IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 WP(C).No. 28904 of 2009(G) -------------------------- PETITIONER(S): --------------- PRADEEP KUMAR.J, ROSH BHVAN, NANDHIRICAL, VELLIMON.P.O, PERINAD, QUILON. BY ADV. SRI.VAKKOM N.VIJAYAN SRI.MAADAYIL R.S.NAIR SMT.V.RENJU SMT.M.A.RAMITHA RESPONDENT(S): --------------- 1. THE DEPUTY DIRECTOR, DAIRY DEVELOPMENT DEPARTMENT, QUILON. 2. THE ASSISTANT DEPUTY DIRECTOR, DAIRY DEVELOPMENT, QUILON. 3. THE KUNDARA KSHEERA VYAVASAYA CO-OPERATIVE SOCIETY LTD.NO.Q.88, KUNDARA.P.O, KERALA, PIN-691 501, REPRESENTED BY ITS SECRETARY. 4. THE PRESIDENT, THE KUNDARA KSHEERA VYAVASAYA CO-OPERATIVE SOCIETY LTD.NO.Q.88, KUNDARA.P.O, KERALA, PIN-691 501. 5. A.BASJEERKUTTY, DRIVER, THE KUNDARA KSHEERA VYAVASAYA CO-OPERATIVE SOCIETY LTD.NO.Q.88, KUNDARA.P.O, KERALA, PIN-691 501. * ADDL.R6 K.VIJAYAN NAIR, S/O.K.KUTTAN PILLAI, AGED 58 YEARS, RESIDING AT USHA BHAVAN, THETTIKKUNNU, KANJIRAKODE, KUNDARA (IMPLEADED AS ADDL.R6 AS PER ORDER DT 25.11.2009 IN IA.13393/09) ADV. SRI.B.SURESH KUMAR FOR R3-4 SRI.P.B.SURESH KUMAR FOR ADDL.R6 SRI.K.P.SUJESH KUMAR FOR ADDL.R6 SRI.K.N.SASIDHARAN NAIR FOR ADDL.R6 SMT.SANDHYA RADHAKRISHNAN FOR ADDL.R6 SMT.M.SRUTHY FOR ADDL.R6 SRI.R.ARUN FOR R5 SRI.LATHEESH SEBASTIAN FOR R5 GOVERNMENT PLEADER SRI.K.C.MUHAMMED HASHIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4/2/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.28904/09 2 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE APPOINTMENT ORDER DT 10.11.2007. P2 COPY OF THE JUDGMENT DT 18.8.09 IN WPC.23544/09. P3 COPY OF THE NOTICE DT 17.9.09. P4 COPY OF THE DEPOSITION OF R3 P5 COPY OF THE DEPOSITION OF THE PETITIONER P6 COPY OF THE ORDER DT 30.9.09. P7 COPY OF THE PETITION DT 5.9.09. P8 COPY OF THE PETITION DT 5.9.09. P9 COPY OF THE PETITION DT 10.9.09. P10 COPY OF THE PETITION DT 22.9.09. P11 COPY OF THE UESTIONNAIRE DT 1.6.09. P12 COPY OF THE REPLY DT 19.6.09. P13 COPY OF THE LETTER DT 19.6.09. RESPONDENT'S EXHIBITS R4(A) COPY OF THE COMMUNICATION DT 25.4.09. R6(A) COPY OF THE REQUEST DT 16.5.09. R4(B) COPY OF THE STATEMENT DT 28.11.09. R4(C) COPY OF THE RESOLUTION DT 4.5.09. R4(D) COPY OF THE MINUTES OF THE MEETING HELD ON 8.12.09. // True Copy // P.A. To Judge K. SURENDRA MOHAN, J. ``````````````````````````````````````````````````````` W.P.(C) No. 28904 of 2009 G ``````````````````````````````````````````````````````` Dated this the 4th day of February, 2010 J U D G M E N T The petitioner has approached this Court challenging Ext.P6 proceedings of the 1st respondent, dismissing an appeal filed by him. 2. The petitioner was appointed as a Lower Division Clerk under the 3rd respondent Society on 17-11-2007 as per Ext.P1 appointment order. According to the petitioner, he worked in the Society continuously till April 2008 on daily wages of Rs.100/-. While so, the 3rd respondent took a decision to appoint the petitioner as a driver with effect from 07-05-2008 again on daily wages which was enhanced to Rs.150/-. The petitioner was asked not to attend duty as driver, all on a sudden on 01-05-2009. According to the petitioner, the 5th respondent was appointed as a driver in his place though he was not qualified to be so appointed. Pointing out the irregularities, the petitioner submitted a representation before the 1st respondent. When no orders were passed on the same, he approached this Court by filing a writ WPC.28904/09 : 2 : petition, WP(C) No.23544/2009. The said writ petition was disposed of by Ext.P2 judgment dated 18-08-2009, directing the 1st respondent to consider the petitioner's complaint with notice to the 3rd respondent Society and the 5th respondent and to pass orders thereon within a period of six weeks therefrom. 