RADHAKRISHNAN Vs. HANDICRAFTS APEX COOP. SOCIETY

JUDGEMENT

(1.) Petitioners were engaged as helpers on a daily rated casual basis in the Kerala State Handicrafts Apex Cooperative Society Limited, 1st respondent. According to the averments in the original petition, they were continuously working as helpers from 23.8.1993, 11.10.1993 and 4.5.1995 respectively and they have completed 240 days of work in an year. Now steps are being taken to terminate their services and Ext. P2 was issued. It is contended that even though they were engaged by the 1st respondent Cooperative Society, provisions of the Industrial Disputes Act are applicable and they cannot be terminated without complying with the provisions under S.25F and they are also entitled to S.25H and G. These claims were disputed by the society. It is submitted that their appointments were irregular and illegal. In cooperative societies, appointments cannot be made against the Circulars issued from time to time and therefore these appointments are ab initio void and they are not workers for claiming protection under S.25F of the Industrial Disputes Act. Termination of illegally engaged persons will not come within the purview of the Industrial Disputes Act and it is also submitted that appointments in the respondent corporation can be made only through Public Service Commission and after 25.4.1995 persons who were illegally appointed should be terminated. It is submitted that petitioners were engaged without giving an opportunity to all unemployed persons and the appointments themselves were in violation of Art.14 of the Constitution. But, it is submitted that termination of these petitioners will not take place replacement by similarly appointed temporary employees and they will be appointed only through Public Service Commission.

(2.) In KSRTC Reserve Conductors' Rank Holders Association and others v. State ( 1996 (2) KLT 306 ) a Division Bench of this Court held that when properly appointed candidates are available through PSC. provisional employees and other empanelled conductors have to vacate their posts and they cannot claim permanency. Those persons who have not appointed through proper channel have to vacate their posts when regular PSC hands are appointed. In J & K Public Service Commission v. Narinder Mohan ( AIR 1994 SC 1808 ) it was held that executive power is co-extensive with the legislative power of the State. Once statutory rules have been made for appointments, appointments shall only be in accordance with the rules. As per the statutory rules appointments can be made only through PSC. All the appointments or engagements of petitioners are against the rules. Of course, to tide over unforeseen exigencies, they could have resorted to such provisional appointments. But, that power cannot be used to defeat the statutory provision and to make the adhoc appointments as a rule. Their Lordships held as follows:

(3.) Much emphasis is placed by the petitioners to the decision reported in State of Haryana & others v. Piara Singh & others ( 1992 (4) SCC 118 ). There it was held by the Supreme Court that these eligible and qualified candidates and continuing in service satisfactorily for a long number of years have a right to be considered for regularisation. Long continuance in service gives rise to a presumption about the need for a regular post. But, mere continuance for one year or so, does not in every case raise such presumption. Government should consider feasibility of regularisation. However, the Supreme Court held that direction of the High Court for regularisation of those falling within the definition of 'workman' under S.2(s) of the Industrial Disputes Act on completion of 4 or 5 years' is not sustainable. It was further held that direction under Art.226 of the Constitution can invoked only for issuance of rule of law by observance of statutory provisions, rules and instructions etc. Piara Singh's case referred to earlier is not an authority for the proposition that all temporary employees are entitled to be regularised.