W.A.No.31 of 2013

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 8TH DAY OF JANUARY 2013/18TH POUSHA 1934 ## **W.A.No.31 of 2013** ---------------------------------- [AGAINST THE JUDGMENT IN W.P.(C).20321/2012 DATED 27-11-2012] ------------------ ## **APPELLANTS/** PETITIONERS:- -------------------------------------------- 1. M.M.NAJEEMA, - MADATHIKKALAYIL HOSUE, - KAVUMKARA.P.O., KALACHANTHA, MUVATTUPUZHA - 686 673. 2. BENCY.K.J., W/O.BENNY, - KOLLASSERY HOUSE, KUMBALANGI VILLAGE, ERNAKULAM DISTRICT. 3. BABY.C.P., W/O. SURESH, CHARIYAMPARAMBIL HOUSE, DESOM.P.O., ERNAKULAM DISTRICT - 683 103. BY ADV. SRI.DEEPU THANKAN. ## **RESPONDENTS/** RESPONDENTS:- ------------------------------------------------- 1. KERALA STATE BEVERAGES (M&M) CORPORATION, SASTHAMANGALAM, THIRUVANANTHAPURAM, - REPRESENTED BY ITS MANAGING DIRECTOR, 2. THE REGIONAL MANAGER, KERALA STATE BEVERAGES (M&M) CORPORATION, REGIONAL OFFICE, ERNAKULAM. R1 & R2 BY STANDING COUNSEL SRI.C.S.AJITH PRAKASH. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- Manjula Chellur, C.J. & K.Vinod Chandran, J. -----------------------------------W.A.No.31 of 2013 -----------------------------------Dated this, the 8[th] day of January, 2013 ## JUDGMENT ## K.Vinod Chandran,J.: The petitioners in the writ petition are before us in appeal challenging the judgment of the learned single Judge refusing the prayer of the petitioners, for a direction to the 1[st] respondent-Corporation not to terminate the services of the petitioners and permit them to continue beyond 180 days on daily wage in the category of Helper (Labelling). 2. The petitioners were all appointed through the District Employment Exchange, Ernakulam for a period of 180 days to carry on labelling work in the 1[st] respondent-Corporation. The petitioners 1 and 2 claimed to be 40% handicapped, which handicap is not at all relevant for consideration of this appeal, since the respondent-Corporation has not proceeded to appoint them on the basis of handicap and has merely made the appointments from the list supplied by the District Employment Exchange, Ernakulam. The petitioners in the writ petition contended that there are a number of vacancies in the 1[st] respondent-Corporation to the post W.A.No.31 of 2013 - 2 - of Helper to which they have been appointed and, hence; the prayer for their continuance in service beyond 180 days or till the regular hands are appointed. The petitioners relied on Exhibit P7 judgment to contend that they are identically placed and similar relief ought to be granted to them. 3. The 1[st] respondent-Corporation contended that the appointment of the petitioners is purely _ad hoc_ and need based and is not against any substantive vacancy in the Corporation. It was asserted that almost all the sanctioned posts are filled up by deputation and no vacancies are available in the sanctioned posts. However, considering the temporary need for additional hands, manpower is sought for from the Employment Exchanges as has been directed by a Division Bench of this Court in the decision reported in _**Manoj.K.R. v. Kerala State Beverages Corporation,**_ **ILR 2006 (4) Kerala 285.** It was also contended that such appointment is for a limited period of 180 days, being appointments made from the list supplied by the Employment Exchange, as also the statutory mandate with respect to such appointments through Employment Exchange. The purpose behind such a procedure itself is to provide for more unemployed people to have some public W.A.No.31 of 2013 - 3 - employment, at least for a limited period. The regular appointments in the Corporation being brought under the purview of the Kerala Public Service Commission, the persons appointed on a need based basis to satisfy the requirement of additional manpower, through the Employment Exchanges, are not on a regular basis and is to be limited for a particular period. 4. The learned single Judge elaborately considered the contentions of the petitioners along with a batch of other writ petitions claiming similar and identical reliefs. The learned single Judge noticed that admittedly the appointments were through Employment Exchange, for a specified tenure of 180 days, and none were terminated during the said period. With respect to the claim of the petitioners being handicapped by reason of disability of 40%, the learned single Judge noticed the judgment in W.P.(C). No.16309 of 2009 wherein similar contentions were repelled by another learned Single Judge of this Court holding that the appointment; which was similar to that in the instant case, was purely on provisional basis and no continuance can be claimed on the basis of handicap. This decision was followed in Exhibit R1(c) judgment, from which appeal was filed resulting in Exhibit P7 W.A.No.31 of 2013 - 4 - judgment relied on by the petitioners. 5. We notice that the Division Bench in Exhibit P7 found that this Court cannot order retention of appellant, since the appointment was on a provisional basis and also despite his probable entitlement to apply in the quota reserved for disabled persons. On the undertaking of the counsel for the Beverages Corporation, this Court granted continuance till selected candidates are appointed in the said case. As has been rightly found by the learned Single Judge, there is no declaration of law in Exhibit P7, the benefit of which can be claimed by the petitioners herein. The respondent-Beverages Corporation too, aggrieved by the recording of the undertaking, filed a review in which, it was clarified that the direction for continuance of the provisional employees was specifically granted to avoid any claim for regularization in future and the employee was also directed to give a specific undertaking that no such claim for regularization will be made. The judgment under review was also specifically declared as not being a precedent. No claim can be made by the petitioners relying on the said judgment. 6. Considering the claim raised by the petitioners for W.A.No.31 of 2013 - 5 - continuance beyond 180 days, the learned single Judge noticed the Constitution Bench decision of the Supreme Court in _**Secretary, State of Karnataka and Others v. Umadevi and Others,**_ **(2006) 4 SCC 1,** and yet another decision of the Hon'ble Supreme Court in _**State Bank of India v. N.Sundaramoney,**_ **AIR 1976 SC 1111,** and held that the claim of the petitioners to continue in the posts after the expiry of the tenure of 180 days mentioned in their appointment order is not liable to be entertained. Obviously this is not a case in which regularization can be granted; nor is there a claim for the same. The petitioners sought for a direction to be continued in service for “one or more term or till regular hands join for duty”. 