USHA K.K v. GURUVAYOOR DEVASWOM MANAGING COMMITTEE

BY ADV. MR.V.KRISHNA MENON,. SC, FOR R1- R3 ADV. MR.KALEESWARAM RAJ FOR R5 TO15 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2009 ALONG WITH WPC NO. 18052 OF 2008 THE COURT ON 26/06/2009 THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.18721/2007 APPENDIX PETITIONER'S EXHIBITS PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER NO.EC1-3291/2002(1) DT. 12.6.02 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT. P1(a):- COPY OF THE LETTER NO.GDEMS/STAFF/2003/2 2705 DT. 31.3.03 OF THE 3RD RESPONDENT TO THE 2ND RESPONDENT. P1(b):- COPY OF THE LETTER NO.GDEMS/STAFF/2004/2303 DT. 31.3.04 OF THE 3RD RESPONDENT TO THE 2ND RESPONDENT P1(c):- COPY OF THE LETTER NO.GDEMS/STAFF/04/6414 DT. 2.7.04 OF THE 3RD RESPONDENT TO THE 2ND RESPONDENT. P1(d):- COPY OF THE LETTER NO.GDEMS/STAFF /2004/9524 DT. 30.9.04 , 18.8.06 OF THE 3RD RESPONDENT TO THE 2ND RESPONDENT. P1(e):- COPY OF THE LIST OF ADHOC TEACHERS AND OTHERS STAFF OF 3RD RESPONDENT SCHOOL, DT. 5.12.06. P1(f):- COPY OF THE NOTICE DT. 31.3.03 OF THE 3RD RESPONDENT. P2:- COPY OF THE NOTIFICATION NOP.EC1-3842/07(1) DT. 25.5.06 EFFECTED BY THE 2ND RESPONDENT, APPEARED MATHRUBHUMI DAILY, DT. 25.5.07. P3:- COPY OF THE NOTIFICATION NO.EC1-3842/07(1) DT. 17.5.07 EFFECTED BY THE 2ND RESPONDENT ON THE NOTICE BOARD, REFERRED TO IN THE WRIT PETITION. P4:- COPY OF THE NEWS ITEM APPEARD IN 26 VEEKSHANAM DAILY DT. 5.5.07. P4(a):- COPY OF THE AFFILIATION BYE-LAWS OF CENTRAL BOARD OF SECONDARY EDUCATION. P5:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT, DT. 26.3.03 IN OP. 5107/03. P6 & P7 NIL. P8:- COPY OF THE NOTIFICATION BEARING NO.R1-3759/08 DT. 30.4.08 ISSEUD BY 2ND RESPONDENT. P9:- COPY OF THE NOTIFICATION NO.R1-3810/09 DT. 22.4.09 ISSUED BY THE IST RESPONDENT. P10:- COPY OF THE INTERVIEW CARD VIDE REF. NO.R1-3810/09 DT. 29.5.09 ISSUED BY THE IST RESPONDENT. W.P.(C) NO.18721/2007 RESPONDENT'S EXHIBITS R2(A):- COPY OF THE MEMORANDUM OF ASSOCIATION OF GURUVAYUR DEVASWOM EDUCATIONAL SOCIETY. R2(B):- COPY OF THE AGREEMENT BETWEEN IST PETITIONER AND RESPONDENT. R2(C):- 1,2 AND 3:- COPY OF THE YOUCHERS ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER 1, 2 & 3 TSS TRUE COPY P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 18721/2007-D & 18052/2008-Y - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of June, 2009. JUDGMENT These two writ petitions concern the common grievance raised by the respective petitioners challenging their termination from service, by respondents 1 to 3. The school in question managed by respondents 1 to 3 is affiliated to Central Board of Secondary Education. The school is having classes from L.K.G. to XIIth Standard. The parties and exhibits referred to herein are as they are contained in Writ Petition No.18721/2007.

