The petitioners, who stood included in Exhibit P1 rank list issued by Kerala Public Service Commission, assail the action of the first respondent in filling up a minimum of 15 vacancies, in the 15 newly established First Class Judicial Magistrate Courts in Ernakulam District in terms of Exhibit P2 order. 2. According to the learned counsel for the petitioners, Rule 5 of Part II of KS & SSR clearly mandates that all substantive vacancies of whatever nature shall be required to be filled up only from the rank list. According to him, there is not much of a difference between a vacancy of short duration and that of long duration, once both belong to the class of contract employment, as in the present instance. Accordingly, the learned counsel has made earnest efforts to read down the note appended to the said Rule to the effect that notwithstanding the differentiation that vacancies of less than six months duration shall be treated as vacancies of short duration, they also are required to be filled up only from the rank list. In support of his contention, the learned counsel has referred to Exhibit P3 circular issued by the Government.
3. The learned counsel has drawn my attention to the reference in Exhibit P3 to a judgment of this Court rendered by a learned single Judge in O.P. No. 4261 of 2001. According to the learned counsel, this Court has issued a judicial directive, which always has primacy over the administrative directions of this Court, that no appointment even on contract basis or as guest lecturers shall be made except from the rank list published by the Public Service Commission.
4. The learned counsel has thus contended that the efforts of the respondents to fill up the vacancies that arose in the wake of Exhibit P2 order through an ad hoc process of hiring temporary hands on contract basis cannot be sustained.
5. Since the learned counsel for the petitioners got the matter listed with a special mention that the respondent authorities were going ahead with the recruitment process and that any delay in adjudicating the issue would render the writ petition infructuous, this Court required the learned Standing Counsel for the respondents 1 and 4 to get instructions. To his credit, the learned Standing Counsel has not only got the instructions, but also made elaborate submissions without insisting on having time to file a formal defence on the part of the respondents. This Court desires to place on record a word of appreciation for the learned Standing Counsel for the alacrity he has shown in assisting the Court.
6. The learned Standing Counsel has strenuously countered the submissions of the petitioners. Firstly, he has submitted that Rule 5 of Part II of KS & SSR has no manner of application to recruitments sought to be effected under Exhibit P2, inasmuch as the very Special Courts have come to be established under Exhibit P2 only for a duration of less than six months. The note appended to Rule 5 is explicit that any post of less than six months duration shall not be treated as substantive vacancy. Further, referring to the judgment rendered by this Court in O.P. No. 4261 of 2001, the learned Standing Counsel would distinguish it by submitting that in that case the recruitment was to be effected in a College which is permanent in its existence, though the post may be contractual. In the present instance, the Government in Exhibit P2 clearly mandates that under no circumstance the Additional Chief Judicial Magistrate Courts (Special courts) shall be allowed to continue beyond one year, i.e. 31.03.2015.
7. The learned Standing Counsel has taken the trouble of explaining the purpose behind hiring temporary hands on contract basis without taking recourse to regular recruitment from the rank list or otherwise. According to him, given the transient nature of the special courts, whose the duration is less than six months, it is neither practicable nor advisable to hire fresh hands and train them. Indisputably, those courts are being established as special courts to try cases under The Prize Chits and Money Circulation Scheme (Banning) Act 1978, with a strict time frame; as such, the respondents have decided to engage for less than 179 days only retired employees who have sufficient experience in handling the work, the nature of which they have been familiar with. Under those circumstances, contends the learned Standing Counsel, the respondents have taken a decision to engage only experienced retired employees, preferably retired court staff.
8. Incidentally, the learned Standing Counsel has also taken an objection that the appointing authority, the Chief Judicial First Class Magistrate, has not been made a party.
9. Heard the learned counsel for the petitioners and the learned Standing Counsel for the respondent Corporation, apart from perusing the record.
10. It is evident from Exhibit P2 that 15 Additional Chief Judicial Magistrate Courts are being, or have been, established in Ernakulam District for a specific purpose, to wit, trying cases under The Prize Chits and Money Circulation Scheme (Banning) Act 1978. The Government has mandated that under no circumstance these Courts shall be allowed to continue beyond one year. In fact, Exhibit P2 order having been issued on 13.05.2014, as per the submission of the learned Counsel, the period will expire by 31.03.2015.
11. There is any amount of force in the contention of the learned Standing Counsel that Rule 5 of Part II KS & SSR has no application in the present instance. The note appended to the said Rule makes it abundantly clear that posts of less than six months’ duration cannot be treated as substantive vacancies. Once the posts are not to be treated as substantive vacancies, they fall outside the purview of the said provision, thus casting no obligation on the employer to go for regular recruitment from the rank list.
12. In so far as the judgment of this Court in O.P. No.
4261/2001, referred to in Exhibit P3 circular, is concerned, to my specific query, the learned counsel for the petitioners has submitted that since the judgment was rendered about more than a decade ago, no copy could be obtained. It is axiomatic that no judicial precedent can assume the place of a statutory provision. In other words, every judgment to be treated as a precedent is required to be examined in the factual context under which it has come to be rendered. In that respect I am handicapped to examine the precedential value of the said judgment to hold that notwithstanding Rule 5 of KS & SSR, the recruitment for any posts of whatever duration shall be only from rank list.
13. Suffice it to say that from Exhibit P3 no such observation could be discerned. Even otherwise, the distinction made by the learned Standing Counsel is that in so far as O.P. No. 4261/2001 is concerned, the posts mentioned therein pertain to a permanent institute, namely a College, where continuity is expected. On the other hand, Exhibit P2 is crystal clear to the effect that the very institute is temporary and that the duration of the posts created therein is coterminous with the existence of the said institute, namely the Special Court. As such in my considered view, there is no substance in the contention of the learned counsel for the petitioners that the observation in Exhibit P3 circular comes in the way of the respondents hiring temporary hands.
14. Action of any authority, including this Court on its administrative side, could be tested on the anvil of Article 14 of the Constitution of India. Yet, once there is an intelligible differentiation or distinguishing factor in its approach in the matters of public employment, it cannot be castigated on the ground that certain other persons have been deprived of an opportunity of securing employment. As could be seen from the official memorandum dated 25.07.2014 issued by this Court, submitted to me by the learned Standing Counsel across the bar, there is clear cogitation on the issue of the method of recruitment in the temporary courts. Paragraph number 3 concerns itself with the norms to be followed for hiring staff on contract basis. Clause (ii) thereof clearly records that preference be given to retired court staff in appointment for the smooth functioning of the Courts.
15. Thus, to put the issue in prospective, this Court cannot find fault with the decision of the respondents to recruit experienced retired persons as temporary hands for a limited duration, i.e., for less than six months, so as to subserve the purpose of special drive in establishing special courts of transient duration.
Under the above facts and circumstances, this Court does not find any merit in the writ petition. Accordingly the writ petition is dismissed. No order as to costs.
DAMA SESHADRI NAIDU JUDGE DMR/-