Gowrikutty.G.S and others v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945 WA NO. 1612 OF 2023** **JUDGMENT DATED 25.08.2023 IN WP(C) 19991/2023** ## **APPELLANTS/PETITIONERS 4, 10 & 15 IN WP(C):** 1 GOWRIKUTTY.G.S AGED 43 YEARS D/O A.R.GOPALAKRISHNA PANIKKAR, HOUSE NO.440, PRASANTH NAGAR, ULLOOR,MEDICAL COLLEGE.P.O, THIRUVANTHAPURAM, PIN - 695011 2 SHERIN.S AGED 39 YEARS W/O MOHAMMAD ALI MANU,MENETHU PUTHENPURAYIL, VARAVILA.P.O, VAVVAKAVU, KOLLAM, PIN - 690528 3 ARCHANA.S.S, AGED 36 YEARS D/O SREEKANDAN NAIR.S VISHAKOM TC 50/957, THALIYAL, KARAMANA.P.O, THIRUVANTHAPURAM,, PIN - 695002 BY ADVS. P.NANDAKUMAR AMRUTHA SANJEEV VIVEK VIJAYAKUMAR RIYA TOMY INDU C. SREEKUMAR WA NO. 1612 OF 2023 ..2.. ## **- - - RESPONDENTS/RESPONDENTS & PETITIONERS 1 3, 5 9, 11 14 & 16 IN WP(C):** - 1 STATE OF KERALA SECRETARIAT, TRIVANDRUM, PIN - 695001 - 2 PRINCIPAL SECRETARY DEPARTMENT OF LABOUR AND EMPLOYMENT, SECRETARIAT, TRIVANDRUM, PIN - 695001 - 3 PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM, PIN - 695001 - 4 SECRETARY KERALA PUBLIC SERVICE COMMISSION, PATTOM, TRIVANDRUM, PIN - 695001 - 5 VICE CHANCELLOR UNIVERSITY OF KERALA,KERALA SENATE HOUSE CAMPUS,PALAYAM, TRIVANDRUM, PIN - 695034 - 6 ADDITIONAL SECRETARY, HIGHER EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANTHAPURAM, PIN - 695001 - 7 REGISTRAR UNIVERSITY OF KERALA, KERALA SENATE HOUSE CAMPUS,PALAYAM, TRIVANDRUM, PIN - 695034 - 8 DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION, K.P.S.C. - DISTRICT OFFICE, PATTOM, THIRUVANANTHAPURAM -, PIN - 695004 - 9 JAYASREE.V AGED 36 YEARS - D/O G. APPUKUTTAN NAIR,SARAYU, KOLLODE, MOONGODE.P.O, THIRUVANTHAPURAM, PIN - 695573 WA NO. 1612 OF 2023 ..3.. 10 NAJIMI.N.A AGED 43 YEARS D/O ABDUL VAHAB, FATHIMAM, TC 4/635(5) SVLRA, KOWDIAR, THIRUVANTHAPURAM, PIN - 695003 11 POORNIMA.V.N AGED 40 YEARS RESIDING AT FOREST OFFICE LANE,D-80, 14/1659, VAZHUTHACAUDU, THYCADU.P.O, THIRUVANTHAPURAM, PIN - 695014 12 SHEENA.S.A AGED 43 YEARS D/O M. SREEDHARAN, SABU NIVAS, MEKKOLLA, MANCHAVILAKAM.P.O, THIRUVANTHAPURAM, PIN - 695503 13 RAGIBALA.S. AGED 43 YEARS D/O SREEKUMAR, PRAKKYLAM COTTAGE,THAMPURAMMUKKU,KUNNUKUZHI, HOUSE NO THARA 67, THIRUVANTHAPURAM, PIN - 695034 14 REMYA.S.L AGED 40 YEARS D/O SATHASIVAN.B, SINI NIVAS(KRISHNAKRIPA) TC 10/673(TC23/603) ERA 48,EDAYILAKONAM, MANNAMTHALA.P.O, PIN - 695015 15 SREEJA.L AGED 38 YEARS D/O THANKAPPAN NAIR.B RESIDING @ TC 76/2379, KATTIL VEEDU, THOPPIN LINE, ANAYARA.P.O, THIRUVANTHAPURAM, PIN - 695029 16 SHYMA.V AGED 40 YEARS D/O VAMADEVAN, KARAMANCHERRY, NETHAJI NAGAR-84, KILIKOLLOOR.P.O, KOLLAM, PIN - 691004 WA NO. 1612 OF 2023 ..4.. 17 SOUMYA.K.S AGED 40 YEARS D/O G.KRISHNANKUTTY, SOUMYA NIVAS, PUNNAVILA, ANAD.P.O, NEDUMANGAD, PIN - 695541 18 SREERESMI.L.R, AGED 36 YEARS D/O K.RAJENDRAN NAIR,SREEHARAM,KANCHAMPAZHINJI.P.O,THIRUVANTHAPU RAM, PIN - 695525 19 GEETHU.B.G AGED 35 YEARS D/O BHASURENDRA BABU KURUP, SREEVISKHAM, KALLAMBALAM.P.O, THIRUVANTHAPURAM,, PIN - 695605 20 MANOJ.S.KRISHNAN AGED 43 YEARS S/O KRISHNAN KUTTY,SREELAKSHMI,PUNNAVILA,ANAD.P.O, NEDUMANGAD, PIN - 695541 21 MANJULA.S AGED 45 YEARS D/O APPUKUTTAN NAIR, ANJITHAM, CHERUVILA ROAD VIZHAVOOR, MALAYAM.P.O THIRUVANTHAPURAM,, PIN – 695571 BY ADVS. SMT.VINITHA B., SENIOR GP SRI.P.C.SASIDHARAN, SC, KPSC SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 1612 OF 2023 ..5.. ## **J U D G M E N T** ## **SHOBA ANNAMMA EAPEN, J.** The judgment dated 25.08.2023 rendered by the learned Single Judge of this Court, dismissing WP (C) No. 19991 of 2023, is the subject matter of this intra court appeal filed under Section 5(i) of the Kerala High Court Act, 1958. 2. The appellants are few among the petitioners in WP(C) No.19991/2023. They are working as Library Assistants on contract basis with the Kerala University for more than 10 years. According to them, they have been appointed through a process known to law, however, after completing 10 years, the University was reluctant to regularize them without any reason. It was in the above circumstance that the appellants/petitioners approached this Court with the writ petition. WA NO. 1612 OF 2023 **==> picture [31 x 8] intentionally omitted <==** 3. The learned Single Judge, while considering the writ petition, found that the appointment of the appellants was specifically on contract basis. They did not undergo a process of selection as provided in the Kerala University First Statutes, for regular appointment to non-teaching posts in the Kerala University. It was also found that in the agreements entered into by the appellants with the University, it was specifically stated that the appointment was for a limited period and that they would have no claim for regular appointment or any other service benefits attended thereto and also, by observing the fact that the regular method of appointment to non-teaching posts in the Kerala University is by selection through the Kerala Public Service Commission (KPSC), the learned Single Judge dismissed the writ petition. 