IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 WP(C).No. 25671 of 2009(D) -------------------------------------- PETITIONER(S): ---------------------- 1. PRAMEELAKUMARI K.P., POOVALI HOUSE, NEAR SEMINARY, DHARMADAM, THALASSERY. WORKING AS PEON, KANNUR UNIVERSITY. 2. SREELATHA M., K.V.HOUSE, PERUNTHATTIL, THALASSERY, WORKING AS PEON, KANNUR UNIVERSITY. 3. MANOHARAN, KUZHUMIAL POIL HOUSE, KODIYERI, PERAL, THALASSERY. WORKING AS PEON, KANNUR UNIVERSITY 4. PREMNATH, SREESAILAM, SANKARA NELLUR, KOOTHUPARAMBA, THALASSERY. WORKING AS PEON, KANNUR UNIVERSITY 5. RAJEEVAN, PONNIATHU PARAMBU HOUSE, PONNIUM WEST, THALASSERY. WORKING AS PEON, KANNUR UNIVERSITY 6. SOMASUNDARAM V.K., AGED 47 YEARS, S/O.LATE P.T. KRISHNAN, NAVADEEPAM HOUSE, MELUR P.O., PALAYAD, THALASSERY. WORKING AS PEON, KANNUR UNIVERSITY 7. JANARDHANAN P.K., PUNATHIL KANDY HOUSE, EAZHAM MILE, THALIPARAMBA, WORKING AS PEON, KANNUR UNIVERSITY 8. SAKUNTHALA A.T., AGED 45 YEARS, D/O.MADHAVI, PUTHENCHIRAMMAL HOUSE, DHARMADAM, THALASSERY, WORKING AS PEON, KANNUR UNIVERSITY BY ADV. MR.M.V.AMARESAN RESPONDENT(S): ------------------------ 1. KANNUR UNIVERSITY, REPRESENTED BY ITS REGISTRAR, KANNUR UNIVERSITY. 2. THE VICE CHANCELLOR, KANNUR UNIVERSITY. R1 & R2 BY ADV. MR.M.SASEENDRAN,SC,KANNUR UNIVERSITY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2009, THE COURT ON 02/12/2009 DELIVERED THE FOLLOWING: rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 25671 of 2009-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December, 2009. JUDGMENT The petitioners herein are working on a temporary basis as Peon/Watchman in the first respondent University. The main complaint raised by the petitioners is that ignoring the directions issued by this Court in Ext.P1 judgment, the University is trying to engage persons included in a rank list for appointment on a temporary basis. 2. Necessary facts for the disposal of the writ petition are the following: The petitioners have been working on a temporary basis for a number of years. They approached this Court earlier in W.P.(C) Nos.5405/2009 & 5574/2009 seeking for a direction to regularize them in service based on their long tenure in the temporary engagement under the University. This Court after hearing parties, rejected the claim of the petitioners for regularization in service and accordingly the writ petitions were dismissed, but it was made clear that if there is need for temporary arrangement, the petitioners will be duly considered and the dismissal of the writ petitions will not stand in the way of the same. W.P.(C).No. 25671/2009 -: 2 :- 3. Thereafter, the University completed the selection process for regular appointment and accordingly published a ranked list. 29 vacancies were filled up from the said ranked list. Ext.P2 is the decision taken by the Standing Committee on Staff of the Syndicate regarding the retention of the petitioners on temporary basis. It took a decision that since there is a valid ranked list existing, the remaining candidates in the said list could be engaged on temporary basis. This is under challenge in this writ petition. 4. The respondents have filed a counter affidavit in the matter. 5. Learned counsel for the petitioners submitted that there is gross violation of the directions issued by this Court in Ext.P1 and the claim of the petitioners have not been considered while taking a resolution as per Ext.P2. It is submitted that even after filling up of regular vacancies, if there is temporary need, the claim of the petitioners have to be considered in terms of the directions issued in Ext.P1 judgment. Ext.P2 shows that the respondents have not considered their cases individually and therefore the same is liable to be quashed. 6. In the counter affidavit filed on behalf of the University, it is explained that the University had been taking steps from 1999 onwards to have regular appointment in the post of Peon/Watchman and the final rank list was published in July 2009. There is a valid rank list for the post of W.P.(C).No. 25671/2009 -: 3 :- Peon/Watchman which was prepared after completing all the selection process. The petitioners are engaged as Peon in Kannur University only on provisional and on daily wages. It was only by way of an interim arrangement. When regular hands are appointed, the services of the provisional hands would come to an end. The University could not engage the petitioners on temporary basis indefinitely by undermining the aspirations of the persons who are already included in the rank list. Since there is a rank list, the appointment has to be made from among the candidates who had already been included in the rank list. Hence, the University decided to offer engagement to the remaining persons in the rank list on temporary basis, after observing communal rotation, for a maximum period of 179 days. There is no restriction regarding that under any law. Unlike the petitioners, persons included in the rank list have already undergone the selection process and that will also justify the action taken by the University. Learned Standing Counsel for the University relied upon the decision of this Court in K.P.S.C. Reserve Conductors Rank Holders Association and others v. State (1996 (2) KLT 306) and that of the Apex Court in State of Haryana and others v. Mahabir Prasad Sharma and others (AIR 1994 SC 1804). W.P.(C).No. 25671/2009 -: 4 :- 7. The question is whether there is any violation of the directions issued in Ext.P1 judgment when the respondents took a decision as per Exts.P2 and P3. Ext.P2 evidences the fact that the Standing Committee recommended to refer the cases to the Legal Committee for a decision whether temporary hands have to be retained or not on daily wage basis in the light of the publication of the rank list of Peon/Watchman category. Legal Committee's recommendation is evident from Ext.P3. It is stated therein that “the matter is studied in detail and noted that the Hon’ble High Court dismissed the petitions and have not directed to retain the petitioners. Since, there is a valid rank list for Peon/Watchman, prepared after completing all the selection process exists, the candidates in the rank list, those who have not been offered regular appointment, may be considered for the daily wage engagement effecting communal rotation. The petitioners have not undergone any such selection process while they were engaged. They could have very well come through the selection process. Therefore, the Committee recommends that the decision of the Standing Committee on Staff to replace all the present daily wage engagements from the rank list in a phased manner be followed in all respects. Also, recommends that the petitioners engaged on daily wages may be terminated as and when their chance occur, as per the norms fixed by the Standing W.P.