The statutory amendment to R.9(a) did not prohibit re-employment of temporary appointees altogether, and the exception made for teaching posts was not discriminatory.

Headnote:
termination - Kerala State and Subordinate Services Rules - R.9(a) - 9(a)(i), 9(a)(iii), 9(a)(iv) - The court discussed the provisions of R.9(a) of the Kerala State and Subordinate Services Rules, particularly focusing on the terms and conditions of temporary appointments, the duration of provisional appointments, and the replacement of provisional appointees by regular hands. The court also examined the statutory amendment to R.9 and its impact on the continuation and re-employment of temporary appointees.
Fact of the Case:

The writ petitions challenged the termination or threatened termination of the petitioners' services under the provisions of R.9(a) of the Kerala State and Subordinate Services Rules, governing temporary appointments. The petitioners contended that a statutory amendment placed an absolute bar against their continuation or re-employment beyond a three-month limit.
Finding of the Court:

The court found that the statutory amendment did not prohibit re-employment of temporary appointees altogether and that the explanatory note and administrative instruction could not control the statutory amendment. The court also held that the exception made for teaching posts in the statutory amendment was not discriminatory.
Issues: The issues involved the interpretation of R.9(a) of the Kerala State and Subordinate Services Rules, the impact of a statutory amendment on the continuation and re-employment of temporary appointees, and the classification of teaching posts for exception under the amendment.
Ratio Decidendi: The court's decision was based on the interpretation of the statutory provisions, the lack of prohibition on re-employment in the statutory amendment, and the rational classification of teaching posts for exception under the amendment.
Final Decision: The court dismissed the writ petitions, finding no ground to interfere with the orders of termination or to grant any relief in respect of such orders threatened against the petitioners.

Judgment :-

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:

"9 (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:

Provided that before a person is appointed under this clause, persons who are admittedly senior to him shall also be appointed, even if they are absent from duty, whether on leave or on foreign service or on deputation or for any other valid reasons, and allowed to continue as such subject to the condition that persons so appointed shall not eligible for the higher time scale of pay by virtue of such appointments unless otherwise specifically ordered by the Government.

Note: (1) Even where it is considered necessary to sanction the higher time scale of pay not more than one person (either the senior most fit person in a series of adjacent persons on side the ordinary line, or, if such a person either forgoes the benefit on his own volition or does not require the benefit by virtue of his holding a post outside the ordinary line which secures him at least equivalent benefits in respect of salary and pension, then the next below in the series) may be authorised to draw the salary of the higher scale or grade in respect of any one officiating vacancy within the cadre filled by his junior.

(2) A fortuitous officiating appointment given to a person who is a junior to one outside the regular line does not in itself give rise to a claim on the part of the senior to the higher time scale of pay."

The number and length of the remaining sub-clauses forbid their extraction in full; and it would be enough to notice the substance of some of them. Although the rule itself does not set any term to these provisional appointments, R.5 of the Kerala Public Service Commission (Consultation) Regulations, 1957 seems to require the concurrence of the Public Service Commission to the continuance of these appointments beyond three months and also to envisage such continuance. This provision presumably underlies the popularly understood notion that these appointments do not generally enure beyond a period of three months. R.9 (a) (iii) of the Rules enacts that a provisional hand shall be replaced as soon as possible by a regular hand selected by the Public Service Commission; and sub-clause (iv) of the same Rule is clear that a provisional band is not to be regarded as a Probationer and gets no preferential claim either for continuance in the post or for re-appointment or otherwise by reason only of having held a provisional appointment. We are of the opinion that a provisional appointee who over-stays the period of three months without the concurrence of the Public Service Commission does not thereby get a right to

continue in service till replacement by a regular hand selected by the Public Service Commission. The orders of appointment issued and produced in O. P. 87 of 1974, (which was treated and argued as representative of these writ petitions, and to the exhibits in which we shall make reference) fully bear out what we have stated. Exts. P3 and P4 are two among the orders produced. They show that the appointments were purely temporary,

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1974 Supreme(Ker) 15

The statutory amendment to R.9(a) did not prohibit re-employment of temporary appointees altogether, and the exception made for teaching posts was not discriminatory.

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