IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 WP(C).No. 8025 of 2006(E) ------------------------------------- PETITIONER(S): ------------------------ 1. V.P. MANI, RESIDING AT VAKKIL PARAMBU, PUDUPPRIYARAM, PALAKKAD-678 733. 2. K. SURESH KUMAR, RESIDING AT K.S. SADANAM, RAMAPURAM, THANNICODE P.O., THIRUVANANTHAPURAM. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADV. SRI.T.C.SURESH MENON, SRI.SREEKANTH.K.R, SRI.JIBU P THOMAS. RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, SCIENCE AND TECHNOLOGY DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE AGENCY FOR NON-CONVENTIONAL ENERGY & RURAL TECHNOLOGY (ANERT), REPRESENTED BY ITS DIRECTOR, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM. 3. THE DIRECTOR, AGENCY FOR NON-CONVENTIONAL ENERGY & RURAL TECHNOLOGY (ANERT), REPRESENTED BY ITS DIRECTOR, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM. R1 BY GOVT. PLEADER MR.ANTONY MUKKATH. R2 & R3 BY ADV. SRI.V.G.ARUN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 8025 of 2006(E) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LIST DISPATCHED FROM THE OFFICE OF THE THIRD RESPONDENT TO ALL DISTRICT I.R.E.P. OFFICES DATED 04/11/2004. EXT.P2: COPY OF THE INTERIM ORDER IN WP(C) NO. 31611/2004 ON THE FILE OF THIS HONOURABLE COURT DATED 18/10/2005. EXT.P3: COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT DATED 05/08/2004. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE rs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.8025 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2011 J U D G M E N T The petitioners are engaged as contract/daily wage workers in the category of Helper/Night Watchman in the 2nd respondent organisation which is a Government organisation. According to the petitioners, engagement of daily wage/contract workers are to be made from a seniority list prepared, which is Ext.P1. According to the petitioners, although vacancies exist, petitioners are not being considered for engagement to those vacancies. The petitioners therefore seek the following reliefs: “(i) issue a writ in the nature of mandamus directing the respondents to immediately engage the petitioners in the various district offices of I.R.E.P. which comes under control of the second respondent. (ii) issue a writ in the nature of mandamus directing the respondents to give effect to Ext.P2 order of this honourable court thereby disengaging persons down in Ext.P1 list, to make way to persons like the petitioners who are placed high above in the list; (iii) issue a writ in the nature of mandamus directing respondents to implement Ext.P3 thereby filling up the posts of “other staff” required in offices of I.R.E.P. Indifferent districts” W.P.(C)No.8025 of 2006 -2- 2. The State of Kerala and the 2nd respondent have filed counter affidavits contending that the petitioners being provisional daily wage/contract employees they have no right to be engaged permanently or till permanent hands join duty. According to them, this Court has already held so in O.P. No.8927/2002, in respect of other similarly placed employees. 3. I have considered the rival contentions in detail. 4. In a batch of similar writ petitions namely O.P. Nos.8927/2002 and connected cases, a learned Judge of this Court has passed the following judgment: The petitioners in these Original Petitions are all engaged on casual basis by the Agency for Non-Conventional Energy and Rural Technology (ANERT), Kerala. Now they are being terminated on the basis of the direction of this court in O.P. No.11653/2001. In the Judgment in the said Original Petition, this Court issued the following direction: “The ANERT being a Government establishment cannot choose persons of their choice to fill up the vacancies. So, any regular appointment hereafter to any of the posts shall be made only in accordance with the rules governing such appointment. Temporary, contract or daily rated hands shall be engaged only from candidates sponsored by the employment exchange subject to the Government directions. In no case, no person shall be appointed directly from the open market without sponsoring by the employment exchange. With these directions, the original petitions are W.P.(C)No.8025 of 2006 -3- disposed of. 2. Pursuant to the above direction, the petitioners are being sent out. They challenge their termination on various grounds. They submit that they are being terminated without notice. They claim retention in service till regular hands report for duty. Incidental reliefs are also sought. The ANERT has filed a counter affidavit. In the counter affidavit filed in O.P. No.11744/2002 the ANERT has stated as follows: “Since all the petitioners in the aforesaid O.P.s were being engaged purely as casual labourers and who are not the persons sponsored by the Employment Exchange or any other Government approved recruitment agencies or they have not undergone any process of merit selection, they have not any entitlement for retention in the posts occupied by them.” 3. I heard both sides. This court has repeatedly said that provisional appointees like the petitioners have no right to be retained in service, neither permanently or till regular hands join for duty. The petitioners were handpicked from the open market by the Officers of ANERT without any reference to the legitimate agencies for recruitment. They were appointed either on daily rate basis or on contract basis. Such employees cannot claim any right to retention in service till regular hands join duty or claim regularisation in service. Therefore, I find nothing wrong with the impugned action of the ANERT. The petitioners rely on the decisions of the Supreme Court in Narayani and others v. State of Kerala and others (1984 KLT 17), Safai Mazdoor Sangh v. Municipal Corporation, Meerut & Others (1995 Suppl (1) SCC 227). Dr. Surinder Singh Jamwal and another v. State of J & K (1996 (9) SCC 619 and Keshav Narayan Gupta and others v. Jilla Parishat, Shivpuri (MP) (1998 (9) SCC 78). But, those decisions cannot be pressed into service to regularise persons like the petitioners who entered service through back door without being sponsored by the Employment Exchange or any other authorised agency. Accordingly, the Original Petitions fail and they are dismissed. After accommodating the regular hands and Employment Exchange hands, if there are casual vacancies, the duration of which is not sufficient to engage regular or Employment Exchange hands, the petitioners may be preferred for appointment as casual workers in future, subject to the rule of seniority in the concerned category.” W.P.(C)No.8025 of 2006 -4- The issue involved in this writ petition is squarely covered by that judgment. Therefore, following that judgment, this writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/