4. We have heard the learned counsel for the WA NO. 1612 OF 2023 **==> picture [31 x 8] intentionally omitted <==** appellants, learned Senior Government Pleader, learned Standing Counsel for the KPSC and learned Standing Counsel for the Kerala University. 5. The learned counsel for the appellants submitted that the learned Single Judge had not considered several aspects including the fact that some of the petitioners had challenged the notification issued by the KPSC and also the fact that they have approached this Court after completing 10 years of service. The learned counsel further submitted that the learned Single Judge had not considered the fact that the regular appointment to the post of non-teaching staff, which includes the post of librarian in colleges, is similar to that of the appellants herein. It was further submitted that the Government had discriminated the appellants from several others, who are appointed on contract basis and completed 10 WA NO. 1612 OF 2023 ..8.. years in their respective fields by regularizing them. 6. The learned Standing Counsel for the University of Kerala submits that a statement had been placed on record, stating that all contract employees at the University are required to have a mandatory break of one working day after the conclusion of each contract period, followed by the execution of a new bond. The argument put forth is that the appellants were recruited following a walk-in-interview, and the appointment documents explicitly indicated that their positions were of purely temporary nature and they would not be entitled to any employment benefits based on temporary appointments. Furthermore, it is contended that the appellants were not hired for any officially sanctioned positions, nor were they selected by the legally mandated Selection Committee. It is further stated that the appellants WA NO. 1612 OF 2023 **==> picture [31 x 8] intentionally omitted <==** were not engaged against any sanctioned post, and such posts must be filled in accordance with the prescribed qualifications and method of appointment. The learned counsel also relied on the judgments in **State of Karnataka** v. **Uma Devi (3)** [(2006) 4 SCC 1] **; Harminder Kaur & others** v. **Union of India & others** [(2009) 13 SCC 90]; **Narendra Kumar Tiwari** v. **The State of Jharkand** [(2018) 8 SCC 238]; **and** v. **Vibhuti Shankar Pandey State of Madhya Pradesh & Others** [2023 LiveLaw (SC) 91] in support of his contentions that the contract employees are not entitled for continuance of service or for regularisation when they were not engaged by any recognized procedure or by any regular process of recruitment. 7. Statute 8 of Chapter 4 of Kerala University First Statutes, 1977 reads as follows: WA NO. 1612 OF 2023 **==> picture [37 x 8] intentionally omitted <==** “(8) Recruitment to posts:- The recruitment to posts shall be made on the basis of the recommendation made by a Selection Board consisting of the Vice-Chancellor as Chairman, Convener of the Standing Committee of the Syndicate on Staff, Equipment and Buildings, Convener of the Standing committee of the Syndicate on Finance and two syndicate members to be nominated by the Vice-Chancellor from time to time. The Registrar shall be the Secretary to the Board. The Board may conduct such tests as are deemed necessary to determine the suitability of candidates for appointment. It may also fix the rates of fee for admission to the tests. In making appointments by direct recruitment to posts of non-teaching staff in the University, the University shall observe the provisions of clauses (a), (b) and (c) of rule 14 and rules 15, 16 and 17 of the Kerala State and Subordinate Service Rules, 1958 as amended from time to time: Provided that it shall be competent for the Vicechancellor to make recruitment to posts the maximum of which does not exceed Rs. 600 with or without the aid or advice of the Committee, in case he is of opinion that appointments to the University should be made immediately.” 