WA Nos. 974, 975 & 1028 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY ,THE 07TH DAY OF JUNE 2018 / 17TH JYAISHTA, 1940** **WA.No. 974 of 2018** **AGAINST THE JUDGMENT IN WPC 8581/2018 of HIGH COURT OF KERALA DATED 11-04-2018** ## **APPELLANTS/PETITIONERS:** - **1 VIVEK K., S/O.K. GOVINDAN, KUTTATH HOUSE, MANITHARA P.O, THRISSUR - 680 541.** - **2 ABHIJITH P., S/O. GOVINDANKUTTY,POOYATH HOUSE, GURUVARYOOR,THRISSUR-680101.** - **3 SUNDARAN K.V.,S/O. VELAYUDHAN, KALATHIL VALAPPIL HOUSE, KOLALAMB P.O., EDAPPAL-679576.** - **4 YADHUKRISHNAN P.S., S/O. SANKARANKUTTY, PULINCHERRY HOUSE,KURUMAL P.O, VELUR, THRISSUR-678 601.** - **5 SUDHEER C.G.,S/O. GOPINATH, CHANASSERY HOUSE,MULLASSERY P.O., MULLASSERY.** - **6 SHAMEEJ M.P., S/O. MADHAVAN M.P.,MENONPARAMBIL HOUSE, THALI P.O.,CHELOOR, THRISSUR - 680 585.** - **BY ADVS. SRI.P.R.VENKETESH SRI.G.KEERTHIVAS** ## **RESPONDENTS/RESPONDENTS:** - **1 GURUVAYOOR DEVASWOM BOARD RERPESENTED BY ITS SECRETARY,GURUVAYOOR-680 101** - **2 GURUVAYOOR DEVASWOM MANAGING COMMITTEE GURUVAYOOR DEVASWOM OFFICE, GURUVAYOOR-680 101** W.A. Nos. 974, 975 & 1028 of 2018 -:2:- - **3 THE DEVASWOM COMMISSIONER GURUVAYOOR DEVASWOM, GURUVAYOOR P.O.PIN-680 101** - **4 GURUVAYOOR DEVASWOM RECRUITMENT BOARD GURUVAYOOR DEVASWOM, GURUVAYOOR P.O.PIN-680 101** **ADV.SRI.P.GOPAL, STANDING COUNSEL** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07.06.2018, ALONG WITH WA.975/2018, WA.1028/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A. Nos. 974, 975 & 1028 of 2018 -:3:- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY ,THE 07TH DAY OF JUNE 2018 / 17TH JYAISHTA, 1940** **WA.No. 975 of 2018** **AGAINST THE JUDGMENT IN WPC 11097/2018 of HIGH COURT OF KERALA DATED 11-04-2018** ## **APPELLANTS/PETITIONERS:** **SUMESH C.L., S/O. LAKSHMANAN, RESIDING AT CHENNANKARA,KOKKOTTAYIL PARAMBA, PUTHENPALLI, THRISSUR-680 103.** **BY ADVS. SRI.P.R.VENKETESH SRI.G.KEERTHIVAS** ## **RESPONDENTS/RESPONDENTS:** - **1 GURUVAYOOR DEVASWOM BOARD RERPESENTED BY ITS SECRETARY,GURUVAYOOR-680 101** - **2 GURUVAYOOR DEVASWOM MANAGING COMMITTEE GURUVAYOOR DEVASWOM OFFICE, GURUVAYOOR-680 101** - **3 THE DEVASWOM COMMISSIONER GURUVAYOOR DEVASWOM, GURUVAYOOR P.O.PIN-680 101** - **4 GURUVAYOOR DEVASWOM RECRUITMENT BOARD GURUVAYOOR DEVASWOM, GURUVAYOOR P.O.PIN-680 101 ADV.SRI.P.GOPAL, STANDING COUNSEL** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07.06.2018, ALONG WITH WA.1028/2018, WA.974/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A. Nos. 974, 975 & 1028 of 2018 -:4:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY ,THE 07TH DAY OF JUNE 2018 / 17TH JYAISHTA, 1940** ## **WA.No. 1028 of 2018** **AGAINST THE JUDGMENT IN WPC 38562/2016 of HIGH COURT OF KERALA DATED 11-04-2018** ## **APPELLANTS/PETITIONERS:** - **1 RAJEESH BALA A.B ROOM BOY, SREEVALSAM GUEST HOUSE,ANATTAM PARAMBIL (H),THIPPALLOOR, ERUMAPETTY-680 584.** - **2 SREEYESH . T.V VATTARANGATH (H),VELLATANJOOR P.O, PULIYANNOOR680 601.** - **3 VIPIN KUMAR V.C RAMATTATU (H),IRINJAPURAM P.O, GURUVAYOOR-680 103.** - **4 SIVA PRASAD M.P MANGATTU PADINJARETHIL (H), THEKKEVAVANNUR P.O, KOOTTANAD,PALAKKAD-679 533.** - **5 JAGATHEESAN A.K ROOM BOY, SREEVALSAM GUEST HOUSE,ALIPURAKKAL HOUSE, P.O, AKALAD PIN-680 518.** - **6 VIMAL SANKAR P.M ROOM BOY, SREEVALSAM GUEST HOUSE,PARAPPURATH HOUSE, KUNDANNUR P.O,ATTATHARA, PIN-680 590.** - **7 JAYAKUMAR K** **ROOM BOY, SREEVALSAM GUEST HOUSE,MANALATH HOUSE,KADANGODE P.O, ERUMAPEETTY, PIN-680 584.** W.A. Nos. 974, 975 & 1028 of 2018 -:5:- - **8 DEVARAJ A.R.,ROOM BOY, SREEVALSAM GUEST HOUSE,MYLUTHARA HOUSE, PALLURUTHY,KADEBHAGAM, COCHIN-682 006.** - **9 SIJU K.S.,ROOM BOY, SREEVALSAM GUEST HOUSE,KOLATH HOUSE, RAJAKKAD P.O, RAJAKKAD, IDUKKI.** - **10 SUNEESH P.S ROOM BOY, SREEVALSAM GUEST HOUSE,PAYYAPPATT HOUSE, MAMMIYUR, GURUVAYOOR, PIN-680 103.