(C).No. 25671/2009 -: 5 :- Committee on Staff.” This decision is attacked on the ground that there is no consideration of the case of the petitioners. It is clear from the above recommendation that the question of retention of the petitioners was evidently considered. The petitioners are now sought to be disengaged for the reason that persons who are remaining in the rank list could be given an appointment on temporary basis. They have already undergone a selection process. 8. Then the question is whether there ought to have been a consideration of the claims of the petitioners individually. Such a direction has not been issued by this Court in Ext.P1. This Court only directed that if there is need for temporary arrangement, the petitioners will be duly considered. It is evident that by Ext.P3, they were considered for temporary engagement, but it is found that as there are better placed persons who have undergone a selection process waiting in the rank list, they could be given an engagement. It cannot be said that the said decision is so arbitrary warranting interference by this Court. 9. Learned counsel for the petitioners relied upon various decisions of the Apex Court, viz. Ashok Kumar and others v Chairman, Banking Service Recruitment Board and others {(1996) 1 SCC 283}, Prem Singh W.P.(C).No. 25671/2009 -: 6 :- and others v. Haryana State Electricity Board and others {(1996) 4 SCC 319 and Dimply v. M.G. University (2007 (2) KLT 519) to contend for the position that the rank list being meant only for regular appointment, that cannot be used for making temporary appointment. It is submitted, therefore, by the learned counsel for the petitioners that regular vacancies alone could have been filled up from the rank list and the same cannot be operated for any other purpose. 10. Learned Standing Counsel for the University explained that the total number of posts of Peon/Watchman are 69 and 29 have been granted sanction for creation and as regards the remaining also, proposals are pending before the Government. It is in these circumstances, the University has decided to fill up the remaining temporary vacancies from the rank list itself. In that view of the matter, the principles stated in the above decisions will not apply to the facts of this case. 11. Then, learned counsel for the petitioners submitted that it is well settled by various decisions of the Apex Court that temporary hands cannot be replaced by another set of temporary hands and reliance is placed on the following decisions of the Apex Court: Union of India and another v. Mohan Pal and others {(2002) 4 SCC 573), Delhi Development W.P.(C).No. 25671/2009 -: 7 :- Horticulture Employees Union v. Delhi Administration, Delhi and others {(1992) 4 SCC 99), Dr. A.K. Jain and others v. Union of India (1987 (Suppl) SCC 497), Rajbinder Singh v. State of Punjab and others (1988 Suppl. SCC 428) and Gaziabad Development Authority and others v. Vikram Chaudhary and others {(1995) 5 SCC 210}. 12. Herein, the issue is slightly different. The fact remains that the petitioners were appointed from open market without undergoing any selection process. True that they were continuing for a number of years. When the regular selection process has been completed, normally the petitioners will have to pave way for regular appointment. Herein, 29 vacancies have been filled up from the rank list. Replacement of the petitioners is only in the light of the circumstances pointed out by the respondents and as submitted by the learned Standing Counsel that for the remaining vacancies, proposals have been mooted before the Government for sanction. Therefore, the principle that temporary hands cannot be replaced by other temporary hands, as widely put it by the learned counsel for the petitioners, cannot apply to the facts of this case. 13. In State of Haryana’s case (AIR 1994 SC 1804) the question considered was whether the direction issued by the High Court permitting W.P.(C).No. 25671/2009 -: 8 :- appointments of candidates from the waiting list, on an adhoc basis, is correct or not. Therein, after appointing various candidates, four candidates were remaining in the waiting list. The Apex Court did not interfere with the directions stating that “in the event of the appellants’ choosing to make appointments on ad hoc basis, then certainly the candidates in the waiting list, though it lapsed, must be considered for appointment de hors the Rules which may not confer any right on them for future recruitment. It is only an enabling direction to make temporary appointment pending regular recruitment.” 14. Herein, going by the counter affidavit, the remaining persons in the rank list are proposed to be appointed only on temporary basis for a period of 179 days after following communal rotation. It cannot be said that the said method is clearly illegal. They have already undergone a selection process. Whether the said persons could claim regular appointment in later vacancies, is not a matter arising for decision in this case. But still, compared to the petitioners, they have got a better footing for consideration for appointment on a temporary basis as they have undergone a selection process. W.P.(C).No. 25671/2009 -: 9 :- For all these reasons, I find no merit in the writ petition which is accordingly dismissed. Before disengaging the petitioners, they will be disbursed all benefits allowable under law. No costs. (T.R. Ramachandran Nair, Judge.) kav/