Dismissed

Santhosh.K.v v. Malabar Regional Co-Operative Milk Producers Union Ltd. (Milma)

Kerala HC28 Feb 2018WP(C)/3357/2018

Case brief

AI extract

What is this about?

A writ petition seeking regularisation and continuance in service for a plant attendant who completed four years of fixed-period contracts. The High Court rejected the claim, holding that contractual appointments end upon expiry and courts cannot grant continuance without statutory rules or open recruitment processes.

What the court decided

AI extract

Santhosh.K.v Vs Malabar Regional… — Contract and Commercial Disputes | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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WEDNESDAY, THE 28TH DAY OF FEBRUARY 2018 / 9TH PHALGUNA, 1939

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WP(C).No. 3357 of 2018

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PETITIONER:

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SANTHOSH.K.V, AGED 43 YEARS, S/O. GOPALAN, (NOW WORKING AS PLANT ATTENDER MILMA DAIRY) ES VILLA, PADANNOT MOTTA, MUNDERI P.O., KANNUR DISTRICT.

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BY ADVS.SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH

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RESPONDENT:

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MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD(MILMA),KANNUR DAIRY, PALLIKUNU P.O., KANNUR - 670 004, REPRESENTED BY DAIRY MANAGER.

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BY SRI.K.ANAND (SENIOR ADVOCATE) SMT.LATHA ANAND, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PBS

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WP(C).No. 3357 of 2018 (T)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	TRUE COPY OF KNR/PER/1386/2014/4076 RESPONDENT.	THE PROCEEDINGS DATED 16.01.2014 OF	NO. THE
EXHIBIT P2	TRUE COPY OF THE TERMIN KNR/PER/1386/2014/1128 RESPONDENT.	ATION ORDER NO. DATED 16.07.14 ISSUED	BY THE
EXHIBIT P3	TRUE COPY OF KNR/PER/1386/2014/1207 RESPONDENT.	THE PROCEEDINGS DATED 22.07.2014 OF	NO. THE
RESPONDENT'S EX	HIBITS
EXHIBIT R1(A)	TRUE COPY OF LETTER TO E 21.11.2013.	MPLOYMENT EXCH. KANNU	R DATED
EXHIBIT R1(B)	TRUE COPY OF APPOINTMENT ENGAGEMENT DATED 22.01.2	ORDER FOR THE PERIOD 015.	OF
EXHIBIT R1(C)	TRUE COPY OF APPOINTMENT ENGAGEMENT DATED 27.01.2	ORDER FOR THE PERIOD 016.	OF
EXHIBIT R1(D)	TRUE COPY OF APPOINTMENT ENGAGEMENT DATED 29.07.	ORDER FOR THE PERIOD 2016.	OF
EXHIBIT R1(E)	TRUE COPY OF APPOINTMENT ENGAGEMENT DATED 30.01.2	ORDER FOR THE PERIOD 017.	OF

/TRUE COPY/

PA TO JUDGE

PBS

3/4/2018

ANIL K. NARENDRAN, J.

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W.P.(C)No.3357 of 2018

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----------------------------------------------- Dated this the 28^th day of February, 2018

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JUDGMENT

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The petitioner, who is presently engaged as Plant Attender on contract basis in the Kannur Diary of the Malabar Regional Cooperative Milk Producers Union Ltd., the respondent herein, which is a Co-operative Society registered under the Kerala Cooperative Societies Act, 1969 is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondent to regularise him in the post of Plant Attender. The petitioner has also sought for other consequential reliefs, including a writ of mandamus commanding the respondent not to replace him with other temporary employees.

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On 31.1.2018, when this writ petition came up for admission, the learned Standing Counsel for the respondent Society sought time to get instructions. It was ordered that status quo as on that date shall be maintained for a period of one week.

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W.P.(C)No.3357 of 2018 :-2-:

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The said interim order, was extended by one month on 2.2.2018.

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A counter affidavit has been filed by the respondent raising various contentions, including the maintainability of this writ petition. The respondent would also contend that the candidates who are engaged on fixed period contract through Employment Exchange are engaged only for terms of six months or one year. Further, the maximum duration of such engagements put together for a candidate is fixed as four years or till permanent appointment is made, whichever is earlier, as a matter of policy. The petitioner, who had completed the maximum duration of four years of such engagements put together on 31.1.2018, cannot claim regularisation or seek continuance till the appointment of a permanent employee.