** - **11 SIMYA K.S ROOM BOY, SREEVALSAM GUEST HOUSE,KANAMKOTT HOUSE,PUTHANPALLY P.O, GURUVAYOOR, PIN-680 103.** - **12 SUSHAMA T.M ROOM BOY, SREEVALSAM GUEST HOUSE,KANJIRAKKAT HOUSE, MUTHUVANTHARA, PANTHEERANKAVU, CALICUT673 019.** - **13 SANTHOSH.K ROOM BOY, SREEVALSAM GUEST HOUSE,IDAMANA HOUSE, P.O PUTHANPALLY,THIRUVENKIDAM, GURUVAYOOR-680 103.** - **14 HARIKUMAR. P.,ROOM BOY, SREEVALSAM GUEST HOUSE,HARINANDANAM HOUSE, KUNDANNOR P.O,WADAKKANCHERY, PIN-680 590.** - **15 MIDHUN M, ROOM BOY, SREEVALSAM GUEST HOUSE,MADATHIL HOUSE, PERUMANNA P.O,CALICUT, PIN-673 019.** - **16 SAJEEVAN C.P ROOM BOY, SREEVALSAM GUEST HOUSE,CHALUPARAMBATH HOUSE, CHEKKIAD P.O, CALICUT-673 509.** - **17 MONISHA L.M** - **ROOM BOY, SREEVALSAM GUEST HOUSE,NELLIPARAMBIL HOUSE, P.O AVINASSERY,VALLISSERY,THRISSUR-680 306.** - **18 SREENA P.K ROOM BOY, SREEVALSAM GUEST HOUSE,KANAKKANCHERY, KAVEED, KOTTARAPADI-680 505.** W.A. Nos. 974, 975 & 1028 of 2018 -:6:- ## **19 KRISHNAKUMARI. K** - **ROOM BOY, SREEVALSAM GUEST HOUSE,MAKKALIKKAL HOUSE,NJAMANENGAD P.O, KUNNAMKULAM.** - **20 SUKANYA C.N ROOM BOY, SREEVALSAM GUEST HOUSE,CHAKKADI HOUSE, KOTTAPPADI P.O,PIN- 680 505.** - **21 LIBEESH SANTHOSH ROOM BOY, SREEVALSAM GUEST HOUSE,NALLISSERY HOUSE, P.O ALOOR,MATTOM, PIN-680 602.** **22 SOORAJ KUMAR M ROOM BOY, SREEVALSAM GUEST HOUSE,THUNDATHIL HOUSE, KAVEED P.O,KOTTAPADY, PIN-680 505.** - **23 REJI KRISHNAN P.J ROOM BOY, SREEVALSAM GUEST HOUSE,PUTHEN PURACKAL HOUSE,NEAR BALAKRISHNA THEATRE,GURUVAYOOR, PIN-680 101.** - **24 AMAL P.A ROOM BOY, SREEVALSAM GUEST HOUSE,POTTALATHU HOUSE, KANICHUKULANGARA P.O,CHERTHALA, PIN- 682 582.** - **25 NIKHILRAJ A.R ROOM BOY, SREEVALSAM GUEST HOUSE,MYLUTHARA HOUSE,KADEBAGHAM, PALLURUTHY,COCHIN-682 006.** - **26 MANOJ V.V ROOM BOY, SREEVALSAM GUEST HOUSE,VELAMPARAMBIL HOUSE,PALISSERY, ANNAMANADA P.O, THRISSUR-680 741.** - **27 SAJITHA C.A ROOM BOY, SREEVALSAM GUEST HOUSE,KAKKASSERI HOUSE, KAKKASSERI P.O,CHITTATTUKARA, THRISSUR.** - **28 SINI M.V** - **ROOM BOY, SREEVALSAM GUEST HOUSE,MOOTHEDATHU HOUSE, NHAMANGHAT P.O, THRISSUR.** - **29 N.S ROHITH** **ROOM BOY, SREEVALSAM GUEST HOUSE,NEDIYEDATHU HOUSE, SOUTH NADA,GURUVAYOOR- 680 101.** W.A. Nos. 974, 975 & 1028 of 2018 -:7:- - **30 K.S PREETHA ROOM BOY, SREEVALSAM GUEST HOUSE,THOOMATT HOUSE,BRAHMAKULAM, GURUVAYOOR.** - **31 UNNIKRISHNAN K.S ROOM BOY, SREEVALSAM GUEST HOUSE,KAIPPADA HOUSE,KARUVALLOOR PARAMBU,GURUVAYOOR-680 101.** - **32 MANIKANDAN P.U ROOM BOY, SREEVALSAM GUEST HOUSE,PADINJARE PURACKAL HOUSE, APPUNILAYAM,MALLISSERY PARAMBU, WEST NADA, GURUVAYOOR-680 101.** - **33 SUDHEERSH T.V ROOM BOY, SREEVALSAM GUEST HOUSE,THAMARAVELIL HOUSE, P.O PAVUKKARA P.O, MANNAR-688 622.** - **34 ANEESH P.J ROOM BOY, SREEVALSAM GUEST HOUSE,POTTAYIL HOUSE, ARATTUPUZHA P.O,PALLISSERY, PIN-680 562.** - **BY ADV. SRI.V.K.SATHYANATHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 GURUVAYOOR DEVASWOM MANAGING COMMITTEE REPRESENTED BY ITS ADMINISTRATOR,GURUVAYOOR DEVASWOM,GURUVAYOOR-680 101.** - **2 THE ADMINISTRATOR,GURUVAYOOR DEVASWOM MANAGING COMMITTEE,GURUVAYOOR-680 101.** - **3 THE CHAIRMAN,GURUVAYOOR DEVASWOM MANAGING COMMITTEE,GURUVAYOOR-680 101.** **ADV.SRI.P.GOPAL, STANDING COUNSEL** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07.06.2018, ALONG WITH WA.975/2018, WA.974/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A. Nos. 974, 975 & 1028 of 2018 -:8:- ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - W.A. Nos. 974, 975 & 1028 of 2018 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of June, 2018 ## **JUDGMENT** ## **Ravikumar, J:** These appeals arise from a common judgment in W.P. (C) Nos.8581 & 11097 of 2018 and 38562 of 2016. W.A. Nos. 974 and 975 of 2018 are filed respectively against the judgment in W.P.