STATE OF KERALA Vs. KUMARI SASIKALA J R

JUDGEMENT

(1.) JUDGMENT of the learned single Judge directing regularisation of service of the petitioner-respondent-employee is under challenge by the State. Factual position is to be noted in brief Respondent No. 1 was appointed as Enumerator in the Social Forestry Survey for a period of two months at a consolidated pay of Rs. 1500/ -. The said appointment was made on the basis of advice of the Employment Exchange. The period of engagement was extended for a further period of one month. After the expiry of the above period of appointment, she was appointed as Assistant Grade II in the Finance department for a period of 179 days. Petitioner claimed to be a physically handicapped lady with permanent disability to the extent of 40%. A circular was issued by the Government in the Personnel and Administrative Reforms (Advice G)Department that physically handicapped provisional (temporary) employees who were engaged in Public Service through the Employment Exchange under Rule9 (a) (i) of the Kerala State and Subordinate Service Rules, 1958 (in short 'the rules') during the period from 1-1-1993 to 31-7-1994 and who were still continuing in service will be retained in service until further orders. It was further stipulated that such persons who were sent out will be reappointed on a purely provisional basis. Later, Government issued order dated 30-3-1995 , in which the provisions contained in the earlier circulars were incorporated, a further direction was given to regularise the appointments of the physically handicapped persons with effect from the date of the order. On the basis of the order dated 30-3-1995 , respondent-employee filed representation on 24-8-1995 for regularisation. This Court ordered consideration of the representation. But the Government did not accept the prayer stating that the Government orders (which have been annexed as Exts. P3 and P4 to the original petition) were not applicable to the respondent-employee. Another original petition was filed, where, by judgment dated 4-12-1995 the State Government was directed to consider the question as to whether the respondent employee, a physically handicapped lady, was entitled to get the benefits of the circular and the Government order, exts. P3 and P4 respectively. Thereafter, by Government order G. O. (Rt) No. 8838/95/gad dated 13-10-1995 the respondent-employee was informed that she was not entitled to get the benefit of the circular and the Government order. It is to be noted that there was clear indication in the Memo No. 3804/hsd-A2/95/fin dt. 25-9-1995 of the Additional Director, Finance Department that respondent-employee was not appointed under R. 9 (a) (i) of the Rules. The original application was filed taking the stand that the appointment was under r. 9 (a) (i) of the Rules. Stand of the Government was that Rule 9 (a) (i) of the rules related to a post carrying scale of pay and appointment of the respondent-employee being contractual, there is no scope for the circular and the Government order applying to her case. Learned single Judge was of the view that by taking a narrow technical view the benefits extended by Exts. P3 and P4 may not be denied to physically handicapped persons and a benevolent interpretation must be given to Exts. P3 and P4, otherwise the benefits granted by the Government to physically handicapped persons would be taken away. Such a course of action would not be proper by adopting a rigid view, when the objective was to help physically handicapped persons. Learned counsel for the State submitted that when statutory provisions are clear there was no scope for taking a different view and the fact that all others who were appointed along with the respondent-employee have gone out without practically any objection, the respondent-employee, taking advantage of the interim orders passed, is continuing much beyond the permissible period. Learned counsel for the respondent-employee, on the other hand, submitted that a beneficial view has been taken by the learned single Judge while exercising the extraordinary jurisdiction under Art. 226 of the Constitution of India, 1950 (in short 'the constitution') and the same should not be interfered with in the writ appeal. The first question needs to be adjudicated is the applicability of R. 9 (a) (i) of the Rules. The provision itself is clear that temporary appointment can be made to fill immediately a vacancy to a post borne on the cadre of a service, class or category, when undue delay in making such appointment is causing difficulties. Undisputed position is that the post where respondent-employee was working was not a cadre post. This is borne out from the fact that no scale of pay was provided and only a consolidated amount was paid to her. That being the position, the provisions of Rule 9 (a) (i) are not applicable to the facts of this case. A factual error appears to have been committed by the learned single Judge stating that the respondent-employee was appointed for 179 days under R. 9 (a) (i ). Ext. P9 to the original petition made the position clear that such was not the case. It was submitted by learned counsel for the State that persons appointed along with the respondent-employee have ceased to function. Merely because the respondent-employee was continuing on the basis of orders passed by this Court, same cannot make her position better as contended by respondent-employee. Under the circumstances the inevitable conclusion is that Exts. P3 and P4 (circular and Government order)were not applicable to the respondent-employee's case. It is submitted by learned counsel appearing for the respondent-employee that she has been continuing since long period, it would be inequitable to ask her to go out of the service. As indicated above, when currency of her appointment is over, automatically she has to go out. We, therefore, allow the writ appeal. However, it would not stand on the way of Government taking a sympathetic view and exploring possibility of adjusting her else-where. Appeal allowed. . .