M.M. NAJEEMA v. KERALA STATE BEVERAGES

WP(C).No. 20321 of 2012 (M) APPENDIX PETITIONER'S EXHIBITS:- P1- THE TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONERS DATED 24.02.2012.P2- THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE DISTRICT MEDICAL BOARD DATED 13.03.2006.P3- THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE DISTRICT MEDICAL BOARD DATED 19.06.2002.P4- THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER DATED 13.08.2012.P5- THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER DATED 21.08.2012.P6- THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER DATED 21.08.2012.P7- THE TRUE COPY OF THE JUDGMENT IN W.A.NO.1687/2011 OF THE HON'BLE HIGH COURT DIVISION BENCH DATED 04.11.2011.RESPONDENT'S EXHIBITS:- EXT.R1ACOPY OF THE REVIEW PETITION NO.43/2012.EXT.R1BCOPY OF THE JUDGMENT DATED 23/01/2012 IN RP. NO.43/2012.EXT.R1CCOPY OF THE JUDGMENT IN W.P.(C)NO. 29076/2011.//TRUE COPY// P.S. TO JUDGE rs. (CR.) P.R. RAMACHANDRA MENON, J. ..............................................................................W.P. (C) Nos. 20321, 20388, 20389, 21800, 21999, 25521 and 25541 Of 2012 .........................................................................Dated this the 27th November, 2012J U D G M E N TThe issue involved in all these petitions is in respect of thealleged rights of the petitioners to continue in service after theexpiry of the contract engagement of 180 days, till regularhands join duty. Some of the petitioners are PhysicallyHandicapped persons and seek to establish their right withreference to this aspect as well. In some cases, a reference ismade to the provisions of the Persons with Disabilities (EqualOpportunities Protection of Rights and Full Participation)Act andthe the Kerala Rules 2000, thereunder. Reference is made tothe parties and events as given in W.P.(C) 20321 of 2012. 2. The petitioners were sponsored through the concernedEmployment Exchange and were appointed as Helpers(Labelling) for a period of 180 days in the respondent W.P. (C) No. 20321 of 2012 andconnected cases:2:Corporation. Ext. P2 is the appointment order issued by theCorporation, wherein the nature of engagement has been shownas on 'daily wage basis'; that the tenure is only for a maximumperiod of 180 days; that the said appointment shall never be abasis for claiming regular appointment and that the saidappointment was liable to be terminated as and when regularhands reported for duty or as and when the Corporation decidedthat no more engagement was necessary. 3. Petitioners 1 and 2 in W.P.(C) 20321 of 2012, thesecond petitioner in W.P.(C) 20381 of 2012 , the first petitionerin W.P.(C) 20389 of 2012 and the petitioner in W.P.(C) 21800 of2012 are stated as Physically Handicapped persons. The tenureof appointment in all the cases, except W.P.(C) 25541 of 2012,has expired; whereas the petitioners in W.P.(C) 25541 of 2012still continue in service by virtue of Ext. P1 appointment orderdated 23.08.2012, which will come to an end only by March,2013. The main contention raised by the petitioners is that,though they were initially appointed only for a period of '180' W.P. (C) No. 20321 of 2012 andconnected cases:3:days as sponsored through Employment Exchange, they areentitled to continue, since the requirement of the Corporation hasnot come to an end and further when they are proceeding withsteps to recruit another set of temporary hands, after replacingpersons like the petitioners, which is not correct or sustainable.It is also contended that engagement of the petitioners was asHelpers (Labelling) and this duty cannot be discharged by theexisting workers in the Corporation, as the nature of the workinvolved is a perennial one, particularly in view of the duty thatis being undertaken by the Corporation in procuring anddispensing the Indian Made Foreign Liquor to the customers inthe State of Kerala. It is also stated that there is no complaintwhatsoever with regard to the work performed by the petitionersand that they came to be sponsored and appointed by virtue oftheir seniority in registration with the Employment Exchangeand also by virtue of their better credentials. The petitionerscontend that they are either Physically Handicapped persons orwidows/unmarried women/aged persons and that termination of W.P. (C) No. 20321 of 2012 andconnected cases:4:their service, merely