Binukumar R., Prasanth K., Satheesh J.S. v. State of Kerala, Director of Urban Affairs, and Corporation of Thiruvananthapuram

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 18TH DAY OF JULY 2017/27TH ASHADHA, 1939** **OP(KAT).No. 122 of 2017 (Z)** **----------------------------** **AGAINST THE ORDER/JUDGMENT IN OA 2506/2016 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 27-02-2017** **PETITIONER(S)/APPLICANTS 1 TO 3: -------------------------------** **1. BINUKUMAR R.,** **S/O.RATHNAKARAN, AGED 40, JUNIOR HEALTH INSPECTOR GRADE-II, THIRUVANANTHAPURAM CORPORATION, ULLOOR ZONAL OFFICE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011, MOB:9400368427.** **2. PRASANTH K.,** - **S/O.KRISHNAN NAIR, 39 YEARS, JUNIOR HEALTH INSPECTOR GRADE-II, THIRUVANANTHAPURAM CORPORATION, HEALTH INSPECTOR OFFICE, CHAKKAL P.O., THIRUVANANTHAPURAM-695 024, MOB: 9495493091.** **3. SATHEESH J.S.,** **S/O.A.JOSEPH, AGED 38, JUNIOR HEALTH INSPECTOR GRADE-II, THIRUVANANTHAPURAM CORPORATION, HEALTH INSPECTOR OFFICE, POONTHURA P.O., THIRUVANANTHAPURAM-695 026, MOB:9895493091.** **BY ADVS.SRI.K.T.SHYAMKUMAR SRI.HARISH R.MENON** **RESPONDENT(S)/RESPONDENTS 1 TO 3:** **---------------------------------** **1. STATE OF KERALA,** - **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695 001.** **2. THE DIRECTOR OF URBAN AFFAIRS,** - **DIRECTORATE OF URBAN AFFAIRS, SWARAJ BUILDING, NANTHANCODE, THIRUVANANTHAPURAM, KERALA-695 003.** **3. THE SECRETARY,** - **CORPORATION OF THIRUVANANTHAPURAM, CORPORATION OFFICE, PALAYAM, THIRUVANANTHAPURAM, KERALA-695 033.** **R3 BY ADVS.SRI.N.NANDAKUMARA MENON (SR.)** **SRI.P.K.MANOJKUMAR,SC,THIRUVANANTHAPURAM CORPORATION R1 BY SRI.T.RAJASEKHARAN NAIR, GOVERNMENT PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 18-07-2017, ALONG WITH O.P.KAT.123/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** **OP(KAT).No. 122 of 2017 (Z) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **----------------------EXHIBIT P1: TRUE COPY OF THE OA NO.2506/2016 ALONG WITH THE EXHIBITS. EXHIBIT P2: TRUE COPY OF THE ORDER DATED 8-2-2017 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3: TRUE COPY OF THE ORDER DATED 27-2-2017 IN OA NO.2506/2016. EXHIBIT P4: TRUE COPY OF THE REPLY DATED 29-3-2017 ISSUED BY THE INFORMATION OFFICER, DISTRICT EMPLOYMENT EXCHANGE, THIRUVANANTHAPURAM. EXHIBIT P5: TRUE COPY OF THE INFORMATION DATED 11-4-2017 ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM.** **RESPONDENT(S)' EXHIBITS - NIL ----------------------TRUE COPY** **P.A TO JUDGE** ## **P.R.RAMACHANDRA MENON & SHIRCY V.,JJ.** ----------------------------------------------------------- O.P.(KAT).Nos.122 & 123 of 2017 ---------------------------------------------------------Dated this the 18[th] day of July, 2017 ## J U D G M E N T ## P.R.Ramachandra Menon, J. Both these original petitions project similar nature of grievance and hence they are dealt with together. O.P.(KAT).No. 122 of 2017 which arises from O.A.No.2506 of 2016 is taken as lead case and reference is made to the pleadings and proceedings given in the said original petition, except where separate reference is made with reference to the context. 2. The petitioners were sponsored by the employment exchange at Thiruvananthapuram for being appointed as Junior Health Inspector-Grade-II, on a provisional basis, as per Annexure-A1 dated 18.08.2015 in a pay scale based on the requisition made by the Corporation of Thiruvananthapuram- the employer/requisitioning authority. The said engagement was originally for a period of six months, which was subsequently extended by another six months under similar terms and conditions. This came to be extended further, for a period of three months on 05.08.2016, still on a scale of pay. But **2** _O.P.KAT.No.122/17 & Conn._ thereafter, the engagement was for three months as per Annexure-A5 dated 20.08.2016. At this time instead of a specific pay scale, the engagement was on 'daily wage' basis. This made the petitioners to submit Annexure-A6 representation before the Government requesting for granting a pay scale as they were given earlier. 