IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 WA.No. 443 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.33950/2005 DATED 23-10-2007 .................... APPELLANT: PETITIONER IN WP(C): ------------------------------- SREEKALA A.R., W/O. LATE MOHANAN, COOK, OLDAGE HOUSE (VRIDHA MANDIRAM), DEPARTMENT OF SOCIAL WELFARE, ITHITHANAM P.O., KOTTAYAM. BY ADV. SRI.M.V.THAMBAN RESPONDENTS: RESPONDENTS IN WP(C): ---------------------------------- 1. THE SUPERINTENDENT, OLDAGE HOME, VRIDHA MANDIRAM, ITHITHANAM (P.O), KOTTAYAM. 2. THE DIRECTOR, DEPARTMENT OF SOCIAL WELFARE, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT DEPARTMENT OF SOCIAL WELFARE, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI.K.SANDESH RAJA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2008, THE COURT ON 10/03/2008 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- W.A. NO. 443 OF 2008 ----------------------------------------- Dated 10th March. 2008. JUDGMENT Balakrishnan Nair, J. The point that arises for decision in this case is whether an Employment Exchange hand appointed for 179 days to the post of Cook, which is a post borne on the Kerala Last Grade Service, can claim that her appointment should be treated as regular, on the ground that one of the methods of appointment specified in the Special Rules for the said post is recruitment through Employment Exchange. 2. The brief facts of the case are the following. The appellant was a candidate waiting in the queue for employment, after having registered herself with the District Employment Exchange, Kottayam. She submits, after waiting for 25 years, she was sponsored by the Employment Exchange along with a few others for appointment to the post of Cook in the Old Age Home, Ithithanam, Kottayam. The candidates sponsored by the Employment Exchange were interviewed and the appellant was selected and WA 443/2008 2 appointed by the 1st respondent, who is the Superintendent of the Old Age Home, by Ext.P1 order dated 3.6.2005, on provisional basis for a period of 179 days, in the post of Cook. Her appointment was approved by the 2nd respondent, who is the Head of the Department, by Ext.P2 communication dated 25.8.2005. Apprehending that she may be terminated on completion of 179 days, the writ petition was filed on 29.11.2005, seeking a declaration that her appointment to the post of Cook as per Ext.P1 is a regular appointment. She also prayed for quashing Ext.P1 to the extent it states that her appointment is provisional and is for a period of 179 days. Consequential reliefs were also sought. 3. The appellant to support her case, mainly, relied on Ext.P3 judgment of the Division Bench of this Court. It was a common judgment, disposing of a few Writ Appeals and Writ Petitions, filed by Hospital Attendants Grade II, appointed through Employment Exchange. They claimed that they should be treated as candidates regularly appointed, though their appointment orders stated that their appointments were provisional and only for 179 days. Their claim was upheld by this Court. The appellant also relied on Ext.P4 judgment of a learned single Judge of this Court rendered in the case of a Part-time Sweeper, wherein it was held that though the appointment of the petitioner therein was for a period of 179 WA 443/2008 3 days, still she should be treated as a person regularly appointed. In the light of the above two decisions, the appellant sought the reliefs. 4. The 1st respondent filed a detailed counter affidavit, resisting the prayers in the writ petition. The said respondent contended that the appellant's appointment was made purely on temporary basis for 179 days under Rule 9(a)(i) of K.S. & S.S.R. It was not a regular appointment. In the counter affidavit, it is specifically pleaded as follows: “3. The petitioner had stated that she was (sic – respondents) resorted to direct appointment from Employment Exchange as there was no part-time cook in the District. The first respondent had issued the appointment order for 179 days for the post of cook by Exhibit P1 as per the General Rule 9(a) (i) of K.S. & S.S.R and not for the post of part-time cook. Moreover, both the 1st respondent and the 2nd respondent have clearly stated in the appointment order that the appointment was purely on temporary basis and the petitioner would be ousted on completion of 179 days of service. Therefore, the appointing authority is competent to decide whether the appointment had to be on permanent basis or on temporary basis in accordance with exigency of the post. In the case of permanent posting the appointing authority will be the Head of the Department whereas temporary appointment is made by the Head of Office with ratification by the Head of the Department. In this case the appointment was made purely on temporary basis. Therefore, the petitioner was terminated from service on completion of 179 days. 4. The post of Hospital Attendant Grade II is only applicable to Health Service Department as prescribed in the Kerala Last Grade Special Rules and