(C) Nos.8581 and 11097 of 2018 and W.A. No. 1028 of 2018 is filed against the judgment in W.P.(C) No.38562 of 2016. 2. The petitioners in all these writ petitions are Room Boys working in Sreevalsam Annex building of Guruvayur Devaswom. They were so appointed on temporary basis. The challenge in the writ petition was against Ext.P4 notification issued by the 1[st] respondent inviting applications for temporary appointment to the various posts including the post of Room Boys on the main ground that temporary employees could not be replaced by another set of temporary employees. However, the learned single Judge repelled the said contention. The claim for regularisation, W.A. Nos. 974, 975 & 1028 of 2018 -:9:- made by the petitioners in one of those writ petitions and also the common prayers in all those writ petitions to permit them to continue till regular appointees join duty, were declined. WP(C) Nos.8581 and 11097 of 2018 were disposed of as hereunder : “In the result, (i) I do not find any illegality on the part of the respondents in proceeding with the selection based on the impugned notification for temporary appointment. (ii) The claim of the petitioners to continue till regular appointment or for regularisation cannot be accepted. (iii) There shall be a direction to consider the cases of those petitioners who have already submitted their applications for fresh recruitment pursuant to Ext.P4 notification. (iv) In case, applications are not submitted, the petitioners will be free to submit applications within 'one week' from the date of receipt of a copy of this judgment and the respondents shall consider the same. (v) The managing committee shall take a decision on the question of age relaxation in the case of those petitioners who have submitted applications/are submitting applications as directed above.” W.A. Nos. 974, 975 & 1028 of 2018 -:10:- WP(C) No. 38562 of 2016 was disposed of along with certain other connected cases, holding that the petitioners in those writ petitions are not entitled to get regularisation, but holding that the directions issued with respect to the submission of applications and to consider the question of age relaxation issued in the judgment in WP(C) No.8581 of 2018 would be applicable to the petitioners in WP(C) No. 38562 of 2016 and connected cases. It is feeling aggrieved by the said common judgment that the petitioners have preferred these appeals. 3. We have heard Sri. P.R. Venkatesh, learned counsel appearing for the appellants in W.A. Nos.974 and 975 of 2018, Sri.V.Sathyanathan, learned counsel appearing for the appellants in W.A. No.1028 of 2018 and Sri. V.P. Gopal, learned Standing Counsel for the Guruvayur Devaswom Board. 4. Learned Standing Counsel appearing for the respondents submitted that honouring the directions of this Court in the impugned common judgment, on the question of age relaxation to the petitioners for considering them as candidates for selection pursuant to Ext.P4 notification, the W.A. Nos. 974, 975 & 1028 of 2018 ## -:11:- Board had taken up a decision in their favour. It was decided to grant age relaxation to all the petitioners so as to enable them to participate in the selection process initiated by Ext.P4. Be that as it may, the question to be considered in these appeals is whether the contention of the appellants/writ petitioners that being temporarily appointed persons continued beyond the period specified in the orders of their appointment, they could not be replaced by another set of temporary employees, is sustainable in the light of the decision relied on by them in **State of Haryana and others v. Piara Singh and others** [(1992) 4 SCC 118]. At the same time, the petitioners