3. While so, the petitioners moved the Tribunal by filing O.A.No.2230 of 2016 apprehending termination of their service. The said original application was disposed of by the Tribunal as per Annexure-A8 order, directing the Government to consider and finalise the representation which was pending consideration before them. When the matter was pending consideration, the petitioners being more apprehensive, approached the Tribunal once again by filing O.A.No.2506 of 2016. When the said matter was pending consideration the Government finalized the representation by passing Ext.P2 order based on the information furnished by the authorities concerned, including the District Environmental Officer and also the requisitioning authority; observing that there was no vested right for the petitioners to continue in service for ever and that opportunity had to be given **3** _O.P.KAT.No.122/17 & Conn._ to other persons as well, who were waiting in queue, that too by following rules of reservation. Copy of the said order was produced before the Tribunal, whereupon the Tribunal finalized the original application, in turn passing Ext.P3 order dated 27.02.2017 dismissing the original application. This made the petitioners to approach this Court by filing these original petitions. 4. The learned counsel for the petitioners submits that absolutely no chance was ever given to the petitioners to challenge the correctness and sustainability of the order passed by the Government. It is stated that the finding and reasoning given in Ext.P2 are not correct. It is settled law that one set of temporary hands cannot be replaced by another set of temporary hands and as such, both Exts.P2 and P3 require to be intercepted, submits by the learned counsel for the petitioners. 5. The learned Senior Counsel appearing for the respondent Corporation submits that the petitioners were appointed only on provisional basis through employment exchange. Regular recruitment is through the Public Service Commission and only as a temporary measure, such provisional **4** _O.P.KAT.No.122/17 & Conn._ appointment was being pursued through the employment exchange. It is stated that vacancies have already been reported to the employment exchange, particulars of which have been given in the form of a statement by the 3[rd] respondent, paragraph No.2 of which reads as follows: 33“It is submitted that after reporting the 12 vacancies on 13.02.2017 to the Director of Urban Affairs a letter has been sent to the District Employment Officer to send a list of candidates for making temporary appointments in those vacancies. The Corporation has also sent letters dated 13.02.2017, 09.03.2017, 28.04.2017 and 24.05.2017 to the Director of Urban Affairs requesting him to furnish the Non Availability Certificate (NAC) as requested by the District Employment Officer. It is submitted that as soon as the list of candidates from the Employment Exchange is received appropriate steps will be taken for making temporary appointments.” 6. The learned counsel for the petitioners submits that the version of the Corporation that vacancies have been reported to the Employment Exchange is not correct and that as per _O.P.KAT.No.122/17 & Conn._ **5** Ext.P4 procured by the petitioners invoking the provisions under the Right to Information Act, it had not been done as on 29.03.2017. The learned counsel also placed for consideration of this Court, a copy of the proceedings dated 14.06.2017 issued by the District Employment Officer and the State Public Information Officer, Thiruvananthapuram to the effect that the requisitioning authority has not submitted any requisition in the proper form and as such, there is no merit in the contention that the vacancies had already been reported to the employment exchange. 7. The submission made before the Tribunal and also that raised in this Original Petition, that one set of temporary hands cannot be replaced with another set of temporary hands is asserted before this Court as well, also placing reliance on the judgment of the Apex Court in **State of Hariana and others v. Piara Singh and others [(1992) 4 SCC 118]** with regard to the right of the petitioners to continue in service. This Court finds that petitioners were admittedly engaged only on provisional basis and there is no vested right to continue in service, once the period mentioned in the appointment order is _O.P.KAT.No.122/17 & Conn._ **6** over. Since, there was no regular process of selection, the petitioners do not have any right to be regularized in service, by virtue of the law declared by the Apex Court in **Secretary, State of Karnataka v. Umadevi [(2006) 4 SCC 1].