2. The case of the petitioners is that they were selected by a selection body constituted by the school management and representatives of respondents 1 and 2, after inviting application through public notification. They appeared before the selection committee. They were fully qualified as per the CBSE regulations and rules and were selected accordingly. They were permitted to work till the end of the academic year and their services were dispensed with during the period of vacation. The process of selection was re-started afresh and they were again appointed. They have been continuing for a number of years. They were being paid consolidated salary and no appointment orders were being issued. Documents have been wpc 18721/07 & 2 produced to show that they were working in the capacity of teachers appointed during different spells. It is pointed out that as regards appointment of teachers, there are no specific regulations in force for the school and therefore, the bye-laws of the CBSE are binding on them. Exts.P2 and P3 are notifications issued for the year 2007 inviting applications for appointment as teachers as well as for appointment as non teaching staff. The petitioners also responded to the same. They have been selected. But when they reported for duty on the reopening of the school on

4.6.2007, the third respondent informed that their services have been dispensed with and new persons have been selected. Respondents 5 to 15 are some of the selected candidates.

3. The respondents have filed separate counter affidavits. It is contended by respondents 1 to 3 that the writ petition is not maintainable as it is filed against a society. The school is not managed by the Guruvayur Devaswom, but the Guruvayur Devaswom Educational Society which is not made a party in the writ petition.

4. As regards the merits of the contentions raised by the petitioners, it is submitted that the petitioners were appointed only on an adhoc temporary basis in the school from June to March. The petitioners have wpc 18721/07 & 3 executed agreements to the effect that they are engaged on temporary basis for a consolidated amount as remuneration. Ext.R2(b) is the copy of one of the agreements. Their services are dispensed with at the end of the academic year as they are engaged on contract basis. They have accepted the appointment fully knowing the terms of appointment and about the termination after the end of the academic year. The teachers are so appointed each year on need basis. Such teachers who are appointed for a particular year, are also entitled to participate in the selection process for the next year. Many of the persons who have got such appointments had also left the service after accepting employment elsewhere. The school is having two sections of staff, one is the permanent staff and the other the ad-hoc staff like petitioners, who are engaged every year to meet the shortage of staff. It is further pointed out by respondents 1 to 3 that even though the third respondent is affiliated to CBSE, the rules and regulations have not been approved and as and when rules are approved, appointment and posting of teaching staff will be regularized.

4. In the counter affidavit filed by respondents 5 to 15 also, the contentions raised by the petitioners are opposed.

5. Heard Shri K.P. Dandapani, learned Senior Counsel appearing for wpc 18721/07 & 4 the petitioners, Shri V. Krishna Menon, learned Standing Counsel appearing for respondents 1 to 3 and Shri Kaleeswaram Raj, Shri Ramesan Nambeesan and K.V. Manojkumar appearing for the newly appointed teachers.

6. Learned Senior Counsel appearing for the petitioners submitted that as a matter of fact, many of the petitioners have been working for a number of years, which shows that there are regular vacancies to which they have been appointed and their continuance for a number of years requires regularisaiton of their services in the school. It is submitted that the method adopted by the respondents to terminate their service are clearly arbitrary and illegal in the light of the principles stated by the Apex Court in State of Haryana and others v. Piara Singh and others {(1992) 4 SCC 118}, Secretary, State of Karnataka and others v. Umadevi (3) and others {(2006) 4 SCC 1}, Mineral Exploration Corpn. Employees' Union v. Mineral Exploration Corpn. Ltd. and another {(2006) 6 SCC 310} and Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad and others {(2006) 7 SCC 684}. It is submitted that at any rate, temporary employees cannot be replaced by another set of temporary employees which itself is an illegal practice. The same is adopted not to confer any benefit of wpc 18721/07 & 5 regularization to the petitioners who have undergone the process of selection prior to their appointment and therefore the termination to appoint a new set of candidates is clearly illegal and discriminatory. It is further pointed out by relying upon the clauses in Ext.P4, the affiliated bye-laws of the CBSE that appointment of teachers on adhoc basis is clearly prohibited and no person can be appointed on consolidated wages also. It is therefore submitted that the respondents are to be directed to fill up the post on a permanent basis after adopting a proper procedure.

