IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 WA.No. 964 of 2007() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.31118/2006 dated 12/3/2007 .................... APPELLANT(S): PETITIONER IN WP(C): ---------------------------------------------------------- SAVITHRI A.K., WIDOW OF SASI, ASARIKANDY, ATHOLI, KOZHIKODE. BY ADV. MR.P.P.JACOB RESPONDENT(S): RESPONDENTS IN WP(C): ------------------------------------------------------------------ 1. REGIONAL OFFICE OF THE KERALA STATE CO-OPERATIVE CONSUMER FEDERATION, TRIVENI BUILDING MUTHALAKULAM, KOZHIKODE, REPRESENTED BY ITS REGIONAL DIRECTOR. 2. KERALA STATE CO-OPERATIVE CONSUMER FEDERATION, TRIVANDRUM, REP. BY ITS MANAGING DIRECTOR. R2 BY ADV. MR.M.SASINDRAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.A NO: 964 OF 2007 ----------------------------------------------------------------------------------- Dated this the 4th February, 2009. JUDGMENT BALAKRISHNAN NAIR, J. The appellant is the writ petitioner. Respondents herein were the respondents in the writ petition. The brief facts of the case are the following. The petitioner was a casual employee under the respondents from 21.8.2004 to 18.8.2006. She was again engaged from 28.8.2006 to 4.9.2006. On 31.8.2006 a division Bench of this Court disposed of a batch of writ petitions. Two of them were filed by unemployed persons aggrieved by the back door appointments under the respondents as also in Kerala State Beverages Corporation. In the context of their grievance, the Division Bench of this Court issued the following directions in O.P.21971/2002 and connected cases:- “(1) All regular posts vacant should be notified for appointment. All regular posts now held by temporary hands shall be reported in accordance with the rules. (2) No temporary hands shall be appointed to the regular vacancy. (3) All vacancies shall be reported to the public service commission within six months from the date of receipt of copy of this judgment. All posts manned by temporary employees for more than one W.A. No: 964/2007 2 year continuously shall be treated as permanent post. (4) As far as upper age limit is concerned for regular appointments, the temporary employees who are working in the corporation for more than six months, shall be given age relaxation. But there shall not be any relaxation in the matter of basic qualifications. (5) The temporary employees working in the regular post shall be allowed to continue in service only until these posts are filled up by regular appointments. (6) If any casual or other employees are necessary hereafter, they can be appointed only through employment exchange and such employees will not get any right for regularisation on any account as they shall not be allowed to work for more than six months. We further make it clear that regular vacancies should be notified and regular appointments should be made as expeditiously as possible. With these directions the writ petitions are disposed of.” The above judgment was rendered on 31.8.2006. The petitioner claims that she was in service on 31.8.2006 and so she was entitled to be retained in service till regular hands are appointed. 2. The respondents have filed a counter affidavit denying the claims of the petitioner. In paragraph 3 of the counter affidavit it is stated as follows:- “The averment contained in para 1 are not fully correct and emphatically denied by the respondents. It is submitted that the petitioner was engaged as daily wage sales women in various units under the Kozhikode Region of the Federation during the period from December 2004 to December 2005 and W.A. No: 964/2007 3 from March 2006 to July 2006. The averment that the petitioner has been in continuous engagement from 21.8.2004 upto 19.8.2006 without break is absolutely incorrect, unfounded and baseless. The ESI Card produced by the petitioner would not improve the case of the petitioner inasmuch as the ESI Card is issued to all employees irrespective of the nature of engagement.” To the above petitioner has not filed a reply affidavit. But she has filed an additional affidavit in the writ petition, in which she has stated as follows:- “It is relevant to note that I worked under the respondent for a further period from 28.8.2006 to 4.9.2006. In the writ petition I omitted to submit the above facts. It was due to a bonafide mistake and the same may be condoned. Hence there is no justification to deny employment to me. Therefore, there is no justification to deny re-employment to the petitioner. Further petitioner's disengagement has to be treated as retrenchment and entitled to be absorbed as and when the place is filled subsequently.” 3. The claim of the petitioner to continue in service till regular hands report for duty is founded on her submission that she was working as a casual employee on 31.8.2006. The respondents seriously dispute the said claim. In view of the said dispute, this Court is not in a position to accept the contentions of the petitioner in this proceeding. So we find no reason to interfere with the judgment of the learned Single Judge. But this judgment W.A. No: 964/2007 4 will not affect the rights, if any, of the petitioner to establish her claim before other forums. Subject to that right, this writ appeal is dismissed. K.BALAKRISHNAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: