Kerala High Court
Radha vs District Medical Officer on 9 April, 2002
Author: G. Sivarajan
Bench: B.N. Srikrishna, G. Sivarajan, M. Ramachandran
ORDER G. Sivarajan, J.
1. The question arising for consideration in these two appeals relates to the scope of Rule 9(a)(iii) of Part II of the Kerala State & Subordinate Services Rules, 1958 (hereinafter referred to as 'the Rules')
2. A Division Bench consisting of Justice Cyriac Joseph and Justice K. Thankappan, while considering W.A. No. 211 of 2002, found that conflicting views have been taken by two Division Benches - one consisting of Justice K.G. Balakrishnan (as His Lordship then was) and Justice B.N. Patanaik by judgment dated 3.11.1997 in O.P. No. 12496 of 1997 and the other consisting of Justice K.S. Radhakrishnan and Justice G. Sasidharan in Nandagopalan v. District Collector, Idukki (200 (2) KLT 832) and took the view that in view of the apparent conflict of views in regard to the scope of Rule 9(a)(iii) of the Rules in the said two judgments it is necessary that the appeal is considered by a Full Bench. Hence the two appeals are placed before the Full Bench.
3. Rule 9(a)(iii) of Part II of the Rules reads thus:-
"(iii). A person appointed under Clause (i) shall be replaced as soon as possible by a member of the service of an approved candidate qualified to hold the post under the said rules.
Provided that persons appointed under Clause (i) shall be replaced in the order of seniority based on length of temporary service in the unit.
Note:- For the purpose of this proviso, posts within the jurisdiction of an appointing authority shall be treated as a unit."
Before proceeding to consider the scope of this sub-rule, it must be noted that Rule 9(a)(i) of Part II of the Rules provides for making temporary appointments to a vacancy in a post in public interest when there arises an emergency to fill the said vacancy immediately and there would be undue delay in making such appointments in accordance with these rules and the Special Rules. The second proviso to Rule 9(a)(i) specifies an outer limit for such temporary appointments. As per the said proviso such temporary appointees other than to a teaching post, shall not be allowed to continue in such post for a period exceeding 180 days. Similarly, the fifth proviso to Rule 9(a)(i) also provides an outer limit for such temporary appointments, in the case of Assistant Surgeons, Lecturers, Medical Officers and Para Medical staff of the Health Services Department, Medical Education Department, Department of Indian Systems of Medicine and Homoeopathy, etc. which says that such temporary appointees shall be allowed to continue for a period not exceeding one year or till a candidate advised by the Public Service Commission joins duty, whichever is earlier. The ninth proviso to Rule 9(a)(i) further provides that a person appointed under this clause by direct recruitment to a post and discharged from service after the admissible period, shall not be reappointed to the same post by the same appointing authority except when fresh candidates are not advisable for appointment through Employment Exchange, and such re-appointment shall be made only with the prior concurrence of the Commission.
3. The Division Bench of Justice K.G. Balakrishnan and Justice B.N. Patnaik in O.P. No. 12496 of 1997 considered the scope of Rule 9(a)(iii) and its proviso. Petitioners, 10 in number, in that case, were staff nurses appointed under Rule 9(a)(i) of the Rules by an order dated 22.7.1996. Prior to their appointment the very same appointing authority had appointed 29 other fresh hands as staff nurses under Rule 9(a)(i) of the Rules by an order dated 18.1.1996, Petitioners filed Writ Petition O.P. No. 12496 of 1997 contending that the services of the petitioners are being terminated while retaining the staff nurses, who were appointed earlier, which according to them is contrary to the provisions of the proviso to Rule 9(a)(iii) of the Rules. Admittedly, the petitioners and the other 29 persons were appointed winder Rule 9(a)(i) of the Rules for a period of one year from the date of joining duty or till regular hands recruited through Public Service Commission join duty, whichever is earlier. The term of appointment of the petitioners in that case was to be over in July, 1997 and in the case of the 29 persons mentioned above in Jaunary, 1997. However, both the petitioners and the other 29 persons were continuing as temporary employees even beyond their term of appointment. The Division Bench took the view that since the petitioners and other similarly situated persons were appointed under Rule 9(a)(i) of the Rules their services could be terminated only by following the proviso to Rule 9(a)(iii) of the Rules as per which as and when a temporary appointee is to be replaced person with longer length of service shall be ousted first. Accordingly the Division Bench ordered that so long as the staff nurses appointed under Rule 9(a)(i) of Part II of the Rules who are having more length of temporary service than the petitioners are retained in Trichur District the services of the petitioners shall not be terminated.