conceded the point that they are not entitled to claim and get regularisation. While they contend that the said decision still continues to be a binding precedent as far as the said issue is concerned, the learned Standing Counsel appearing for the respondent would contend that the said decision can no longer be regarded as a binding precedent in the light of the decision of the Apex Court in **Secretary, State of Karnataka & others v. Umadevi (3) and others** [(2006) 4 SCC 1]. W.A. Nos. 974, 975 & 1028 of 2018 -:12:- 5. The learned counsel appearing for the appellants drew our attention to paragraph 46 of **Piara Singh's** case (supra) where the Apex Court made a declaration as hereunder : “Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This necessary to avoid arbitrary action on the part of the appointing authority.” Essentially, the aforesaid claim of the appellants is founded on the said declaration. To contend that the said decision is no more available to be treated as a binding precedent and further to canvass the position that for getting an order or direction for continuance a temporary employee, who was appointed for a fixed period, could not seek for issuance of writ of mandamus, the learned Standing Counsel appearing for the respondents relied on the decision of the Hon'ble Apex Court in **Umadevi(3)** 's case (supra). Hence, the question is whether the decision of the Apex Court in **Piara Singh's** case (supra) continue to be a binding precedent on the question whether a set of W.A. Nos. 974, 975 & 1028 of 2018 ## -:13:- temporary employees could be replaced by another set of temporary employees, in the light of the decision of the Apex Court in **Umadevi(3)** 's case (supra). 6. Before probing into that question by scanning the said decisions it is only appropriate to refer to a decision of a Division Bench of the Bombay High Court in **Pramod Anantrao Pathre v. State of Maharashtra through Secretary and others** [2007 (3) LCCN 175]. Evidently the Division Bench considered the question “whether the judgment of the Supreme Court in **(State of Haryana and others v. Piara Singh and others)** [(1992) 4 SCC 118], in so far as it held that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee but, must be replaced only by a regularly selected employee, stands overruled by the Constitution Bench of the Supreme Court in the case of **(Secretary, State of Karnataka & others v. Umadue (3) and others)** (2006) 4 SCC 1?” It would reveal that there was a cleavage of opinion between the learned Judges and one of the learned Judges (Justice S.J. Vazifdar) held that the decision in **Umadevi(3)** 's case (supra) did not overrule **Piara Singh's** W.A. Nos. 974, 975 & 1028 of 2018 ## -:14:- case (supra), whereas the other learned Judge (Justice P.R. Borkar) held that **Piara Singh's** case (supra) decision stood overruled by the decision in **Umadevi(3)** 's case (supra). 7. In the light of the divergent view of the learned Judges, the papers of the said matter were directed to be placed before the Hon'ble the Chief Justice for appropriate orders under Chapter I of Rule 6 of the Bombay High Court (Appellate Side) Rules, 1960. Subsequently, the matter was referred to a third Judge concurred with the view Justice P.R. Borkar. After receiving the opinion of the third Judge in view of the attending circumstances and in view of the provision under Chapter I of Rule 6 of the Bombay High Court(Appellate Side) Rules, 1960 and Section 98 of the Code of Civil Procedure, the matter was placed before another Division Bench for pronouncing the final judgment. Consequently, the final judgment was pronounced and writ petitions were dismissed. The Bombay High Court held that the judgment of the Supreme Court in **Piara Singh's** case (supra) holding that the ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee, who must be replaced only by a regularly W.A. Nos. 974, 975 & 1028 of 2018 ## -:15:- selected employee, has been overruled by the Constitutional Bench decision of the Supreme Court in **Umadevi(3)** 's case (supra). 