for the reason that the tenure of 'six'months was over, is not correct or sustainable. It is also thecontention of the petitioners, particularly the PhysicallyHandicapped persons that they are entitled to be treateddifferently, by virtue of the provisions of 'The Persons withDisabilities( Equal Opportunities Protection of Rights and FullParticipation)Act, 1995' and that, sending them out immediatelyon completion of '180' days, is rather cruel and contrary to thescheme of the enactment. All the petitioners rely on the verdictpassed by the Division Bench of this Court vide Ext.P7 judgmentin W.A. 1687 of 2011 dated 04.11.2011, whereby thepetitioner therein was permitted to be engaged even after thetenure of 180 days, with one day's break and that the petitionersare also entitled to have similar relief. 4. The claim of the petitioners is sought to be rebutted bythe first respondent Corporation(who has filed a detailed counteraffidavit) pointing out that the petitioners were selected fortemporary engagement through Employment Exchange without W.P. (C) No. 20321 of 2012 andconnected cases:5:considering that they are handicapped and even if they have anyphysical disability, their engagement cannot be taken as under'reserved category'. It is pointed out that the engagement of thepetitioners was purely 'adhoc' and need-based and that there isno substantive vacancy to be filled up in the Corporation inrelation to the posts to which the petitioners have been givenappointment. It is stated in paragraph '7' of the counteraffidavit that, as of now, almost all the posts have been filled upby deputation and no vacancy against any sanctioned post isavailable; though some persons were engaged on adhoc basisto meet the peak time demand, which cannot be taken as apermanent requirement. It is also pointed out that, as and whenmanpower shortage arises, the same is taken care of byappointing temporary hands through Employment Exchange;more so, based on the specific directions given by a DivisionBench of this Court to have such a course and to restrict thesame only for a period of '180' days, as borne by the decisionreported in ILR 2006(4)Ker.285 (K.R. Manoj vs. Kerala W.P. (C) No. 20321 of 2012 andconnected cases:6:State Bevarages Corporation). The learned Standing Counselfor the Corporation submits that, it cannot resort toappointment on permanent basis through EmploymentExchange, in respect of such posts which are brought under thepurview of Kerala Public Service Commission. It is also statedthat no law has been laid down by the Division Bench as perExt.P7 and that the observation therein, (enabling the petitionerto continue after one day's break) as if it were on the basis ofthe submission made by the Standing Counsel for theCorporation that they would be replaced only when the regularhands report for duty, is not correct. Reference is made toExt.R1(a) Review Petition ( R.P.No.43 of 2012) seeking to reviewExt.P7 judgment and the verdict passed therein, as borne byExt.R1(b) dated 23.01.2012. The learned Standing Counsel alsorefers to the decision rendered by this Court in W.P.(C) 16039of 2009, wherein similar contentions were raised by thepetitioners therein which came to be disallowed . Reliance is alsosought to be placed on the decision rendered by a Constitution W.P. (C) No. 20321 of 2012 andconnected cases:7:Bench of the Supreme Court in Secretary of State, State ofKarnataka vs. Uma Devi [ 2006 (4) SCC 1] to the effect thatno regularisation can be given to temporary hands. 5. Heard Mr. Deepu Thankan, Mr. B. Mohan Lal and Mr.B. Balaprasannan on behalf of the concerned petitioners . Mr.C.S. Ajith Prakash addressed the Court on behalf of therespondent Corporation in all the cases, while Mr.T.R. Rajesh, thelearned Government Pleader made submissions on behalf of thefirst respondent in W.P.