4. We find from the records of that case that the Director of Health Services had issued a communication (Ext. P5 in that case) to all the District Medical Officers directing them to retain the staff nurses appointed on provisional basis till PSC hands join duty, that in the endorsement of the said communication it is stated that this is applicable to departmental candidates only and not applicable to Employment Exchange candidates and that the Employment Exchange candidates should be relieved on completion of one year service itself. This communication, it is seen, was issued on the basis that the departmental candidates appointed under Rule 9(a)(i) of the Rules as staff nurses for one year were persons who had undergone the course of general nursing and midwifery in the Government schools and were stipendiary candidates who had executed a bond at the time of selection to serve the Government for a period of 5 years after that training within one year from the date of passing of the final examination. It is on the basis of the bond executed by the departmental hands while sending them for undergoing the course of General Nursing and Midwifery in the Government schools on payment of stipend the Director of Health Services permitted the said candidates to continue in service beyond the period of one year specified in their appointment order till they are replaced by Public Service Commission hands. Despite the above circumstance the Division Bench held that since the departmental candidates were also appointed under R, 9(a)(i) for a period of one year they are also bound by the provisions of Rule 9(a)(iii) of the Rules. The Division Bench has noted that a similar view was taken by this Court in O.P. No. 12888 of 1996. That was a case in which Junior Health Inspectors appointed in Idukki District under Rule 9(a)(i) of the Rules filed the Writ Petition seeking for a direction not to terminate their services so long as Junior Health Inspectors Grade II appointed under Rule 9(a)(i) of the Rules having lengthier temporary service than the petitioners are retained in Idukki District. The learned single Judge, who rendered the judgment, dated 19.8.1996 in O.P. No. 12888 of 1996 noted that several posts of Junior Health Inspectors were filled up in Idukki District right from 1992 onward, that the petitioners were appointed in the year 1993 and that the appointee from 1992 onwards are continuing in service. The learned single Judge held that whenever an occasion arises to oust such provisional appointees, necessarily, the proviso of Rule 9(a)(iii) operates and persons with longer tenure as temporary appointees shall be ousted first. The learned Judge also observed that this is in consonance with the 3rd proviso to Rule 9(a)(i), that a temporary appointee for 179 days shall not be reappointed except when fresh candidates are not available in the Employment Exchange and such reappointment shall be made only with the prior concurrence of the Public Service Commission. The learned Judge also noted that under Rule 9(a)(i) temporary appointment is permissible for 179 days alone, that further continuance for a second term is permissible only in the absence of qualified candidates in the Employment Exchange and therefore, the idea behind the scheme of Rule 9(a)(i) is to oust the service of the temporary appointees with longer tenure. It was further observed that the proviso is added to Rule 9(a)(iii) only to achieve the said purpose. In the last paragraph of the said judgment it is observed that merely because the persons appointed in 1992 are "Departmental Bonded Candidates" they cannot be retained in service offending statutory provisions. From the above observation, it is clear that the controversy in that case was also with regard to the entitlement of the departmental candidates to continue beyond the term of appointment and till PSC hands join duty.