cannot be equated with the procedure of the Social Welfare Department. The method of appointment of Cook through Employment Exchange is made WA 443/2008 4 in two ways, namely permanent and temporary. If the appointment of Cook is on permanent basis, the fact will be specifically informed to the concerned District Employment Officer. The District Employment Officer will forward the list of candidates received from the Town Employment Exchanges. As soon as the list of candidates is received the selection procedure would be started by the District Social Welfare Officer and the rank list of candidates would be forwarded to the Director of Social Welfare for issuing appointment order. Whereas, in the case of temporary appointment the list of candidates would be collected only from the concerned Town Employment Exchanges. The selection will be done by conducting interview with the candidates and the temporary appointment order would be issued by the concerned Head of Office to the selected candidates, subject to the ratification by the Director of Social Welfare. In this case the procedures for the selection and appointment were conducted for temporary appointment. This fact was clearly stated both in the appointment order and the ratification order.” The 1st respondent also contended that the decisions Exts.P3 and P4 are not applicable to the facts of the case. The appellant filed a reply affidavit, dealing with the averments in the counter affidavit. She also produced Ext.P5 judgment of a learned single Judge of this Court,which apparently supports her case. 5. The learned single Judge did not accept the contentions of the appellant, made relying on Exts.P3 and P4 and disposed of the writ petition with the following directions: “8. Taking into account all these facts and circumstances, the writ petition is disposed of in the following terms: WA 443/2008 5 1) The second respondent Director of Social Welfare shall consider the case of the petitioner with specific reference to the question as to whether there was any person functioning as Part-time Cook in the Revenue District of Kottayam on the date on which the intimation leading to Ext.P1 was received by the Employment Exchange. The second respondent may call for remarks, in this regard, from the District Collector, Kottayam. Orders may be passed, after hearing the petitioner, within a period of three months from the date of receipt of a copy of this judgment. 2) Petitioner shall be permitted to continue in service as a Cook till a decision is taken by the Director in the manner aforementioned.” Aggrieved by the above judgment, this Writ Appeal is filed. 6. Mr.M.V.Thamban, learned counsel for the appellant reiterated the contentions raised in the writ petition. He asserted that the appointment of the appellant was regular. He also pointed out that in view of the observations of the learned single Judge regarding the merits of the case of the appellant, no purpose will be served by directing the 2nd respondent to consider her claim. So, the learned counsel prayed for reversing the judgment of the learned single Judge and granting all the reliefs sought in the writ petition. Alternatively, it was contended that Ext.P3 judgment is pending in appeal before the Supreme Court. Therefore, the appellant should have been allowed to continue in service till the disposal of the Civil Appeal by the Apex Court, as was done in a few other cases by this Court. WA 443/2008 6 We also heard learned Government Pleader Mr.Sandesh Raja, on behalf of the respondents. He took us through their averments in the counter affidavit and submitted that even in cases where the regular method of appointment is through Employment Exchange, provisional appointments are made for a period of 179 days through Employment Exchange, pending regular appointment. In the case of provisional appointment, candidates from the local Employment Exchange alone will be sponsored. In the case of regular selection, candidates from all the Employment Exchanges in the district concerned will be sponsored. If the appointment is regular, the order of appointment will be issued by the Head of the Department and if it is provisional, the order will be issued by the Head of the office concerned. It is also submitted that in the case of regular appointment, the principles of communal reservation contained in Rules 14 to 17, Part II of K.S. & S.S.R will be followed. In the case on hand, the procedure for regular selection was not followed. The Head of the Department has not issued the appointment order. The communal rotation as per the roster maintained at the district level was also not followed, it is submitted. Therefore, even though the appointment is through the Employment Exchange, still it is a provisional appointment, it is pointed out. 7. Cook is a post borne on the Kerala Last Grade Service. Rule 1 of WA 443/2008 7 the Special Rules gives the constitution of the service. It contains several categories of posts. Category 4(a) contains the following posts: “Category 