"i) call for the records leading issuance of Exhibit- P11; 

ii) declare that the Ext.P11 is unsustainable in the eyes of law; 

iii) issue a writ of certiorari or appropriate writ or order quashing Exhibit-P11; iv) declare that petitioner is entitled to count the provisional service rendered as evidenced in Ext.P1 followed by regular appointment for the purpose of regular pension and pensionary benefits; v) issue a writ of mandamus or appropriate writ or order or direction to issue necessary orders to the respondents to count the provisional service rendered by the petitioner as Driver as evidenced in Exhibit-P1 prior to regular appointment as per Ext.P2 to P4, for the pension and other service benefits and to release service benefits accrued thereon to him within a reasonable time; AND 

vi) Issue such other or further appropriate writ or order or direction as this Hon'ble Court may deem fit, just and necessary in the circumstances of the case including the cost of this writ petition (Civil)." 

"i. To issue a writ of mandamus, any other appropriate writ, order or direction commanding the resopndents to confer seniority to the petitioners in respect of their provisional service to be merged with their present seniority for the period 17.03.1997 to 19.07.2000 in respect of the 1st petitioner and 21.04.1997 to 21.07.2000 in respect of the 2nd petitioner forthwith. 

ii. To declare that the petitioners are entitled to be conferred seniority in respect of their provisional service to be merged with their present seniority for the period 17.03.1997 to 19.07.2000 in respect of the 1st petitioner and 21.04.1997 to 21.07.2000 in respect of the 2nd petitioner forthwith." 

"i. To issue a writ of mandamus, any other appropriate writ, order or direction commanding the respondents to confer seniority to the petitioners in respect of their provisional service to be merged with their present seniority for their respective period of their provisional service forthwith. 

iii. To declare that the petitioners are entitled to be conferred seniority in respect of their provisional service to be merged with their present seniority for their respective period of provisional service." 

"The question raised in the order of reference made by the learned single judge, in its totality, is as to whether the decision rendered by the Full Bench of this Court in 

District Transport Officer v. Kunchan [2009 (3) KLT 954 (FB)] 

requires re- consideration in the light of the judgments of the Supreme Court in 

National Textile Corporation (APKKM) Ltd. v. Sree Yellamma Cotton, Woollen and Silk Mills Staff Association and Others [(2001) 2 SCC 448] 

and 

Devinder Singh v. Municipal Council, Sanaur [AIR 2011 SC 2532]

It is also pointed out that the judgment of the Division Bench in W.A. 2243/06 has not been appreciated by the Full Bench. Incidentally, it is also pointed out that though Idicula Abraham v. K.S.R.T.C. [2005 (2) KLJ 602] stands overruled in Kunchan (supra), the SLP against the judgment in Idicula (supra) was dismissed by the Apex Court and that fact was not brought to the notice of the Full Bench. Though we do not prima facie see that a case of merger of judgments could result out of the dismissal of the SLP, we are inclined to think that judgment of the Division Bench in W.A.2243/06, which deals with the effect of bipartite settlement, has escaped the notice of the Full bench. That apart, the latter decision of the Apex Court also appears to have a bearing on the issue whether it is necessary to refuse pensionary benefits to those who have entered service otherwise than through PSC, even if they have discharged duties and responsibilities at par with employees/workmen recruited through PSC. We, accordingly, refer these cases for the consideration of the Full Bench. The office will place these files before the Hon'ble the Chief Justice for further orders." 

"5. Ext.P5 produced in W.P(C) No.31599/2009 is the copy of the memorandum of settlement wherein, clause XXIII refers to "pension" and sub-clause 3 is the one which comes up for interpretation. We extract the same hereunder : 

"3. Daily wages period of conductors, Drivers and Mechanical staff before their regular appointment in full, will count for pension there should be at lease ten days duty in a month. If there is no duty in a month, that month will be excluded and 50% will be taken as qualifying service of the months in which the number of duty is below then or 50% of the total daily wage period of excluding the months having no duty whichever is beneficial to the employees." 

"where a term of settlement, to which an instrumentality of a State is a party, provides for treating casual service also as part of regular service for all intents and purpose, then it will only be appropriate to treat only such casual service, rendered by a person, who has already been advised by the Commission for regular appointment against the post in question as part of regular service. Any other kind of casual service would only be casual service that cannot be considered as synonymous with regular service." 

7. Since the correctness of the Full bench in Kunchan's Case (2009 (3) KLT 954-FB) is canvassed before us, the matter will have to be heard by a Larger Bench. The effect of the decision of the Apex Court referred to already and the view taken by the Division Benches in Idicula Abraham's case (2005 (2) KLJ 602) as well as in Mohanan Nair's case (W.A. No.2243/2006) being rendered on the interpretation of the terms of a settlement which have not been considered in detail by the Full Bench in Kunchan's case (2009 (3) KLT 954-FB), it is only appropriate that the matter is heard by a Larger Bench." 

