Kerala High Court
Cochin University Of Science And ... vs Suja M.S on 14 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 14TH DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944
WA NO. 1441 OF 2021
AGAINST THE JUDGMENT IN WP(C) 17180/2021 OF HIGH COURT OF
KERALA
APPELLANTS/RESPONDENTS 1 TO 3:
1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
REPRESENTED BY ITS REGISTRAR,
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
SOUTH KALAMASSERY, KOCHI-682 022.
2 VICE CHANCELLOR,
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
SOUTH KALAMASSERY, KOCHI-682 022.
3 REGISTRAR,
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
SOUTH KALAMASSERY, KOCHI-682 022.
BY ADV S.P.ARAVINDAKSHAN PILLAY
RESPONDENTS/PETITIONERS:
1 SUDHEESH KUMAR P.S., AGED 35 YEARS
S/O.SADI.P.K., PUTHEN KATTUNIKARTH, AROOR P.O.,
ALAPPUZHA-688 423.
2 ARUN C.KARTHIK,
S/O.C.P.KARTHIKEYAN, CHAKATHARTH HOUSE,
KADAMANGALAM, N.PARAVUR, ERNAKULAM.
3 RAJANI.N.P.,
W/O.T.K.PUZHPANGADAN, THEKKINKATTIL HOUSE,
CHIRAKKAKOM, VARAPUZHA P.O., ERNAKUAM-683 517.
4 VIJESH.K.B., S/O.BALAKRISHNAN,
KARUVELIL HOUSE, MURAVANTHURUTH,
VADAKKEKARA P.O., ERNAKULAM-683 522.
W.A. Nos.1441, 1446
& 1449 of 2021 -: 2 :-
5 MANJU.K.S.,
W/O.REJI.K.V., KANAMPURAM HOUSE, MALAYATTOOR
P.O., ELLITHODE, ERNAKULAM-683 587.
6 KALESH KUMAR.V.R.,
S/O.RAJAPPAN.V.N., VELAMKULATHIL (H),
MANNANAM P.O., KOTTAYAM-686 561.
7 JINESH.B.K.,
S/O.B.C.KUTTAPPAN, BUNGLAVUPARAMBIL HOUSE,
PALAYAMPARAMBU P.O., VYNTHALA, THRISSUR-680 741.
8 ANEESH.K.G., S/O.GIRIKUMAR,
THEKKUYMTHALA MADOM, VELIYATHUNAD P.O.,
W.VELIYATHUNAD, ALUVA-683 511.
9 GANESAN.K.,
S/O.CHARTHAVE, WEST VENGOLA P.O., ONAMKULAM,
PANGIMALA, ERNAKULAM-683 556.
10 SAJI.K.J.,
S/O.K.A.JOSEPH, KATTITHARA HOUSE, THYKULAM,
VYTTILA P.O., ERNAKULAM-682 019.
11 ANILMON,
S/O.MOHAMMAD YOUSUF, KAVIYAM PARAMBU,
VALIYA MARAM WARD, ALAPPUZHA-688 001.
12 BIJU SREEDHARAN,
S/O.SREEDHARAN, ATTASSERY HOUSE, P.O.KUTTUR,
PAMBOOR, THRISSUR-680 013.
13 BEENA.M.P.,
W/O.JOJI, KOTTAKKAL HOUSE, MELOOR P/.O.,
CHALAKUDY VIAL, THRISSUR-680 311.
OTHER PRESENT:
SRI.KALEESWARAM RAJ,
SRI.P.C.SASIDHARAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
14.02.2023, ALONG WITH WA.1449/2021, 1446/2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. Nos.1441, 1446
& 1449 of 2021 -: 3 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 14TH DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944
WA NO. 1446 OF 2021
AGAINST THE JUDGMENT IN WP(C) 18249/2021 OF HIGH COURT OF
KERALA
APPELLANTS/RESPONDENTS 1 TO 3:
1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
REPRESENTED BY ITS REGISTRAR,
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
SOUTH KALAMASSERY, KOCHI-682 022.