(C) 21999 of 2012.6. With regard to the nature and extent of appointment ,there is no dispute that the petitioners came to be appointedthrough Employment Exchange for a specified tenure of '180'days. It has been clearly stipulated therein, that the temporaryengagement will come to an end on expiry of the tenure of '180'days or as and when the Corporation finds that no furtherengagement is necessary. There is no case that anybody hasbeen caused to be terminated during the subsistence of thecontract. As such, whether the petitioners are entitled to W.P. (C) No. 20321 of 2012 andconnected cases:8:continue once the tenure is over, is the sole question.7. The learned Standing Counsel for the Corporationsubmits that the engagement of the petitioners as helpers ondaily wage basis was only a 'need based' one. It is stated thatthe Corporation is not pursuing any course to give back-doorappointment to anybody and that temporary engagement isbeing made by engaging Employment Exchange hands, to caterto the need of the hour, by virtue of the specific direction givenby this Court as per the decision reported in (2006) 4 ILR(Ker.)285 (cited supra). Such Employment Exchange handscannot be retained beyond the tenure of six months, as orderedby the Court and if any further requirement is there, it can onlybe by reporting to the concerned Employment Exchange forsponsoring eligible hands, to be considered by the Corporation. 8. The learned Standing Counsel submits that Ext.P7judgment, as discernible therefrom and also as made clear by thevery same Bench vide Ext. R1(b) order passed in the ReviewPetition, makes it clear that no law has been laid down in the W.P. (C) No. 20321 of 2012 andconnected cases:9:judgment and there is no duty upon the Corporation to continueto engage persons sponsored from the Employment Exchangebeyond the tenure of six months or 180 days. Referring to thecontents of Ext.R1(a) Review Petition, the learned Counselsubmits that, the observation made by the Division Bench in Ext.P7 itself, as to the alleged submission made by the learnedStanding Counsel when the matter was considered is not correcton facts and it was accordingly, that a specific observation wasmade in Ext.R1(b) order passed in the Review Petition that itshall not be a precedent. 9. The nature of engagement as involved herein, the claimto continue in service at least till the regular hands are engagedand also the claim with reference to the provisions of the Personswith Disabilities (Equal Opportunities Protection of Rights and FullParticipation) Act, 1995 had come up for consideration of thisCourt earlier in W.P.(C) 16039 of 2009. After hearing both thesides, a learned Judge of this Court, observed that, thepetitioners who claimed to be the persons with disabilities, were W.P. (C) No. 20321 of 2012 andconnected cases:10:appointed as labourers purely on provisional basis for a period ofsix months. The appointment order in the said case is almostsimilar in terms as in these cases as well; mentioning the extentof rights and liberties flowing therefrom and also the liberty ofthe Corporation to terminate the service, on expiry of the tenureor even before that. The learned Judge arrived at a clear findingthat the petitioners cannot claim any right to continue in servicebeyond the term for which they were appointed. Reliance wasalso placed on the decision rendered by a Division Bench of thisCourt [presumably in K.R. Manoj Vs. Kerala State BevaragesCorporation (ILR 2006 (4) Ker. 285)], whereby this Courthad directed the respondent Corporation to terminate the serviceof the provisional employees and to replace them with regularhands, after following the prescribed procedure. Accordingly,interference was declined and the writ petition was dismissed. 10. Similar issue came up for further consideration again inW.P.(C) No. 29076 of 2011 and after referring to the judgment inW.P.(C) No. 16039 of 2009, interference was declined and the W.P. (C) No. 20321 of 2012 andconnected cases:11:said writ petition was also dismissed. It was against the saidverdict, that the aggrieved party approached the Division Benchby filing W.A. 1687 of 2011, wherein Ext. P7 judgment came tobe passed on 04.11.2011. Ext. P7 was subsequently modified asper Ext. R1(b) order passed in the Review Petition filed as R.P.No. 43/2012.11. With regard to the scope of Ext. P7 judgment passedby the Division Bench, it is to be noticed that, no law has beenlaid down by the Bench in the said case. When the matter cameup for consideration, it was recorded that the learned standingcounsel for the Bevarages Corporation had submitted thatreplacement will be made only with regular hands, based on therelevant norms. On the basis of the said statement, it wasobserved that the respondent could permit the appellant tocontinue with 'one day's break', until the selected candidateswere appointed. But