8. Having heard the learned counsel on either side, it is clear that the appellants did not undergo any process of selection for regular appointment to non teaching posts in the University, as envisaged under the Kerala University First Statutes. No Selection Board as per the Kerala University First Statutes was constituted for appointment of the appellants. Admittedly, they attended only a walk-in-interview for the WA NO. 1612 OF 2023 **==> picture [37 x 8] intentionally omitted <==** reason that the appointment was only on contract basis. Therefore, it is evident that their appointments were not made in tune with constitutional scheme, consistent with Articles 14 and 16 of the Constitution of India. The regular appointment to the non teaching posts in the University is by selection through the KPSC. 9. The State and its instrumentalities are not precluded from engaging workers on contract basis. However, a regular process of recruitment has to be resorted to, when regular vacancies in a post are required to be filled up. These are the introductory statements made by the Constitution Bench of the Apex Court in **Umadevi (3)** _(supra)._ In the said case, it was held that adherence to the rule of equality in public employment is the basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would be WA NO. 1612 OF 2023 **==> picture [37 x 8] intentionally omitted <==** disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. In other words, unless the appointment is made in terms of the relevant rules and after a proper competition among the qualified persons, the same would not confer any right on the appointee. It has been clarified that in the case of contractual appointment, the appointment terminates at the end of the contract and contract appointees cannot claim to be made permanent on the expiry of their term of appointment, even if he/she is permitted to continue beyond the term on the strength of such continuance, if the original appointment was not made following a due process of selection as envisaged by the relevant rules. Paragraph 43 of the judgment in **Umadevi** **(3)** _(supra)_ dealing with the said aspect reads thus; WA NO. 1612 OF 2023 ..13.. "43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Art.14 or in ordering the overlooking of the need to comply with the requirements of Art.14 read with Art.16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Art.226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no WA NO. 1612 OF 2023 **==> picture [37 x 8] intentionally omitted <==** prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates." 10. As explicit from the extracted passage, it was also clarified in the said case that High Courts acting under Art.226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance of employees engaged on temporary basis unless the recruitment itself was made regularly and in terms of the constitutional scheme. It was observed that while directing appointments, temporary or casual to be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for sometime and in some cases for considerable length of time, and it must not be forgotten that it is not as if WA NO. 1612 OF 2023 **==> picture [37 x 8] intentionally omitted <==** the person who accepts the engagement either temporary or casual, is not aware of the nature of his employment and that he accepts the employment with open eyes. Such a person shall not be permitted to jettison the constitutional scheme of appointments. Paragraph 45 of the judgment in **Umadevi (3)** ## _(supra)_ dealing with the said aspect reads thus; "45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain - not at arm's length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that WA NO. 1612 OF 2023 **==> picture [37 x 8] intentionally omitted <==** employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Art.14 of the Constitution." 11. The Apex Court has also repelled the argument that the doctrine of legitimate expectation enables such temporary employees to claim permanence in the regular establishment. Paragraph 47 of the judgment in **Umadevi (3)** _(supra)_ dealing with the said aspect reads thus; 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the WA NO. 1612 OF 2023 **==> picture [37 x 8] intentionally omitted <==** theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post." 12. The specific contention of the Kerala University is that the appellants have entered into separate contracts/agreements with the University for each year and they were well aware that their appointments were on contract basis and that they will not have any claim for regular appointments. Having been taken the appointments on contract basis without undergoing any process of selection for regular appointment to non teaching posts in the University as envisaged under the Kerala University First Statutes, the appellants cannot claim regularization in service. We do not WA NO. 1612 OF 2023 ..18.. find any reason to interfere with the judgment of the learned single Judge. Accordingly, this writ appeal is dismissed. **Sd/-** **A. MUHAMED MUSTAQUE** **JUDGE** **Sd/-** **SHOBA ANNAMMA EAPEN** **JUDGE** bka/-