WA.No. 543 of 2018, Shaji Varghese and Others v. State of Kerala and Kerala Water Authority and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 14TH DAY OF MARCH 2018 / 23RD PHALGUNA, 1939** **WA.No. 543 of 2018** **AGAINST THE ORDER/JUDGMENT IN WPC 31200/2017 of HIGH COURT OF KERALA DATED 23-11-2017** ## **APPELLANTS/PETITIONRES 1 TO5, 7 TO 10 AND 13 TO 16:** - **1 SHAJI VARGHESE PUMP OPERATOR, KERALA WATER AUTHORITY,OFFICE PLANT, KIZHAKKENADA, CHENGANNUR, ALAPPUZHA - 689 121.** - **2 SANTHOSH S. SHIFT ASSISTANT, KERALA WATER AUTHORITY,OFFICE PLANT, KIZHAKKENADA, CHENGANNUR, ALAPPUZHA - 689 121.** - **3 SANOJ KUMAR V. OPERATOR, KERALA WATER AUTHORITY, MITHREPUZHA RAW WATER, CHENGANNUR, ALAPPUZHA - 689 121.** - **4 RAJENDRAN K. PUMP OPERATOR, KERALA WATER AUTHORITY OFFICE, KOLAMUKKAM, CHENGANNUR, ALAPPUZHA - 689 121.** - **5 RAJEEV A.K. OPERATOR, KERALA WATER AUTHORITY, MALAYIL PLANT, CHENGANNUR, ALAPPUZHA - 689 121.** - **6 SHIBU VINCENT SHIFT ASSISTANT, KERALA WATER AUTHORITY, MALAYIL PLANT, ANGADIKKAL, CHENGANNUR, ALAPPUZHA - 689 121.** - **7 JAYAKUMAR** **OPERATOR, KERALA WATER AUTHORITY,KOLAMUKKAM RAW WATER, CHENGANNUR, ALAPPUZHA - 689 121.** **8 SHAJI BABU OPERATOR, KERALA WATER AUTHORITY, MITHRAPUZHA RAW WATER, CHENGANNUR, ALAPPUZHA - 689 121.** **WA.No. 543 of 2018** **2** - **9 KRISHNAKUMAR D.** - **OPERATOR, KERALA WATER AUTHORITY, PANDANAD PUMP HOUSE, MANNAR, PATHANAMTHITTA - 689 122.** - **10 SIBICHAN ANTONY** - **OPERATOR, KERALA WATER AUTHORITY, KARALAKAMPADOM, KOMALAPURAM, ALAPPUZHA - 688 006.** - **11 DILEEPKUMAR P.** - **OPERATOR, KERALA WATER AUTHORITY, KOMALAPURAM, VELIYAMKULAM, ALAPPUZHA - 688 006.** - **12 GEORGE K.P. OPERATOR, KERALA WATER AUTHORITY, KATTOOR PUMP HOUSE, ALAPPUZHA - 688 006.** - **13 MATHEW K. ANTONY OPERATOR, KERALA WATER AUTHORITY,SARVODAYAPURAM PUMP HOUSE, KARALAKAMPADOM, ALAPPUZHA - 688 006.** - **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENTS:** - **1 RAVEENDRAN P. SHIFT ASSISTANT, KERALA WATER AUTHORITY, MALAYIL PLANT, ANGADIKKAL, CHENGANNUR, ALAPPUZHA - 689 121.** - **2 SUNIL KUMAR M.S. OPERATOR, KERALA WATER AUTHORITY, NOOTTAVANPARA, ALAPPUZHA - 689 006.** - **3 SUDHEESH S.** - **OPERATOR, KERALA WATER AUTHORITY, KARALAKAMPADOM, THAMBAKACHUVADU,ALAPPUZHA - 688 006.** - **4 PRAMODKUMAR P.** - **OPERATOR, KERALA WATER AUTHORITY, SARVODAYA PUMP HOUSE, KARALAKAMPADOM, ALAPPUZHA.** - **5 STATE OF KERALA** - **REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF WATER RESOURCES, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **6 THE KERALA WATER AUTHORITY** **REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM - 695 033.** **WA.No. 543 of 2018** **3** - **7 MANAGING DIRECTOR KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM - 695 033.** - **8 THE ASSISTANT EXECUTIVE ENGINEER KERALA WATER AUTHORITY, OFFICE PLANT, KIZHAKKENADA, CHENGANNUR, ALAPPUZHA - 689 121** - **9 THE ASSISTANT EXECUTIVE ENGINEER KERALA WATER AUTHORITY, MITHREPUZHA RAW WATER, CHENGANNUR, ALAPPUZHA - 689 121.** - **10 THE ASSISTANT EXECUTIVE ENGINEER KERALA WATER AUTHORITY, KOLAMUKKAM, CHENGANNUR, ALAPPUZHA - 689 121.** - **11 THE ASSISTANT EXECUTIVE ENGINEER KERALA WATER AUTHORITY, MALAYIL PLANT,CHENGANNUR, ALAPPUZHA - 689 121.** - **12 THE ASSISTANT EXECUTIVE ENGINEER KERALA WATER AUTHORITY, PANDANAD PUMP HOUSE, MANNAR, PATHANAMTHITTA - 689 122.** - **13 THE ASSISTANT EXECUTIVE ENGINEER KERALA WATER AUTHORITY, NOOTTAVANPARA, ALAPPUZHA - 689 121.** - **14 THE ASSISTANT EXECUTIVE ENGINEER KERALA WATER AUTHORITY, KARALAKAMPADOM, KOMALAPURAM, ALAPPUZHA - 688 006.** - **15 THE ASSISTANT EXECUTIVE ENGINEER KERALA WATER AUTHORITY, KATTOOR PUMP HOUSE,ALAPPUZHA - 689 121.** - **16 THE ASSISTANT EXECUTIVE ENGINEER KERALA WATER AUTHORITY, SARVODAYAPURAM PUMP HOUSE, KARALAKAMPADOM, ALAPPUZHA - 689 121.** **BY ADVS.** **SRI.MILLU DANDAPANI, SC, KERALA WATER AUTHORITY SRI.MILLU DANDAPANI SC KERALA WATER AUTHORITY** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.No. 543 of 2018** **4** ## JUDGMENT ## C. T. Ravikumar, J. This intra-court appeal is directed against the judgment dated 23.11.2017 in W.P.(C) No.31200/2017. 