2 VICE CHANCELLOR,
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
SOUTH KALAMASSERY, KOCHI-682 022.
3 REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND
TECHNOLOGY, SOUTH KALAMASSERY, KOCHI-682 022.
BY ADV S.P.ARAVINDAKSHAN PILLAY
RESPONDENTS/PETITIONERS:
1 SUJA M.S., AGED 45 YEARS
KARIYEZHATHU HOUSE, KUZHUPILLY,
EDAVANAKKAD P.O., ERNAKULAM, PIN-682 802.
2 SAJEEV.C., AGED 32 YEARS, CHELAKKADKUNNU HOUSE,
THIROOR P.O., PALAKKAD, PIN-678 544.
SRI.KALEESWARAM RAJ
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
14.02.2023, ALONG WITH WA.1441/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. Nos.1441, 1446
& 1449 of 2021 -: 4 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 14TH DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944
WA NO. 1449 OF 2021
AGAINST THE JUDGMENT IN WP(C) 17247/2021 OF HIGH COURT OF
KERALA
APPELLANTS/RESPONDENTS 1 TO 3:
1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY ,
REPRESENTED BY ITS REGISTRAR,
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
SOUTH KALAMASSERY, KOCHI - 682022.
2 VICE CHANCELLOR,
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
SOUTH KALAMASSERY, KOCHI - 682022.
3 REGISTRAR,
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
SOUTH KALAMASSERY, KOCHI - 682022.
BY ADV S.P.ARAVINDAKSHAN PILLAY
RESPONDENTS/PETITIONERS AND 4TH RESPONDENT:
1 SHOBIKA M.M., AGED 40 YEARS
MURIYATHARA HOUSE, CHAKKARAPPADAM P. O.,
PERNJANAM, THRISSUR - 680686.
2 JENCY GEORGE, AGED 45 YEARS,
KALAPPURAKKAL HOUSE, ELOOR EAST,
UDYOGMANDAL P. O., ERNAKULAM - 683501.
3 DILSHA CHANDRAN, AGED 39 YEARS
VADAKKEPANATTIL, KANJIRAMATTOM P. O.,
ERNAKULAM. 682 315.
W.A. Nos.1441, 1446
& 1449 of 2021 -: 5 :-
4 SURESH P. M., AGED 40 YEARS
VAZHAYILVALAPPUMEETHEL HOUSE, IRINGATH P. O.,
MEPPAYUR, KOZHIKODE - 673523.
5 CHAIRMAN, KERALA PUBLIC SERVICE COMMISSION,
PATTOM, THIRUVANANTHAPURAM - 695 004.
BY ADVS.
SRI.KALEESWARAM RAJ
SRI.P.C.SASIDHARAN
JOHN K.GEORGE
K.S.ARUN KUMAR
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
14.02.2023, ALONG WITH WA.1441/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. Nos.1441, 1446
& 1449 of 2021 -: 6 :-
P.B.SURESH KUMAR & SOPHY THOMAS, JJ.
-----------------------------------------------
Writ Appeal Nos.1441, 1446 & 1449 of 2021
-----------------------------------------------
Dated this the 14th day of February, 2023
JUDGMENT
P.B.Suresh Kumar, J.
These appeals arise from the common judgment in
three writ petitions namely, W.P.(C) Nos.17180 of 2021, 17247
of 2021 and 18249 of 2021. As the writ petitions were disposed
of by a common judgment, the appeals are also disposed of by
this common judgment. Parties and documents are referred to
in this judgment, unless otherwise mentioned, as they appear
in W.P.(C) No.17180 of 2021.
