Cochin University of Science and Technology v. Sudheesh K.P. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944** **WA NO. 1441 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 17180/2021 OF HIGH COURT OF** ## **KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3:** - **1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI-682 022.** - **2 VICE CHANCELLOR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI-682 022.** - **3 REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI-682 022.** ## **BY ADV S.P.ARAVINDAKSHAN PILLAY** ## **RESPONDENTS/PETITIONERS:** - **1 SUDHEESH KUMAR P.S., AGED 35 YEARS S/O.SADI.P.K., PUTHEN KATTUNIKARTH, AROOR P.O., ALAPPUZHA-688 423.** - **2 ARUN C.KARTHIK, S/O.C.P.KARTHIKEYAN, CHAKATHARTH HOUSE, KADAMANGALAM, N.PARAVUR, ERNAKULAM.** - **3 RAJANI.N.P., W/O.T.K.PUZHPANGADAN, THEKKINKATTIL HOUSE, CHIRAKKAKOM, VARAPUZHA P.O., ERNAKUAM-683 517.** - **4 VIJESH.K.B., S/O.BALAKRISHNAN, KARUVELIL HOUSE, MURAVANTHURUTH, VADAKKEKARA P.O., ERNAKULAM-683 522.** W.A. Nos.1441, 1446 & 1449 of 2021 -: 2 :- - **5 MANJU.K.S.,** - **W/O.REJI.K.V., KANAMPURAM HOUSE, MALAYATTOOR P.O., ELLITHODE, ERNAKULAM-683 587.** - **6 KALESH KUMAR.V.R., S/O.RAJAPPAN.V.N., VELAMKULATHIL (H), MANNANAM P.O., KOTTAYAM-686 561.** - **7 JINESH.B.K., S/O.B.C.KUTTAPPAN, BUNGLAVUPARAMBIL HOUSE, PALAYAMPARAMBU P.O., VYNTHALA, THRISSUR-680 741.** - **8 ANEESH.K.G., S/O.GIRIKUMAR, THEKKUYMTHALA MADOM, VELIYATHUNAD P.O., W.VELIYATHUNAD, ALUVA-683 511.** - **9 GANESAN.K., S/O.CHARTHAVE, WEST VENGOLA P.O., ONAMKULAM, PANGIMALA, ERNAKULAM-683 556.** - **10 SAJI.K.J., S/O.K.A.JOSEPH, KATTITHARA HOUSE, THYKULAM, VYTTILA P.O., ERNAKULAM-682 019.** - **11 ANILMON,** - **S/O.MOHAMMAD YOUSUF, KAVIYAM PARAMBU, VALIYA MARAM WARD, ALAPPUZHA-688 001.** - **12 BIJU SREEDHARAN,** - **S/O.SREEDHARAN, ATTASSERY HOUSE, P.O.KUTTUR, PAMBOOR, THRISSUR-680 013.** - **13 BEENA.M.P., W/O.JOJI, KOTTAKKAL HOUSE, MELOOR P/.O., CHALAKUDY VIAL, THRISSUR-680 311.** ## **OTHER PRESENT:** **SRI.KALEESWARAM RAJ, SRI.P.C.SASIDHARAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2023, ALONG WITH WA.1449/2021, 1446/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. Nos.1441, 1446 & 1449 of 2021 -: 3 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944** **WA NO. 1446 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 18249/2021 OF HIGH COURT OF** ## **KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3:** - **1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI-682 022.** - **2 VICE CHANCELLOR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI-682 022.** - **3 REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI-682 022.** **BY ADV S.P.ARAVINDAKSHAN PILLAY** ## **RESPONDENTS/PETITIONERS:** - **1 SUJA M.S., AGED 45 YEARS KARIYEZHATHU HOUSE, KUZHUPILLY, EDAVANAKKAD P.O., ERNAKULAM, PIN-682 802.** - **2 SAJEEV.C., AGED 32 YEARS, CHELAKKADKUNNU HOUSE, THIROOR P.O., PALAKKAD, PIN-678 544.** ## **SRI.KALEESWARAM RAJ** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2023, ALONG WITH WA.1441/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. Nos.1441, 1446 & 1449 of 2021 -: 4 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944** **WA NO. 1449 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 17247/2021 OF HIGH COURT OF** ## **KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3:** - **1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY , REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI - 682022.** - **2 VICE CHANCELLOR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI - 682022.** - **3 REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI - 682022.** ## **BY ADV S.P.ARAVINDAKSHAN PILLAY** ## **RESPONDENTS/PETITIONERS AND 4TH RESPONDENT:** - **1 SHOBIKA M.M., AGED 40 YEARS MURIYATHARA HOUSE, CHAKKARAPPADAM P. O., PERNJANAM, THRISSUR - 680686.** - **2 JENCY GEORGE, AGED 45 YEARS, KALAPPURAKKAL HOUSE, ELOOR EAST, UDYOGMANDAL P. O., ERNAKULAM - 683501.** - **3 DILSHA CHANDRAN, AGED 39 YEARS VADAKKEPANATTIL, KANJIRAMATTOM P. O., ERNAKULAM. 682 315.** W.A. Nos.1441, 1446 & 1449 of 2021 -: 5 :- - **4 SURESH P. M., AGED 40 YEARS VAZHAYILVALAPPUMEETHEL HOUSE, IRINGATH P. O., MEPPAYUR, KOZHIKODE - 673523.** - **5 CHAIRMAN, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 695 004.** **BY ADVS. SRI.KALEESWARAM RAJ SRI.P.C.SASIDHARAN JOHN K.GEORGE K.S.ARUN KUMAR** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2023, ALONG WITH WA.1441/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. Nos.1441, 1446 & 1449 of 2021 -: 6 :- ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ. -----------------------------------------------** **Writ Appeal Nos.1441, 1446 & 1449 of 2021 ----------------------------------------------Dated this the 14[th] day of February, 2023** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** These appeals arise from the common judgment in three writ petitions namely, W.P.(C) Nos.17180 of 2021, 17247 of 2021 and 18249 of 2021. As the writ petitions were disposed of by a common judgment, the appeals are also disposed of by this common judgment. Parties and documents are referred to in this judgment, unless otherwise mentioned, as they appear in W.P.