5. The Division Bench of Justice K.S. Radhakrishnan and Justice G. Sasidharan in Nandagopalan v. District Collector, Iddukki (2001 (2) KLT 832) was also concerned with the scope of Rule 9(a)(iii) of the Rules. The appellants in that case were Village Extension Officers, Grade II appointed for a period of 179 days under Rule 9(a)(i) of Part II of the Rules as per order dated 21.11.2000. The "appointment order specifically stipulated that the heads of officers would terminate the provisional appointment on completion on 179 days or enjoining duty of a regular hand/PSC hand in their place, whichever is earlier. The appellants contended that they are entitled to continue in service beyond 179 days since the vacancies continued to exist. The Division Bench observed that appellants, having accepted the appointment on the basis of the terms and conditions in the appointment order, are estopped from raising the contention that they are entitled to continue in service beyond 179 days. Another contention was raised on behalf of the appellants that the service of the appellants could be terminated only on the basis of Rule 9(a)(iii) of the Rules and service of persons who are already in service and seniors to the appellants should be terminated first and only thereafter appellants' service could be terminated. Rejecting the said contentions the Division Bench held as follows:
"We are of the view that Rule 9(a)(iii) contemplates a situation where service of provisional appointees are terminated during the period of their appointment. The question of seniority under proviso to Rule 9(a)(iii) can be entertained only during the said period. This is a case where admittedly appellants have completed 179 days and therefore the question of application of proviso to Rule 9(a)(iii) does not arise. This question has been considered by a Bench of this Court in Sujatha v. State of Kerala (2001 (1) KLJ (NOC) 51). In such circumstances we find no infirmity in the judgment of the learned single Judge. The appeal lacks merits and it is accordingly dismissed."
6. The very same Division Bench considered this question in Sujatha v. State of Kerala (2001 (1) KLT SN 58 Case No. 67). There the Division Bench has held that the proviso to Rule 9(a)(iii) cannot be understood to enlarge the period of service fixed by the appointing authority under Rule 9(a)(i). It was observed that a proviso though cuts down the ambit of the main provision, it cannot be interpreted to denude the main provision of any efficacy, that proviso to Rule 9(a)(iii) deals with the manner in which the provisional appointees to be replaced and not intended to enlarge the terms and conditions of appointment. The Division Bench further held that if there is any error in the matter of replacement of provisional appointee violating the seniority, that is a matter for the authority to look into and rectify but the mistake or irregularity would not confer any legal right on a provisional appointee to contend that he is entitled to continue in service beyond the term of his appointment.
7. Now we will consider the case of the appellants before us. The appellants in both these cases who are petitioners in O.P. No. 39124 of 2001 were appointed as per Exts. P1 to P6 orders as Junior Public Health Nurses in Alleppey, Kottayam and Ernakulam Districts under Rule 9(a)(i) of the Rules for a period of one year or till PSC/regular hands join duty, whichever is earlier. At the time of filing the Writ Petition O.P. No. 39124 of 2001 they did not complete the one year period specified in the appointment orders. No PSC/regular hands are available for replacing the petitioners during the term of their appointments. The apprehension of the appellants was that their services will be terminated while retaining the temporary hands appointed under Rule 9(a)(i) of the Rules having longer length of service in violation of the proviso to Rule 9(a)(iii) of the Rules. The contention taken by the respondents is that the appellants who are appointed for a specified period of one year have no legal right to continue beyond the said period and that the proviso to Rule 9(a)(iii) of the Rules will apply only in a situation where a temporary appointee is sought to be replaced by a PSC/regular hand during the period of his appointment. The learned single Judge following the decision of the Division Bench in Nandagopalan's case (2001 (2) KLT 832) dismissed the Writ Petition.
8. Sri. P.V. Kunhi Krishnan, learned counsel for the appellants submitted that Rule 9(a)(iii) and the proviso thereto will apply to all temporary hands appointed under Rule 9(a)(i) for a specified period and are continuing as such even beyond the period specified in the appointment order. He submitted that the scheme of the rule as noted by a learned single Judge in O.P. No. 12888 of 1996 is to oust the service of the temporary appointees with longer tenure first. He further submitted that the Division Bench in the judgment in O.P. No. 12496 of 1997 has also held that the proviso to Rule 9(a)(iii) of the Rules has to be applied whenever a temporary appointee under Rule 9(a)(i) of the Rules is sought to be replaced irrespective of whether they are continuing as temporary employee beyond the period specified in the appointment order. The counsel submitted that the decision of the Division Bench in Nandagopalan's case (mentioned supra) requires reconsideration. The counsel in support of his contention relied on the decision of the Supreme Court in Jacob M. Puthuparambil v. Kerala Water Authority (1991 (1) SCC 28), State of Haryana v. Piara Singh and Ors. (1992 (4) SCC 118) and in P.K. Narayani v. State of Kerala (1984 (Suppl.) SCC 212). The counsel also pointed out that there are no PSC hands available for being appointed on regular basis and therefore there is no justification in terminating the service of the petitioners on the ground that the term of their appointment is over particularly while retaining the services of their seniors, who were appointed on temporary basis earlier.