2. The appellants were the petitioners therein. They are working as Pump Operators/Shift Assistants/Operators in the Kerala Water Authority. The particulars of their service specifically mentioned in the writ petition, adverted to by the learned Single Judge in the Judgment are not at all disputed before us. They would reveal that five among them were initially appointed through Employment Exchange for a period of 179 days in different years viz., between 2002 to 2007. Others, were so appointed on the basis of walk-in interviews conducted during the years 1996, 2003, 2004, 2005, 2006, 2008 and 2012. They are continuing as contract employees under contractors from time to time and they are being paid by the contractors. They filed the writ petition apprehending discontinuance of their service, rather disengagement **WA.No. 543 of 2018** **5** based on a proposal on the part of the respondents to induct fresh hands in their place through Employment Exchange and mainly contending that their replacement by persons appointed through Employment Exchange, if effected, would violate the dictum laid down in the decision of the Hon'ble Apex Court in _**State of Haryana & Ors. v. Piara Singh and Ors.**_ [1992 (4) SCC 118]. True that the appellants are not claiming regularisation and they are also not claiming to treat them at par with the permanent employees of the Water Authority, in the matter of payment of salary. In other words, their limited prayer is that they shall not be replaced by persons employed through Employment Exchange. The learned Single Judge considered the claims and contentions and ultimately dismissed the writ petition. It is in the said circumstances that the captioned appeal has been preferred. 3. We have heard the learned counsel appearing for the appellants, the learned standing counsel appearing for respondents 6 to 16 and the learned Government **WA.No. 543 of 2018** **6** ## Pleader appearing for the fifth respondent. 4. We have already adverted to the manner by which the appellants happened to be engaged. True that some of them, to be precise, five among them were initially appointed through Employment Exchange for a limited period of 179 days and some others were appointed on the basis of a walk-in-interviews. But at the same time, the admitted fact is that after their initial engagement they are continued to be employed through contractors and they were also being paid by the contractors. In the light of the aforesaid undisputed facts the tenability of the contentions of the appellants/petitioners has to be considered. 5. Evidently, the claim of the appellants/petitioners is that they shall not be permitted to be replaced by persons appointed through Employment Exchange. The said contention is founded on the decision of the Hon'ble Apex Court in _Piara Singh's_ case (supra). The question is whether the said decision confers an indefeasible right to the persons like the appellants to claim for continuance or **WA.No. 543 of 2018** **7** in other words, immunity from being displaced by persons employed through Employment Exchange. 6. The aforesaid issue has been pointedly considered by this Court in _**C. Latha v. State**_ [1993 (2) KLJ 497] and then, in _**Vinod v. State of Kerala**_ [1998 (1) KLT 607]. The Division Bench in both decisions, considered the applicability of the decision of the Hon'ble Apex Court in _Piara Singh's_ case (supra), with reference to the scheme of rules applicable in Kerala and in view of the specific provision contained in Rule 9(a)(i) of Part II of the Kerala State and Subordinate Services Rules (KS & SSR). It was held that the dictum laid down in the decision in _Piara Singh's_ case could not be applied. In _Latha's_ case (supra), this Court held that even persons appointed by direct recruitment through Employment Exchange on discharge from service could not be re-appointed to the same post by the same authority, except when fresh candidates are not available for appointment through Employment Exchange. Going by the dictum laid down therein, even persons appointed through Employment Exchange could **WA.No. 543 of 2018** **8** not claim continuance as a matter of right beyond the period of 179 days without being replaced by another set of employees. Considering the claims and contentions in the light of the aforesaid Division Bench decisions the learned Single Judge found them meritless and consequently, dismissed the Original Petition. 