STATE OF KERALA Vs. NOOJUM M

JUDGEMENT

(1.) State is aggrieved by the direction contained in the impugned judgment to regularise the service of the respondent-writ petitioner, a physically handicapped person, rendering the benefit in terms of Rule 9(e) of the General Rules in Part-II of the Kerala State and Subordinate Service Rules ('K.S. & S.S.R' for short). It is contended by the appellant-State that the respondent was appointed intermittently on different occasions during the period from 2.1.1989 to 25.2.1995 to meet the emergent requirement of Clerks in the examination wing of the Commissioner for Government Examinations, Thiruvananthapuram. This was not an appointment in terms of Rule 9(a)(i) of the said Rules. The benefit available to the physically handicapped persons in terms of Rule 9(e) will be available only to those appointed under Rule 9(a)(i) of the KS & SSR. The writ petitioner was appointed only on daily wages and not on monthly salary. In support of this contention, the decisions of this Court reported in 2000 (1) KLT SN Case No. 61, Page 54 - (State of Kerala v. Sasikala), 2000(3) KLT 120 - (Sasikumar v. Secretary to Government) and the judgment in W.A.No. 992 of 2003 are relied on. It is further submitted, placing reliance in the decision reported in 2001(2) KLT SN Case No. 32, Page 29 (Musthafa v. District Registrar) that daily wage appointment to meet immediate temporary requirement will not come within the purview of Rule 9(a)(i) of the Rules.

(2.) It is contended by the respondent that when admittedly the respondent-writ petitioner had been appointed for a long period from 2.1.1989 to 25.2.1995 though on intermittent basis, it could not be stated as one made otherwise than under Rule 9(a)(i). The power of appointment to meet temporary needs is conferred only by Rule 9(a)(i). Therefore, his appointment on temporary basis shall have to be taken as the one made under Rule 9(a)(i), submits the counsel. It is further submitted that Rule 9(a)(i) commences with a non obstante clause thereby making it clear that a temporary appointment envisaged in terms of Rule 9(e) need not be the appointment made under Rule 9(a)(i) even. The application of Rule 9(a)(i) is also taken away by the non obstante clause in Rule 9(e). Therefore, the learned single Judge was perfectly justified in directing regularisation of the respondent. It is further submitted that the mode of payment to a temporary appointee is not the criterion for regularisation in terms of Rule 9(e). It is submitted that Rule 9(a)(i) which permits temporary appointments does not speak about the mode of payment. Therefore, there is no reason to set aside the judgment, it is contended.

(3.) Of course, Rule 9(e) begins with a non-obstante clause making the provisions in "the rules" inapplicable to draw the benefit under that sub-rule. Thus, 'the rules' mentioned therein means the entire body of rules contained in KS & SSR, 1958. Rule 9 (a)(i) is the provision enabling the temporary appointments and such appointments ordinarily does not confer any benefit on the appointees except to receive the emoluments. Any regular appointment to a post born on the service shall be from the list of approved candidates maintained by the Public Service Commission going by Rule 3 of the Rules. It is in order to avoid that bar for the regularisation of physically handicapped persons appointed under Rule 9(a)(i) that non-obstante clause is employed in Rule 9(e).