K. Balakrishnan Nair, J.
1. Whether the writ petitioner, who is a physically challenged person, appointed under Rule 9(a)(i) of Part II of the Kerala State and Subordinate Services Rules (for short K.S. & S.S.R) on 4.8.1998, on being sponsored by the Employment Exchange and who joined duty on 5.8.1998, in the post of Pump Operator under the Kerala Water Authority on daily wage basis, is entitled to re-appointment in service, is the point that arises for decision in this Writ Appeal.
2. The physically challenged are our less fortunate brothers. The fate has been cruel to them. Most of us, who are fortunate not to have physically challenged children, cannot fathom the depth of their pain and anguish, caused by their disability. It is the duty of the society to ensure that they are extended equal opportunities in all walks of life. Our Parliament has enacted the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, providing special protection to physically challenged persons, to enable them to gain equal opportunities in various fields, including the employment market where cut throat competition prevails and survival of the fittest is the rule. This legislation was framed, as evident from the preamble of the Act, to give effect to the Beijing Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. In a meeting to launch the Asian and Pacific Decade of the Disabled Persons, 1993-2002 held by the Economic and Social Commission for Asian and Pacific Region at Beijing from 1-12-1992 to 5-12-1992, a proclamation was adopted on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. India is a signatory to the said Proclamation. The Proclamation is on the following lines:
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier-free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision for the integration of persons with disabilities into the social mainstream.
To give effect to this proclamation, the above Act was enacted. Our Apex Court has noticed the above genesis of the Act in Union of India v. Sanjay Kumar Jain : (2004)IIILLJ753SC , We feel that the claim of the petitioner has to be adjudicated, keeping in mind the concern of the society, reflected in the above proclamation, for the welfare of physically challenged persons.
3. The facts of the case, as stated by the 1st respondent writ petitioner are the following: The writ petitioner suffers 40% physical disability, owing to defective eyesight. The same is certified by the Medical Board, as evident from Ext. P1 certificate. On being sponsored by the District Employment Exchange, Pathanamthitta, he was appointed as Pump Operator in the Kerala Water Authority at Pathanamthitta, by the 2nd appellant Executive Engineer, by Ext. P2 order dated 4.8.1998. The said order reads as follows:
Sri. D. Surendran advised by the Dist. Employment Exchange. Pathanamthitta as per the lettercited 2nd is provisionally appointed as pumpoperator on Rs. 70/- per days object to Rule 9(a)(i) of K.S. and S.S. Rules, 1958.
The candidate will have to report for duty before the Asst. Exe. Engineer, PH Sub Division, K.W. Authority, Pathanamthitta, within 15 days from the date of this order. If (he) fails to report for duty within the specified time limit, this order will be treated as cancelled without further notice.
He should produce prescribed certificates of physical fitness, obtained from a Govt. Medical Officer not below the rank of an Asst. Surgeon and also produce the documents in original to prove the date of birth, caste and qualification etc. at the time of his joining duty in the Sub Division Office.
The appointment is purely provisional for a period of 179 days or till regular hand reports for duty whichever is earlier. He will have no other claim in this Authority, than the daily wages noted (for the) above post.
(emphasis supplied)
The Writ Petitioner joined duty on 5.8.1998. On completion of 179 days, he was discharged from service on 30.1.1999. In the meantime, the Government issued G.O. (P) No. 32/98/P & ARD dated 28.9.1998, directing to retain/reappoint in service on provisional basis, those physically challenged employees, who were engaged in service during the period from 1.1.1997 to 31.12.1997. Later, the Government, by G.O.(P) No. 10/99/P&ARD; dated 17.5.1999, extended the said benefit to the physically challenged employees, who were in service during the period from 1.1.1998 to 14.8.1998. Ext. P4 is the copy of the said order. The relevant portion of the Government order dated 28.9.1998 is extracted below:
The question of regularising the service of the physically handicapped provisional (temporary) employees who were engaged in service during the period from 1.1.1997 to 31.12.1997, has been engaging the attention of Government in connection with the Golden Jubilee of India's Independence. Pending final decision in consultation with the Kerala Public Service Commission, the following instructions are issued in the matter;
(i) The physically handicapped provisional (temporary) employees who were engaged in public service through the Employment Exchanges under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules. 1958 at any time during the period from 1.1.1997 to 31.12.1997 and who are still continuing in service will be retained in Service on a purely provisional basis, until further orders.