8. The learned counsel appearing for the appellants submitted that though the said judgment is a binding judgment as far as Bombay High Court is concerned. It has only a persuasive value and therefore, it requires a detailed consideration. After hearing the learned counsel on both sides, we are of the view that it is only proper to consider the issue in detail. 9. The ratio of the decision in Piara Singh's case is that a set of temporary employees could not be replaced by another set of temporary employees and they could be displaced only regularly selected employees. As noticed hereinbefore, in paragraph 46 of the decision in Piara Singh's case (supra), there is a declaration to the aforesaid effect. Therefore, the question is whether the precedential value of the decision in Piara Singh's case (supra) on the aforesaid issue is denuded by the decision in Umadevi(3)'s case. The learned counsel on both sides took us through different paragraphs in a bid to support their respective contentions. W.A. Nos. 974, 975 & 1028 of 2018 ## -:16:- 10. The learned counsel for the appellants submitted that a perusal of Umadevi(3)'s case (supra) would reveal that its earlier decision in Piara Singh's case (supra), in its entirety, was not overruled by the Apex Court. Such a submission was made with reference to paragraph 24 of the decision in Umadevi(3)'s case (supra), wherein paragraphs 21, 45 to 49 in Piara Singh's case were dealt with. After referring to those paragraphs it was held that directions made in paragraph 50 of Piara Singh's case to some extent is inconsistent with the conclusion in paragraph 45 therein. Furthermore, it was observed that the last part of the directions thereunder appears to have run counter to the constitutional scheme of employment recognised in the earlier part of the decision. After making such observations, in paragraph 26 in Umadevi(3)'s case it was held: “ Really it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.” The contentions of the appellants is that even after referring to paragraph 46 of the decision in Piara Singh's case, which carried the specific declaration to the W.A. Nos. 974, 975 & 1028 of 2018 ## -:17:- effect that an ad hoc or a temporary employee should not be replaced by another ad hoc or temporary employee and he must be replaced only by a regularly selected employee, in Umadevi(3)'s case the Apex Court did not consider that aspect any further and paragraphs 26 of Umadevi(3) would reveal that the Apex Court had virtually considered only the inconsistency between paragraphs 45 and 50 of Piara Singh's case. The specific observation in paragraph 26, that too after making the observation that the last portion of the direction appears to have run counter to the constitutional scheme of employment recognised in the earlier part of the decision, itself would indicate that the Apex Court in Umadevi(3) had virtually considered only the question whether the direction for regularisation of temporary employees made in Piara Singh's case would BE sustained in view of the fact that they would run counter to the constitutional scheme of employment, it is submitted by learned counsel for the appellants. In short, it is contended that from the tenure of the decision in Umadevi(3) what could be gathered is that the Apex Court's finding, rather declaration, that any decision W.A. Nos. 974, 975 & 1028 of 2018 ## -:18:- which was having binding