GOVERNMENT
OF KERALA
Abstract
PUBLIC
SERVICES-REGULARISATION OF PROVISIONAL HANDS- W.A.
105/2001 IN OP NO. 20042/98-IMPLEMENTATION OF JUDGEMENT
–ORDERS ISSUED.
PERSONNEL
AND ADMINISTRATIVE REFORMS (ADVICE-C) DEPARTMENT
G.O.
(P) NO. 39/2002/P&ARD. Dated, Thiruvananthapuram,
26thAugust2002.
Read: - 1. Circular No. 9516/Adv. C1/92/P&ARD dated
9-3-1995
2. Letters No. AV (4)
2093/95/GW dated 7-6-1995 and 26-9-1997 from
The
Secretary, Kerala Public Service Commission
3. Government letters
No 9516/Adv.C1/92/P&ARD dated 17/3/1998.
4. Judgement dated 25-9-2000
in OP No. 20042/98
5. Judgement dated 21-12-2001
in WA 105/2001 in OP No20042/98.
ORDER
The question of regularizing the services of provisional
hands, who have been continuing in service for along
time has been engaging the attention of Government.
Pending final decision, Government vide circular read
as I st paper above issued direction that provisional
employees who have been appointed in Public Services/Private
Sector undertaking before 1-11-11987 and were continuing
in service as on 13-1-1995 may not be discharged from
service and may be allowed to continue in the posts
held by them until further orders, purely on provisional
basis, provided the conditions stipulated therein are
satisfied.
The matter was taken up with the Public Service Commission
for their concurrence. The Commission disagreed with
the proposal and advised to drop it as per the reference
2ndcited.
Government as per the reference read as3rd paper above
decided to collect category wise details of all provisional
(temporary) hands including those on daily wages and
on contract appointment and part-time employees whop
have been appointed in public Services (including Public
Sector undertakings) up to 1-1-1994 and who have completed
a minimum period of 3 years service on 1-1-1997 and
are continuing in service subject to the condition specified
therein.
OP No 11358/98 and OP No.20042/98 were filed in the
High Court against the regularization of provisional
hands.
The Hon’ble High Court in the judgement dated 16-10-1998
ordered interim stay of Government Circular dated 9-3-1995
and Government letter dated 17-3-1998.themainobservation
in the judgement in OP No. 20042 /98 dated 25-9-2000
was as follows: -
“The attempt for regularization of temporary employees
on the ground that they had continued for three years
or they are in service for a long time is ultravires,
illegal and arbitrary. The attempt to regularize the
temporary hands as per Ext. P1 and P2 is violative of
the right for equality of opportunity as enshrined in
article16 of the Constitution of India and it militates
against the constitutional and statutory requirements
and mandates. In the decision reported in Director,
Institute of Management Development U.P. Vs. Smt. Pushpa
Srivastava (AIR 1992 SC2070) the Apex Court has made
it clear that stopgap appointees or temporary appointees
do not have any right for continuance or for regularization.
Extr.P1 and P2 are violative of articles 14 of Constitution
of India and arbitrary as well. It is beyond the power
of the Government.”
The Court had also issued the following direction for
compliance:-
“The temporary employees now continuing in service shall
be forthwith terminated to ensure adherence to the legal
provisions. Such vacancies shall be immediately reported
to the Public service Commission for making regular
appointment. In case there is no list prepared by the
Public Service Commission in respect of any category
or department, fresh appointment under Rule 9 (a) (i)
shall be made limiting such appointment to the period
mentioned in the said rules. Government shall also
see that these directions are complied with by all the
appointing authorities under Government and by the Public
Sector/Autonomous/Local Bodies and Universities.”
Government filed W.A. 105/2001 before the High Court
against the Judgement in OP No. 20042/98. The High
Court by order dated 21-8-2001 stayed the termination
of service of provisional hands for a period of three
months with effect from 21-3-2001.The High Court on
6-7-2001 further extended the stay for three months.
The Hon’ble High Court in the Judgement in W.A. 105/2001
read as 5th paper above has directed the
Government to pass final orders on the basis of details
collected pursuant to the Ext. P1 and Ext. P2 (i.e.
the circular and letter read as first and third paper
above) within four months from the date of receipt of
judgement. The Hon’ble High Curt also ordered that
those who were continuing in service on the basis of
the interim order passed by the Court could continue
till a decision is taken by the Government.
Government have examined the matter in detail and are
pleased to order that the services of the provisional
employees continuing in service as per the Circular
No. 9516/Adv. C1/92/P&ARD dated 9-3-1995 and Government
letter no.9516/Adv. C1/92/P&ARD dated 17-3-1998
will not be regularized. It is also ordered that each
case of the provisional employees continuing in service
s per the Circular No.9516/Adv.C1/92/P&ARD dated
9-3-1995 will be examined and those deserving exceptional
consideration on humanitarian grounds may be permitted
to continue in service purely on a provisional basis,
invoking Rule 39 of the Kerala State and Subordinate
Service Rules without regularizing their services.
The concerned Administrative Departments will take necessary
further action in the matter accordingly.
By
order of the Governor,
C.
RAMACHANDRAN
Principal
Secretary to Government.
To
All
Heads of Department/Appointing Authorities and Offices.
All Districts Collectors.
All Departments (all sections) of the Secretariat including
Law and Finance
All Officers of the Secretariat
The Accountant General (A & E), Kerala, Thiruvananthapuram
(with C.L.)
The Principal Accountant General (Audit), Kerala, Thiruvananthapuram
(With
C.L.)
The Secretary, Kerala Public Service Commission (With
C.L.)
The Registrar, High Court of Kerala, Ernakulam. (With
C.L.)
The Registrar, University of Kerala/Kochi/Kozhikode/Kannur.
(With C.L.)
The Registrar, Mahatma Gandhi University, Kottayam.
(With C.L.)
The Registrar, Kerala Agricultural University, Thrissur.
(With C.L.)
The Registrar, Sree Sankaracharya University of Sanskrit,
Kalady, Ernakulam.
(With C.L.)
The Secretary, Legislature Secretariat. (With C.L.)
The General Manager, K.S.R.T.C., Thiruvananthapuram.
(With C.L.)
The Secretary, K.S.E.B,Thiruvananthapuram
The Private Secretary to the Chief Minister and Other
Ministers.
The Private Secretary to the Leader of Opposition, Cantonment
House,
Thiruvananthapuram.
The Private Secretary to the Speaker,/Deputy Speaker,
Legislative Assembly,
Thiruvananthapuram.
The Private Secretary to the Governor, Raj Bhavan, Thiruvananthapuram
The Advocate General, Ernakulam.
The Additional Secretary to the Chief Secretary.
The Director of Public Relations
The Stock File.