7. In the circumstances obtained as above, the question is how can a better right be claimed by the appellants whose engagement being continued only through private contractors. The appellants/the petitioners are working as Pump Operators/Shift Assistants/Operators on being engaged through contractors. Admittedly, they are working as such, either as Pump Operators or as Shift Assistants or as Operators in the Kerala Water Authority. It is not as if, no rules were in existence for effecting regular appointments against those posts at the time when the appellants were engaged. True that, existence of such provisions could not be a reason for holding that appointment on adhoc basis or temporary basis are absolutely impermissible under any circumstances. But, **WA.No. 543 of 2018** **9** even for such appointments recognised methods are available. Persons can be appointed resorting to Rule 9(a) (i) of Part II of the KS & SSR, through Employment Exchange when exigencies require such appointments. In fact, appointments under Rule 9(a)(i) of Part II of KS & SSR, have to be made through Employment Exchange for a period of 179 days. Even in the case of such an appointee, there would be no right to claim for continuance beyond the period of 179 days. The learned counsel appearing for the appellants contended that virtually such a right is available to such appointees in the light of the dictum laid down by the Hon'ble Apex Court in _**Jacob v. Kerala Water Authority**_ [1992 KLT 673]. The first question to be considered is whether the appellants can take shelter under the said decision. It did not lay down a proposition that an appointee under Rule 9(a)(i) of Part II of KS & SSR, would accrue an indefeasible right to continue in service beyond the period and then claim for regularisation. A scanning of the said decision would reveal that the Hon'ble Apex Court after deprecating the **WA.No. 543 of 2018** **10** practice of exploitation of the pathetic plight of unemployed youth rather, exploitation of the unequal bargaining power, permitted regularisation of such persons, subject to the satisfaction of the twin conditions specifically stipulated therein. Such conditions have to be satisfied on the cut off date specifically mentioned thereunder. The appellants do not have a case that they were in service of the Kerala Water Authority on the strength of orders of appointment under Rule 9(a)(i) of Part II of KS & SSR on the cut off date made mentioned therein. So also, they do not have a case that as on that cut off date they had completed two years of service on the strength of such an appointment. The only contention is that some among the appellants happened to be appointed initially under Rule 9(a)(i) of Part II of KS & SSR and in the case of some others, as noticed hereinbefore, they were appointed pursuant to walk-in interviews. Whatever be the methods by which they were permitted to discharge the duties attached to the aforementioned posts the fact is that they are not presently continuing based on **WA.No. 543 of 2018** **11** the strength of an appointment under Rule 9(a)(i) of Part II of KS & SSR. This fact is very specifically made clear by the respondents in their counter affidavit. Even if it is taken that by some mistakes persons appointed under Rule 9 (a)(i) are continuing in their service or continued to discharge the service attached to the aforesaid posts it would not and could not confer any right for continuance as of right. In the light of the dictum laid down in _Jacob's_ case (supra), persons who do not satisfy the twin conditions required to be satisfied for getting regularisation under _Jacob's_ case (supra) cannot claim continuance beyond the period solely because of a fortutious circumstance for continuing in the engagement even beyond the period of 179 days. In such circumstances, the decision in _Jacob's_ case (supra) cannot be understood to have laid down a proposition that even persons who did not satisfy the twin conditions specifically mentioned thereunder, solely because of continuance beyond a period of 179 days on the strength of an appointment under Rule 9(a)(i) of Part II of KS & SSR, **WA.No. 543 of 2018** **12** would accrue a right of being considered for regularisation in the later years. If it is so construed, we are afraid, it would defeat the very soul of the decision in _Jacob's_ case (supra) as it cannot be understood to have laid down a rule recognising deviation from the rules governing public employment. The decision came to be rendered under a totally different situation. 