9. Sri. Roy Chacko, learned Senior Government Pleader appearing for the respondents, on the other hand, submitted that the provisional hands appointed under Rule 9(a)(i) of Part II of the Rules for a specified period has no statutory right to continue in service beyond the period for which the appointment was made. He in support of the above proposition also relied on a decision of the Division Bench in Vinod P.K. v. Deputy Registrar of Co-operative Societies (1998(1) KLJ 432). He further submitted that as held by the Division Bench in Nandagopalan's case (mentioned supra) the proviso to Rule 9(a)(iii) of the Rules has application only in a situation where a temporary hand is sought to be replaced by a PSC/regular hands during the term of their appointment. He also submitted that the afore-said two contentions were not considered by the Division Bench of Justice K.G. Balakrishnan and Justice B.N.Patnaik in the judgment in O.P. No. 12496 of 1997.
10. As already noted the question referred to the Full Bench is regarding the scope of Rule 9(a)(iii) of the rules and that too in view of the conflicting views taken by the two Division Benches in the decisions mentioned in paragraph 2 supra. We have already considered the said two decisions. Now we will independently consider the scope of Rule 9(a)(iii) extracted in paragraph 1 supra. In order to determine the scope of the said sub rule it will be useful to refer to the other relevant provisions of Rule 9(a) of Part II of the Rules. The relevant provisions reads as follows:
"9. Temporary appointments: (a)(i) - Where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may appoint a person, otherwise than in accordance with the said rules, temporarily;
Provided further that a person appointed under this clause by direct recruitment to a post other than teaching post and a post covered by the proviso to Clause (iii) of Rule 10(b) shall not be allowed to continue in such post for a period exceeding one hundred and eighty days.
xxx xxx xxx Provided also that Assistant Surgeons in the Health Services Department, Lecturers in the Medical Education Department, Medical Officers in [he Departments of Indian Systems of Medicine and Homoeopathy, Government Aurveda Colleges, Government Homoeopathic Medical Colleges and Employees State Insurance, Para-Medical Staff of the above Departments and Institutions and the Basic Health Workers/Health Assistants of Health Service Department appointed under this clause by direct recruitment shall be allowed to continue for a period not exceeding one year or till a candidate advised by the Public Service Commission joins duty, whichever is earlier:
xxx xxx xxx Provided also that a person appointed under this clause by direct recruitment to a post and discharged from service after the admissible period, shall not be re-appointed to the same post by the same appointing authority, except when fresh candidates are not available for appointment through Employment Exchange, and such reappointment shall be made only with the prior concurrence of the Commission."
11. These provisions would show that appointment under Rule 9(a)(i) of the Rules can be resorted to in public interest by the appointing authority when an emergency arises to fill up immediately a vacancy borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules. Such appointees under the second proviso to Rule 9(a)(i) to a post other than teaching post and post covered by the proviso to Clause (iii) of Rule 10(b) shall not be allowed to continue in such post for a period exceeding 180 days. Similarly, Para Medical staff of the Health Services Department, Medical Education Department, among other persons, appointed under Rule 9(a)(i) by direct recruitment shall be allowed to continue for a period not exceeding one year or till a candidate advised by the PSC joins duty whichever is earlier, Under the nineth proviso to Rule 9(a)(i) a person appointed under the said clause by direct recruitment to a post and discharged from service after the admissible period, shall not be re-appointed to the same post by the same appointing authority, except when fresh candidates are not available for appointment through Employment Exchange, and such reappointment shall be made only with the prior concurrence of the Commission.