(ii) The physically handicapped (temporary) employees who were engaged in public service through the Employment Exchanges under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 during the period from 1.1.997 to 31.12.1997 and ousted from service (on completion of 180 days of service) or on account of expiry of vacancies consequent on joining duty of nominees of Public Service Commission or for other reasons, will be re-appointed on a purely provisional basis and allowed to continue until further orders.
(iii) The re-appointment of the retrenched physically handicapped persons mentioned in sub para (ii) above will be in the same Department and against the same category of posts.
(iv) In case the retrenched persons as mentioned in sub-para (ii) above had worked in more than one Department during the period from 1.1.997 to 31.12.1997, the re-appointment will be in the Department where he/she had worked last.
The relevant portion of Ext. P4 G.O. dated 17.5.1999 reads as follows:
1. In the G.O read above, orders were issued that the Physically Handicapped Provisional (temporary) employees who were engaged in service during the period from 01.01.97 to 31.12.97 will be retained/re-appointed in service on a purely provisional basis subject to the conditions specified therein, pending final decision in consultation with the Kerala Public Service Commission.
2. Certain organisations of the Physically Handicapped persons represented that since the Golden Jubilee of India's Independence was celebrated during the period from 15.08.1997 to 14.8.98, the benefit granted in the G.O. read above be extended upto 14.8.1998.
3. Government have examined the matter in detail and are pleased to order that the benefit granted to the Physically Handicapped persons as per G.O.(P) NO.32/98/P&ARD; dated 28.09.98 be extended to the Physically Handicapped employees who were in service during the period from 01-01-1998 to 14.08.98 also subject to the same conditions specified therein.
The petitioner claimed the benefit of Ext. P4 order, as he was in service on 5.8.1998. But, the 2nd appellant appointing authority did not re-appoint him. He represented before the 1st appellant Kerala Water Authority. The 2nd appellant addressed Ext. P5 communication to the 1st appellant, recommending the case of the writ petitioner. In the said letter, it was stated that the petitioner was appointed under Rule 9(a)(i) of K.S. & S.S.R., though he was paid only on daily wage basis. It was also mentioned therein that there was no vacancy in any of the sanctioned posts of Operator at the relevant time and therefore, he was engaged on daily wage basis. The petitioner moved the Government for redressing his grievances. Finally, he has been informed by the Government, by Ext. P7 communication dated 16.2.2005, that he is not entitled to get the benefit of Ext. P4 order. The Writ Petition was filed, seeking a declaration that he is entitled to get the benefit of Ext. P4 order. He also prayed for issuing a writ of mandamus against the appellants to re-appoint him in the Water Authority as Pump Operator, in the light of Ext. P4 and grant him all consequential benefits.
4. The Kerala Water Authority resisted the prayers of the writ petitioner, mainly on the ground that he was appointed only on daily wage basis, as no vacancy in any of the sanctioned posts was available. Therefore, even though he is a provisional hand recruited through the Employment Exchange and appointed under Rule 9(a)(i) of K.S. & S.S.R., he is not eligible to get re-appointment in service, on the strength of Ext. P4. The learned single Judge allowed the Writ Petition, by directing the Water Authority to re-appoint the petitioner forthwith with consequential benefits within three weeks from the date of receipt of the copy of the judgment. The learned Judge found that the petitioner is a physically challenged person, who was appointed on provisional basis between 1.1.1998 to 14.8.1998 and it was held that the existence of a sanctioned post may not be necessary for granting the benefit to the petitioner.