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The petitioner has filed a reply affidavit contending that the contract entered into between the petitioner and the respondent does not stipulate the maximum duration of four years, as contended in the counter affidavit. Even if such a policy is in existence, it is not legally valid and binding on the petitioner as it is

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against the principles to be followed in the matter of employment.

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Heard the learned counsel for the petitioner and also the learned Senior Counsel for the respondent Society.

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The petitioner was initially engaged as Plant Attender in the Kannur Diary of the respondent Society for a period of six months from the date of joining, by Ext.P1 proceedings dated 16.1.2014. Based on Ext.P1, the petitioner joined duty on 18.1.2014. On expiry of the period of contract, the petitioner was terminated on 17.7.2014, vide Ext.P2 proceedings. Thereafter, he was engaged for another period of six months on daily rated basis by Ext.P3 proceedings dated 22.7.2014. Ext.P3 was followed by Ext.R1(b) proceedings dated 22.1.2015, Ext.R1(c) proceedings dated 27.1.2016 and Ext.R1(d) proceedings dated 29.7.2016, whereby he was engaged on daily rated basis for a period of six months under each contract, after a break of two or three days. Later, the petitioner was engaged for a period of one year on daily rated basis by Ext.R1(e) proceedings dated 31.1.2017.

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According to the petitioner, though he is working on

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W.P.(C)No.3357 of 2018 :-4-:

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contract basis, he is being paid all the benefits of a regular employee, such as EPF, ESI, etc. The extension of the engagement of the petitioner on several occasions itself proves that he is efficient and capable of doing the work and as such, he is entitled for regularisation. The petitioner made several requests for regularisation, which were not considered by the respondent for one reason or another. Now the respondent is trying to terminate the petitioner from the post of Plant Attender, in order to accommodate another temporary employee, which is illegal and arbitrary, since a temporary employee can only be replaced by a permanent employee. Since no steps have been taken by the respondent to appoint a permanent employee, the petitioner is entitled to continue as Plant Attender till a permanent employee is appointed to that post.

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The respondent would contend that they are following

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two separate procedures for engagement of Plant Attenders on fixed period contract basis and for appointment on permanent basis. The District Employment Exchange of the concerned district

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maintains separate lists of candidates with separate seniority for being considered for contract engagement as well as for permanent appointment. On receipt of the list for contract employment from the District Employment Exchange, an interview is conducted and the final select list is prepared from which candidates are engaged as Plant Attenders on fixed period contract. For appointment on permanent basis, on receipt of the name of the candidates from a separate list maintained by the District Employment Exchange for permanent appointment, those candidates are subjected to written test, physical test and interview. On the basis of the rank in that rank list, the selected candidates are given permanent appointment as Plant Attender Grade III in the scale of pay of Rs.8500-19940. If Plant Attenders engaged on fixed period contract through Employment Exchange have sufficient seniority in the list prepared by the Employment Exchange for permanent appointment, they can take part in the selection process for permanent appointment. The respondent would also contend that, the maximum duration of engagements on fixed period contracts for a candidate (total of all

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W.P.(C)No.3357 of 2018 :-6-:

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terms put together) is fixed as four years or till permanent appointment is made, whichever is earlier, as a matter of policy. Therefore, the petitioner, who had completed the maximum duration of four years of such engagements put together on 31.1.2018, cannot claim regularisation or seek continuance till the appointment of a permanent employee. The respondent would also point out that, the process of permanent recruitment of Plant Attender Grade III is temporarily stayed by the Director of Dairy Development.

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The engagement of the petitioner as Plant Attender in the Kannur Diary of the respondent Society was on fixed period contracts, on daily rated - casual basis, which is evident from Exts.P1, P3, R1(b), R1(c), R1(d) and R1(e) proceedings of the Dairy Manager. The fact that the petitioner had completed four years of engagement as Plant Attender on contract basis (total of all terms put together) as on 31.1.2018 is not in dispute. The petitioner has also not disputed the fact that the respondent is following two separate procedures for engagement of Plant

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Attenders on fixed period contract basis and for appointment on permanent basis. The fixed period contract appointments of the petitioner as Plant Attender on daily rated basis was based on the select list prepared by the respondent after conducting an interview. On the other hand, for permanent appointment, the candidates are subjected to written test, physical test and interview and the selected candidates, based on their rank in that rank list, are given permanent appointment as Plant Attender Grade III in the scale of pay of Rs.8500-19940.

