IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 WP(C).No. 21035 of 2011(D) ----------------------------------- PETITIONER(S): ----------------------- 1. SREEKANTH.A., (ELECTRONICS) HELPERS IN VARIOUS SECTIONS IN BIO MEDICAL ENGINEERING WORKSHOP, POYOORKONATHU VEEDU, AZHAKAM, KANDALA.P.O., THIRUVANANTHAPURAM. 2. ARUN KUMAR.R.P. (A.C.REFRIGERATION), HELPERS IN VARIOUS SECTIONS IN BIO MEDICAL ENGINEERING WORKSHOP. ARUNODAYAM, SRA-A-62, KOYILAKODE, NEMOM P.O., THIRUVANANTHAPURAM. 3. SHIBU KUMAR.S.(ELECTRICAL), HELPERS IN VARIOUS SECTIONS IN BIO MEDICAL ENGINEERING WORKSHOP, PATTUMPURATHU VEEDU, CHATHANPAD, PUTHANCODE P.O., THIRUVANANTHAPURAM. 4. LALU KRISHNAN.C.S.(WELDING), HELPERS IN VARIOUS SECTIONS IN BIO MEDICAL ENGINEERING WORKSHOP, CHOTHI BHAVAN, MOONGODE, THEKKUPPARA.P.O. 5. SHAJI.S.(WELDING), HELPERS IN VARIOUS SECTIONS IN BIO MEDICAL ENGINEERING WORKSHOP, PLAVILA VEEDU, ULLOOR, MEDICAL COLLEGE.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.KRISHNA RAJ DG WP(C).No. 21035 of 2011(D) RESPONDENT(S): ------------------------- 1. THIRUVANANTHAPURAM MEDICAL COLLEGIATE HOSPITAL DEVELOPMENT SOCIETY,THIRUVANANTHAPURAM REP. BY ITS CHAIRMAN AND THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM-695 001. 2. THE SECRETARY AND THE CONVENOR, THIRUVANANTHAPURAM MEDICAL COLLEGEATE HOSPITAL SOCIETY (SUPERINTENDENT), MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM-695 001. 3. SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. R3 BY GOVT.PLEADER ADV. SRI. LIJU STEPHEN & R1, R2 BY ADVS. SRI.GOPAKUMAR R.THALIYAL& SRI.KURUPPATH BHASKARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/11/2011, ALONG WITH WPC NO. 22743 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG WP(C).No. 21035 of 2011(D) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - COPY OF THE PAPER NOTIFICATION. EXT.P2 - COPY OF THE APPOINTMENT ORDER. EXT.P3 - COPY OF THE APPOINTMENT ORDER. EXT.P4 - COPY OF THE APPOINTMENT ORDER. EXT.P5 - COPY OF THE APPOINTMENT ORDER. EXT.P6 - COPY OF THE APPOINTMENT ORDER. EXT.P7 - COPY OF THE TERMINATION ORDER. EXT.P8 - COPY OF THE MINUTES OF THE EXECUTIVE COMMITTEE. EXT.P9 - COPY OF THE LETTER OF THE ELECTORAL OFFICER. EXT.P10 - COPY OF THE PAPER REPORT. RESPONDENT'S EXHIBITS: EXT.R2 (a) - COPY OF THE MEMORANDUM OF ASSOCIATION OF THE THIRUVANANTHAPURAM MEDICAL COLLEGE HOSPITAL DEVELOPMENT SOCIETY. EXT.R2 (b) - COPY OF THE MINUTES OF THE GENERAL BODY MEETING OF THIRUVANANTHAPURAM MEDICAL COLLEGE HOSPITAL DEVELOPMENT SOCIETY HELD ON 28.07.2011. EXT.R2 (c) - COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 02.08.2011. /TRUE COPY/ P.A.TO JUDGE DG K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NOS: 21035 & 22743 OF 2011 ----------------------------------------------------------- Dated this the 22nd November, 2011. JUDGMENT The contentions of the petitioners in both these writ petitions are identical. Therefore, these writ petitions are considered and disposed of together. 2. The petitioners in W.P(C)21035/2011 are helpers in various sections in the Bio Medical Engineering Workshop of the Medical College Hospital, Thiruvananthapuram. The petitioner in W.P(C)22743/2011 is the Public Relations Officer in the same Medical College Hospital. They were appointed pursuant to Ext.P1 notification by the Medical College Hospital Development Society on contract basis. It is not in dispute that the appointment was made pursuant to Ext.P1 notification inviting applications for such appointments. The complaint of the petitioners is that after being so appointed, they have been terminated from service, as per Ext.P8 in W.P(C)22743/2011 and Ext.P7 in W.P(C)21035/2011. In both the termination orders it is mentioned that the decision to terminate their services have been taken in the Hospital Development Society's general body meeting held on 28-7-2011. Thus all the WPC Nos:21035 & 22743/2011 2 persons appointed pursuant to Ext.P1 notification appear to have been terminated for the same reason. 