C. Balachandran &
Ors. Vs. State of Kerala & Ors.  INSC 2195 (17 December 2008)
JURISDICTION CIVIL APPEAL NO. 7351 OF 2008 [Arising out of SLP (C) No.3498 of
2004] C. Balachandran & Ors. ... Appellants Versus State of Kerala &
Ors. ... Respondents
S.B. Sinha, J.
are before us aggrieved by and dissatisfied with the judgment and order dated
21st July 2003 passed by a Division Bench of the High Court of Kerala at
Ernakulam affirming an order dated 07th November 2002 passed by a learned
Single Judge of the said Court dismissing the writ petition filed by them
seeking a writ of or in the nature of mandamus directing the Kerala Water
Authority to reinstate and regularise them in 2 service purported to be in
terms of a judgment and order of this Court in the case of Jacob M.
Puthuparambil & Ors. etc. v. Kerala Water Authority & Ors. etc. (1991)
1 SCC 28.
were said to have been appointed by the Kerala Water and Sewerage Authority
(for short, `the Authority') on daily wages in connection with carrying out of
some projects. Their services were terminated in the year 1987. A writ petition
before the Kerala High Court was filed. The said writ petition was disposed of
by an order dated 22nd May 1987 directing :
petitioner shall make representations before the Kerala Water Authority
detailing their claims within two weeks from this date. Such representations,
if any, shall be considered and disposed of by the Authority and the Government
after giving the petitioners opportunity of being heard as expeditiously as
possible, at any rate within a month from the date of receipt of the
representation. There shall be further direction to allow the petitioners to
continue in service till such disposal of the representation."
the question in regard to right of the employees of the Authority for
regularisation in service was considered by this Court in the case of Jacob
(supra). Upon taking into consideration the provisions of Section 69 of Kerala
Water Supply and Sewerage Act, 1986 (for short, `the 3 1986 Act') and Rule
9(a)(i) of Kerala State and Subordinate Service Rules (for short, `the Rules'),
it was opined :
if we interpret Rule 9(a)(i) consistently with the spirit and philosophy of the
Constitution, which it is permissible to do without doing violence to the said
rule, it follows that employees who are serving on the establishment for long
spells and have the requisite qualifications for the job, should not be thrown
out but their services should be regularised as far as possible. Since workers
belonging to this batch have worked on their posts for reasonably long spells
they are entitled to regularisation in service."
the appellants were not parties in the said matter before this Court. The
judgment of this Court was rendered on 19th September 1990. Appellants made
representations to the Authority on or about 19th November 1991 purporting to
seek compliance of the judgment of this Court in the case of Jacob (supra) in
their favour. Some of the employees who are said to be similarly situated filed
a writ petition. Indisputably, the said writ petition was allowed. Certain
observations were made therein. An intra-court appeal against the said judgment
was filed by the Authority.
Before the Division
Bench of the said Court, an undertaking was allegedly given by the
appellant-Authority that the said writ petitioners would be appointed on
regular basis considering their respective qualifications. In the light of the
said undertaking, the writ appeal was disposed of directing the 4 writ
petitioners to file representations in terms thereof. Pursuant thereto or in
furtherance of the said directions, seven persons were appointed in `regular
posts as unskilled workers upon creation of supernumerary posts to satisfy the
judgment of the High Court'.
had also filed a writ petition which was disposed of by an order dated 14th
July 1998 directing them to file representations, pursuant whereto they filed
representations on 14th December 1998. However, their representations were
rejected by an order dated 16th December 1998 by the Authority.
challenged the order of rejection of their representations by filing a writ
petition which was disposed of on 10th October 2001 by directing :
"2. Therefore I
dispose of the Original Petition directing the 1st respondent to afford another
opportunity to the petitioners to present their case represented in Ext.P4.
Final orders shall be passed in accordance with law within a period of four
months from the date of production of copy of this judgment. Needless to say
Ext.P7 will be subject in the said decision."
to the aforementioned direction of the High Court, appellants filed another
detailed representation on 08th December 2001. By an order dated 26th March
2002, their representation was rejected by the 5 Principal Secretary (Power),
In charge of Irrigation & Water Supply, stating :
"The claims of
the petitioners have been examined in detail with reference to the records and
the judgment of K.W.A. is applicable only to the employees of the Kerala Water
Authority who were recruited through Employment Exchange as per Rule 9(a)(i)
and who were continuing on the date of judgment i.e. 19.9.1990. From the
records it may be noted that the petitioners have not been issued any order of
appointment on provisional basis and they were also not appointed through
Employment Exchanges. It may also be noted that they were not in service on
19.9.1990. The petitioners were only engaged in daily wages for doing some
particular works and they were disengaged on completion of that work. They were
not appointed to any sanctioned posts, they were not treated on par with CLR
workers in the matter of payment of salary etc. As per the decision of the
Hon'ble High Court Division Bench the HR workers are not entitled for
regularisation re-instatement in service. Hon'ble High Court has upheld the
above decision in its judgment in O.P. No.15989/94 filed by one Chandrasekharan
Nair and 46 others on a similar request. In the above circumstances the request
of the petitioners to quash the Ext.P7 seems no consideration."