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In Accounts Officer (A&I) APSRTC v. K.V. Ramana [(2007) 2 SCC 324] the Apex Court reiterated that, as held by the Constitution Bench in Secretary, State of Karnataka v. Uma

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Devi [(2006) 4 SCC 1] absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees dehors the rules and constitutional scheme of public employment cannot be granted by the courts. Even if the contract labourers or casual workers or ad hoc employees have worked for a long period they cannot be regularised dehors the rules for

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selection, as has been held in Uma Devi's case.

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In State of Rajasthan v. Daya Lal [(2011) 2 SCC

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429] the Apex Court reiterated that, the High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Article 14 and Article 16 of the Constitution should be scrupulously followed and courts should not issue a direction for regularisation of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

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In Yogesh Mahajan v. Prof. R.C.Deka, Director, All

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W.P.(C)No.3357 of 2018 :-9-:

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India Institute of Medical Sciences [2018 (1) SCALE 577]

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the Apex Court reiterated that an employee appointed on contract basis has no right to have his or her contract renewed from time to time.

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In the instant case, the petitioner could not point out

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any rule or regulation framed by the respondent on the basis of which he claims regularisation in the post of Plant Attender or continuance in that post till a permanent appointment is made to that post. It is well settled that unless there exists some rule or regulation having statutory force, no writ or direction can be issued by this Court for regularisation or continuance of a casual, ad hoc, contract or daily rated employee.

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In Association of Milma Officers' Ksheera Bhavan

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and another v. State of Kerala and others [2015 (1) KHC 779] a Larger Bench of this Court held that, the Staff Regulation of the respondent herein being not of statutory nature, violation, if any, of the non-statutory provisions contained therein could not have been made the subject matter of a writ proceedings, in the

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absence of breach of any statutory duty or public duty.

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Once the appointment was purely contractual, then by efflux of time as envisaged in the contract itself, the same came to an end and the persons holding such post can have no legal right to continue or renew the contract of service as a matter of right. The petitioner had voluntarily accepted the engagement as Plant Attender, on daily rated basis, pursuant to Exts.P1, P3, R1(b), R1(c), R1(d) and R1(e) proceedings, subject to the conditions clearly stipulated therein. Having accepted such engagements with eyes wide open, the petitioner cannot now turn around and claim higher rights ignoring the conditions subject to which such engagements have been accepted.

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Relying on the decision of the Apex Court in Hargurpratap Singh v. State of Punjab [(2007) 13 SCC 292] the learned counsel for the petitioner would contend that an ad hoc employee cannot be replaced by another ad hoc employee and as such he is entitled to continue as Plant Attender on daily rated basis even after 31.1.2018, i.e., even after the expiry of the period

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of appointment in Ext.P3. Paragraph 3 of the said decision reads thus;

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“3. We have carefully looked into the judgment of the High Court and other pleadings that have been put forth before this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appointments are made on minimum of the pay scale. The appeals shall stand allowed in part accordingly.”

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(underline supplied)

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17. In Hargurpratap Singh's case (supra) the Apex

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Court was dealing with the claim made by the appellants therein, who were ad hoc Lecturers in the colleges in the State of Punjab

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(as discernible from the order dated 25.8.2005 in I.A.No.3 of 2004 in Civil Appeal No.8745 of 2003), for regularisation, minimum pay sale and to continue in their posts until regular incumbents are appointed. There being a threat of termination of services, the appellants filed writ petitions before the High Court. All the reliefs were rejected by the High Court, and so far as the relief to continue in their respective posts until regular incumbents are appointed is concerned, the High Court has stated that the Government will have to follow its policy decision dated 23.7.2001. The Apex Court held that, the course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for the appellants who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis.

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The ratio in Hargurpratap Singh's case (supra) has no application to the facts obtaining in the instant case, as the petitioner is not holding a teaching post. Further, the appointment

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of the petitioner is purely contractual in nature. Once the appointment of the petitioner was purely contractual, for a fixed period, then by efflux of time as envisaged in that contract itself, the same came to an end on 31.1.2018 and the petitioner holding such post can have no legal right to continue or renew the contract of service as a matter of right. In such circumstances, the petitioner is not entitled for a writ of mandamus commanding the respondent to regularise him in the post of Plant Attender or to permit him to continue in that post till a regular hand joins duty.

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In the result, the writ petition fails and the same is accordingly dismissed. No order as to costs.

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Sd/-

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ANIL K. NARENDRAN JUDGE

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ami/28.2.18

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//True copy//

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P.A.to Judge