5. The respondents 2 and 3 in the Writ Petition, who are respectively, the Kerala Water Authority and its Executive Engineer of Pathanamthitta Division, filed the present Writ Appeal, challenging the judgment of the learned single Judge. They state in the appeal memorandum that the writ petitioner was not appointed in a sanctioned post and that was the reason he was not paid the minimum pay in the time scale of pay applicable for the post of Pump Operator. So, he was paid salary on daily wage basis. Such an employee is not entitled to get the benefit of Ext. P4 Government order, it is contended.
6. When the appeal came up for hearing before the Division Bench, the Water Authority relied on the decisions of this Court in State of Kerala v. Sasikala 2000 (1)KLT SN 54 (case No. 61) and Sasikumar v. Secretary to Government 2000 (3) KLT 120, in support of its submissions. Relying on the decision of the Single Bench of this Court in Musthafa v. District Registrar 2001(2) KLT SN 29 (Case No. 32), it was submitted that the appointment of the writ petitioner cannot be treated as one under Rule 9(a)(i). The Division Bench, which heard the appeal, felt that the appointment of the petitioner has got all the trappings of a provisional appointment under Rule 9(a)(i) of K.S. & S.S.R. It also felt that the omission of the appointing authority to pay the salary as provided under the Rules, cannot be a ground to deny the benefit of Ext. P4 G.O to a physically challenged employee, who has no bargaining power. The Division Bench felt that this view taken by it, is not in accordance with the Division Bench decisions in Sasikala's and Sasikumar's cases. So, the Writ Appeal was referred to the Full Bench. No specific point for resolution by the Full Bench is formulated by the Division Bench. But, as stated earlier, the Division Bench felt that the views expressed in Sasikala's and Sasikumar's cases that daily wage employees are not eligible for appointment, cannot be followed. So, for making an authoritative pronouncement whether the payment of salary on daily wage basis will disentitle the petitioner to get the benefits of Ext. P4 order, the Writ Appeal was referred. The relevant portion of the reference order reads as follows:
5. We feel that the matter has to be gone into from another angle as well. Invocation of powers under Rule 9(a)(i) of the KSSR prima facie shows that the authority had contemplated appointment on provisional basis as envisaged by the rules. That, only daily wages were given, forgetting the stipulation in Rule 9(a)(v), where there is requirement for payment of minimum pay in the time scale by itself, perhaps may not contribute to the advantage of the Authority. It is an omission on the part of the authority alone and there was no bargaining position for the employee, situated as he was. We have to notice that Rule 9 deals with temporary promotion in respect of in-service hands as well, and perhaps what was in contemplation of the Rule making authority was such a contingency. Likewise, an enquiry as to whether a post was available was also beyond the employee concerned. Therefore, the observations in the decided cases appear to be loaded with disadvantage to a section to whom the benefits were sought to be conferred and perhaps, beyond the contemplation of the Rules and the Government Orders.
6. We feel that as an authoritative pronouncement might be expedient, we adjourn the case to be heard by a larger Bench.'
7. We heard the learned Counsel on both sides. The learned standing counsel for the Water Authority reiterated the contentions canvassed before the Single Bench and Division Bench that the petitioner was not accommodated in a sanctioned post. To get over the said contention, the writ petitioner has produced Ext. R1(a) communication received from the 2nd appellant dated 16.8.2006, along with I.A. 954/2006. The said communication was received by him from the 2nd appellant under the provisions of the Right to Information Act. A translation of the relevant portion of the said communication reads as follows:
(1) While you were employed, there were two vacancies in the Sanctioned posts of Operator.
(2) One of the vacancies arose from 1.4.97 and the 2nd vacancy arose with effect from 1.5.97.
Though, the learned standing counsel took time twice, after the case was listed before the Full Bench and last of the adjournments was sought to get instruction on Ext. R1(a), he did not make any submissions on the contents of Ext. R1(a). Ext. R1(a) being a communication issued by the 2nd appellant under the provisions of the Right to Information Act, there is no reason to disbelieve its contents. Further, under the standing instructions issued by the Government from time to time, the appointing authorities move the Employment Exchanges, only to fill up the vacancies in the sanctioned posts and that too when no P.S.C. hand is available. If the service of an employee is required for a short period and there is no sanctioned post, then appointments are made on daily wage basis, from open market, by the appointing authority without any reference to Employment Exchange or other legitimate channels for appointment. The fact that the appointment was made through the Employment Exchange itself, shows that the appointment was made to a vacancy in a sanctioned post. Further, resort to Rule 9 is permissible only when there is undue delay in filling a vacancy in accordance with the General/Special Rules. A vacancy which has to be filled up in accordance with the General/Special Rules, will only be against a sanctioned post.