I. Whether the Full Bench of this Court in District Transport Officer v. Kunchan (2009 (3) KLT 954(FB)) lays down the correct law in so far as it holds that daily wage period of Drivers, Conductors and mechanical staff in the KSRTC is eligible for the purpose of pension only when the Daily wage appointment was made subsequent to recommendation in favour of the employees by the Kerala Public Service Commission and working on daily wages in any other capacity cannot be taken into consideration for the purpose of pension? 

II. Whether the petitioners in the Writ Petitions before us were entitled to reckon their Daily wage period of working as Driver in the KSRTC for the purpose of pension? 

III. Whether clause XXIII-3-Pension of the settlement dated 13.4.1999 is binding on the KSRTC to reckon the daily wage period of Drivers, Conductors and mechanical staff for the purpose of pension? 

IV. Whether the judgment of the Supreme Court in Secretary, State of Karnataka & others v. Umadevi(3) and others [(2006) 4 SCC 1] is applicable while interpreting clause XXIII-3 of the settlement dated 13.4.1999 

"4. In the following cases, no claim to pension is admitted:- 

(a) When an employee is appointed for limited time only, or for specific duty, on the completion of which he is to be discharged. 

(b) When a person's whole time is not retained for the public service, but he is merely paid for work done for the State. 

(c) When a person is employed temporarily on monthly wages without specified limit of time or duty. 

(d) When an employee holds some other pensionable office, he earns no pension in respect of an office of the kind mentioned in clause (b) or in respect of duties paid for by local allowance." 

"10. The service of an employee does not qualify for pension unless he is appointed, his duties regulated and paid by the Government or under conditions determined by the Government.

11. Notwithstanding the provisions of Rule 10, the Government may, (1) declare that any specified kind of service rendered shall qualify for pension; and (2) in individual cases, and subject to such conditions as they may think fit to impose in each case, allow service rendered by an employee to count for pension." 

"XXIII Pension 

1. Pension will be paid as per the provisions of Kerala Service Rules followed by the Government from time to time.

2. Service under State Government prior to joining the Corporation will qualify for pension provided the break between Government service and K.S.R.T.C service shall not exceed three months. 

3. Daily wages period of Conductors, Drivers and Mechanicals Staff before their regular appointment in full, will count for pension provided there should be at least ten days duty in a month. If there is no duty in a month, that month will be excluded and 50% will be taken as qualifying service of the months in which the number of duty is below 10 or 50% of the total daily wage period excluding the months having no duty whichever is beneficial to the employee.

4. Pre-appointment training period of Mechanical Staff including Assistant Depot Engineers will be treated as qualifying service for pension." 

"18. Persons on whom settlements and awards are binding.- (1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement." 

"19. Period of operation of settements and awards. - (1) A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute. (2) Such settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of six months from the date on which the memorandum of settlement is signed by the parties to the dispute, and shall continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement." 

"2. ......Undoubtedly, the legal position is that during the subsistence of a settlement it is not open to any of the parties to raise a dispute. A settlement once entered into between the parties shall be operative until the same is terminated as provided in Section 19 of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"). The object of such a provision is to ensure that once a settlement is entered into then industrial peace prevails according cordialities between the parties during the period agreed upon. The same position should continue by extension of the settlement by operation of law. There is an option given to either party to terminate the settlement and such a course having not been adopted in the present case the dispute could not have been raised by the parties......" 

"13. In answering the reference the industrial adjudicator has to keep in the forefront of his mind the settlement reached under section 12(3) of the Industrial Disputes Act. Once it is found that the terms of the settlement operate in respect of the dispute raised before it, it is not open to the Industrial Tribunal to ignore the settlement or even belittle its effect by applying its mind independent of the settlement unless the settlement is found to be contrary to the mandatory provisions of the Act or unless it is found that there is non-conformance to the norms by which the settlement could be subjected to limited judicial scrutiny. This is in fact the approach of the Tribunal in the instant case. The High Court which examined the issue from a different angle as well as, in our view, justified in affirming the award of the Tribunal. 

xx xx xx 

21. What follows from a conspectus of these decisions is that a settlement which is a product of collective bargaining is entitled to due weight and consideration, more so when a settlement is arrived at in the course of conciliation proceeding. The settlement can only be ignored in exceptional circumstances viz., if it is demonstrably unjust, unfair or the result of mala fides such as corrupt motives on the part of those who were instrumental in effecting the settlement. That apart, the settlement has to be judged as a whole, taking an overall view. The various terms and clauses of settlement cannot be examined in piecemeal and in vacuum." 

"1. Petitioners were employed as daily-rated reserved in the Kerala State Road Transport Corporation from 1981 onwards. They were continuously doing the work on daily wage basis till they were permanently appointed through the Public Service Commission. We refer to the date of appointment mentioned in O.P. No.32947 of 2002 (W.A. No.1636 of 2003). Petitioner in that case who was advised by the Employment Exchange was appointed as Driver on provisional basis on 29.06.1981. Petitioner was appointed on regular basis as Driver on the advice of the Kerala Public Service Commission on 29.05.1989. Therefore, on 03.06.1989 provisional appointment was terminated and he joined duty as regular Driver on 05.06.1989. He retired from service on 30.04.2002. He wanted his daily rated provisional service to be counted for pensionary benefits. That was disallowed and hence the writ petition was filed." 

