Kerala High Court
Rajan vs Kerala State Electricity Board on 1 November, 1991
Equivalent citations: (1992)IILLJ728KER
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Jagannadha Rao, C.J.
1. This writ appeal is preferred against the judgment of the learned Single Judge in O.P. No. 8700 of 1991-I dated October 15, 1991 dismissing the writ petition. The writ petitioners are the appellants.
2. The first writ petitioner was appointed as Mazdoor in the Kerala State Electricity Board as per an order passed by the 2nd respondent on January 30, 1991. A true copy of the said order is marked as Ext. P1. As per Ext. P1, the appointment of the first petitioner was on a temporary basis for a period of 179 days or till the Public Service Commission hands report for duty or as and when the Board deems it necessary to terminate the service of the first petitioner. The second petitioner was appointed as Meter Reader as per another order of the second respondent passed on January 30, 1991. The terms of appointment are identical. Both the petitioners were appointed in accordance with the recommendation of the Employment Exchange. The first petitioner joined duty on February 8, 1991 in the Electrical Section at Mukkam, while the second petitioner joined duty on February 7, 1991 in the Electrical Section, Kuttiady. The term of appointment of the first petitioner expired on August 5, 1991, and that of the second petitioner on August 4, 1991. The petitioners contended that the Public Service Commission has not so far advised for appointment any regular candidates in the post held by the petitioners. According to them, even the necessary test to be conducted by the Public Service Commission has not yet been conducted. The grievance of the petitioners is that in certain posts in the Board several temporary employees have been allowed to continue in service without any break. For example, in the post of Linemen 172 persons were continuing in service, even after the expiry of their term of appointment. It is stated that the said 172 persons approached the Supreme Court by filing W.P. No. 514 of 1988. It is stated that the said Petition has been remitted to this Court for disposal, and that the petitioners therein are continuing in service since February, 1989 It is also stated that the Board is permitting the said persons to continue in service from time to time. According to the petitioners, the Board is discriminating in its attitude towards Linemen who have been appointed on a provisional basis, and in not extending the same benefit to Mazdoors and Meter Readers. It is stated that the Board is taking emergent steps to terminate the service of the petitioners along with 97 others, who are similarly situated. The other 97 persons have been appointed either as Mazdoors or Meter Readers in the Kozhikode District. The services of these Mazdoors and Meter Readers are now threatened to be terminated, while the Board is retaining the 172 Linemen. It is also staled on grounds E and F that the petitioners are entitled to the benefit of the Industrial Diputes Act, and in particular Section 25H.
3. The learned Single Judge directed the respondents to file a statement in regard to 172 Linemen who were allowed to continue in service since February, 1989. It is stated that the first respondent had filed a statement dated September 27, 1991 explaining the circumstances under which the said 172 persons had been allowed to continue by granting them the benefit of the provisions contained inSection25H or the Industrial Disputes Act. It was also stated that those persons continued in service for a long period under orders of stay obtained from court. The respondents aslo relied on the decision of the Supreme Court in W.P. Nos. 618, 1075 of 1990 and 70 and 229 of 1991, wherein it has been held that the provisional employees appointed under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules have no right to continue in service beyond the period of their appointment. The learned Single Judge also referred to the decisions relied on by the Petitioners in O.P. No. 7179 of 1985 and O.P.No 2789 of 1986 granting provisional appointees the benefit of the provisions of Section 25H of the Industrial Disputes Act. After referring to the submissions of the writ petitioners' counsel, as stated above, the learned Single Judge observed as follows:
"A reading of the above decisions would show that the finding entered therein were not on the basis of the adjudication of the claims on the contentions put forward by both the parties in the case. The decisions were rendered on agreed basis."
4. Referring to another decision of this Court in Sasidharan v. Kerala State Electricity Board, 1991 (1) KLT 566 relied upon by the writ petitioners, the learned Single Judge slated that even in that case it was held that provisionsl hands selected and appointed for a period of 179 days have no right to continue in service, or to gel their employment regularised. On the above said basis the learned Single Judge dismissed the writ petition.
5. In this appeal, learned counsel for the appellants-petitioners raised the conlenlion that the benefit ofSection25H of the Industrial Disputes Act has been extended to the 172 Linemen as per the statement filed by the first respondent. Learned Counsel submits that similar benefit should be extended to the writ petitioners.
6. II may be noticed that the said 172 Linemen have, from what is stated in the writ petiton, the benefit of the Supreme Court order in W.P. No. 514 of 1988, which is said to have been remitted to this Court. Obviously, the petitioners before us do not have any order of the Supreme Court similarly protecting their rights. It was in respect of the Linemen, who have the benefit of the order of the Supreme Court, that the Board has stated in the statement filed before the learned Single Judge that those Linemen are being allowed to continue in view of the provisions of Section 25H. Whatever might be the benefit extended to the said employees under Section 25H of the Industrial Disputes Act, in so far as the petitioners before us are concerned, they have not established any right under Section 25H. Under the said provision, the workmen who have been retrenched, can be reemployed, if certain conditions are satisfied. Basically therefore they must be retrenched workmen. In this context, the definition of 'retrenchment' in Section 2(oo) is relevant. Under Sub-clause (bb) thereof 'retrench-ment'does not include termination of the service of the workman as a result of the non-renewal of the contract of employmentbetween the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein. Admittedly, the orders of appointment of the petitioners contain a condition that the employment will be terminated, and will not confer any right for regularisation. Therefore, the writ petitioners cannot, as of right, claim any benefit ofSection25H of the Industrial Disputes Act.