(C) No.17180 of 2021. 2. The petitioners in the writ petitions were persons included in the ranked list published by the Cochin University of Science and Technology (the University) on 28.12.2018 for appointment to the post of Sweeper-cumCleaner. As the ranks secured by the petitioners were not sufficient to secure regular appointments having regard to the number of vacancies, they were not appointed. Nevertheless, the petitioners were later engaged by the University as W.A. Nos.1441, 1446 & 1449 of 2021 -: 7 :- Sweeper-cum-Cleaner on daily wage basis in a few temporary posts. Ext.R3(a) is the order governing engagement of persons on daily wage basis in the University. In terms of Ext.R3(a), a person cannot be engaged on daily wage basis for a term exceeding 240 days. When steps were taken to disengage the petitioners on completing their term, they approached this Court in W.P.(C) No.12971 of 2021 claiming permanency, and the said writ petition was disposed of by this Court directing the University to consider their representation. Pursuant to the direction aforesaid, the University issued Ext.P4 order rejecting the representation submitted by the petitioners taking the stand that they cannot be permitted to continue beyond 240 days. Ext.P4 order was under challenge in the writ petitions. Ext.R3(a) order of the University was also challenged in one of the writ petitions namely, W.P.(C) No.17247 of 2021. Among others, the petitioners sought in the writ petitions, a declaration that they are entitled to be engaged on daily wage basis till regular appointments are made by the University. 3. Counter affidavits were filed in the writ petitions by the University contending, among others, that having accepted the terms of the engagement as stipulated in W.A. Nos.1441, 1446 & 1449 of 2021 -: 8 :- Ext.R3(a), the petitioners cannot be heard to contend that they are entitled to continue otherwise than in accordance with Ext.R3(a) order. It was also contended by the University in the counter affidavits that there are no vacancies at present and that the petitioners are engaged only in temporary posts created in the exigencies of service. 4. The learned Single Judge took the view that Ext.R3(a) order is against the law laid down by the Apex Court in **Hargurpratap Singh v. State of Punjab** , (2007) 13 SCC 292 that one _ad hoc_ arrangement cannot be replaced by another _ad hoc_ arrangement, and disposed of the writ petitions directing the University to continue to engage the petitioners till the University fill up the posts manned by the petitioners with a set of regular employees, by following the principle of last come, first go. The University is aggrieved by the said decision of the learned Single Judge. 5. Heard the learned Standing Counsel for the University as also the learned counsel for the petitioners in the writ petitions. 6. The learned Standing Counsel for the University submitted that inasmuch as the engagement of the W.A. Nos.1441, 1446 & 1449 of 2021 -: 9 :- petitioners as Sweeper-cum-Cleaner in the University was in terms of Ext.R3(a) order, without there being any challenge to Ext.R3(a) order, the learned Single Judge ought not have directed the University to continue to engage the petitioners. It was argued by the learned Standing Counsel that having accepted the terms of the engagement that the engagement is only for a particular period, the petitioners cannot be heard to contend that they are entitled to be engaged beyond the term for which they were engaged. It was also argued by the learned Standing Counsel that the learned Single Judge was not right in relying on the decision of the Apex Court in **Hargurpratap Singh** , as the petitioners therein are not similarly placed like the petitioners in the instant cases. Placing reliance on the decision of the Constitutional Bench of the Apex Court in **Secretary, State of Karnataka v. Umadevi (3) and Others** , (2006) 4 SCC 1, the learned Standing Counsel has also contended that the engagement in the nature of one made by the University is permissible and such engagement would come to an end when the same is discontinued. It was pointed out by the learned Standing Counsel that there are many others who are desirous of being engaged on daily wage W.A. Nos.1441, 1446 & 1449 of 2021 -: 10 :- basis in temporary posts in the University and it is with a view to accommodate such persons that a period is prescribed in Ext.R3(a) order for engagement of persons on daily wage basis. 