U K CHACKO Vs. STATE OF KERALA
LAWS(KER)-1974-1-6
HIGH COURT OF KERALA
Decided on January 29,1974

U. K. CHACKO Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

- (1.) These writ petitions are directed against the termination, or the threatened termination, of the petitioners' services in pursuance of orders of 'temporary' or 'provisional' or 'emergency' appointments as they are generally called under the provisions of R.9(a) of the Kerala State and Subordinate Services Rules (referred to, for short, as 'the Rules'). That the said statutory provision governs the terms and the conditions of these temporary appointees is a matter on which there was neither doubt nor dispute. R.9(a)(i) of the Rules as it stood till its recent amendment dated 22nd December, 1973 reads: "9(a)(i). Where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may appoint a person, otherwise than in accordance with the said Rules, temporarily: Provided that before a person is appointed under this clause, persons who are admittedly senior to him shall also be appointed, even if they are absent from duty, whether on leave or on foreign service or on deputation or for any other valid reasons, and allowed to continue as such subject to the condition that persons so appointed shall not eligible for the higher time scale of pay by virtue of such appointments unless otherwise specifically ordered by the Government. Note:-- (1) Even where it is considered necessary to sanction the higher time scale of pay not more than one person (either the senior most fit person in a series of adjacent persons on side the ordinary line, or, if such a person either forgoes the benefit on his own volition or does not require the benefit by virtue of his holding a post outside the ordinary line which secures him at least equivalent benefits in respect of salary and pension, then the next below in the series) may be authorised to draw the salary of the higher scale or grade in respect of any one officiating vacancy within the cadre filled by his junior. (2) A fortuitous officiating appointment given to a person who is a junior to one outside the regular line does not in itself give rise to a claim on the part of the senior to the higher time scale of pay." The number and length of the remaining sub clauses forbid their extraction in full; and it would be enough to notice the substance of some of them. Although the rule itself does not set any term to these provisional appointments, R.5 of the Kerala Public Service Commission (Consultation) Regulations, 1957 seems to require the concurrence of the Public Service Commission to the continuance of these appointments beyond three months and also to envisage such continuance. This provision presumably underlies the popularly understood notion that these appointments do not generally enure beyond a period of three months. R.9(a)(iii) of the Rules enacts that a provisional hand shall be replaced as soon as possible by a regular hand selected by the Public Service Commission; and sub clause (iv) of the same Rule is clear that a provisional band is not to be regarded as a Probationer and gets no preferential claim either for continuance in the post or for reappointment or otherwise by reason only of having held a provisional appointment. We are of the opinion that a provisional appointee who overstays the period of three months without the concurrence of the Public Service Commission does not thereby get a right to continue in service till replacement by a regular hand selected by the Public Service Commission. The orders of appointment issued and produced in O. P. 87 of 1974, (which was treated and argued as representative of these writ petitions, and to the exhibits in which we shall make reference) fully bear out what we have stated. Exts. P3 and P4 are two among the orders produced. They show that the appointments were purely temporary, that the appointees will be ousted from service on the date on which they complete three months' service or on the date on which a regular hand joins duty in the vacancy, whichever is earlier, without any previous notice.
(2.) While the scope and incidents of the provisional appointments in these cases appear to be clear on the terms of the Rule, no less than on the terms of the orders of the appointment, as a matter of policy or practice, if not both, the provisional appointees appear to have overstayed the three month limit and tarried in their posts for considerably longer periods. On the Government's side, the policy and principle adopted in the matter of continuance or termination of these provisional appointments was neither certain nor uniform, but appears to have wavered and shifted from time to time. Thus, for instance, by Ext. P1, G. O. MS. 48/70/PD. dated 11th February, 1970, to go back no further while deprecating the practice followed of retrenching temporary appointees at the end of every three months and making fresh appointments in the vacancies, it was advised that the temporary appointees should be continued in service till the nominee of the Public Service Commission is appointed, or till the Commission declined to give concurrence to the continuance of the appointments. The appointing authorities were also directed to promptly obtain the concurrence of the Commission for the continuance of the appointments. By Ext. P2, G. O. Rt. 1118/ 73/PD dated 8-3-1973. it was ordered inter alia that the provisional hands appointed during the strike period will not be retrenched until further orders and would be deemed to be continuing in supernumerary posts created for the purpose. A switch back from this policy, which has occasioned these writ petitions, came with Ex. P5 amendment dated 22 12 1973 by which the following proviso was inserted: "In part II of the said Rules in Clause (1) of Sub-r.