7. It has been held by a Division Bench of this Court in Sini P. Kuriakose v. State of Kerala, 1987 (2) KLT 425:
"When appointments are made under statutory provisions for a definite period it is not possible to spell out any law to the effect that contrary to the said statute the appointee is entitled to continue in service beyond the period for which he was appointed in accordance with the statute. The power of this Court is to keep within bounds of law and not to issue directions contrary to law. Therefore the provisional employees have no statutory right to continue in service, and they cannot be allowed to remain in service against the statutory rules."
While passing the above said orders, their Lordships noticed the observations of the Supreme Court in P.K. Narayani v. State of Kerala and Ors. 1984 KLT 17, and took note of the important observations of the Supreme Court towards the end of the judgment which read as follows:
"We would like to make it clear that the order which we are passing today will not confer any right on the petitioners and the others who are similarly situated to continue in service, or of being selected by the Public Service Commission otherwise than in accordance with the relevant rules and regulations. We must also clarify that the order will not be construed as or operate as a stay of the appointment of candidates who have already been selected or who may hereafter be selectedby the Public Service Commission."
Their Lordships in Kuriakose's case (supra) referred to another decision of a Division Bench of this Court in S.Parimalom v. State of Kerala, 1985 KLT 624, which had also considered the decision of the Supreme Court in Narayani's case (supra) and the circular issued thereafter. In that decision, the Division Bench pointed out, after referring to the Supreme Court decision in Narayani's case (supra), as follows:
"The directions in paragraph 6 of judgment has to be appreciated and understood in the context and the circumstances in which it happened to be given, bearing particularly in mind, the restrictions carefully imposed by the learned Judges themselves in regard to the scope and ambit of the directions in the previous paragraphs. It would be totally untrue to the spirit of the directions contained in the judgment if we are to construe that Supreme Court permitted a perpetual violation of Rule 9(a) (i), with particular reference to the second proviso thereto, which prohibited the continuation of the persons so appointed in service fora period exceeding 180 days. In our view, the circular dated May 3, 1984 issued by the Government reflects correctly the opinion of the Supreme Court in the decision in 1984 KLT 17."
The learned Judges also stated that the Supreme Court did not say anything contrary to their orders in W.P. Nos. 410, 1574, 1790 of 1986 and 874 of 1987 (Sasankan v. State of Kerala, 1987 (2) KLT 347). The learned Judges also referred to a decision of a Division Bench of this Court in Remlath's case, 1984 KLT 312, to the same effect.
8. From the aforesaid facts, it is clear that three Division Benches of this Court in Rem-lath's case (supra), S. Parimalom's case (supra), and in Sini P. Kuriakose's case, (supra) clearly held that no mandamus can be issued for continuance of employees temporarily appointed under Rule 9(a) (i) of the K.S. & S.S.R. after the expiry of the term of their appointment. This is so, notwithstanding the observations and directions issued by the Supreme Court in Narayani's case, (supra), as also the observations of the Supreme Court in Sasankan's case (supra).
9. Learned counsel for the petitioners however relied upon two unreported decisions of this Court in O.P. No. 7179 of 1985 dated October 16, 1985 and O.P. No. 2789 of 1986 dated May 30, 1986, wherein certain directions have been given for continuance of the employees beyond the period prescribed under the appointment orders. As pointed out by the learned Single Judge, the directions therein would be confined to the facts of those cases.
10. Learned counsel for the petitioner also relied on another recent decision of this Court in Sasidharan v. Kerala State Electricity Board, (supra). The learned Single Judge therein only considered the Division Bench decisions referred to above, and came to the conclusion that provisional employees had no right to continue in service. While coming to that conclusion, the learned Single Judge also referred to another decision of the Supreme Court in Jacob v. Kerala Water Authority, (1991-II-LLJ-65), and also the decision in H.C. Puttaswamy v. The Hon'ble C.J. of Karnataka High Court, JT 1990 (4) SC 474 and held that inspite of the said decisions of the Supreme Court the view taken by the Division Benches of this Court would continue to be good law.
11. However, having said so, the learned Single Judge in Sasidharan v. Kerala State Electricity Board, (supra) made an observation that in case the employer had permitted the employee to continue beyond 180 days, it should be presumed that the administration had permitted him to continue in service till regular appointments are made through Public Service Commission or otherwise according to Rules. In that event, their appointment could be terminated only to accommodate regular hands or Public Service Commission hands, as the case may be. The learned Single Judge further held that the administration cannot terminate the appointment to accommodate another batch of provisional hands. In our opinion, the learned Single Judge's above observation would run contrary to the three Division Bench decisions referred to above, which he himself had referred. The petitioners have no right to continue in service, and no mandamus can be issued under Article 226 of the Constitution of India for their continuance.
12. For the aforesaid reasons, the writ appeal is dismissed.