12. Clause (iii) of the Rule 9(a) provides that a person appointed under Clause (i) shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the said rules and as per the proviso such replacement must be in the order of seniority based on length of temporary service in the unit. The Note to the said clause also provides that for the purpose of this proviso, posts within the jurisdiction of an appointing authority shall be treated as a unit. The principle contained in the proviso to Clause (iii) of Rule 9(a) is that in the case of replacement of a temporary hand appointed under Rule 9(a)(i) of the first appointed must go first and for that purpose all temporary appointments made within the jurisdiction of the appointing authority will be treated as a unit.
13. Now the crucial question to be decided is as to whether the provisions of Clause (iii) of Rule 9(a) of Part II of the Rules particularly the proviso thereto should be applied even to a situation where temporary appointees under Rule 9(a)(i) of the Rules are continuing as such beyond the term of their appointment. We have already extracted the relevant provisions of Rule 9(a)(i) in regard to temporary appointments to a vacant post otherwise than in accordance with these rules and the special rules. As already noted, the second proviso to Rule 9(a)(i) clearly provides that a person appointed under this clause by direct recruitment to a post other than the teaching post and a post covered by the proviso to Clause (ii) of Rule 10(b) shall not be allowed to continue in such post for a period exceeding 180 days. The fifth proviso to Rule 9(a)(i) which is the relevant provision applicable to the case of the appellants clearly provides that the employees covered by the said proviso shall be allowed to continue for a period not exceeding one year or till a candidate advised by the PSC joins duty, whichever is earlier. The nineth proviso to Rule 9(a)(i) further provides that a person appointed under this clause by direct recruitment to a post and discharged from service after the admissible period shall not be reappointed to the same post by the same appointing authority except when fresh candidates are not available for appointment through employment exchange and such reappointment shall be made only with the prior concurrence of the Commission. The cumulative effect of the main part of Rule 9(a)(i) along with second, fifth and nineth provisos thereto, according to us, is that no temporary employee appointed under Rule 9(a)(i) can be allowed to continue as such beyond the period specified in the second and the fifth proviso that they must be discharged from service on the expiry of the period for which they are appointed. This is a mandate of the Rule. The only exception is the non-availability of fresh candidates for appointment through Employment Exchange in which case re-appointment of such temporary employees can be made with the prior concurrence of the Public Service Commission. If this is the scheme of the provisions of Rule 9(a)(i) of Part II of the Rules there is no difficulty in understanding the scope of the provisions of Rule 9(a)(iii) of the Rules.
14. The wording of the main part of Rule 9(a)(iii) has to be noted. It says that a person appointed under Clause (i) shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the said Rules. It is necessary to note here that the 5th Proviso to Rule 9(a)(i) clearly provides that in the case of Para Medical Staff appointed under this clause by direct recruitment can be allowed to continue for a period not exceeding one year or till a candidate advised by the Public Service Commission joins duty, whichever is earlier. That apart, the very appointment under Rule 9(a)(i) is contemplated only in a case where there arises emergency to fill immediately a vacancy in a post and there would be undue delay in making such appointment in accordance with these rules and the special rules. Admittedly the regular appointment to the post of Junior Public Health Nurses has to be made as power the advise of the P.S.C. So, as soon as a P.S.C. hands are made available the services of the temporary employees appointed under Rule 9(a)(i) have to be terminated. Rule 9(a)(iii), according to us, has application only when a temporary employee appointed under Rule 9(a)(i) has to be replaced by a regular hand during the term of the appointment provided in the second and/or fifth proviso to Rule 9(a)(i).