7. Per contra, the learned counsel for the petitioners, placing reliance on the decisions of the Apex Court in **State of Haryana v. Piara Singh** , (1992) 4 SCC 118 and **Manish Gupta v. Jan Bhagidari Samiti** , 2022 SCC OnLine SC 485, contended that an _ad hoc_ or temporary employee should not be replaced by another ad hoc or temporary employee; he shall be replaced only by a regular employee. The learned counsel has also relied on the decision of the Division Bench of the Delhi High Court in **Narinder Singh Ahuja** v. **Secretary, Ministry of Health and Family Welfare** , 2014 SCC OnLine Del 2243, in support of the said proposition. It was pointed out by the learned counsel that even though **Piara Singh** was referred to by the Constitutional Bench of the Apex Court in **Umadevi (3)** , the dictum in **Piara Singh** that an _ad hoc_ or temporary employee should not be replaced by another _ad hoc_ or temporary employee has not been unsettled. In order to establish the said aspect, the learned counsel has relied on the W.A. Nos.1441, 1446 & 1449 of 2021 -: 11 :- decision of the Punjab and Haryana High Court in **Dr.Barinder Kaur v. Guru Nanak Dev University, Amritsar and** **Others** , 2015 SCC OnLine Punjab and Haryana 12156, wherein it was clarified that the proposition in **Piara Singh** that a temporary employee should not be replaced by another temporary employee was not disagreed with in **Umadevi (3)** . 8. The learned Standing Counsel for the Kerala Public Service Commission which is a party in one of the appeals contended, placing reliance on a provision in the Kerala State and Subordinate Service Rules that the scheme of the said Rules is that temporary appointments shall be distributed among those who are desirous of being engaged on temporary basis in public service. According to the learned Standing Counsel, the policy behind the said scheme is that public employment is a property of the nation which has to be shared equally subject to the qualification necessary for holding the office or post. The learned Standing Counsel has brought to our notice the observation made by the Apex Court in this regard in **State of Maharashtra v. Chandrabhan Tale,** (1983) 3 SCC 387. 9. We have examined the arguments advanced W.A. Nos.1441, 1446 & 1449 of 2021 -: 12 :- by the learned counsel for the parties on either side. 10. The fact that the petitioners are persons who are included in the ranked list published by the University after a due process of selection for appointment to the post of Sweeper-cum-Cleaner in the regular vacancies in the University is not disputed. As noted, since the ranks secured by the petitioners were not sufficient to secure regular appointments having regard to the number of vacancies, they were not appointed against the vacancies notified. It appears that having regard to the activities undertaken by the University, it had to create temporary posts of Sweeper-cum-Cleaner and it is in such posts that the petitioners were later accommodated on daily wage basis. The only relief granted to the petitioners by the learned Single Judge is that they shall not be disengaged until regular appointments are made by the University. As the posts in which the petitioners are engaged are temporary, there is no question of any regular appointment being made in such posts. In other words, the direction is only that they shall not be replaced by another set of daily wage employees so long as the requirement to have the temporary posts subsists. The contentions advanced by the learned W.A. Nos.1441, 1446 & 1449 of 2021 -: 13 :- counsel for the parties are to be considered keeping in mind the said factual background. 11. As rightly pointed out by the learned counsel for the petitioners, the principle that a temporary employee shall not be replaced by another temporary employee and that he shall be replaced only by a regular employee, is a principle consistently followed the Apex Court and various High Courts. As clarified by the High Court of Punjab and Haryana in **Dr.Barinder Kaur,** the said proposition as reiterated in **Piara Singh** was not disagreed with by the Constitutional bench of the Apex Court in **Umadevi (3),** though it was held **Umadevi (3)** that such employees do not have any right to claim regularisation and that their engagement ends when their term ends. Of course, the said principle cannot be applied when engagement on daily wage basis is governed by statutory rules. In the instant case, even according to the University, the engagement of employees on daily wage basis is governed by Ext.R3(a) executive order. No doubt, the principle that public employment is a property of the nation and the same has to be shared equally among citizens, is laudable. The said principle, according to us, has no application to the facts of the present W.A. Nos.1441, 1446 & 1449 of 2021 -: 14 :- case. As noted, it is a case where persons who have participated in a regular selection process for appointment to a last grade post and not appointed for want of sufficient vacancies, were later accommodated in some of the temporary posts. The fact that they could not secure any other employment is evident from the fact that they have approached this Court for continuance. It is in the said circumstances that the learned Single Judge chose to direct the University to permit them to continue until the temporary posts exist. It is a direction issued in exercise of the discretionary and equitable jurisdiction vested in this Court under Article 226 of the Constitution. Such discretionary orders are not interfered with in appeal under normal circumstances, especially when interference would result in inequitable results. The writ appeals, in the circumstances, are devoid of merits and are accordingly, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **SOPHY THOMAS, JUDGE.** ds 08.02.2023