precedential value, in so far as it would run counter to the principles settled or the directions which run in counter to what have been laid, in Umadevi(3), would stand denuded of its status as precedent. The corollary, according to the learned counsel for the appellants, is that decisions which carry declarations or directions which would not run counter to the decision in Umadevi(3), would not lose its status as precedence, going by the declaration in paragraph 54 of Umadevi(3)'s case. Essentially, it is raising such contentions that the appellants canvass the position that the declaration in Piara Singh's case that an ad hoc or a temporary employee should not be replaced by another ad hoc or temporary employee and that he/she must be replaced only by a regularly selected employee, so long as it does not run counter to the decision in Umadevi(3) and therefore, it cannot said to have lost its status as binding precedent on the abovesaid issue. 11. Per contra, the learned counsel appearing for the respondents submitted that the said contentions are bereft of any basis. The hollowness of the said contentions would be revealed by a scrutiny of various paragraphs in W.A. Nos. 974, 975 & 1028 of 2018 -:19:- Umadevi(3) decision itself, it is submitted. In that regard the learned counsel appearing for the respondents drew our attention to certain specific recitals in paragraphs 43, 45, 47, 50 to 52 and 54 which are extractible in the context of the contentions. In paragraph 43 of Umadevi(3), the Apex Court held: “ 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.” In paragraph 45 it was held: “ 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 employment should be directed to be continued permanently. …...xx.......xx..........xx. The W.A. Nos. 974, 975 & 1028 of 2018 ## -:20:- 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 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 Article 14 of the Constitution.” 12. In paragraph 47 the Apex Court held: “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. ## Paragraphs 50 to 52 therein read as follows : “ 50 **.** It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the W.A. Nos. 974, 975 & 1028 of 2018 -:21:- Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality. 51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to W.A. Nos. 974, 975 & 1028 of 2018 ## -:22:- the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution. 52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in **Dr. Rai Shivendra Bahadur** v. **The Governing Body of the Nalanda College** MANU/SC/0098/1961 : (1962)ILL J247SC . That W.A. Nos. 974, 975 & 1028 of 2018 ## -:23:- case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.” 13. After settling the law in the earlier paragraphs, the Apex Court in paragraph 53 went on to hold thus: …........... In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such _irregularly_ appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being ow employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if W.A. Nos. 974, 975 & 1028 of 2018 ## -:24:- any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” ## 14. Paragraph 54 in Umadevi(3) reads thus : “54. _It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents._ ” 15. A scanning of the decision in Umadevi(3) would undoubtedly show that regularisation of temporary employees is impermissible unless such temporary employees fall squarely within the purview of the decision in Umadevi(3). In fact, even in the case of irregularly recruited or appointed persons who had worked for 10 years or more in duly sanctioned posts, but not under the cover of orders of courts or tribunals were ordered to be regularised only as one time measure. 