IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 WP(C).No. 1038 of 2010(D) ------------------------------------ PETITIONER(S): ---------------------- 1. M.G. BABU, ACCREDITED ENGINEER, PROGRAMME IMPLEMENTATION UNIT, PRADHANMANTHRI GRAM SADAK YOJANA (P.M.G.S.Y) DISTRICT PANCHAYATH, THIRUVANANTHAPURAM. 2. K. MOHANAN NAIR, ACCREDITED ENGINEER, PROGRAMME IMPLEMENTATION UNIT, PRADHANMANTHRI GRAM SADAK YOJANA (P.M.G.S.Y) DISTRICT PANCHAYATH, THIRUVANANTHAPURAM. 3. RATHEESH KUMAR, ACCREDITED ENGINEER, PROGRAMME IMPLEMENTATION UNIT, PRADHANMANTHRI GRAM SADAK YOJANA (P.M.G.S.Y) DISTRICT PANCHAYATH, THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): ------------------------ 1. STATE OF KERALA - REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE MEMBER SECRETARY, KERALA STATE RURAL ROAD DEVELOPMENT AGENCY AND COMMISSIONER FOR RURAL DEVELOPMENT, T.C 28/885, C.S.I BUILDING, PULIMOODU JUNCTION, THIRUVANANTHAPURAM - 695 001. 3. THE EXECUTIV ENGINEER, PROGRAMME IMPLEMENTATION UNIT, PRADHANMANTHRI GRAMA SADA YOJANA (P.M.G.S.Y) DISTRICT PANCHAYATH, THIRUVANANTHAPURAM. R1 BY GOVERNMENT PLEADER SRI.ARAVIND KUMAR BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/3/2010, THE COURT ON 27/10/2010 DELIVERED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.1038 OF 2010 -------------------------------------------- Dated this the 27th day of October, 2010 JUDGMENT State of Kerala have constituted a nodal agency namely, Kerala State Rural Development Agency under the Rural Development Department for co-ordinating the works under the Prime Minister's Gramin Sadak Yojana for short ‘PMGSY’ only. It is a centralized scheme implemented through the State of Kerala aimed at establising permanent good quality all weather roads for connecting unconnected habitats . For the purpose of improving the system, 41 posts of Accredited Engineers and 14 posts of Data Entry Operator-cum-Accountants were created as per Ext.P1 G.O dated 5.6.07. Evidently, as per Ext.P1, Government have accorded sanction for engaging Accredited Engineers in the 14 Programme Implementation Units of the State purely on contract basis, initially for a period of one year. It was decided to engage Civil Engineers with three years experience or retired Assistant Engineers from Government Service. Petitioners 1 and 2 were retired Assistant Engineers from Local Self Government Department. The third petitioner possesses Diploma in Civil Engineering and got nearly ten W.P.(C) NO.1038/2010 2 years experience in the engineering branch. The first petitioner was appointed on contract basis as Accredited Engineer as per Ext.P2 for a period of one year. Later, the same was extended as per Ext.P3 order dated 15.10.2009. Based on the said appointment, he had executed Ext.P4 agreement dated 1.10.2009. The service conditions have been specifically spelt out in Ext.P3. Petitioners 2 and 3 were appointed as Accredited Engineers as per Ext.P5 and, thereafter, they had executed Exts.P6 and P7 agreements respectively. Ext.P5 appointment order and Exts.P6 and P7 agreements contained the conditions of their service. According to the petitioners, in the light of Ext.P8, the term of their appointment is liable to be extended based on their performance. Later, monthly consolidated remuneration of the accredited engineers was enhanced from Rs.11,000/- to Rs.15,000/-. The petitioners are entitled to get the enhanced monthly consolidated remuneration, it is contended. However, even after Ext.P9 G.O, they were being paid only at the rate of Rs.11,000/- per month. It is evident from Ext.P9 that the Government have also decided to engage 15 more Accredited Engineers. According to the petitioners, the said decision was to engage 15 more Accredited Engineers over and above the 41 posts of Accredited Engineers against which the petitioners and certain others were appointed. As per Ext.P1, minimum qualification of Accredited W.P.(C) NO.1038/2010 3 Engineers was fixed as graduation with Civil Engineering from a recognized University in India. Of course, in the absence of sufficient number of qualified and experienced hands, diploma holders in engineering with three years experience as Assistant Engineers in road/bridges works or retired Assistant Engineers in Civil Engineering wing of the State/Central Government would be considered for appointment as Accredited Engineers. The petitioners have grievances against Ext.P10 inasmuch as it directs for submission of fresh applications in the case of existing Accredited Engineers to partake in the selection process. Based on Ext.P10, steps were taken to terminate the service of the petitioners. Thereupon, they have filed W.P.(C).No.33130/2009. Initially, stay was granted as is obvious from Ext.P11, in the said Writ Petition. Later, said Writ Petition was closed as per Ext.P12 judgment recording the submission of the learned Government Pleader that there was no move to dispense with the engagement of the petitioners. Subsequently, the second respondent has issued Exts.P13 to P15 orders dated 22.10.2009, terminating the services of the petitioners with effect from 30.1.2010. Aggrieved by the same, the petitioners filed this Writ Petition challenging the said orders and also challenging the provisions contained in paragraph 5.c of Ext.P5 order and also the provisions W.P.(C) NO.1038/2010 4 contained in Exts.P6 and P7 for reducing the term of appointment of the petitioners 1 and 2. 