JUDGMENT
M.R. Hariharan Nair, J.
1. The petitioner contends that he is entitled to the benefit
of Ext. P4 Government Order relating to regularisation of physically handicapped
provisional employees.
2. The appointment of the petitioner was under Ext. P2 order issued by the District Registrar (General), Kannur on 24.1.1998. On completion of the period of 281 days he was ousted from service. Learned Counsel for the petitioner submits that the appointment being under Rule 9(a)(i) of the K.S. & S.S.R., there is absolutely no justification for denying regularisation in view of the specific conditions in Ext. P4 Government Order and that denial of the relief through Ext. P5 is unjustified.
3. Learned Government Pleader submitted that the mention of Rule 9(a)(i) of K.S. & S.S.R. in Ext. P2 is actually a mistake (Committed by the appointing officer and that it is evident from Ext. P2 that the appointment was on daily wages and not under Rule 9(a)(i). The position, according to him, has been made clear in Ext. P5 order also. The benefit under Ext. P4, the Government Pleader submits, is available only to candidates appointed under Rule 9(a)(i) and is unavailable to those appointed on daily wage basis.
4. There are some obvious inconsistencies between the versions available in Ext. P2 and P5. The justification for denial of the reliefs under Ext. P4 is that the appointment is not under Rule 9(a)(i) and was only on daily wages. On the other hand, it is mentioned in Ext. P2, inter alia, that the appointment is on a temporary basis under Rule 9(a)(i) of the K.S. & S.S.R. upto 16.4.1998 or till the work is completed, whichever is earlier. The work referred to therein is made mention in the subject portion of Ext. P2 as work relating to Amnesty Scheme and further clarified in the counter filed in the case. It is mentioned in the counter that the appointment was not against any termination post or leave vacancy, but was
made only on a temporary basis in connection with Amnesty scheme (compounding scheme) for undervalued documents and that the petitioner worked on daily wages pursuant to Ext. P2 during the period from 31.1.1998 to 16.4.1998, 18.5.98 to 20.6.98 and from 13.7.98 to 30.11.1998 and was paid only wages at the rate mentioned in Ext. P2, viz. at the rate of Rs. 707- per day and that too only for the working days.
5. In view of the apparent inconsistencies in the two versions contained in Exts. P2 and P5, i.e. one making it clear that the appointment is on daily wages at the rate of Rs. 70/- per working day and the other being that the appointment is on temporary basis under Rule 9(a)(i) of the K.S. & S.S.R., the question that first falls for consideration is whether the appointment envisaged in Ext. P2 is actually one under Rule 9(a)(i) of the K.S. & S.S.R.
6. Rule 9(a)(i) of the K.S. & S.S.R. aforementioned is quoted below :
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 (other than leave without allowances for taking up other employment) or on foreign service or on deputation or for any other valid reason, except due to suspension, and allowed to continue as such subject to the condition that persons so appointed shall not be eligible for the higher time scale of pay by virtue of such appointments unless otherwise specifically ordered by the Government.”
In order that an appointment be made under Rule 9(a)(i), the following ingredients appear essential :
1. The appointment should be in public interest.
2. The appointment should be to meet the emergency, which has already arisen.
3. The appointment should be made to fill up a vacancy with immediate
effect.
4. It should be in a post borne on the cadre of a service, class or category.
5. There should be undue delay in making regular appointment in accordance with the K.S. & S.S.R. or Special Rules.
Part I Rule 2(18) of the K.S. & S.S.R refers to cadre. According to this provision, the permanent cadre of each service, class, category and grade shall be determined by the State Government. Rule 12(4) of Part I K.S.R. stipulates that cadre means strength of a service or part of a service sanctioned as a separate unit. Rule 12(35) of Part I K.S.R. refers to time scale of pay. According to this a time scale of pay could be subject to conditions prescribed in the Rules raised by periodical increments from a minimum to a maximum. A joint reading of the aforesaid provisions will make it clear that one of the essential ingredients for application of Rule 9(a)(i) of K.S. & S.S.R is that the appointment should be against a regular post albeit on a temporary basis to meet the need for immediate appointment considering the exigencies and also taking into account the possible delay in filling up the
vacancy. When the terms of Ext. P2 are construed in that background, what is clear is that the said appointment was not against a regular post, but only on a purely temporary basis made to meet the temporary need to complete the work of amnesty scheme, which itself was available only for a particular period. Ext. P2 does not contemplates any rise in pay by way of increment; nor does it mention that the appointment is to a post already in existence. Of course there is reference to Rule 9(a)(i) of K.S. & S.S.R. also therein; but this is obviously a wrong statement. The position is also made clear in Ext. P5.
7. The question of entitlement of the petitioner to the benefits contemplated in Ext. P4 will now be considered. The preamble of the said Government Order makes it clear that the question of regularising the service of the physically handicapped provisional (temporary) employees who were engaged in service during the Golden Jubilee year of the India’s Independence was engaging the attention of the Government and pending final decision in the matter the instructions mentioned in the order was issued. Clauses (i) and (ii) of the Government Order reads as follows :
(i) The physically handicapped provisional (temporary employees who were engaged in public services through the Employment Exchanges under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 at any time during the period from 1.1.97 to 14.8.1998 and who are still continuing in service will be retained in service on a purely provisional basis, until further orders.
(ii) The physically handicapped (temporary) employees who were engaged in public services through the Employment Exchanges under Rule 9(a)(i) during the period from 1.1.1997 to 14.8.1998 and ousted from service (on completion of 180 days of service) or account of expiry of vacancies consequent on joining duty of nominees of Public Service Commission or for other reasons, will be re-appointed on a purely provisional basis and allowed to continue until further orders.”
8. The petitioner, no doubt, was appointed during the period aforementioned, but Clauses (i) and (ii) aforementioned, both apply to persons appointed under Rule 9(a)(i) only. I have already found that Ext. P2 appointment is not one under Rule 9(a)(i) though there is reference to that provision in Ext. P2. No relief is seen contemplated in Ext. P4 to persons like the petitioners, who are employed on daily wages, the wages being payable only on working days and the appointment being not against any regular vacancy or post.
9. The question whether persons like the petitioner employed in another department were entitled to the benefit of Ext. P4 order came up for consideration of a Bench of this Court in State of Kerala and Ors. v. Kumari Sasikala, W.A. No. 1462 of 1998. On a consideration of the relevant aspects the Bench was of the view that the benefit would be available only to those appointed under Rule 9(a)(i) of the K.S. & S.S.R. and unavailable to contract employees. In the circumstances I am of the view that the petitioner herein is not entitled to the benefits contemplated in Ext. P4 Government Order.
The Original Petition in the circumstances is without merit and it is dismissed. Nothing contained in this judgment will, however, impede the petitioner filing application, if any, to the Government seeking regularisation. If any such request is made, that can be considered by the Government on the merits and appropriate orders passed.