3. According to the counsel for the petitioners, though Ext.P1 notification provides that their appointment would be initially for a period of six months with an option to continue the same based on their performance, in their appointment orders, no period has been stipulated and therefore, their appointment is not limited by time. It is also contended that since it has been stipulated in Ext.P1 that their appointment could be extended on the basis of their performance, it is clear that their appointment was not limited to any particular period. Therefore, it is contended that their termination hardly two months after the date of initial appointment was arbitrary, unsustainable and liable to be set aside by this Court. The counsel contends that the petitioners are being terminated only for the reason that they have been appointed by the Government that was earlier in power with the object of accommodating persons owing allegiance to the present ruling party. In view of the above, they seek appropriate orders for their continuance. The counsel has also drawn my attention to the judgment of this Court dated 7-8-2007 in WP(C) 19510/2005 by which certain Ex-service security men who had been appointed on WPC Nos:21035 & 22743/2011 3 contract basis have been directed to be continued in service till they attained the age of superannuation. Therefore, the petitioners claim similar reliefs. 4. Separate counter affidavits have been filed in both the writ petitions opposing the grant of any relief to the petitioners on the basis of identical contentions. According to Shri. Gopakumar R.Thaliyil, counsel for respondents, though the petitioners in both the writ petitions had been appointed pursuant to Ext.P1 notification, their selection as well as appointments were irregular for the reason that the executive committee of the society that decided to appoint them lacked the necessary quorum for taking such a decision. Further, the candidates were interviewed in the chamber of the Chairman, without constituting a proper committee for conducting such an interview. Relying on Ext.R2(a) Memorandum of Association, it is contended that such appointments can only be made with the permission of the Government. Such permission not having been obtained in the case of the petitioners, their appointments were unsustainable. Therefore, in the general body of the society that was conducted on 28-7-2011, a resolution was unanimously passed, resolving to terminate the persons who had been so appointed, without any WPC Nos:21035 & 22743/2011 4 authority. It was on the basis of such decision that the petitioners were sought to be terminated. However, though the termination orders that are under challenge in these writ petitions had been issued to them, the petitioners continued to work pursuant to interim orders passed by this court. At present, it is pointed out that the period of six months contemplated by Ext.P1 has also expired. For the above reason it is submitted that the petitioners do not have any right to insist that they should be continued to be employed. For the above reasons the counsel for the respondents contend that the petitioners are not entitled to any of the reliefs claimed in these writ petitions. 5. I have heard the respective counsel for the petitioners in the writ petitions as well as the counsel for the respondents, at length. 6. It is not in dispute that the appointments of the petitioners are contract appointments. In Ext.P1, applications were invited for appointments subject to a general condition, which reads as follows:- “The appointment will be on contract basis and will be initially for a period of six months which may be extended based on performance of the candidates.” WPC Nos:21035 & 22743/2011 5 It has been further provided that the individuals appointed on contract basis have to enter into a contract with the Society. It is contended by the counsel for the petitioners that their appointment orders do not stipulate that the appointments are limited to any particular period of time. Therefore, having appointed them without limiting the said appointment for any particular period, they are not liable to be terminated otherwise than for the reason that is specified in the condition extracted above namely, their performance. I am not willing to accept the above contention for the reason that the notification specifically says that the appointment will be on contract and that the same would be initially for a period of six months. Since the selection as well as the appointment was pursuant to Ext.P1 notification, both the selection and the appointment are governed by