2. A statement and additional statement have been filed on behalf of the respondents and the petitioners have filed reply and additional reply affidavit. Grounds (B) and (F) of the Writ Petition would reveal that the main grievance of the petitioners is with respect to the action in terminating their service prior to the completion of the term of their appointment. The petitioners are also seeking a declaration that they are entitled to get the enhanced monthly consolidated remuneration of Rs.15,000/- with effect from 7.8.2009. In the statement, it has been stated that all the petitioners are non-graduates. It was only the paucity of time for finding out sufficient number of degree holders that contained to engage experienced retired Assistant Engineers and also other experienced hands, it is further stated therein. However, contrary to the expectation, there was no substantial progress in the work and that prompted the respondents to substitute non- graduated Accredited Engineers with qualified graduates in Civil Engineering as Accredited Engineers. In fact, it was to attract the the graduate Civil Engineers that the first respondent enhanced the monthly consolidated remuneration of Accredited Engineers as Rs.15,000/- . It was also stated thereunder that the appointment of all W.P.(C) NO.1038/2010 5 the petitioners were effected purely on contract basis and in short, their service conditions have been specifically spelt out in their orders of appointment and the agreement executed, based on such appointment. There the respondents contend that Exts.P13 to P15 orders call for no interference in the light of the specific terms of appointment of the petitioners. 3. The fact that the appointments of the petitioners were all effected on contract basis remains undisputed. In fact, the said is evident from Exts.P2 to P5 orders of appointment. Ext.P4, P6 and P7 agreements were executed by the petitioners. It cannot be said that the said agreements carried conditions contrary to the terms of their appointments contained in Exts.P2 and P5. In Ext.P2, it has been stated as hereunder:- ‘His/Her services are liable to be terminated at any time, even within the initial period, without assigning any reason’. It is further stated thereunder as follows:- ‘The engagement as Accredited Engineers is purely on contract basis till the completion of the project or one year whichever is earlier. Further extension of period of contract will be based on merit of performance and continued requirements W.P.(C) NO.1038/2010 6 services in the PIU'. 4. Similar conditions have been incorporated in Ext.P5 as well. A scanning of Ext.P4, P6 and P7 would reveal that they contained conditions in consonance with the orders of appointment. Even as per the orders of appointment and also the terms and conditions in the agreement, the petitioners cannot, as a matter of right, claim for further continuance in service. They can continue only for a period of one year or completion of the project, whichever is earlier. True that they were sought to be terminated from service prior to the expiry of the term of their appointment. This Court has passed interim orders directing the respondents to maintain the status quo with regard to the continuance of the petitioners and the same was extended from time to time and based on such orders, the petitioners have continued in service. In paragraph 9 of the Writ Petition, the petitioners themselves have stated as hereunder:- ‘Hence, the first petitioner is entitled to continue as Accredited Engineer up to 31.9.2010 and in the case of petitioners 2 and 3, they are entitled to continue in service for one year up to 31.5.2010. 5. In short, going by the very contentions of the petitioners, their entitlement by virtue of the orders of appointment, could only up to the W.P.(C) NO.1038/2010 7 aforesaid dates. It is true that Exts.P13 to P15 were issued to terminate their service before the completion of the said period of appointment. By virtue of the interim orders, they were able to continue in service till the said dates. Even a scanning of the contentions of the petitioners would make it clear that they did not have a case that as a matter of right they could continue beyond the said period, by virtue of their orders of appointments and agreement. It is true that the petitioners got a contention that there are provisions in the orders of appointment for extension of period of contract based on merit of performance and also the continued requirements of service. At the same time, there is condition in their orders of appointment making them liable to be terminated, at any time, within the initial period without assigning any reason. The right of contract employees for continuance in service should be governed by the terms and conditions of their appointment. In the light of the specific contentions raised by the respondents to the effect that they were constrained to engage persons like the petitioners, who are non-graduates, only on account of paucity of sufficient time to search for qualified hands and at the same time, the failure to achieve substantial progress in completion of the work prompted them to substitute non-graduate engineers with qualified graduates in Civil Engineering as Accredited W.P.(C) NO.1038/2010 8 Engineers I do not find any reason to uphold the contention of the petitioners that as a matter of right, they should be allowed to continue till the completion of the project. The specific contention of the petitioners in paragraph 9 of the Writ Petition and the orders of appointment and the agreement executed by them, compel me to come to a conclusion that the petitioners cannot claim continuance beyond the period of one year since they have already completed one year period going by their own contentions. Evidently, there is a provision in their orders of appointment for extension of their service based on the merits of the performance and the continued requirements of their service. However, in view of the specific contention of the respondents that persons like the petitioners who are under graduates were engaged solely due to the paucity of time for searching and finding qualified graduates and the failure to achieve substantial progress in completion of the work prompted them to substitute non-graduates engineers with qualified graduates in Civil Engineering as Accredited Engineers and the terms and conditions of appointment of the petitioners, referred to earlier, I find no reason to interfere with the decision of the respondents. In fact, it is taking into account all the attending circumstances and the terms of appointment that this Court issued interim orders requiring the respondents to maintain status quo for W.P.