8. In paragraph 9 of the said decision the Hon'ble Apex Court held as follows: “ _India is a developing country. It has a vast surplus labour market. Large scale unemployment offers a matching opportunity to the employer to exploit the needy. Under such market conditions the employer can dictate his terms of employment taking advantage of the absence of the bargaining power in the order. The unorganised job seeker is left with no option but to accept employment on take-it-orleave-it terms offered by the employer. Such terms of employment offer no job security and the employee is left to the mercy of the employer. Employers have betrayed an increasing tendency to employ temporary hands even on regular and permanent jobs with a view to circumventing the protection offered to the working class under the benevolent legislations enacted from time to time. One such device adopted is to get the work done through contract labour. It is in the said backdrop that the Hon'ble Apex Court went on to consider the request for regularisation in service of the petitioners therein”._ True that Hon'ble Apex Court made such observations, but a scanning of the decision would reveal that after deprecating such practice being employed by the employers with a view to exploit the hapless situation of **WA.No. 543 of 2018** **13** unemployed youth the Hon'ble Apex Court permitted regularisation only of persons who satisfy the specific conditions mentioned therein, viz., ' _being in service on the cut off date and having 2 years of service on that day'_ , for getting the benefit of regularisation. All the appellants herein were engaged much later to the cut off date specified therein. In such circumstances, the fact that some among them happened to be appointed initially through Employment Exchange for a limited period of 179 days and in the case of others came to be appointed rather, engaged pursuant to a walk-in interview, would not and could not confer any right as now claimed. Jacob decision cannot be considered as a decision permitting appointment of temporary employees following any kind of procedure and then, permitting for grant of permanence or regularisation. 9. As noticed earlier, to support their contention that they are not liable to be displaced by persons appointed through Employment Exchange the appellants are relying on the decision of the Hon'ble Apex Court in **WA.No. 543 of 2018** **14** _Piara Singh's_ case (supra). The question is whether the appellants are entitled to get the benefit of the said decision. As noticed hereinbefore, two Division Bench decisions of this Court pointedly considered the said aspect and categorically held that in the light of the specific provision under Rule 9(a)(i) of Part II of KS & SSR, in the State of Kerala, such appointees under Rule 9(a)(i) of Part II of KS & SSR cannot claim regularisation or even continuance beyond the period of 179 days. Even right to continue based on such appointment, for a period of 179 days is not absolute and when the regular hands reports for joining such appointees have to give way to them. In the decisions in _Latha's_ case (supra) and in _Vinod's_ case (supra) the contentions of the appellants that they are not liable to be displaced cannot be upheld. Above all, the contention based on the decision in Piara Singh's case is not available after the decision of the Hon'ble Apex Court in _**Secretary, State of Karnataka & Others v. Umadevi (3) & Others**_ [(2006) 4 SCC 1]. On carefully going through the decision of the learned Single Judge, we are of the firm **WA.No. 543 of 2018** **15** view that all the contentions were considered in the light of the provision of law as also the position of law settled by this Court as also by the Hon'ble Apex Court. We do not find any reason to interfere with the said decision rendered by the learned Single Judge in WP(C) No.31200/2017, in the said circumstances. The upshot of the discussion is that this appeal is liable to fail and consequently, it is dismissed. **Sd/-** **C.T.RAVIKUMAR** **JUDGE** **Sd/-** **MARY JOSEPH JUDGE** **SKK/ad/161118**