15. There may be situations where temporary employees appointed under Rule 9(a)(i) are continuing in service as such beyond their term of appointment either by virtue of the interim orders passed by this Court in petitions under Article 226 of the Constitution or due to other circumstances including inaction on the part of the appointing authority to terminate the services of the temporary employee after the specified period. The continuation of the temporary employees appointed under Rule 9(a)(i) beyond the period of appointment is contrary to the provisions of Rule 9(a)(i) which we have already extracted in para 10 supra. The temporary employees appointed under Rule 9(a)(i) have no legal right to insist that they should be allowed to continue in service beyond the period specified in the second and fifth proviso to Rule 9(a)(i) or till they are replaced by regular by regular hands appointed through RS.C. or .otherwise. The rule making authority can never be understood as making a provision like Rule 9(a)(iii) to apply to a situation of illegal or unauthorised continuation of temporary employees beyond the specified period. If the said rule is to be applicable even to the temporary employees continuing beyond the term of their appointment that will amount to nullifying the binding effect of the second, fifth and nineth provisos of Rule 9(a)(i). Such an interpretation would cut at the root of the purpose with which the said provisos are introduced in Rule 9(a)(i) of Part II of the Rules.
16. As already noted, the Division Bench of Justice K.G. Balakrishnan and Justice B.N. Patnaik in O.P. No. 12496 of 1997 did not have occasion to consider the question as to whether Rule 9(a)(iii) of Part II of the Rules are intended to apply only to a situation where temporary employees appointed under Rule 9(a)(i) is sought to be replaced for accommodating PSC/regular hands during the term of their appointment or as to whether the temporary employees appointed under Rule 9(a)(i) have got any legal right to continue in service beyond the term of their appointment. The said decision only considered the question as to whether the departmental hands appointed under Rule 9(a)(i) of the Rules as Public Health Nurses have got any right to continue as such beyond the term of their appointment in preference to temporary employees appointed by direct recruitment. The Division Bench held that since both the appointments are made under Rule 9(a)(i) the provisions of Rule 9(a)(iii) will apply to all of them and that the services of such temporary employees should be terminated strictly in accordance with their seniority. In other words, the first come should go first, it is stated, was the purpose of Rule 9(a)(iii) of the Rules. The Division Bench of Justice K.S. Radhakrishnan and Justice G. Sasidharan in Nandagopalan's case and in Sujatha's case (mentioned supra) were directly concerned with the question raised in these appeals. They have taken the view that the temporary employees appointed under Rule 9(a)(i) of Part II of the Rules for a specified period have no legal right to continue beyond the term of their appointment that Rule 9(a)(iii) contemplates a situation where service of provisional appointees are terminated during the period of their appointment and further that the question of seniority under the proviso to Rule 9(a)(iii) can be entertained only during the said period.
17. Another Division Bench of this Court consisting of Dr. Justice AR. Lakshmanan (as His Lordship then was) and Justice K.V. Sankaranarayanan in Vinod P.K. v. Deputy Registrar of Co-operative Societies (1998 (1) KLJ 432) considered the question as to whether provisional employees appointed under Rule 9(a)(i) of Part II of the Rules have got any right to continue in service beyond the period for which the appointment was made or that their services can be terminated on the expiry of the term of their appointment for accommodating another set of provisional hands. The appellants in that case were appointed under Rule 9(a)(i) of the Rules for 180 days or till regular appointment through KPSC or otherwise is made, whichever is earlier. They filed the Writ Petition seeking a writ of prohibition restraining the respondents from terminating their services to accommodate provisional hands other than Public Service Commission recruits and also sought for permission to continue in service till regularly appointed PSC recruits join duty. They challenged the termination order in the Writ Petition. The learned single Judge dismissed the Writ Petition holding that since the petitioners had accepted the appointment order along with the conditions they cannot turn round arid contend that their services are not liable to be terminated on the expiry of 180 days. The said judgment was challenged in appeal contending that they can continue in service till the date of joining duty of PSC recruits, that though there is a condition that the tenure of appointment of the appellants was for 180 days or till the PSC recruits join duty, there is no justification to accommodate other provisional hands and that as the termination of service of the appellants is not to