(C) NO.1038/2010 9 the purpose of enabling continuance of the petitioners till the expiry of the normal period of their appointment. Now, the normal period of the appointment viz., the one year period is over. At the same time, the petitioners have failed to establish that they got an absolute right to continue in service based on the orders of their appointment beyond the said period. In the circumstances, I am persuaded to hold that the petitioners could not claim for continuance beyond the period of their appointment. However, in case, the petitioners continued in service beyond the period of their appointment, as specifically mentioned by them in Paragraph 9 of the Writ Petition, by virtue of interim orders they are entitled to the monthly consolidated remuneration during the period of such continuance. Orders in Exts.P13 to P15 are interfered with only for the said purpose and accordingly, the respondents are directed to grant the petitioners monthly consolidated remuneration during the period they had actually worked. It is made clear that the order shall not be understood as one declaring the right of the petitioners for further continuance as Accredited Engineers based on Exts.P2 and P5. However, in the light of the provisions to engage the petitioners based on the continued requirements of service, it will be open to the petitioners to approach the competent authority among the respondents with prayers for re- W.P.(C) NO.1038/2010 10 engagement in case of further requirement of service. 6. I may now, examine the claim of the petitioners for enhanced consolidated remuneration of Rs.15,000/-. The petitioners contended that as per Ext.P9 State Government have enhanced the remuneration payable to the Accredited Engineers from Rs.11,000/- to Rs.15,000/- and that the said enhancement came into effect from 7.8.2009. Therefore, they are entitled to receive remuneration of Rs.15,000/- with effect from 7.8.2009 whereas they are being paid only Rs.11,000/-. According to the respondents the order enhancing the monthly consolidated remuneration was passed only on 7.8.2009 and it was issued with an intention to attract graduates in civil engineering. In short, according to them, the petitioners are not entitled to the consolidated monthly remuneration of Rs.11,000/-. I cannot countenance with the said contention. The opening paragraph in Ext.P9 would reveal that after referring to the G.O dated 5.6.2009, it was held that sanction was accorded to engage 41 Accredited Engineers on contract basis with a monthly consolidated remuneration of Rs.11,000/-. After making such a reference that it was stated therein as hereunder:- “It is also pointed out that there is scarcity for qualified and experienced engineering personnel. W.P.(C) NO.1038/2010 11 Compared to the scale of pay of Assistant Engineers in the state service, the consolidate remuneration now being paid to the Accredited Engineers engaged for the PMGSY is very low. Hence Commissioner for Rural Development/Member Secretary has suggested to fix the monthly consolidated remuneration of Accredited Engineer and Overseer engaged for PMGSY works at Rs.15,000/- and Rs.7,000/- respectively.” It is evident from the above extracted portion from Ext.P9 that the very fact that on comparison with the scale of pay of Assistant Engineers in the State service the consolidated remuneration being paid to the Accredited Engineers engaged for the PMGSY is very low was taken into consideration by the Commissioner for Rural Development/Member Secretary for suggesting fixation of monthly consolidated remuneration of Accredited Engineers engaged for PMGSY works at Rs.15,000/-. Though based on the said suggestion Government have taken a decision to engage 15 more Accredited Engineers on contract basis evidently, the fixation of monthly consolidated remuneration of Accredited Engineers at Rs.15,000/- was not confined to the said 15 more Accredited Engineers to be engaged W.P.(C) NO.1038/2010 12 pursuant to Ext.P9. In fact, as per Ext.P9 Government have accorded sanction to fix the monthly consolidated remuneration of Accredited Engineers at Rs.15,000/-. Therefore, there is absolutely no basis at all for the contention that the enhanced monthly consolidated remuneration is not payable to the petitioners. In fact, the recital in Ext.P9 would reveal that while enhancing the monthly consolidated remuneration of Accredited Engineers at Rs.15,000/-, no restriction was made to the effect that such enhancement would be applicable only in the case of newly recruited 15 Accredited Engineers. According to me, at the face of Ext.P9, no such contentions would lie. In short, I am of the view that in the absence of any specific restriction to the effect that the monthly consolidated remuneration would be given only to those 15 Accredited Engineers who were sought to be engaged over and above the 41 Accredited Engineers, like the petitioners, they are entitled to get monthly consolidated remuneration at the rate of Rs.15,000/- per month with effect from the date of Ext.P9, viz., 7.8.2009. Accordingly, there will be a direction to the respondents to grant the benefit of the enhanced rate of Rs.15,000/- made as per Ext.P9 with effect from 7.8.2009 and disburse the monthly consolidated remuneration based on such enhancement expeditiously, at any rate, within a period of two months from the date of receipt of a copy W.P.(C) NO.1038/2010 13 of this judgment. Subject to the above observations, the Writ Petition is disposed of. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.1038/2010 14 JUDGMENT September, 2010