4: (a) Sweeper, Sanitation Worker, Cleaner, Sweeper-cum- Sanitation Worker, Dhobies, Sweeper-cum-Watchman, Waterman, Gardener, Waterman-cum-Gardener, Watcher-cum- Gardener, Watcher-cum-Sweeper and Sweeper-cum-Peon, Cook and Barber in the various Departments.” (Emphasis supplied) Rule 3 of the said Special Rules, as it stands now after the amendments introduced from time to time, states that Rules 3, 4, 9, 10(c), 14, 15, 16, 17, 18(h) and 27 of the Kerala State and Subordinate Service Rules (K.S. & S.S.R) alone are applicable to the Last Grade Service. Rule 9 of the K.S. & S.S.R contemplates temporary appointments, which are in service jurisprudence, generally called provisional appointments. Rule 9 of the General Rules was made applicable to Last Grade Service by an amendment introduced on 22.3.1984. Therefore, there can be appointment on provisional basis to the various posts borne on the Kerala Last Grade Service. In other words, even if one of the methods of appointment to a post in the Last Grade Service is through Employment Exchange, still there can be provisional appointment to that post through the Employment Exchange. WA 443/2008 8 8. The method of appointment to the post of Cook is contained in Rule 5 of the Special Rules. The relevant portion of the said Rule reads as follows: “5. Appointment:--(a) Appointment to the various categories or posts shall be made as follows:-- Category 1: ................................................... Category 4: (a) ............................................. (b) In respect of posts in departments other than those mentioned in the opening paragraph of rule 4,-- (i) by promotion of part-time contingent employees from the common seniority list prepared by the District Collectors on Revenue Districtwise basis, (ii) in the absence of suitable hands under item (i) above, by direct recruitment through Employment Exchange.” There is a note added to the above Rule, which says that in the case of appointment by promotion to the post of Cook and Barber, only Part-time Cooks and Part-time Barbers working in various Departments are eligible for promotion. If no Part-time Cook or Part-time Barber is available in various Departments for promotion, those posts have to be filled up by direct recruitment through Employment Exchange. Rule 6 of the Special Rules dealt with temporary appointment to the service. But, the said Rule was deleted on 22.3.1984 and simultaneously, Rule 3 was amended, providing that Rule 9 of the K.S. & S.S.R will apply to the Kerala Last Grade Service. Rule 7 of the Special rules says that the rules of WA 443/2008 9 reservation contained in Rules 14 to 17 of the K.S. & S.S.R are applicable to appointments to Last Grade Service. 9. Thus, going by the Special Rules, appointment through Employment Exchange is one of the methods prescribed for the post of Cook. But, whether the appellant was appointed on a regular basis or provisionally, will depend upon the facts of the case. The appointment order says that the appointment is temporary and for a period of 179 days. The mention in an appointment order that it is provisional or temporary, may not be conclusive. Even in the case of regular appointments, it is stated by some appointing authorities that the appointment is temporary. But, in this case, we notice that as pointed out by the learned Government Pleader, the procedure followed was that of provisional appointment and not of regular appointment. The candidates from all the Employment Exchanges in the Kottayam district were not sponsored. The appointment order was not issued by the Head of the Department, who is the appointing authority, but by the Superintendent of the Old Age Home, Ithithanam, who is only the Head of the office/institution concerned. The unit of appointment being the District, the Head of the institution can never make regular appointment. Further, the rules of reservation were also not followed. Therefore, the contention of the learned counsel for the appellant that her appointment is WA 443/2008 10 regular, cannot be accepted. 10. Ext.P3 decision was rendered based on the pleadings and materials before the Division Bench in that case. The respondents in that case failed to substantiate their contention that the appointments made were only temporary, pending regular appointment. The said decision does not lay down the principle that every provisional appointment made through Employment Exchange to a post borne on the Last Grade Service, for which one of the regular methods of appointment is also through Employment Exchange, should be treated as regular. Ext.P4 decision deals with the appointment to a Part-time Contingent post. The same does not lay down any principle, which should be treated as a precedent to govern the decision in this case. In view of the above position, we are of the view that no ground has been made out, warranting interference with the judgment under appeal. WA 443/2008 11 Accordingly, the Writ Appeal is dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/