3. Accordingly, Ext.P6 order has been passed dismissing the appeal of the petitioner. The petitioner challenges Ext.P6 order as well as his termination in this writ petition. He seeks reinstatement in service also. 4. The 3rd and 4th respondents have filed counter affidavits contesting the claim of the petitioner. Initially, a counter affidavit was fled to which, a reply affidavit has also been filed by the petitioner. Thereafter, two additional counter affidavits have been filed on behalf of respondents 3 and 4. According to the said respondents, the petitioner was appointed on daily wages for completing the immediate work load in the milk society. Since his appointment was as a daily wages employee, he is not entitled to any regularisation. All persons, who were appointed before him as well as after him, have been terminated. The 3rd respondent also WPC.28904/09 : 3 : relies on Ext.R4(a) proceedings of the 1st respondent by which the Society was directed to terminate all the daily rated employees, since it was not permissible in law. My attention has also been drawn to Circular No.18/1991 of the Registrar of Co-operative Societies. Clause III(3) of the said Circular provides that no appointment on daily wages shall be made under any circumstances. The counsel, therefore, submits that no order reinstating the petitioner could be granted. Therefore, he prays for dismissal of the writ petition. 5. I have heard Sri.Vakkom N. Vijayan, who appears for the petitioner, Sri.B.Suresh Kumar, who appears for the 3rd and 4th respondents and the learned Government Pleader. 6. The petitioner challenges Ext.P6 order by which, the appeal filed by the petitioner has been dismissed. Though this Court had directed by Ext.P2 judgment to consider the appeal of the petitioner with notice to respondents 3 and 5, the 1st respondent has not considered the same. Though the 1st respondent has dismissed the petition filed by the petitioner, the order does not disclose the reasons on the basis of which the WPC.28904/09 : 4 : same was dismissed. Therefore, it cannot be said that Ext.P6 order is passed in compliance with the directions in Ext.P2 judgment. 7. The question that arises for consideration in this writ petition is whether the petitioner has any right to continue in service. He can claim reinstatement only if he has got a right to continue in service. 8. A reading of Ext.P1 shows that he was appointed for liquidating pending work and for operating a computer. Ext.P1 also shows that he was to get Rs.100/- as wages for the days on which he worked. It is clear from the terms of Ext.P1 that the petitioner was engaged only as a daily rated worker. Hence, he cannot claim any right to continue in service on the strength of the terms contained in Ext.P1. In other words, the petitioner was liable to be terminated on the completion of the work for which he was appointed or on an early date by the 4th respondent who has issued Ext.P1. 9. Further, the appointment of the petitioner is also against the prohibition contained in Circular No.18/1991, which WPC.28904/09 : 5 : prohibits the appointment of any person on daily wages under any circumstances. Added to the fact that the petitioner has no right for continuity in employment is the fact that his appointment was also violative of Circular No.18/1991. Therefore, the petitioner cannot claim reinstatement in service. 10. I notice that initially there was no decision of the governing body of the milk society to dispense with the service of the petitioner. Ext.R4(d) which is a copy of resolution No.186 of the Governing Body shows that it is dated 08-12-2009. I do not propose to go into the question as to whether a decision of the governing body of the Society is necessary for dispensing with the services of the petitioner. However, the petitioner has a case that the decision for terminating him was taken only subsequent to the actual date of his termination. The counsel for the petitioner complained that since no decision to terminate his services was communicated to the petitioner, he had also lost a right to challenge his termination before the appropriate forum. It is pointed out that even on this date, no formal orders communicating his termination has been served on the petitioner. Thereby, the WPC.28904/09 : 6 : right of the petitioner to challenge his termination has also been denied. I do not propose to express any opinion on the matter. The petitioner's right, if any, to challenge his termination before the appropriate forum is left open. This writ petition fails and is accordingly dismissed. (K. SURENDRA MOHAN, JUDGE) aks