8. The portions of Rule 9(a)(i) of K.S. & S.S.R., which are relevant for this case are quoted below:
9. Temporary appointments:-- (a)(i) Where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may appoint a person, otherwise than in accordance with the said rules, temporarily:
xxx xxx xxxProvided further that a person appointed under this clause by direct recruitment to a post other than teaching post and a post covered by the proviso to Clause (iii) of Rule 10(b) shall not be allowed to continue in such post for a period exceeding one hundred and eighty days.
xxx xxx xxx(iii) A person appointed under Clause (i) shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hod the post under the said rules.
xxx xxx xxx(v) There shall be paid to a person appointed under Clause (i) or Clause (ii) the minimum pay in the time scale of pay applicable to such service, class or category.
xxx xxx xxxProvided further that persons appointed temporarily through employment Exchanges shall not be eligible for increment in the time scale even if they complete the prescribed period of service fixed for sanctioning such increment.
Going by Rule 9(a)(v), the writ petitioner was entitled to get salary at the minimum of the time scale of pay applicable to the post of Pump Operator. The 2nd appellant wrongly denied the said salary to him and he was paid only wages at the rate of Rs. 70/- per day. This was plainly an unjust and unauthorised action. To justify the said illegal action, the said respondent took the stand that there was no vacancy in the sanctioned posts, in Ext. P5 communication. The same wrong submission was made in the counter affidavit, filed in the Writ Petition. Again, based on the said wrong ground, the Writ Appeal is pursued.
9. Going by the materials in this case, the irresistible inference to be drawn is that the writ petitioner was appointed in a vacancy that arose in a sanctioned post. The appointment was under Rule 9(a)(i), on being sponsored by the Employment Exchange. So, he is entitled to get the benefit of Ext. P4. The fact that the 2nd appellant did not pay him the wages due to him, cannot be used as a ground to deny him the benefits flowing from Ext. P4, as a physically challenged person. The Water Authority cannot take advantage of its own illegal action. So, we agree with the views expressed by the Division Bench, which heard this Writ Appeal.
10. In Sasikala's case, the Division Bench on the facts of the case, found that the appointment was not under Rule 9(a)(i). Obviously, such a person is not entitled to get the benefit of regularisation in service. So, there is no conflict between the said decision and our decision in this case. In Sasikumar's case also, the Division Bench found that the appellant therein was admittedly, not appointed under Rule 9(a)(i) of K.S. & S.S.R through the Employment Exchange and therefore, he is not entitled to get the benefit of regularisation in service. Thus, there is no conflict between that decision and the view we have taken in this case. The persons who are engaged from open market directly, without any reference to the Employment Exchange and employed on daily wage basis, cannot claim that they are provisional appointees under Rule 9(a)(i) of K.S. & S.S.R and seek consequential benefits. In this case, the appointment was made through the Employment Exchange, to the vacancy in a sanctioned post, under Rule 9(a)(i) of K.S. & S.S.R. The fact that the appointing authority wrongly decided to pay him wages at a lesser rate, cannot be a ground to deny him the benefits flowing from such appointment.
11. In view of the above finding entered by us, the Writ Appeal is liable to be dismissed. Nothing more requires to be considered in this appeal by the Division Bench. Therefore, there is no point in sending back this case to the Division Bench. The writ petitioner with his dim eye-sight, groped through the darkness and knocked in vain at the doors of the Water Authority and the Government. He was turned away on untenable grounds, compelling him to approach this Court. So, he is entitled to get costs.
In the result, the Writ Appeal is dismissed with costs, which is fixed as Rs. 10,000/-. The Water Authority will be free to recover the said amount from the officers responsible for dragging it into this unnecessary litigation.