2. The petitioners in the writ petitions were
persons included in the ranked list published by the Cochin
University of Science and Technology (the University) on
28.12.2018 for appointment to the post of Sweeper-cum-
Cleaner. As the ranks secured by the petitioners were not
sufficient to secure regular appointments having regard to the
number of vacancies, they were not appointed. Nevertheless,
the petitioners were later engaged by the University as
W.A. Nos.1441, 1446
Sweeper-cum-Cleaner on daily wage basis in a few temporary
posts. Ext.R3(a) is the order governing engagement of persons
on daily wage basis in the University. In terms of Ext.R3(a), a
person cannot be engaged on daily wage basis for a term
exceeding 240 days. When steps were taken to disengage the
petitioners on completing their term, they approached this
Court in W.P.(C) No.12971 of 2021 claiming permanency, and
the said writ petition was disposed of by this Court directing
the University to consider their representation. Pursuant to the
direction aforesaid, the University issued Ext.P4 order rejecting
the representation submitted by the petitioners taking the
stand that they cannot be permitted to continue beyond 240
days. Ext.P4 order was under challenge in the writ petitions.
Ext.R3(a) order of the University was also challenged in one of
the writ petitions namely, W.P.(C) No.17247 of 2021. Among
others, the petitioners sought in the writ petitions, a
declaration that they are entitled to be engaged on daily wage
basis till regular appointments are made by the University.
3. Counter affidavits were filed in the writ
petitions by the University contending, among others, that
having accepted the terms of the engagement as stipulated in
W.A. Nos.1441, 1446
Ext.R3(a), the petitioners cannot be heard to contend that they
are entitled to continue otherwise than in accordance with
Ext.R3(a) order. It was also contended by the University in the
counter affidavits that there are no vacancies at present and
that the petitioners are engaged only in temporary posts
created in the exigencies of service.
4. The learned Single Judge took the view that
Ext.R3(a) order is against the law laid down by the Apex Court
in Hargurpratap Singh v. State of Punjab, (2007) 13 SCC
292 that one ad hoc arrangement cannot be replaced by
another ad hoc arrangement, and disposed of the writ petitions
directing the University to continue to engage the petitioners
till the University fill up the posts manned by the petitioners
with a set of regular employees, by following the principle of
last come, first go. The University is aggrieved by the said
decision of the learned Single Judge.
5. Heard the learned Standing Counsel for the
University as also the learned counsel for the petitioners in the
writ petitions.
6. The learned Standing Counsel for the
University submitted that inasmuch as the engagement of the
W.A. Nos.1441, 1446
petitioners as Sweeper-cum-Cleaner in the University was in
terms of Ext.R3(a) order, without there being any challenge to
Ext.R3(a) order, the learned Single Judge ought not have
directed the University to continue to engage the petitioners.
It was argued by the learned Standing Counsel that having
accepted the terms of the engagement that the engagement is
only for a particular period, the petitioners cannot be heard to
contend that they are entitled to be engaged beyond the term
for which they were engaged. It was also argued by the
learned Standing Counsel that the learned Single Judge was
not right in relying on the decision of the Apex Court in
Hargurpratap Singh, as the petitioners therein are not
similarly placed like the petitioners in the instant cases. Placing
reliance on the decision of the Constitutional Bench of the
Apex Court in Secretary, State of Karnataka v. Umadevi
(3) and Others, (2006) 4 SCC 1, the learned Standing Counsel
has also contended that the engagement in the nature of one
made by the University is permissible and such engagement
would come to an end when the same is discontinued. It was
pointed out by the learned Standing Counsel that there are
many others who are desirous of being engaged on daily wage
W.A. Nos.1441, 1446
basis in temporary posts in the University and it is with a view
to accommodate such persons that a period is prescribed in
Ext.R3(a) order for engagement of persons on daily wage
basis.
7. Per contra, the learned counsel for the
petitioners, placing reliance on the decisions of the Apex Court
in State of Haryana v. Piara Singh, (1992) 4 SCC 118 and
Manish Gupta v. Jan Bhagidari Samiti, 2022 SCC OnLine SC
485, contended that an ad hoc or temporary employee should
not be replaced by another ad hoc or temporary employee; he
shall be replaced only by a regular employee. The learned
counsel has also relied on the decision of the Division Bench of
the Delhi High Court in Narinder Singh Ahuja v. Secretary,
Ministry of Health and Family Welfare, 2014 SCC OnLine
Del 2243, in support of the said proposition. It was pointed out
by the learned counsel that even though Piara Singh was
referred to by the Constitutional Bench of the Apex Court in
Umadevi (3), the dictum in Piara Singh that an ad hoc or
temporary employee should not be replaced by another ad hoc
or temporary employee has not been unsettled. In order to
establish the said aspect, the learned counsel has relied on the
W.A. Nos.1441, 1446
decision of the Punjab and Haryana High Court in Dr.Barinder
Kaur v. Guru Nanak Dev University, Amritsar and
Others, 2015 SCC OnLine Punjab and Haryana 12156, wherein
it was clarified that the proposition in Piara Singh that a
temporary employee should not be replaced by another
temporary employee was not disagreed with in Umadevi (3).