the stipulations contained in Ext.P1. Further what is provided in Ext.P1 is that though the appointment will be initially for a period of six months, the same may be extended based on the performance of the candidates. The words 'may be extended', pre-supposes that the period also may not be extended. Since the authority has reserved to itself the discretion to extend the term of appointment for a period beyond six months, it cannot be said that the authority had WPC Nos:21035 & 22743/2011 6 lost its power to decide whether to extend the term of appointment beyond six months or not, for the only reason that the said stipulation does not find a place in the appointment order. Both Ext.P1 as well as the appointment orders issued to each of the individual petitioners stipulate that an agreement would have to be executed in the format available in the office of the respondents. According to the counsel for the respondents, no such agreement as stipulated has been executed by any of the petitioners. The above statement is seriously disputed by the petitioners. In the additional reply affidavit filed in W.P(C) 21035/2011, in paragraph 4 it has been stated as follows:- “The petitioners were directed to sign the agreement in stamped papers when they have joined in the service and the petitioners have signed necessary agreement executed in the stamped paper worth Rs.100/- and the petitioners have paid for that stamp papers.” Any how, the said agreement has not been produced before me by any of the parties. Therefore, I have not had the benefit of perusing the said agreements. In all probability the agreement would have contained sufficient terms, providing for the period of such agreement. Since the appointments of the petitioners are on WPC Nos:21035 & 22743/2011 7 contract basis, their appointments are to be governed by the terms of the said contract. Since there is absolutely no evidence or materials placed before me to warrant a conclusion that the petitioners have any right to continue in service beyond the period of six months that is stipulated, as per the terms of Ext.P1, I am not satisfied that they have any right to continue, as claimed. At present, they have continued in service for the term that has been initially stipulated as per Ext.P1. The question of their continuance for any further period would depend on the decision to be taken by the respondents in terms of the stipulation in Ext.P1. This Court in exercise of the jurisdiction under Art.226 of the Constitution cannot supplement its decision for the decision of the authority in accordance with the said clause in Ext.P1. Therefore, I refrain from entering upon such an exercise. 7. It is contended by the counsel for the petitioners that Ext.P8 termination is arbitrary and violative of Art.14 of the Constitution. As I have noted earlier, the contention of the respondents is that since both their selection and appointments were irregular and not in accordance with the rules, the society had decided to cancel their appointments. Ext.R2(b) evidences the said resolution. Since Ext.R2(b) is the decision of a representative body WPC Nos:21035 & 22743/2011 8 of the society, I am not satisfied that the same can be challenged on the ground that it is motivated by the political colour of the ruling party. The said decision however was not given effect to for the reason that this Court had interfered in the matter and issued an interim order permitting the petitioners to continue. Accordingly they had continued in service for the total length of the period stipulated in Ext.P1. Therefore, the question regarding the sustainability of the termination order issued to the petitioner is only academic at present. 8. In the above circumstances, it is for the respondents to decide on an evaluation of the performance of the petitioners whether their services are necessary to be extended for any further period of time. If not, the respondents are certainly within their rights to terminate the petitioners. The respondents shall consider the above aspect and take a decision in the matter. The interim order granted in these writ petitions shall continue until such a decision is taken. These writ petitions are ordered accordingly. Sd/- K. SURENDRA MOHAN Judge jj P.S.to Judge WPC Nos:21035 & 22743/2011 9