** The remaining question is whether there is any merit in the submission made by the learned counsel for the petitioner across the Bar that one set of temporary hands cannot be replaced with another set of temporary hands, placing reliance on **Piara Singh's** case. 8. The decision rendered by the Supreme Court in **Piara Singh's** case was entirely on a different context. There, despite the availability of sanctioned posts and vacancies, the State was not resorting to regular process of selection and was simply appointing persons on temporary basis for short spells. After completion of the tenure, theGovernment used to fill up the vacancies with another set of temporary hands and this exercise was going on; which came to be deprecated by the Honourable Supreme Court, making it clear that when sanctioned posts are there and vacancies were still remaining, instead of making regular recruitment, the State will not be justified in proceeding with filling up the posts on temporary basis, in turn replacing _O.P.KAT.No.122/17 & Conn._ **7** one set of temporary hands with another set. The said judgment is not an authority to hold that temporary hands are having right to continue till the posts are filled up by regular hands even in case where regular selection comes to take place after decades. In the said circumstances, we are of the view that the said decision does not come to the rescue of the petitioners in any manner. 9. With regard to the course and events as to the requisition stated as made by the employer/requisitioning authority and the reply obtained from the authorities concerned under the Right to Information Act, the position is that, though it is stated that the vacancies have been reported, no action has been taken by the authorities of the employment exchange for the reason that the requisition was not in proper form. Be that as it may, there is no case for the respondent Corporation that they have already obtained a list from the employment exchange to give appointment to the persons concerned after having the seats vacated by the persons like the petitioners herein. The Tribunal has taken care of the situation to the requisite extent as borne by the observations/direction by the last paragraph of the _O.P.KAT.No.122/17 & Conn._ **8** order under challenge, which is extracted below: “8. .....We are of the view that as far as the prayer of the applicants to continue in service is concerned, till new hands are appointed after selection, as the original period is over, they have no right to continue and their service will be dispensed with. The Government also ordered that the applicants have no right to continue after 9/8/2016. The Corporation is therefore permitted to conduct a fresh selection through the employment exchange and the process will be expedited. It is up to the Corporation to keep the posts vacant, till the selection is completed. But if any fresh hands are sought to be appointed, otherwise than by a selection till the employment exchange hands are selected and appointed, the applicants also will be considered.” 10. Over and above observations/directions of the Tribunal, we would like to make it clear that in so far as the vacancies are stated as reported by the Corporation/requisitioning authority to the employment exchange and in so far as list of candidates identified by the employment exchange is yet to be forwarded to the requisitioning authority for being appointed, the vacancies now _O.P.KAT.No.122/17 & Conn._ **9** remaining shall not be filled up by the Corporation/requisitioning authority by engaging other persons of their choice, whether as a temporary measure or on daily wage basis. If any occasion arises to meet the organizational requirement, it is open for the respondent Corporation to engage the persons like the petitioners herein who are to vacate the seats immediately on furnishing the list of candidates by the employment exchange and on recruiting such persons by the Corporation. The assurance made by the learned standing counsel in this regard is recorded and both these Original Petitions are disposed of accordingly. Sd/- ## **(P.R. RAMACHANDRA MENON, JUDGE)** Sd/- ## **(SHIRCY V., JUDGE)** ## **True Copy** ## **P.A to Judge** DG