IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 WP(C).No. 38253 of 2007(D) ----------------------- PETITIONER(S): ----------------------- 1. GEETHAKUMARAN. S., (SECURITY GUARD, GENERAL HOSPITAL, THIRUVANANTHAPURAM), THANKA VILASAM, PUTHEN VEEDU, KOOVALASSERY P.O., CHEENIVILA, THIRUVANANTHAPURAM- PIN-695512. 2. B.RAJENDRAN, (SECURITY GUARD, GENERAL HOSPITAL, THIRUVANANTHAPURAM), A.S.SADANAM, KODANGAVILA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. 3. OFEATH. S., (OPHTHALMIC ASSISTANT, GENERAL HOSPITAL, THIRUVANANTHAPURAM), T.C.30/40, `SUBAH ANAYARA P.O., PETTAH, THIRUVANANTHAPURAM-695029. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FAMILY AND HEALTH DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM, CHAIRMAN, HOSPITAL DEVELOPMENT COMMITTEE, GENERAL HOSPITAL, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT, GENERAL HOSPITAL, THIRUVANANTHAPURAM. 4. THE HOSPITAL DEVELOPMENT COMMITTEE REPRESENTED BY ITS SECRETARY, GENERAL HOSPITAL, THIRUVANANTHAPURAM. R1 TO R4 BY GOVERNMENT PLEADER SRI. SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 38253 of 2007(D) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : PHOTOCOPY OF THE APPOINTMENT ORDER DTD 30.6.2007 ORDER NO. AS (HDC) 131/07/GHT. EXT.P2 : PHOTOCOPY OF THE APPOINTMENT ORDER NO. A5/HDC-4124/05/GHT DATED 18.8.2005 TO THE 3RD PETITIONER. EXT.P3 : PHOTOCOPY OF THE JUDGEMENT IN WP(C) NO. 19510 OF 2005-V DATED 7.8.2007. EXT.P4 : PHOTOCOPY OF THE INTERIM ORDER DTD. 31.10.2007 IN WP(C) NO. 32412 OF 2007 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS : EXT.R3(a) : COPY OF THE AGREEMENT DATED 4.7.07 EXECUTED BY THE FIRST PETITIONER. //TRUE COPY// P.A. TO JUDGE Mn S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.38253 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of May, 2011 J U D G M E N T The petitioners 1 & 2 are Security Guards appointed by the Superintendent of General Hospital, Thiruvananthapuram on behalf of the Hospital Development Committee of the hospital. The 3rd petitioner is an Ophthalmic Assistant appointed under the Hospital Development Committee. They were appointed on specific conditions contained in Exts.P1 & P2 appointment orders. The petitioners challenge the attempt of the respondents to dispense with their services after the period prescribed in their appointment orders. The petitioners rely on Ext.P3 judgment in a case filed by the Security Guards appointed by Hospital Development Committee of General Hospital, Thiruvananthapuram, wherein this court directed that the petitioners therein should be continued as Security Guards till they attain the age of superannuation, subject to the W.P.(C)No.38253 of 2007 -2- conditions mentioned therein. The petitioners also seek similar reliefs. 2. The respondents opposes the prayers with the help of a counter affidavit filed by the 3rd respondent, wherein the respondents would contend that the petitioners are only provisional employees appointed on certain terms and conditions which include a condition that they are appointed for a specified period mentioned therein and being contract employment under the Hospital Development Committee which is not a statutory body, they cannot seek to continue in service beyond the specified period for which they were so engaged. As far as Ext.P3 judgment is concerned the respondents would take the contention that, that judgment was rendered without adverting to the conditions stated in the appointment order and the agreement executed by the petitioners wherein they categorically accept the condition that their appointment would be for the period mentioned therein and therefore the judgment cannot be a precedent for all times to come. They W.P.(C)No.38253 of 2007 -3- would also submit that the 1st petitioner was relieved of his duties on his request from 15.05.2006. 3. I have considered the rival contentions in detail. 4. In Ext.P1 issued to the 1st petitioner, one of the conditions mentioned is that “his appointment would be for 29 days and further posting will be the discretion of the Superintendent based on satisfactory service rendered by the Security Guard and such posting will not exceed more than 179 days”. In Ext.P2 the 3rd petitioner was appointed purely on temporary basis and on daily wages for a specific period of one year. Ext.P3 judgment which relates to Security Guards like petitioners 1 & 2, reads as follows: “Petitioners are employees engaged by the Hospital Development Committee, the third respondent herein. This Court has already disposed of several Writ Petitions, raising identical claim against the concerned Hospital Development Committees. This Court has ordered that petitioners in those cases may be retained in service subject to the existing conditions of employment, till their age of superannuation, subject to the further stipulation that total expense for the salary of the persons employed including the petitioners herein does not exceed 50% of the income of Committee. The age of superannuation of ex-service security men will be 60 and that of the others will be 55. The petitioners therein were directed to give an undertaking to the effect that they will not claim regularization in service for retaining them as above. It is ordered that the aforementioned conditions subject to which this Court has already disposed of other Writ Petitions will W.P.(C)No.38253 of 2007 -4- govern the petitioners herein also. They shall be retained in service subject to those conditions. It is clarified that the disciplinary powers of the competent authority are in no way affected by this judgment.” 5. I am of opinion that Ext.P3 cannot be followed as a precedent because if it does not lay down any law as such. At the same time when this court grants certain reliefs to a set of persons unless that judgment is reversed by the Division Bench, I do not think that it is just and proper to deny similar reliefs to similarly placed persons. But as far as Ext.P3 judgment is concerned that would be applicable only to petitioners 1 & 2. As between petitioners 1 & 2, in the counter affidavit it is specifically averred that the 1st petitioner was relieved of his duties on his request from 15.05.2006. If that be so, the 1st petitioner cannot claim continuance insofar as he has been relieved on his request. As far as the 3rd petitioner is concerned insofar as Ext.P3 judgment is not applicable to Ophthalmic Assistants, it has to be considered separately. As is clear from Ext.P2, the 3rd petitioner has been appointed on daily wages for a period of one year. Therefore the 3rd petitioner cannot claim W.P.(C)No.38253 of 2007 -5- to continue in service beyond the period of contract. In the above circumstances this writ petition is disposed of as follows: If the 1st petitioner was relieved of his duty on his request on 15.05.2006 as stated in the counter affidavit which has not been controverted by filing a reply affidavit, the 1st petitioner need not be continued in service. The 2nd petitioner shall be given the benefit of Ext.P3 judgment subject to the conditions mentioned therein. As far as the 3rd petitioner is concerned insofar as her appointment is for a specified period she is not entitled to continue beyond the period prescribed therein. However salary paid to the petitioners during the period when the petitioners 1 & 2 continued in service shall not be recovered from them. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/