the alleged statement made by thelearned standing counsel was disputed by filing Ext. R1(a) reviewpetition. After considering the same, Ext. R1 (b) order came to W.P. (C) No. 20321 of 2012 andconnected cases:12:be passed, whereby the writ petitioner was directed to give anundertaking that he will not seek for any regularization, if he isnot otherwise entitled and on this condition, he would bepermitted to continue with 'one day's break', to get over thedifficulty. With regard to the possible/probable claim forregularization on priority basis, it was also made clear as per Ext.R1(b), that the relief was being granted to the writ petitioner whowas a 'disabled person' and the review petitioner/Corporationneed not treat the judgment under review (Ext. P7) as aprecedent for retaining other temporary hands. Reading of Exts.P7 and R1(b) together, shows it point blank that, no positivedirection has been given by the Division Bench to have the saidcourse followed or made applicable to anybody else. As such,there is no basis for the reliance sought to be placed on the saidverdict, from the part of the petitioners. 11. Yet another aspect to be considered is that theDivision Bench has made a specific observation in Ext. P7judgment itself in the following lines: W.P. (C) No. 20321 of 2012 andconnected cases:13:“We do not think this Court can order retention ofappellant though he may be entitled to apply inthe quota reserved for disabled persons”The Writ Appeal itself was virtually dismissed, as borne by thelast sentence/paragraph, however, with the observation that therespondent Corporation can permit the appellant/writ petitionerto continue with 'one day's break', after completion of six monthsuntil the selected candidates are appointed. Even then, therewas no direction to appoint the writ petitioner/appellant, but forobserving that he can be permitted by the Corporation, whichdiscretion always stands with the Corporation, in the absence ofany positive direction. The judgment passed by the Single Benchin W.P.(C) No. 29076 of 2011 still stands, as not set aside.13. With regard to the submission made by the learnedcounsel for the petitioners that the petitioners might be permittedto continue with 'one day's break', this Court finds that, it is analien concept, which cannot be pressed into service, as of anyuniversal application. Even if a person is continuing in service W.P. (C) No. 20321 of 2012 andconnected cases:14:beyond the stipulated term; by virtue of the law declared by theConstitution Bench of the Supreme Court in Secretary, State ofKarnataka and Others Vs. Umadevi and others [(2006) 4SCC 1], there cannot be any vested right for regularization,except to the extent as mentioned in paragraph 53 of the saidverdict, as a 'one time measure' in respect of a person havingmore than 10 years of such service. Continuous engagement ofa person/temporary hand, with an artificial one day's break wasthe device designed by some unscrupulous employers of thebygone era to keep on engaging persons without making themregularized; thus denying them the benefits of regularemployees. The said course was being pursued more inindustrial sector; presumably in view of some adverse situationsagainst engaging workers continuously on daily wages or astemporary hands/provisional hands/'badlees'; which in factamounts to an 'unfair labour practice' as included in the 'fifthschedule' to the Industrial Dispute Act, and is liable to beproceeded with, by virtue of the penal provision as provided W.P. (C) No. 20321 of 2012 andconnected cases:15:under Section 25 U of the said Act. Section 25 B of theIndustrial Dispute Act defines the term 'continuous service'.Once a 'workman', as defined under Section 2 (s) of theIndustrial Dispute Act satisfies 'continuous service' as mentionedabove, he is eligible to have various benefits under the Act. Theemployers used to engage persons with an artificial break of afew days, to see that the workers did not have the requisite'continuous service'; which came to be deprecated by the ApexCourt as per the decision reported in State Bank of India Vs.Sundaramony (1976 SCC 1111). It was thereafter, that theIndustrial Dispute Act itself came to be amended, incorporatingclause (bb) to S. 2 (oo) of the Act, defining the term'retrenchment' (Act 49 of 1984 w.e.f. 18.08.1984). This beingthe position, the