contentions of the respondents. However, the above order for verification is passed to ensure complete fairness to all the stakeholders.

The  petitioners  are  directed  to  complete the verification process within four months from the date of this judgment, after affording an opportunity of hearing to the respondents.

The Original Petitions are disposed of accordingly, by modifying the impugned orders to the above extent.