(a) of R.9, after the proviso and the notes the following further proviso shall be inserted namely: "Provided further a person appointed under this clause by direct recruitment to a post other than teaching post shall not be allowed to continue in such post for a period of exceeding three months." This was a statutory amendment, issued in exercise of the powers under S.2 of the Kerala Public Services Act, 1968, and was published in the Gazette underlie signature of the Special Secretary: 'By order of the Governor'. As part of the notification appeared the following explanatory note: "(Explanatory Note) -- (This note is not part of the amendment, but is intended to indicate its general purport). Provisional employees who are retained in service for long periods often put forth a claim for regularisation of their appointments and create considerable difficulties for Government. It has, therefore, been decided that persons appointed provisionally by direct recruitment to posts other than teaching posts should not be allowed to continue in such posts for a period exceeding 3 months. This notification is intended to achieve the above object. Forwarded/By order. Sd/- Section Officer". We find little justification for an explanatory note under the signature of a Section Officer to figure side by side With a statutory Gazette notification issued: "By Order of the Governor", and authenticated by the signature of the Secretary. This was accompanied or followed by G. O. (P) 324/73/PD dated 22nd December, 1973 (Copy Ext. P6). Referring to the amendment effected to the Rules, the Government issued certain instructions to the appointing authorities for strict compliance. They were directed that these appointees should not be allowed to continue in such posts beyond three months; and that a person once appointed provisionally (temporarily) and discharged from service, should not, as far as possible, be reappointed to the same post by the same appointing authority.
(3.) The petitioners' grievance is against Ext. P5 amendment, and Ext. P6 G. O. It was contended that the amendment places an absolute bar against the continuance, and even against the reappointment, of the petitioners beyond the three month limit, and that this was made further clear by the explanatory note of the Section Officer, and by Ext. P6 G. O. We are clear that neither the Explanatory Note nor Ext. P6 G. O. can control or interpret the statutory amendment which must be left to operate on its own terms. In the sphere occupied by a statutory rule, there is no scope for executive or administrative instructions. On its terms, Ext. P5 only states that the temporary appointees shall not be allowed to continue for a period exceeding three months, which we consider to be quite consistent with the provisions of R.9. We do not think that the amendment has the effect of prohibiting reemployment of the temporary appointees altogether. The learned Government Pleader who appeared for the Government in these writ petitions, very candidly and properly stated that this was not the effect of the statutory amendment, or, for that matter, of the explanation or the administrative instruction referred to earlier. There is, therefore, no substance in the contention advanced on the side of the petitioners that the amendment by itself, or read in conjunction with the explanation and the administrative instruction, debars them altogether from seeking 'reemployment, and therefore, offends Art.311 (2) of the Constitution, and of Art.14 and 16 thereof. Reliance was placed in support of this contention on Krishna Chandran Nayar's case ( AIR 1962 SC 602 ), upon a decision of the Bombay High Court reported in 1973 Labour and Industrial Cases, 1071 and upon a decision of the Allahabad High Court reported in Mohammad Israil and Others v. The State of U.P. (1973 (1) Service Law Reports 1204). It is unnecessary to examine these cases (which we notice in fairness to the petitioners' Counsel), in the light of the view that we have expressed that the explanation and the administrative instruction cannot control the statutory amendment, and that the amendment does not have the effect of debarring the temporary appointees altogether from being reemployed. For that reason again, we refrain from referring to the recent judgment of the Supreme Court in Civil Appeal No. 1110 of 1971, a blue print copy of which was made available to us by Counsel for the petitioners.;


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