IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 WP(C).No. 29864 of 2010(G) PETITIONERS: --------------- 1. REBEECA BEEVI.K., FLAT NO.2, TC 39/1901, KARIMADAM COLONY, CHALAI P.O., THIRUVANANTHAPURAM. 2. SATHEESH.K., SREEJA BHAVAN, PUNNAIKKADU, MANNAMKONAM, THIRUVANANTHAPURAM. 3. MOHANAN.S., KUNNATHUMELE PUTHENVEEDU AZHAKOM, KOLLODE P.O. 4. JAYASREE, VANINIKATHU VEEDU, KARUMON, THIRUVANANTHAPURAM. 5. SANJEEV.S., PULIKUZHI PALAIKONAM, ARYANAD, THIRUVANANTHAPURAM. 6. REENA.G., MANKADU, VAKKOM, THIRUVANANTHAPURAM. 7. AJITHA.A., ADAPPINAKOM VEEDU, POOVAR KANJAMPAZHINGI PO, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.SASITH SRI.P.M.JOSEPH RESPONDENTS: --------------- 1. UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, PALAYAM, THIRUVANANTHAPURAM. 2. WARDEN, GOVERNMENT COLLEGE HOSTEL FOR MEN, PALAYAM, THIRUVANANTHAPURAM. 3. DISTRICT EMPLOYMENT OFFICER, EMPLOYMENT EXCHANGE OFFICE, THIRUVANANTHAPURAM. ADDL.R4 IMPLEADED: 4. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 3.11.2010 IN I.A.NO.15388 OF 2010. R1 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF APPOINTMENT ORDER ISSUED BY THE SECOND RESPONDENT TO THE FIRST PETITIONER. EXT.P2 TRUE COPY OF DISABILITY CERTIFICATE ISSUED BY THE DOCTOR TO THE THIRD PETITIONER. EXT.P3 TRUE COPY OF THE REPRESENTATION GIVEN BY PETITIONERS TO THE SECOND RESPONDENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 29864 OF 2010 G ------------------------------------------------------ Dated this the 3rd day of November, 2010 JUDGMENT The case of the petitioners is that they are working as cooks in the Government College Hostel canteen for men, Thiruvananthapuram under the first respondent University. They were appointed on temporary basis under Rule 9(a)(i) of Part II of the Kerala State and Subordinate Service Rules through employment exchange. The apprehension of the petitioners is that the Warden of the Government College Hostel for Men, Thiruvananthapuram, proposes to appoint retired hands on daily wage basis as cooks in the canteen on temporary basis. The prayer in the Writ Petition is to issue a writ of mandamus directing the respondents to permit the petitioners to continue as cooks till regular hands are appointed by the Public Service Commission. 2. A counter affidavit is filed on behalf of the second respondent. It is stated in the counter affidavit thus: W.P.(C) NO.29864 OF 2010 :: 2 :: “3. It is humbly submitted that the petitioners are working in Government College Hostel for Men, Thiruvananthapuram and not in canteen. This Hostel is under the control of Director of Collegiate Education and not under the control of the 1st respondent University of Kerala. The petitioners were temporarily appointed through the Divisional Employment Exchange as per the direction given by the Director, who is the appointing authority. 4. The statement that the appointment of cooks is through PSC is not correct. It is a promotion post. That post is filled up by promoting part time contingent employees. The part time vacancies are filled up on the basis of advice of Employment Exchange. In Employment Exchange there will be a separate list of registered candidates on the basis of seniority and other Government reservation norms for advising to part time post. All conditions applicable to such candidates are different from that of the temporary candidates, who are appointed for 179 days. In this case, 14 temporary vacancies of cooks were reported to the Employment Exchange. The Employment Exchange submitted names of candidates from the list prepared for temporary vacancies. So the conditions applicable to the candidates for temporary appointment are different W.P.(C) NO.29864 OF 2010 :: 3 :: from that of those who are appointed for part time contingent persons. 5. All the petitioners were appointed only for 179 days. It is submitted, on completion of 179 days the petitioners have to be terminated from the service as per the Rules. In their appointment order itself it was informed that the appointment was for a period of 179 days or till a regular hand joined duty to the post, whichever is earlier. If they are allowed to continue, it will affect promotion prospects of part time workers recruited through employment exchange. Moreover, appointing authority is not competent to make provisional appointment through Employment Exchange exceeding 179 days. 6. The contention that the respondents are taking steps to appoint retired hands on daily wages after terminating petitioners is false and hence denied. As per G.O.(P)501/2005/Fin. dated 20.11.2005 and by circular No.G5/42670/05/Coll.Edn. dated 21.12.2005 if there is any delay in appointment in part time posts through Employment Exchange, daily wages employees can be engaged from Kudumbashree Society. Moreover, the petitioners cannot claim as a matter of right o continue in service for more than 179 days since their appointments were purely on provisional basis.” W.P.(C) NO.29864 OF 2010 :: 4 :: 3. On the basis of the averments in the counter affidavit, the petitioners filed I.A.No.15388 of 2010 to implead the Director of Collegiate Education, Thiruvananthapuram as additional fourth respondent and that petition has been allowed. 4. One of the contentions raised in the counter affidavit is that if the petitioners are allowed to continue, it would affect the promotion prospects of part time workers recruited through the employment exchange. If promotions are to be made to the post of cooks and, for that purpose, the petitioners' services are to be terminated, no grievance can be raised by the petitioners. So also, if persons from employment exchange are to be appointed on temporary basis, the petitioners cannot contend that they are entitled to continue. The contention that there is an attempt to appoint persons on ad hoc basis is denied. This denial is recorded. In paragraph 6 of the counter affidavit, there is an indication that there is a proposal to engage persons on daily wage basis from Kudumbashree Society. The learned counsel for the petitioners submitted that the services of the petitioners cannot be terminated W.P.(C) NO.29864 OF 2010 :: 5 :: for accommodating daily wage employees or persons who are proposed to be appointed on ad hoc basis. There is substance in the submission made by the petitioners. Taking into account the facts and circumstances of the case, the Writ Petition is disposed of as follows: If promotions are to be made to the post of cook, necessarily the petitioners have to go. The petitioners cannot claim any right to continue as temporary employees. Likewise, if persons are appointed from the list of persons from the employment exchange, then also the petitioners cannot claim that they are entitled to continue. Necessarily, the petitioners can be directed to quit. However, the respondents would not be justified in inducting persons as cooks purely on an ad hoc basis or on daily wage basis displacing the petitioners. Accordingly, a direction is issued to the respondents not to do the same, affecting the continuance of the petitioners until any of the eventualities mentioned above take place. (K.T.SANKARAN) Judge ahz/