8. The learned Standing Counsel for the Kerala
Public Service Commission which is a party in one of the
appeals contended, placing reliance on a provision in the
Kerala State and Subordinate Service Rules that the scheme of
the said Rules is that temporary appointments shall be
distributed among those who are desirous of being engaged on
temporary basis in public service. According to the learned
Standing Counsel, the policy behind the said scheme is that
public employment is a property of the nation which has to be
shared equally subject to the qualification necessary for
holding the office or post. The learned Standing Counsel has
brought to our notice the observation made by the Apex Court
in this regard in State of Maharashtra v. Chandrabhan
Tale, (1983) 3 SCC 387.
9. We have examined the arguments advanced
W.A. Nos.1441, 1446
by the learned counsel for the parties on either side.
10. The fact that the petitioners are persons who
are included in the ranked list published by the University after
a due process of selection for appointment to the post of
Sweeper-cum-Cleaner in the regular vacancies in the University
is not disputed. As noted, since the ranks secured by the
petitioners were not sufficient to secure regular appointments
having regard to the number of vacancies, they were not
appointed against the vacancies notified. It appears that
having regard to the activities undertaken by the University, it
had to create temporary posts of Sweeper-cum-Cleaner and it
is in such posts that the petitioners were later accommodated
on daily wage basis. The only relief granted to the petitioners
by the learned Single Judge is that they shall not be
disengaged until regular appointments are made by the
University. As the posts in which the petitioners are engaged
are temporary, there is no question of any regular appointment
being made in such posts. In other words, the direction is only
that they shall not be replaced by another set of daily wage
employees so long as the requirement to have the temporary
posts subsists. The contentions advanced by the learned
W.A. Nos.1441, 1446
counsel for the parties are to be considered keeping in mind
the said factual background.
11. As rightly pointed out by the learned counsel
for the petitioners, the principle that a temporary employee
shall not be replaced by another temporary employee and that
he shall be replaced only by a regular employee, is a principle
consistently followed the Apex Court and various High Courts.
As clarified by the High Court of Punjab and Haryana in
Dr.Barinder Kaur, the said proposition as reiterated in Piara
Singh was not disagreed with by the Constitutional bench of
the Apex Court in Umadevi (3), though it was held Umadevi
(3) that such employees do not have any right to claim
regularisation and that their engagement ends when their term
ends. Of course, the said principle cannot be applied when
engagement on daily wage basis is governed by statutory
rules. In the instant case, even according to the University, the
engagement of employees on daily wage basis is governed by
Ext.R3(a) executive order. No doubt, the principle that public
employment is a property of the nation and the same has to be
shared equally among citizens, is laudable. The said principle,
according to us, has no application to the facts of the present
W.A. Nos.1441, 1446
case. As noted, it is a case where persons who have
participated in a regular selection process for appointment to a
last grade post and not appointed for want of sufficient
vacancies, were later accommodated in some of the temporary
posts. The fact that they could not secure any other
employment is evident from the fact that they have
approached this Court for continuance. It is in the said
circumstances that the learned Single Judge chose to direct the
University to permit them to continue until the temporary
posts exist. It is a direction issued in exercise of the
discretionary and equitable jurisdiction vested in this Court
under Article 226 of the Constitution. Such discretionary orders
are not interfered with in appeal under normal circumstances,
especially when interference would result in inequitable
results.
The writ appeals, in the circumstances, are devoid
of merits and are accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
SOPHY THOMAS, JUDGE.
ds 08.02.2023
