Shamjeer.M, Sweeper cum Watchman vs State of Kerala and Enquiry Commissioner and Special Judge, District Court Complex, Vanchiyoor, Thiruvananthapuram

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 5[TH] DAY OF JANUARY 2024 / 15TH POUSHA, 1945** **WP(C) NO. 74 OF 2015** ## **PETITIONER:** SHAMJEER.M SWEEPER CUM WATCHMAN, OFFICE OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, DISTRICT COURT COMPLEX, VANCHIYOOR, THIRUVANANTHAPURAM-695035. BY ADVS. SRI.P.NANDAKUMAR SRI.M.RAHUL ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM695001. 2 ENQUIRY COMMISSIONER AND SPECIAL JUDGE DISTRICT COURT COMPLEX, VANCHIYOOR, THIRUVANANTHAPURAM695035. ## **OTHER PRESENT:** SR GP SRI BIMAL K NATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 74 OF 2015** **2** ## JUDGMENT 1. Office of the Enquiry Commissioner and Special Judge, District Court Complex as per the provisions of Special Rules for Last Grade Service falling under Category 4 follows the Rules in the following manner: [Category 4: (a) (i) 50% of the posts in the Departments of Health Services, Indian Systems of Medicine (including Ayurveda Colleges), Homoeo, Employees' State Insurance and Medical Colleges shall be filled up by promotion of Part-time Contingent Employees in these Departments concerned on the basis of seniority by the respective Appointing Authorities. (ii) The remaining 50% of the posts in the Department specified under item (i) above shall be filled up by the respective Appointing Authorities by promotion from the candidates advised by the District Collectors from the common seniority list of Part-time Employees prepared on Revenue District-wise basis as mentioned in Note1 below. (iii) In the absence of suitable hands under items (1) and (ii) above, by direct recruitment through Employment Exchange. (b) In respect of posts in Departments other than those mentioned in the opening paragraph of rule 4, (i) by promotion of Part-time Contingent Employees from the common seniority list prepared by the District Collectors on Revenue District-wise basis, (ii) in the absence of suitable hands under item (i) above, by direct recruitment through Employment Exchange. (c) (i) In respect of posts in the under mentioned Departments appointment shall be made by promotion from Part-time Contingent Employees of the Department concerned on the basis of seniority(i) Department of Animal Husbandry (ii)Department of Museums and Zoos (iii) Governor's Secretariat iv) Departments in the Government Secretariat including Law, Legislature and Finance (v)Judicial Department (vi)Public Service Commission **WP(C) NO. 74 OF 2015** **3** (vii) Office of the Advocate General.(ii) In the absence of suitable hands for such promotion under item (i) above, appointment shall be made by direct recruitment through Employment Exchange. 2. As per the said Rule, the appointment can be made by promotion of Part time contingent employees from the common seniority list prepared by the District Collector on revenue district wise basis and in the absence of suitable hands under item (i) above, by direct recruitment through employment Exchange. But by that time, the list was not prepared, which surfaced from the receipt of the information of the District Collector, Thiruvananthapuram to the effect that the seniority list of part time contingent workers was under process but will be materialized shortly and in the meantime, as a 'stop gap arrangement', vacancy can be filled up provisionally. 3. It is on that account, respondent No.2 sent a requisition to only one employment exchange whereby the solitary name of the petitioner was recommended. On receipt of the aforementioned requisition, respondent No.2 issued an appointment letter dated 11.7.2014 Ext.P3. The appointment as per the contents was purely 'Temporary' for a period of 179 days. Before expiry of 179 days, **WP(C) NO. 74 OF 2015** **4** jurisdiction of this Court under Article 226 was invoked on the ground that the appointment was against the regular vacancy, through employment exchange therefore, could not be termed to be temporary and in support of that contention, the judgment of the Single Bench of this Court dated 2.2.2005 in WP(C) No.37371 of 2003, Ext.P4 was relied. 4. The aforementioned judgment was passed on the basis of judgment of the Division Bench rendered in W.A No.96 of 2000. 5. This Court while admitting the writ petition on 5.1.2015 passed the interim order as prayed for, for a period of three weeks which continued from time to time and ultimately was extended till further orders vide order dated 25.9.2015. 6. Learned counsel appearing for the petitioner submitted that the case of the petitioner is squarely covered by the judgment of the Single Bench following the Division Bench of this Court wherein in similar circumstances by noticing the provisions of Special Rules of Last Grade Service and considering that the seniority list **WP(C) NO. 74 OF 2015** **5** had prepared after four years and noticing the interim stay were allowed to continue and treated as a continuous service. In fact, the steps for taking the appointment as per (iii) of Category 4 of the Special Rules was followed; there cannot be any backdoor entry as the name of the petitioner was sponsored by the Employment Exchange with whom the registration had already been effected. 