JOY THOMAS Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER was an applicant, when the Kerala Public service Commission notified recruitment as per Ext. P1 to the post of Member (Accounts) in the Appellate Tribunal constituted under the Kerala Agricultural income Tax and Sales Tax Appellate Tribunal Act, 1963. After the process of selection, the P. S. C. drew up a ranked list, Ext. P2, which has come into force with effect from 29-1-1999. Three among the persons ranked in Ext. P2 had been appointed. According to the petitioner, there are 8 Benches of the Tribunal and in each Bench there shall be at least one Member (Accounts) to discharge the statutory functions enjoined on the Tribunal. There are vacancies of Member (Accounts) in all the Benches, which have to be filled up. The petitioner represented before the Government. PETITIONER is given a reply - Ext. P4, which reads as follows : I am to invite your attention to the reference cited and to inform the following : there are 8 posts of Member (Accounts) in the 8 benches of the Kerala Agricultural Income Tax and Sales Tax Appellate Tribunal. Out of the above 8 posts, 3 posts were filled up by candidates advised by the public Service Commission. 4 posts with District Judges on deputation basis as judicial Members and one post by Sri. K. Venugopal, who is appointed on contract basis. In its judgment dated 31-7-1999 in O. P. No. 17430/99 the honourable Court had directed Government to dispose of the representations submitted by Sri. K. Venugopal before Government in the light of the recommendations of Commissioner of Commercial Taxes and also of Justice radhakrishna Menon Commission's report. Justice Radhakrishna Menon Commission and Joint Commissioner-1. Commercial Taxes had recommended regularising the services of Sri. K. Venugopal. Therefore, in view of the direction of the honourable High Court, Government is pursuing action to regularise the contract appointment of Sri. K. Venugopal. In the above circumstances, Government is not in a position to allow your request. Thus it is an admitted position by the first respondent that the third respondent was appointed on contract basis under Rule 9a of the General Rules of the KS & SSR and Government was pursuing action to regularise his service. But there was no conclusive or binding direction from this Court obliging the Government to regularise the services of any one. The Government was liable to consider the matter only in accordance with law. The PSC which commenced the selection process and prepared the select list did not agree for such regularisation. In spite of that the contract appointee is regularised as per Ext. P6. A contract appointment under Rule 9a can be made : 'when in the opinion of the State Government special provisions inconsistent with any of these rules or of any other rules made under the proviso to Article 309 of the Constitution of India or continued by article 313 of that Constitution (hereinafter referred to in this rule as the said rules) are required in respect of conditions of service, pay and allowances, pension, discipline and conduct with reference to any particular post or any of them'. Government have no case that any such special provision is required or envisaged. Process of regular selection as revealed by Exts. P1 and P2 shows that the State Government did not feel the necessity for special provision. That was why recruitment process was initiated and continued under the ordinary provisions contained in the rules concerned. It is further provided in sub-rule (2) thereof that : A person appointed under sub-rule (i) shall not be regarded as a member of the service in which the post to which he is appointed is included and shall not be entitled by reason only of such appointment to any preferential claim to any other appointment in that or any other service. So a contract appointee cannot have any right to be member of service : nor is there any provision of law to regularise the services of a contract appointee. On the other hand in accordance with the special rules framed, the recruitment process had commenced and select list had been prepared by the constitutional authority, the PSC, as per Ext. P2. Therefore, regular appointment is envisaged for the post. In such circumstances, regularising the service of a contract appointee, who cannot acquire any right to be a member of service in terms of Rule 9a, Government cannot deny appointment to a person, who had undergone the selection process by the PSC. When such a list is in force, appointment of an incumbent on regular basis or rather 'regularisation' of an incumbent not included in the list is totally arbitrary offending the rights granted to those included in the list and awaiting appointment. Notification was issued and selection process was pursued in order to give equal opportunity to all concerned as guaranteed under Article 16 of the Constitution of India. When selection process so pursued has resulted in Ext. P2 list, the Government cannot ignore that list and regularise a person, who had been chosen on contract basis. This will offend the right of persons including the petitioner. Thus Exts. P4 and P6 violate the guaranteed rights of the petitioner. Consequently, Exts. P4 and P6 are quashed. The action of the Government in regularising a contract appointee or continuance of a contract appointee reveals the intention of the government to fill up that vacancy at least. So the incumbent included in the list prepared by the Public Service Commission shall be appointed based on the ranking and communal rotation. O. P. is thus allowed. . .