U K CHACKO Vs. STATE OF KERALA

JUDGEMENT

(1.) These writ petitions are directed against the termination, or the threatened termination, of the petitioners' services in pursuance of orders of 'temporary' or 'provisional' or 'emergency' appointments as they are generally called under the provisions of R.9(a) of the Kerala State and Subordinate Services Rules (referred to, for short, as 'the Rules'). That the said statutory provision governs the terms and the conditions of these temporary appointees is a matter on which there was neither doubt nor dispute. R.9(a)(i) of the Rules as it stood till its recent amendment dated 22nd December, 1973 reads:

(2.) While the scope and incidents of the provisional appointments in these cases appear to be clear on the terms of the Rule, no less than on the terms of the orders of the appointment, as a matter of policy or practice, if not both, the provisional appointees appear to have overstayed the three month limit and tarried in their posts for considerably longer periods. On the Government's side, the policy and principle adopted in the matter of continuance or termination of these provisional appointments was neither certain nor uniform, but appears to have wavered and shifted from time to time. Thus, for instance, by Ext. P1, G. O. MS. 48/70/PD. dated 11th February, 1970, to go back no further while deprecating the practice followed of retrenching temporary appointees at the end of every three months and making fresh appointments in the vacancies, it was advised that the temporary appointees should be continued in service till the nominee of the Public Service Commission is appointed, or till the Commission declined to give concurrence to the continuance of the appointments. The appointing authorities were also directed to promptly obtain the concurrence of the Commission for the continuance of the appointments. By Ext. P2, G. O. Rt. 1118/ 73/PD dated 8-3-1973. it was ordered inter alia that the provisional hands appointed during the strike period will not be retrenched until further orders and would be deemed to be continuing in supernumerary posts created for the purpose. A switch back from this policy, which has occasioned these writ petitions, came with Ex. P5 amendment dated 22 12 1973 by which the following proviso was inserted:

(3.) The petitioners' grievance is against Ext. P5 amendment, and Ext. P6 G. O. It was contended that the amendment places an absolute bar against the continuance, and even against the reappointment, of the petitioners beyond the three month limit, and that this was made further clear by the explanatory note of the Section Officer, and by Ext. P6 G. O. We are clear that neither the Explanatory Note nor Ext. P6 G. O. can control or interpret the statutory amendment which must be left to operate on its own terms. In the sphere occupied by a statutory rule, there is no scope for executive or administrative instructions. On its terms, Ext. P5 only states that the temporary appointees shall not be allowed to continue for a period exceeding three months, which we consider to be quite consistent with the provisions of R.9. We do not think that the amendment has the effect of prohibiting reemployment of the temporary appointees altogether. The learned Government Pleader who appeared for the Government in these writ petitions, very candidly and properly stated that this was not the effect of the statutory amendment, or, for that matter, of the explanation or the administrative instruction referred to earlier. There is, therefore, no substance in the contention advanced on the side of the petitioners that the amendment by itself, or read in conjunction with the explanation and the administrative instruction, debars them altogether from seeking 'reemployment, and therefore, offends Art.311 (2) of the Constitution, and of Art.14 and 16 thereof. Reliance was placed in support of this contention on Krishna Chandran Nayar's case ( AIR 1962 SC 602 ), upon a decision of the Bombay High Court reported in 1973 Labour and Industrial Cases, 1071 and upon a decision of the Allahabad High Court reported in Mohammad Israil and Others v. The State of U.P. (1973 (1) Service Law Reports 1204). It is unnecessary to examine these cases (which we notice in fairness to the petitioners' Counsel), in the light of the view that we have expressed that the explanation and the administrative instruction cannot control the statutory amendment, and that the amendment does not have the effect of debarring the temporary appointees altogether from being reemployed. For that reason again, we refrain from referring to the recent judgment of the Supreme Court in Civil Appeal No. 1110 of 1971, a blue print copy of which was made available to us by Counsel for the petitioners.