7. Per contra, learned Government Pleader, Sri. Bimal K. Nath submitted that the seniority list at the time when the permanent vacancy arose on the basis of the requisition as a stop gap arrangement was made but in 2016 ie., on 22.7.2016 as per the records submitted to this Court during the course of the hearing, a final seniority list of part time contingent employees in Thiruvananthapuram District from 10.5.2013 to 31.12.2015 was prepared showing the number of candidates in the said list. The appointment in temporary nature cannot be given colour of regular appointment. The judgment of the Division Bench was based upon the facts and circumstances, particularly the fact that the counter in the aforementioned case was filed after a gap of four (4) years and during all that period, **WP(C) NO. 74 OF 2015** **6** there was an interim order. The court relied that there was no such temporary list and owing to the exigency, the services of the appellant and the other similarly situated employees was required. Moreover, the alleged distinction drawn by noticing the provisions of Rule 9(a) of KSSR, Part II and also reliance of Special Rules for the Kerala Last Grade Service. But the fact remains the appointment was purely on temporary basis. Judgment aforementioned was based upon the facts and cannot be considered to be in 'Rem'. 8. I have heard the learned counsel for the parties and appraised the paper book. In case of non availability of the persons in two stages in category 4 as aforementioned, ie., prescribed under a(i) and (ii), provisions mentioned in (iii) was invoked. The pleadings are conspicuously absent with regard to the fact whether along with the name of the petitioner, other names were also sponsored by the Employment Exchange. The process of regular appointment would mean a wide publication and notice to all the Employment Exchange so that an opportunity and consideration is granted to all the eligible aspirants. In view **WP(C) NO. 74 OF 2015** **7** of such situation, it can be construed that the petitioner is a backdoor entrant and was appointed purely on temporary basis as per the contents of the appointment letter, Ext.P3 for a period of 179 days. At the best, his appointment could have continued till the preparation of the seniority list, which was done in July 2016 in view of the ratio of decidendi culled out in the judgment in Hargurpratap Singh v. State of Punjab [2007 (13) SCC 292] wherein it was held that the temporary employee cannot be substituted with another set of temporary employees until and unless the vacancies are filled up through regular process. On occurrence of a regular vacancy, in case the department chooses to follow a process prescribed under the Special Rules for the purpose of exigency entailing into temporary appointment would not cloth it to be a regular appointment. If such practices are given stamp of the court, there would be a total impasse and turmoil in the departments leading to multifarious litigation. The judgment Ext.P4 relied upon on the basis of the Division Bench judgment in Writ Appeal No.96 of 2000 is based upon the facts of the particular case and particularly on the ground that the final seniority of part time contingent employees had not **WP(C) NO. 74 OF 2015** **8** been prepared for a period of four (4) years whereas in the present case it was prepared within two (2) years but the department owing to the interim order could not implement the same nor sought the vacation of the stay by placing on record that material. Such action of the department is deprecated. Had prompt action been taken, it would have led to decision of the writ petition only in 2016 and the interim stay was only granted in 2015 but the interim stay was permitted to continue for almost 8 years. The interim order under garb of pendency of the writ petition would not give a preferential right to the petitioner to get a regularization or regular appointment. Thus the argument of the counsel, that temporary appointment be considered as regular appointment cannot be accepted and hereby rejected. Writ petition sans merit. Accordingly, dismissed. Interim order granted by this Court is hereby vacated. Respondent is directed to take immediate steps for filling up the post as strictly as per the Category 4 (a)(i) & (ii) as expeditiously as possible to prevent such situation. SD/- sab AMIT RAWAL, JUDGE **WP(C) NO. 74 OF 2015** **9** ## **APPENDIX OF WP(C) 74/2015** PETITIONER EXHIBITS P1: COPY OF THE DISABILITY CERTIFICATE DATED 24/07/2012. P2: COPY OF THE MEMO DATED 30/4/2014 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF THE ORDER NO.E 913/14/ECT DATED 11/07/2014. P4: COPY OF JUDGMENT IN WPC.NO.37371 OF 2003 DATED 2/2/2005.