petitioners cannot expect to have any verdictfrom this Court, to pursue any practice which is not known to lawand the sanctity of 'artificial break' cannot be there any more.14. The nature of engagement of workers being pursued bythe respondent Corporation, the scope of the verdict passed by W.P. (C) No. 20321 of 2012 andconnected cases:16:the Apex Court in Umadevi's case (cited supra) in relation tosuch circumstances and such other relevant aspects came to beconsidered by a Division Bench of this Court in the decisionreported in ILR 2006 (4) Kerala 285 (cited supra). Afterconsidering the facts and figures as to the engagement ofworkers on daily wages and the right to continue in service afterthe tenure of engagement, this Court gave specific directions ascontained in paragraph 7, in the following terms. (1) All regular posts vacant should be notified for appointment.All regular posts now held by temporary hands shall be reportedin accordance with the rules (2) No temporary hands shall beappointed to the regular vacancy (3) All vacancies shall bereported to the Public Service Commission within six monthsfrom the date of receipt of copy of this judgment. All postsmanned by temporary employees for more than one yearcontinuously shall be treated as permanent post. (4) As far asupper age limit is concerned regular appointments, thetemporary employees who are working in the Corporation formore than six months, shall be given age relaxation. But thereshall not be any relaxation in the matter of basic qualifications.(5) The temporary employees working in the regular post shall W.P. (C) No. 20321 of 2012 andconnected cases:17:be allowed to continue in service only until these posts are filedup by regular only through employment exchange and suchemployees will not get any right for regularization on thatregular vacancies should be notified and regular appointmentsshould be made as expeditiously as possible. With thesedirections the writ petitions are disposed of. From the above, it is clear that the respondent Corporation hasnecessarily to fill up all the vacancies by pursuing regular processof selection and temporary engagement has to be confined to amaximum of 'six' months. In view of the specific direction givenby the Division Bench that temporary hands can be engaged onlythrough employment exchange and that the posts manned bytemporary hands for more than one year continuously have to betreated as regular posts, the respondent Corporation has toidentify these posts and get them filled up on a regular basis.15. In the above facts and circumstances, this Court findsthat the claim of the petitioners to continue in the posts afterexpiry of the tenure of 180 days mentioned in their appointmentorder is not liable to be entertained. Accordingly interference is W.P. (C) No. 20321 of 2012 andconnected cases:18:declined. 16. This Court however exercises the discretionaryjurisdiction of this Court, particularly, in the light of observationsmade by the Division Bench as per the decision reported in ILR2006 (4) Kerala 285 (cited supra) and hereby directs therespondent Corporation to identify all the posts which aremanned by temporary employees for a period of more than oneyear, notwithstanding any change of temporary hands byanother set of temporary hands and shall take appropriate stepsfor filling up the said posts, treating the same as permanentvacancies. If such posts are not sanctioned posts, it shallbrought to the notice of the State Government within two monthsfrom the date of receipt of a copy of this judgment; on whichevent, the matter shall be considered and necessary sanctionshall be given to have the posts filled up on regular basis. ThisCourt is given to understand that the respondent Corporationhappens to be one of the major contributors of Revenue for the W.P. (C) No. 20321 of 2012 andconnected cases:19:State, by virtue of the monopoly trade in the sale of IMFL in theState of Kerala (sharing similar status with the 'Consumer Fed' )and the Corporation cannot function and earn revenue withoutsufficient and dependable infrastructure including staff andofficers. As such, all the necessary steps as aforesaid shall bepursued and finalized as expeditiously as possible, at any rate,within six months.The Writ Petitions are dismissed with the aboveobservations. P.R. RAMACHANDRA MENON, JUDGE. lk/kmd