thereafter filed another writ petition which was dismissed by a learned Single
Judge on 07th November 2002 holding :
"3. It is
admitted case that the services of the petitioners were terminated in the year
1987-88. The Supreme Court pronounced the judgment in Jacob's case on
19.9.1990. Even assuming that the petitioners were in service either as daily
wage workers or labourers on monthly payment basis it is disputable that they
were not in service on 19.9.1990. The view taken by this Court, in giving
effect to the judgment of the 6 Supreme Court in Jacob's is that
regularisation of workers is possible only in those cases where the workers
were in service on the date of the Supreme Court Judgment, i.e., 19.9.1990.
Since the petitioners
were not in service on that date, the claim made by them that they are entitled
to regularisation in view of Jacob's case cannot be sustained. Though other
contentions also have been raised by the counsel for the petitioners, I do not
think I should examine the merits of those contentions since in my view the
petitioners are not entitled to the benefit of the Judgment of the Supreme
Court. Unless the petitioners come within the purview of that judgment, which
is the Magna carta of the workers of the Kerala Water Authority appointed prior
to the extension of the provisions of the Public Service Commission (Consultation)
Regulations to the Kerala Water Authority, any other contention will not be of
any avail. Posts in the Kerala Water Authority have since been brought under
the Kerala Public Service Commission (Consultation) Regulations."
indicated hereinbefore, an appeal preferred there against has been dismissed by
the impugned order.
K.P.K. Pillay, learned counsel appearing on behalf of the appellants would
submit that the learned Single Judge of the High Court committed a serious
error in passing the impugned judgment insofar as he failed to take into
consideration that in view of the fact that seven persons, who were similarly
situated were appointed, there was absolutely no reason as to why the case of
the appellants should not have been considered by the Authority as also by the
State Government having regard thereto. Delay in 7 filing the representation
and/or writ petition by the appellants, if any, it was urged, should be
condoned by this Court in exercise of its power under Article 142 of the
Constitution of India.
Learned counsel would
furthermore contend that out of the four categories carved out by this Court in
the case of Jacob (supra), the appellants' case falls in category (ii) and/or
(iii) and thus it was not necessary for the appellants to be in service on the
date of passing of the said judgment.
G. Prakash, learned counsel appearing on behalf of the respondents, on the
other hand, would support the impugned judgment.
Kerala Water and Waste Water Authority was constituted under the Kerala Water
and Waste Water Ordinance, 1984 which came into force on 01st March 1984. The
said Ordinance was repealed and was replaced by the 1986 Act. The employees of
the said Authority having regard to the provisions of the said Act as also the
amendments carried out thereafter were divided into four distinct groups :
"(i) Those who
were in the employment of PHED before the constitution of the Authority and
were transferred to the Authority;
(ii) Those whom the
Authority employed between April 1, 1984 and August 4, 1986;
8 (iii) Those who
were appointed between August 4,1986 and July 30, 1988; and (iv) Those who were
appointed after July 30, 1988."
Jacob's case (supra), the petitioners therein approached this Court apprehending
termination of their services. They had been working in the Authority as
cleaners, pump operators, draftsmen, drivers etc. having been appointed through
the Employment Exchange between 1981 and 1988. It was contended that for the
purpose of their appointment it was not necessary to consult Public Service
Commission. This Court noticed the provisions of the 1986 Act and the Rules
framed there under to consider the question of regularisation of the
petitioners therein who were continuing in service where for historical as also
constitutional perspectives were taken into consideration. In terms of Rule
9(a)(i) of the Rules, the appointing authority could appoint a person
temporarily otherwise than in accordance with the rule, if (i) it was necessary
in public interest; and (ii) where an emergency had arisen to fill any
particular post which has fallen vacant, immediately. Clause (iii) of Rule 9 of
the Rules, however, stated that a person appointed under clause (i) shall, as
soon as possible, be replaced by a member of the service or an approved
candidate qualified to hold the post.
9 Clause (e) of Rule
9, however, provided that services of any person appointed under clause (i) of
sub-rule (a) be regularised if he had completed continuous service of two years
as on December 22, 1973, notwithstanding anything contained in the rules.
the aforementioned premise, this Court held :
services of workers employed by the Authority between April 1, 1984 and August
4, 1986 will be regularised with immediate effect if they possess the requisite
qualifications for the post prescribed on the date of appointment of the
(3) The services of
workers appointed after August 4, 1984 and possessing the requisite
qualifications should be regulated in accordance with Act 19 of 1970 provided
they have put in continuous service of not less than one year, artificial
breaks, if any, to be ignored. The Kerala Public Service Commission will take
immediate steps to regularise their services as a separate block. In so doing
the Kerala Public Service Commission will take the age bar as waived."
