IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WA.No. 1447 of 2010 ----------------------- AGAINST THE JUDGEMENT IN WPC.26738/2008 DATED 16.7.2009 .................... APPELLANTS/RESPONDENTS 1 TO 3 IN W.P.(C) ---------------------------------------------------- 1. STATE OF KERALA REP.BY SECRETARY, SOCIAL WELFARE DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. PRINCIPAL,COLLEGE OF TEACHER EDUCATION, KOZHIKODE. BY SR.GOVERNMENT PLEADER SRI.BENNY GERVASIS RESPONDENTS/PETITIONERS IN W.P.(C) --------------------------------------------- 1. P.BABURAJAN,PARAKKATTU HOUSE, P.O.MALAPARAMBU,CALICUT-673009. 2. SAMIKUTTY.A,ANTHANATH HOUSE, P.O.THALAKULATHUR,CALICUT-673 317. BY ADV. SRI.S.MOHAMMED AL RAFI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No. 1447 of 2010 ------------------------------------------ Dated this the 30th day of September, 2010 JUDGMENT Ramachandra Menon, J. The State of Kerala has approached this Court seeking to canvass a strange proposition that a physically handicapped person appointed on temporary basis for a period of more than 179 days is not entitled to get the benefit of regularisation under the relevant Government Order (enabling such regularisation of physically handicapped candidates) while a similarly disabled person who has been appointed during the relevant period for a period of less than 180 days (as contemplated under Rule 9(a)(i) of Part II of the Kerala State and Subordinate Service Rules) is to be regularised. 2. With regard to the sequence of events as narrated in the writ appeal, it is seen that the writ petitioners, who are physically handicapped, were given temporary appointment during the period W.A.No.1477 of 2010 - 2 - from 7.7.1999 to 10.7.2000 and 31.3.1999 to 30.3.2000 respectively. Subsequently, by way of policy decision, G.O. (P) No.33/2005/SWD dated 5.3.2005 was issued, whereby the Government decided to reappoint persons with disability, who were appointed under Rule 9(a)(i) of Part II of KS & SSR through the Employment Exchanges during the period from 5.8.1998 to 15.8.1999 and to regularise them in service. Finding that the writ petitioners were also entitled to have the benefit thereunder, they were placed in Ext.P5 list at Sl.Nos.30 and 17 respectively. Inspite of the inclusion in Ext.P5 list dated 4.11.2007, no appointment order was issued, which made them to approach this Court by filing W.P.(C) No.26738 of 2008. 3. The contention raised before the learned Single Judge, though no counter affidavit was filed, was that the writ petitioners were given appointment only on 'contract basis' as discernible from the appointment orders; that it was not liable to be treated as an appointment under Rule 9(a)(i) of Part II of W.A.No.1477 of 2010 - 3 - KS & SSR and as such, the benefit conferred by the relevant Government Orders was not liable to be extended to them. The matter was considered by the learned Single Judge in detail and observed that the only provision which enabled the Government to effect temporary appointment was Rule 9(a)(i) of Part II of the KS & SSR. Accordingly, the relief as sought for was granted and the respondents in the writ petition were directed to issue appointment orders to the writ petitioners. 4. Aggrieved by the said verdict, the State filed R.P.No.1214 of 2009 reiterating the stand and seeking to place reliance on the decision of the Division Bench of this Court reported in Sasikumar v. Secretary to Government (2000 (3) KLT 120) contending that the position was 'squarely covered' by the above decision and hence the matter required to be reviewed. 5. The learned Single Judge considered the Review Petition and observed that the contention raised by the W.A.No.1477 of 2010 - 4 - respondent State did not have any pith or substance in so far as the issue was actually covered by the decision rendered by this Court in Binu v. State of Kerala (2003 (2) KLT 207). After quoting the relevant provision and the relevant paragraph of the said verdict, it was observed by the learned Single Judge that 'temporary appointment' could have been only by virtue of Rule 9(a)(i) of Part II of KS & SSR and that the law declared by this Court in 2003 (2) KLT 207 holding that the nature of the payment by way of 'daily wages' effected to the persons concerned was not at all a bar for extending the benefit of the relevant Government Order to the physically handicapped persons who were appointed from Employment Exchanges during the relevant period, governed the field. 6. There is no case for the State that the law declared by this Court as per the decision in 2003 (2) KLT 207 has been subjected to challenge by filing any appeal or review, which in fact has become final. W.A.No.1477 of 2010 - 5 - 7. Coming to the decision rendered by the Division Bench of this Court in Sasikumar v. Secretary to Government (2000 (3) KLT 120) sought to be relied on by the State, the factual situation was entirely different in the said case. Apart from the fact that the person concerned was engaged on daily wages, it was observed that, no 'appointment order' whatsoever was issued to such person and that the engagement was not pursuant to the requisition made to the Employment Exchange or in furtherance to any notification or advertisement. Further, such appointment was in the 'Kerala State Bamboo Corporation' (owned by the Government of Kerala), which however was held as not in 'public service', to have made the GO applicable as such. It was accordingly held that, such employee did not come within the purview of Rule 9(a)(i) of Part II of KS & SSR which deals with temporary appointment to be effected by the State. Reliance placed on the said decision is quite out of place and not applicable to the case in hand. W.A.No.1477 of 2010 - 6 - 8. In the above facts and circumstances, this Court finds that the finding and reasoning given by the learned Single Judge are correct and proper and the impugned verdict does not call for any interference. Writ appeal fails and it is dismissed accordingly. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns