IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 RP.No. 1214 of 2009(G) ---------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.26738/2008 Dated 16/07/2009 .................... REVIEW PETITIONER(S): RESPONDENTS 1 TO 3 IN WP(C): -------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, SOCIAL WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. PRINCIPAL, COLLEGE OF TEACHER EDUCATION KOZHIKODE. BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH RESPONDENT(S): PETITIONER 1 & 2 IN WP(C): ---------------------------------------------------------------------- 1. P.BABURAJAN, PARAKKATTU HOUSE, P.O.MALAPARAMBU, CALICUT-673 009. 2. SAMIKUTTY.A, ANTHANATH HOUSE, P.O.THALAKULATHUR, CALICUT. BY ADV. SRI. S. MOHAMED ALI RAFI THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss P.N.RAVINDRAN, J. ------------------------------------ R.P.1214 OF 2009 in W.P.(C).No.26738 OF 2008 ---------------------------------------------- Dated this the 16th day of June, 2010. O R D E R This is a petition filed by the respondents in W.P.(C) No.26738 of 2008 seeking a review of judgment delivered 16.7.2009. The respondents in the review petition are the writ petitioners. 2. The respondents filed the writ petition seeking implementation of Ext.P5 Government order dated 30.11.2007, by which the government ordered their re- appointment as Night Watchman, and regularisation in service. By judgment delivered on 16.7.2009, this Court directed the second respondent/second review petitioner to issue orders appointing the writ petitioners as Night Watchman. The review petitioners contend that respondents were not appointed under Rule 9(a)(i) of Part II of the K.S & S.S.R and therefore they are not entitled to be reinstated and regularised in service. R.P.1214 OF 2009 2 in W.P.(C).No.26738 OF 2008 3. The fact that the writ petitioners were appointed through the Employment Exchange for a period of one year is not disputed. Though the review petitioners contend that the writ petitioners were not appointed under Rule 9(a) (i) of Part II of the K.S & S.S.R, no provision other than the said rule which empowers the review petitioners to make appointments on contract basis through the Employment Exchanges was brought to my notice. The review petitioners have no case that the writ petitioners were appointed under Rule 9A or 9B of Part II of the K.S & S.S.R. A learned Single Judge of this Court has in Binu V. State of Kerala (2003 (2) KLT 207) after an analysis of the various provisions governing the appointment of provisional employees held as follows:- “4. Petitioner's claim has been rejected by the 1st respondent as per Ext.P9. The reason stated in Ext.P9 is that Ext.P5 is applicable only to such physically handicapped persons who were appointed through Employment Exchanges under R.9(a)(i) of K.S.& S.S.R. and since the petitioner's appointment was on daily wage basis, it would not come within the purview of Ext.P5. It appears that, the petitioner was subsequently appointed temporarily as clerk-typist by the 2nd respondent and was continuing in service thereafter. In the light of Ext.P9, the 2nd respondent passed Ext.P10 R.P.1214 OF 2009 3 in W.P.(C).No.26738 OF 2008 order terminating the services of the petitioner. The said orders are sought to be quashed. 5. Heard Shri. Basant Balaji, learned counsel for the petitioner and the learned Government Pleader for the respondents. 6. It is not disputed that the petitioner is a physically handicapped person. It is also not disputed that the petitioner was appointed temporarily through the Employment Exchange for the period falling within the purview of Ext.P5. The only objection taken in Ext.P9 and also in the counter affidavit is that his appointment does not come within the purview of R.9(a)(i) of K.S. & S.S.R because he was paid his remuneration on daily wage basis. R.9(a)(i) 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:” 7. The short question that arises for consideration in the facts and circumstances of this case, is whether temporary appointments made to fill up vacancies in the cadre of a service fall outside the purview of R.9(a)(i), merely for the reason that the mode of payment of remuneration is daily wages and not monthly salary. It is apparent from reading of R.9(a)(i) that the said rule does not speak anything about the remuneration payable to the employee much less the mode of payment. Hence it has to be held that mode of payment is totally irrelevant for deciding whether the temporary appointment of the petitioner would come within the purview R.9(a)(i) of K.S. & S.S.R. 8. The matter can be looked at from another angle also. Unlike employment under private employers, appointments in Government service are made, in the exercise of specific power conferred by law made in that R.P.1214 OF 2009 4 in W.P.(C).No.26738 OF 2008 behalf on the appointing authorities. Appointments as well as the conditions of service of the Government servants thus appointed are concerned, the State Legislature has passed the Kerala Public Services Act, 1968 as envisaged in Art.309 of the Constitution. By virtue of the power conferred by that enactment, statutory provisions including the K.S & S.S.R have been brought into force. Hence, appointments to Government service, be they substantive or officiating or purely temporary, are governed by the aforesaid Rules which hold the field. No provision of law, other than R.9 or 9A or 9B of K.S. & S.S.R has been brought to my notice empowering the authorities to appoint a person in Government service, otherwise than in accordance with the Rules governing regular recruitment. It is nobody's case that the appointment of the petitioner was made under R.9A or 9B of K.S & S.S.R. 9. Under the circumstances, I hold that the appointment of the petitioner for the period from 9.1.1998 to 1.4.1998 as clerk-typist comes within the purview of R.9(a)(i) of K.S. & S.S.R. and therefore he is entitled to get the benefit of re- appointment/regularisation in service in terms of Ext.P5 Government Order. It follows that Exts.P9 and P10 are liable to be quashed. Accordingly I quash those orders. There shall be a direction to the 2nd respondent to reappoint the petitioner forthwith as Clerk-Typist extending him the benefit of Ext.P5. Second respondent is directed to consider the claim of the petitioner for pay and allowances for the period from 27.3.2000 to 19.9.2001 in the post of Clerk-Typist. Since I have held that the petitioner is entitled to get re-appointment, I do not consider it necessary to examine the merits of his claim or appointment under the provisions of the Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation) Act,1995. That claim is left open.” 4. The said decision in my opinion squarely applies to the case on hand. The writ petitioners were admittedly appointed on contract basis through the Employment R.P.1214 OF 2009 5 in W.P.(C).No.26738 OF 2008 Exchange. As noticed by the learned single Judge in Binu V. State of Kerala, (Supra) no provision other than Rule 9(a) (i) or Rule 9(A) or 9(B) of Part II of the K.S. & S.S.R permits appointment to Government service otherwise than in accordance with the rules governing regular recruitment. In such circumstances, in the absence of any pleading or proof to the effect that the writ petitioners were appointed under Rule 9A or 9B of Part II of the K.S. & S.S.R., the interference is irresistible that they were appointed only under Rule 9(a) (i) there of. I therefore find no grounds to review the judgment delivered on 16.7.2009 in W.P.(C).No.26738 of 2008. The review petition fails and is accordingly dismissed. P.N.RAVINDRAN, JUDGE. mns