16. The judgment
rendered by this Court must be read in its entirety. It should not be read as a
provision of a Statute. This Court took into consideration the constitutional
scheme to opine that those who are in job should not be thrown out. The
aforementioned observations, therefore, must be borne in mind while construing
clauses (2) and (3) of the operative part of the judgment of this Court. Jacob
(supra) did not and in fact had no 10 occasion to take into consideration the
cases of the daily wagers appointed against a particular project and whose
services had been terminated after the project had come to an end.
herein in their writ petition before the High Court as also before us did not
state as to how they had been appointed and for how many days or months they
had worked. They did not disclose as to whether before their appointment any
selection process was resorted to or that they were registered with the
Employment Exchange. There is nothing on record to show that before their
recruitment, the constitutional scheme of equality as envisaged under Articles
14 and 16 of the Constitution of India was complied with.
Constitution Bench of this Court in the case of Secretary, State of Karnataka
& Ors. v. Umadevi (3) & Ors. (2006) 4 SCC 1 opined as under :
"43. Thus, it is
clear that adherence to the rule of equality in public employment is a basic
feature of our Constitution and since the rule of law is the core of our
Constitution, a court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the overlooking of the need
to comply with the requirements of Article 14 read with Article 16 of the
Constitution. Therefore, consistent with the scheme for public employment, this
Court while laying down the law, has necessarily to hold that unless the
appointment is in terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any right on the appointee.
If it is a contractual appointment, the 11 appointment comes to an end at the
end of the contract, if it were an engagement or appointment on daily wages or
casual basis, the same would come to an end when it is discontinued. ...."
29. Dr. Pillay,
however, strongly relied upon the observations made in para 53 in the case of
Umadevi (supra) which reads as under :
"53. One aspect
needs to be clarified. There may be cases where regular appointments (not
illegal appointments) as explained in State of Mysore v. S.V. Narayanappa
(1967) 1 SCR 128, R.N. Nanjundappa v. T. Thimmiah (1972) 1 SCC 409 and B.N.
Nagarajan v. State of Karnataka (1979) 4 SCC 507 and referred to in para 15
above, of duly qualified persons in duly sanctioned vacant posts might have
been made and the employees have continued to work for ten years or more but
without the intervention of orders of the courts or of tribunals.
The question of
regularisation of the services of such employees may have to be considered on
merits in the light of the principles settled by this Court in the cases
abovereferred to and in the light of this judgment. In that context, the Union
of India, the State Governments and their instrumentalities should take steps
to regularise as a one-time measure, the services of such irregularly
appointed, who have worked for ten years or more in duly sanctioned posts but
not under cover of orders of the courts or of tribunals and should further
ensure that regular recruitments are undertaken to fill those vacant sanctioned
posts that require to be filled up, in cases where temporary employees or daily
wagers are being now employed. The process must be set in motion within six
months from this date.
We also clarify that
regularisation, if any already made, but not sub judice, need not be reopened
based on this judgment, but there should be no further bypassing of the
constitutional requirement and regularising or making permanent, those not duly
appointed as per the constitutional scheme."
20. A case of
regularisation which thus attained finality and was not sub judice would not
come within the purview of exception to the rule contained in para 53 of the
said judgment. Appellants' case, thus, does not come within the purview
thereof. Only those cases where regularisations had already been made were not
to be re-opened. It is not in dispute that services of the appellants were
terminated as far back as in 1987 and they did not question the legality or
validity of the said order. It is only after the decision of this Court in
Jacob's case (supra) representations were filed.
were rejected both by Kerala Water Authority as also the State of Kerala.
21. Appellants, in
our opinion, thus, neither in law nor in equity were entitled to be reinstated
in service. The decision of this Court in Jacob's case (supra) being not
applicable to the case of the appellants, we are bound by the ratio laid down
in the case of Umadevi (supra). So far as paragraph 53 of the judgment of the
Constitution Bench in the said case is concerned, the same has been considered
by this Court in a large number of decisions.
In the case of Punjab
Water Supply & Sewerage Board vs. Ranjodh Singh & Ors., [(2007) 2 SCC
491, it was held :
question came up for consideration before a Constitution Bench of this Court in
Secy., State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 wherein it was held
that no person 13 who was temporarily or casually been employed could be
directed to be continued permanently. It was opined that by doing so it would
be creating another mode of public employment which is not permissible."
Exploration Corpn. Employees' Union vs. Mineral Exploration Corpn. Ltd. [(2006)
6 SCC 310]; State of M.P. & Ors. vs. Lalit Kumar Verma [(2007) 1 SCC 575];
and Postmaster General, Kolkata & Others vs. Tutu Das (Dutta) [(2007) 5 SCC
22. For the reasons
aforementioned, there is no merit in this appeal and the same is dismissed
accordingly. However, in the facts and circumstances of this case, there shall
be no order as to costs.
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