7. The contention of the learned counsel before us was on the basis of the decision in _**Manoj.K.R.**_ (cited _supra_ ). The contention of the learned counsel is that in the said case the challenge was against back door appointments and even in such cases the division Bench issued directions effectively permitting temporary employees to be continued until regular appointments were made and in the instant case the petitioners who were sponsored by the Employment Exchange definitely stands on a better footing. W.A.No.31 of 2013 - 6 - 8. On a reading of the said decision, we are afraid, such an argument is totally misplaced and misconceived. Four writ petitions were considered jointly by the said decision; two were by unemployed persons, alleging that the back door appointments are made which results in denial of public employment to such unemployed persons; another writ petition was filed by the daily wage workers seeking implementation of an order for temporary enlistment under the Abkari Workers Welfare Fund Scheme; which order again was challenged in the 4[th] writ petition. The Division Bench noticed that the appointments in the Kerala State Beverages Corporation come within the purview of the Kerala Public Service Commission and that at that point of time appointments were made in the event of exigencies by issuing public notice. The enlistment of daily wage workers on a temporary basis under the Abkari Workers Welfare Fund Scheme was categorically held to be not entailing any claim for regularization in the Corporation. The writ petition seeking implementation of the order of enlistment under the Welfare Fund was allowed, since the order specified that it does not entail regularization, and the petition challenging its implementation was consequently dismissed. W.A.No.31 of 2013 - 7 - 9. What remained was consideration of regularization of casual employees, which was held to be impermissible, again relying on _**Umadevi & Others**_ (cited _supra_ ). Noticing the procedure of appointment to temporary vacancies, the Division Bench issued the following directions: - _“(1) All regular posts vacant should be notified for appointment. All regular posts now held by temporary hands shall be reported in accordance with the rules._ - _(2) No temporary hands shall be appointed to the regular vacancy._ - _(3) All vacancies shall be reported to the Public Service Commission within six months from the date of receipt of copy of this judgment. All posts manned by temporary employees for more than one year continuously shall be treated as permanent post._ - _(4) As far as upper age limit is concerned for regular appointments, the temporary employees who are working in the Corporation for more than six months, shall be given age relaxation. But there shall not be any relaxation in the matter of basic qualifications._ - _(5) The temporary employees working in the regular post shall be allowed to continue in service only_ W.A.No.31 of 2013 - 8 - _until these posts are filled up by regular appointments._ _(6) If any casual or other employees are necessary hereafter, they can be appointed only through employment exchange and such employees will not get any right for regularisation on any account as they shall not be allowed to work for more than six months. We further make it clear that regular vacancies should be notified and regular appointments should be made as expeditiously as possible. With these directions the writ petitions are disposed of”._ 10. It is the specific contention of the Beverages Corporation that there is no vacancy in any sanctioned posts and regular vacancies have been filled either by regular appointment or by deputation. The learned counsel for the appellants/petitioners would rely on direction No.(5), which directs the temporary employees to be continued till regular appointments are made. This is where the misconception steps in, since there; the specific direction for continuance of temporary employees were with respect to such temporary employees working in the regular posts. Here, it is the specific case of the respondent-Corporation that the W.A.No.31 of 2013 - 9 - petitioners and other persons appointed through Employment Exchange for a fixed tenure of 180 days was on account of temporary requirement of additional manpower and **not against a regular post** . 11. It is pertinent that even in 2006 the case of the Corporation before this Court in _**Manoj.K.R.**_ (cited _supra_ ) was that casual employment was made considering the requirement during festival seasons and getting workers from the Employment Exchange was not practical. This Court deprecated the practice and categorically held that there cannot be any continuous employment for years together on the reasoning alone of festivals and the respondent Corporation cannot be allowed to violate the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1957. It was in this context that direction No.(6) was issued. It is in compliance of direction No.(6) that at present, for the requirement of additional manpower, the respondent Corporation notifies the Employment Exchange and appoints persons sponsored by the Employment Exchange. The Division Bench, in condition No.(6), also held that “such employees will not get any right for regularisation on any account as they shall not be W.A.No.31 of 2013 - 10 - allowed to work for more than six months”. The above direction is a clear bar from being continued beyond the tenure of 180 days as provided under the Employment Exchange (Compulsory Notification of Vacancies) Act, 1957. In such circumstance, we are of the definite opinion that the learned Single Judge was perfectly justified in declining interference, under Article 226 of the Constitution of India; with the process of appointment to temporary vacancies for fixed tenure of 180 days from persons sponsored by the Employment Exchange and terminating them on the completion of the tenure. We are unable to discern any substantial grounds to interfere with the judgment of the learned Single Judge. The Writ Appeal, hence, is dismissed, with the parties left to suffer their respective costs. Sd/Manjula Chellur, Chief Justice vku/09/01. Sd/K.Vinod Chandran, Judge. ( true copy )