accommodate PSC recruits the same is against the conditions imposed in the order of appointment and cannot be justified. The appellants had pressed into service various Bench decisions of this court to the effect that temporary employees appointed under Rule 9(a)(i) should be allowed to continue beyond the period of their appointment, if there is no PSC. hands available for filling up the post in which the temporary employees are working (vide judgment dated 5.12.1997 in W.A. No. 2201 of 1997 and judgment dated 21.11.1997 in W.A. No. 2094 of 1997). The decisions of the Supreme Court in State of Haryana v. Piara Singh (1992 (4) SCC 118), Narayani v. State of Kerala (1984 KLT 17) and other decisions of the Supreme Court and of this Court were also considered. The Division Bench made an exhaustive survey of the Bench decisions of this Court and of the Supreme Court including the decisions relied on by the appellants on the point. The Division Bench also noted the circular dated 3.5; 1984 issued by the Government which says that the benefit of continuance beyond 180 days till regular hands advised by the Kerala Public Service Commission join duty will be available only to those temporary employees who have been in continuous employment on 24.11.1983 the date of the Supreme Court judgment in Narayani's case (1984 KLT 17). The Division Bench further noted that the validity of the above circular came up for consideration in a batch of Writ Petitions and this Court has since then consistently held that the provisional employees have no statutory right to continue in service and they cannot be allowed to continue in service against the provisions of the statutory rules and held as follows:
"We are also inclined to take the same view which has been consistently taken by many eminent Judges of this Court that the provisional employees have no statutory right to continue in service and they cannot be allowed to continue in service against the provisions of the statutory rules."
It was further observed as follows:
"In this case, the appellants/petitioners have not canvassed the validity of the rules and it could never have been the intention of the Supreme Court, in effect, to nullify the second proviso to the said rule which prohibited continuation of persons appointed under that clause in the post for a period exceeding 180 days. The Writ Petition and the consequent appeal are misconceived. The appellants have no legal right to continue in service beyond the period for which the appointment was made in terms of Rule 9(a)(i) of the Kerala State and Subordinate Services Rules or by virtue of the observations of the Supreme court contained in the decisions in State of Haryana v. Piara Singh (l992 (4) SCC 18)".
18. We are in full agreement with the aforesaid view taken by the Division Bench. In view of the above, it is unnecessary for us to deal with the decisions of the Supreme Court relied on by the counsel for the appellants. This being the legal position so far as temporary employees appointed under Rule 9(a)(i) of Part II of the Rules are concerned, it follows that Rule 9(a)(iii) and its proviso have application only to a situation where the services of provisional appointees are terminated during the period of their appointment for accommodating PSC/regular hands. This is the view taken by the Division bench of Justice K.S. Radhakrishnan and Justice G. Sasidharan in Nandagopalan's case.
19. We are of the view that the decision of the Division Bench, of Justice K.G. Balakrishnan and Justice B.N. Patnaik in O.P. No. 12496 of 1997 in regard to the application of Rule 9(a)(iii) of Part II of the Rules is too widely stated and that it did not consider the true scope of Rule 9(a)(iii) of the Rules. The said decision, according to us, has not considered the question that is raised in these appeals, Hence the said decision is not an authority for the position canvassed in these appeals and the view taken by the Division Bench regarding the scope of Rule 9(a)(iii) does not commend for our acceptance.
20. In the result we hold that the Division Bench of Justice K.S. Radhakrishnan and Justice G. Sasidharan in Nandagopalan 's case lays down the correct legal position in so far as the scope of Rule 9(a)(iii) of Part II of the Rules is concerned and we approve the said decision. In answer to the reference we hold that the provisional/ temporary employees appointed under Rule 9(a)(i) of Part II of the Kerala State and Subordinate Services Rules have no legal right to continue in service beyond the stipulated period for which the appointment was made and that the provisions of Rule 9(a)(iii) of Part II of the Rules have application only to a situation where the services of provisional appointees are terminated during the period of their appointment. In other words, Rule 9(a)(iii) of Part II of the Rules has no application to a case where the service of provisional/temporary appointees under Rule 9(a)(i) is carried over beyond the period of their appointment.
Since we have answered the question referred to as above, we direct the office to place the records before the concerned Division Bench for disposal in accordance with law .