16. We have referred to the relevant portions from Umadevi(3)'s case touching the question of regularisation, W.A. Nos. 974, 975 & 1028 of 2018 ## -:25:- only because one among the captioned appeals viz., in W.A. No.1028 of 2018, the appellants, claim for regularisation as well. Indisputably, in the case on hand, the position is that the appointments were made only on temporary basis, that too only for a period of 11 months. True that on expiry of the said period, they were continued to be engaged by granting extension of three months at a time, but it cannot be said that the appellants were appointed against sanctioned posts, though temporarily, after strictly adhering to the prescribed methods for regular appointment. Even otherwise, merely because they continued on temporary basis for more than 11 months, it cannot be taken as a reason to claim regularisation especially in the light of the decision in Umadevi(3). It is to be noted that the appellants were engaged only in the year 2014 and hence in the light of the decision in Umadevi(3), it cannot be said that the appellants got an enforceable legal right to get permanently absorbed in the service of the respective department or in other words, to get regularised in service. 17. Now, we will revert to the question regarding tenability of the contention that in the light of Piara Singh's W.A. Nos. 974, 975 & 1028 of 2018 ## -:26:- case (surpa), being temporarily appointed persons continued since 2014, they could not be replaced by another set of temporary employees. In this context, it is to be noted that all of them are room boys appointed on temporary basis in Sreevalsam Annex building belonging to the Guruvayur Devaswom. There is no case at all for the appellants that they were temporarily engaged in connection with a scheme or any particular project. We made such an observation bearing in mind a subsequent decision of the Apex Court in **Mohd. Abdul Kadir and another v. Director General of Police, Assam and others** [(2009) 6 SCC 611]. In that case the staff employed for a particular project or scheme on temporary basis continued for a long period. The Apex Court held that even if the Scheme continued for decades, those persons could not claim regularisation and their services would come to an end as and when the project or scheme is completed. At the same time, in the said decision the Apex Court virtually deprecated the practice of giving artificial breaks from time to time and then re-appointing such persons and held that such a practice is contrary to service jurisprudence and such appointment against a W.A. Nos. 974, 975 & 1028 of 2018 ## -:27:- particular scheme which are temporary in nature ought to be continued. In other words, the Apex Court held that such broad appointments under a Scheme are co-terminus with the Scheme, subject to the earlier termination either on medical or disciplinary or unsatisfactory service or attainment of normal age of retirement. In unambiguous terms in the light of Umadevi(3) the Apex Court held that irrespective of the length of the ad hoc service or the Scheme, they would not be entitled to regularisation nor to the security of tenure and service benefits available to regular employees. 18. A perusal of the judgment in **Mohd. Abdul Kadir** 's case (supra) would reveal that though the Apex Court had referred to the decision in Piara Singh's case actually what was dealt with and decided is the right of temporary employees or ad hoc appointees under a Scheme. It was held that those temporary employees or ad hoc employees under a scheme if engaged/appointed in accordance with the selection process prescribed by the Scheme, there is no reason why those appointees under the Scheme should not be continued as long as the Scheme W.A. Nos. 974, 975 & 1028 of 2018 ## -:28:- continues and ultimately held that as long as the Scheme continues, subject to the other permissible grounds for termination, as mentioned hereinbefore, they would be entitled to continue. 