7. Learned counsel for the petitioners relied upon the principles stated in Manoj S. & others v. State of Kerala and others (2008 (1) KLJ 939) in support of their plea that the petitioners cannot have any right for regularization. Going by the circumstances leading to the appointment of the petitioners, it can be seen that they were being appointed only on temporary basis on a consolidated pay. Their tenure ended at the end of the academic year. They have executed agreements with the school management. They were purely contract employees. Therefore, they have entered service after fully accepting the terms and conditions which clearly provides for their discontinuance after the end of the academic year. They were not put on any scale of pay and was getting a consolidated pay. There wpc 18721/07 & 6 was no offer for any permanent appointment at all. In that view of the matter, they cannot claim for regularisation in service or for continuance in service till permanent hands join duty. It is well settled that such a right cannot be pleaded by the contract appointees who are governed by the terms of the contract itself. There cannot be any violation of Article 14 or 16 in their case. They themselves being beneficiaries of the temporary, adhoc or contract appointment, they cannot turn round and plead for conferment of rights which were not offered to them at all at the time of appointment. Learned Senior Counsel relied upon paragraphs 45 and 46 of the judgment in Piara Singh's case {(1992) 4 SCC 118}. It was held in para 46 that “an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee.” In para 45 their Lordships held that “effort should always be to replace such an ad hoc/temporary employee.” In fact, in Secretary, State of Karnataka's case {(2006) 4 SCC 1}, the dictum laid down in Piara Singh's case (supra) was overruled, which is clear from para 26 of the said judgment. In fact, in the light of the principles stated in Secretary, State of Karnataka's case (supra), the petitioners cannot contend for the position that they are liable to be continued. Their Lordships have held that “merely wpc 18721/07 & 7 because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.” It was further held in para 45 that “if the court were to avoid a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them.” In the light of the above dictum, the petitioners cannot contend for the position that they were entitled for regularisation or at any rate, they were entitled to be continued till permanent hands join duty. The terms of the contract are explicit and clear and they have to go out of the service after the end of the specific term. In that view of the matter, the principles stated in Mineral Exploration Corpn.'s case {(2006) 6 SCC 310} and Surinder Prasad wpc 18721/07 & 8 Tiwari's case (2006(7) SCC 684) will not be of any help to the petitioners.

8. In Manoj. S's case (2008(1) KLJ 939), a learned Single Judge held that regularisation of persons who were appointed without following a selection procedure, without inviting application and without providing an opportunity to other qualified persons to seek appointment, is unconstitutional and ab initio void. The principles stated in Umadevi's case {2006) 4 SCC 1} has been followed in the said case.

9. Herein, as observed already, the terms of appointment is wellknown to the petitioners and therefore they cannot contend for the position that any appointment of persons like respondents 5 to 15 in their places is arbitrary or illegal. They are not entitled to any relief of regularisation or retention till other permanent hands join duty. They cannot claim that they have been validly selected and appointed after a due selection process, meant for regular posts.

10. In the bye-laws (Ext.P4(a)) there are clear provisions to the effect that no teachers can be appointed on adhoc basis or on consolidated pay. Going by the relevant clause 2(a), there should be approved terms and conditions of service. Clause 25 relates to appointment, clause 27 relates to probation and clause 29 relates to termination of service. wpc 18721/07 & 9

11. Learned counsel appearing for respondents 1 to 3 submitted that the temporary appointments on contract basis are made after assessing the requirements for each year and there are another section of staff who are the permanent employees of the school, viz. LPSA, H.S.A., Librarian, Sweeper, Aya, etc.. In addition to these, there are 41 adhoc staff working in the school, at the time of filing of the counter affidavit. The permanent staff were appointed during the beginning stage of the school. They are paid on a time scale, given all the allowances and benefits enjoyed by the other staff of the Guruvayur Devaswom. It is further pointed out that steps were being taken to assess permanent vacancies, if any, and to complete the selection process. Temporary appointments have to be made, to cover the temporary needs. It is pointed out that for permanent appointment, sufficient opportunity has to be given to all. The preparation of Rules and Regulations of the school staff is also under process, as averred in the counter affidavit.

12. It is up to respondents 1 to 3 to take appropriate steps in the matter, so that a proper assessment is made about the permanent nature of the vacancies to various categories. Therefore, the writ petition is dismissed. Respondents 1 to 3 will take wpc 18721/07 & 10 appropriate steps for registration of the bye-laws and to prepare appropriate rules and regulations for making permanent appointment. Such steps will be taken expeditiously. (T.R. Ramachandran Nair, Judge.) kav/