19. We are of the view that the decision in **Mohd. Abdul Kadir** 's case (supra) got no application with respect to the case on hand. Admittedly, in these cases the appellants were not appointed under each Scheme. Essentially, their temporary appointment against the post of room boys in Sreevalsam Annex building under the Guruvayur Devaswom was made owing to an administrative exigency. In other words, owing to the delay in effecting regular appointments in accordance with law, a contingency had arisen to effect appointment as stop gap arrangement. It was that contingency that led to the appointment of the appellants on temporary basis initially for a period of 11 months and then for extension of their service by three months at a time. The sum and substance of the findings in paragraph 52 of Umadevi(3)'s case is that temporary employees got no enforceable legal right and therefore to seek for issuance of mandamus commanding the State or its W.A. Nos. 974, 975 & 1028 of 2018 -:29:- instrumentalities to absorb them in permanent service or to allow them to continue. Evidently, the Apex Court entered into such a finding relying on its earlier decision in **Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College** [AIR 1962 SC 1210]. The Apex Court also held that in case a mandamus to be issued to compel the authorities to do something, it must be shown that the Statute imposes a legal duty on that authority and the aggrieved party had a legal right under the Statute or Rule to enforce it. It is also to be noted that paragraph 45 would reveal that the Apex Court had also rejected the argument advanced for continuance based on the fact the temporary appointee had continued some time in a post. In fact, it is evident from paragraph 45 that the Apex Court repelled such contentions and held that allowing such persons to continue would enable jettisoning of the procedure established by law for public employment and such contentions must fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution. W.A. Nos. 974, 975 & 1028 of 2018 -:30:- 20. Thus, a careful scanning of the decision in Umadevi(3) would reveal that this Court could not issue a writ of mandamus compelling the State or its instrumentalities for continuance of a temporary appointee in a post. In such circumstances, we do not find any reason to hold that the learned single Judge had gone wrong in holding that no mandamus could be issued and in fact the disinclination shown to issue writ of mandamus on the part of the learned single Judge is perfectly in tune with the decision of the Apex Court in Umadevi(3). The upshot of the discussion is that being temporary appointees engaged against sanctioned posts for a fixed period, mere continuance beyond that fixed period, by issuing subsequent orders again for a fixed period, would not entitle them to get an order or writ commanding the Guruvayur Devaswom to allow them to continue in service. As noticed hereinbefore, in one of the appeals, besides taking up such a contention as larger prayer, they also sought for consideration of regularisation of service. We have already held that in the light of Umadevi(3), there is no question of issuance of a direction for consideration of regularisation in view of the W.A. Nos. 974, 975 & 1028 of 2018 -:31:- admitted factual position obtained in this case. For the foregoing reasons, we find no merit in these appeals and consequently they are dismissed. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **MARY JOSEPH, JUDGE** ttb/16.06.