"4. According to the learned Single Judge, clause XXIII of the settlement states about the daily rated workers who were appointed after they were given appointment by PSC. No such restrictions are mentioned in the above settlement clause or government order. When there is no ambiguity in the wordings in the settlement, it has to be literally interpreted. The court cannot assume hidden meanings so as to deny the benefits granted by the settlement. The wordings in the settlement are very clear. There is no room for any doubt. In fact, it is very clearly stated in the settlement that the daily wage period will be counted as qualifying service. The learned single Judge also referred to the decision of another single Bench of this Court reported in 

Balakrishna Pillai v. Asst. Executive Engineer (1996 (2) KLT 406)

There, the court said that a provisional employee is not entitled to pension. That is very clear also from rule 4 part III KSR that a provisional employee is not entitled to pension. In W.A.No.1975 of 1999 also, petitioners retired as provisional employees and they reached the age of superannuation before regularization. If a provisional employee retires as a provisional employee, he will not get pension. But, here, all the petitioners were provisional employees prior to 1994 and became regular employees much before 01.10.1994. Hence, they are entitled to get the benefit claimed as per the Government Order referred above. A cut off date is not mentioned in the settlement. Petitioners are entitled to the benefits of the settlement which the Corporation cannot avoid. In 

Barauni Refineries Pragatisheel Shramik Parishad v. Indian Oil Corporation Ltd. and others (1991) 1 LLJ 46)

the Apex Court reiterated the view that terms of settlement are binding on the workmen and union till it is terminated as provided under the Industrial Disputes Act and even the standing orders under the Standing Orders Act cannot be amended contrary to the terms of settlement. Binding nature of settlement is again reiterated by the Apex Court in 

ITC Ltd. Workers Welfare Association v. Management of ITC Ltd. and others (2002) 1 LLJ 848)

In the above circumstances, we direct the KSRTC to count the provisional service of the petitioners also as qualifying service for calculating pension and weightage if it is not already calculated." 

"In these appeals by the Kerala State Road Transport Corporation (for short 'the Corporation') the question to be decided by us is "whether daily wage service', that an incumbent did have as Conductor/driver, shall be counted for the purpose of grant of retiral benefits on his retirement on superannuation after having been regularly appointed". 

"XXIII-pension:- 1. Pension will be paid as per the provisions of Kerala Service Rules followed by the Government from time to time.

2. Service under State Government prior to joining the Corporation will qualify for pension provided the break between Government service and Kerala State Road Transport Corporation service shall not exceed three months.

3. Daily wages period of Conductors, and Mechanical Staff before their regular appointment in full, will count for pension there should be at least ten days duty in a month. If there is no duty in a month, that month will be excluded and 50% will be taken as qualifying service of the months in which the number of duty is below ten or 50% of the total daily wage period excluding the months having no duty which ever is beneficial to the employees.

4. Pre-appointment training period of Mechanical Staff including Assistant Depot Engineers will be treated as qualifying service for pension." 

"2. Though it has been thus stated tat the outset that Pension Rules in the KSR would be applicable, it had been amplified by Clause (3) of Settlement which provides for counting of daily wage period to '/Conductors/Mechanical Staff before their regular appointment in full with the condition that there should have been at least 10 days of duty in a month. Even if there is dearth of 10 days duty, it was further stated that the period during which there is such dearth will be excluded and 50% will be taken as qualifying service of the months in which the number of duty is below 10 or 50% of the total daily wage period excluding the months having no duty, whichever is beneficial to the employee. Thus, there is a binding provision in the settlement as provided for in Clause XXIII (3) of the Settlement to count daily wage service also for the purpose of retirement benefits.

3. Admittedly, all the petitioners in the writ petitions, except that in W.P.(C) No.33819/05 which leads to W.A. No.2243/06, were regularized in the service of the Corporation by the Order, taking into account the long tenure of daily wage employees, 699 Conductors and 6 painters were regularized in the service of the Corporation. After such regularization, on their retirement, Clause XXIII of the settlement as referred to above operate to count their daily wage service for computation of retiral benefits. Necessarily, the contention of the Corporation, that the settlement was arrive at far earlier than the regularization and such regularization was not in contemplation, is of no avail. Going by Section 18(3) (d) of the Industrial Disputes Act, 1947, a settlement will be binding even on the future employees, unless it is terminated in accordance with law as provided in Section 19 of the said Act. No piece of evidence has been brought to our notice regarding the termination of the settlement. Necessarily, that will be binding to the employees regularized far later. Even if there had been any difficulty or inconvenience because of this mass regularization and consequent counting of their daily wage service prior to their regularization, it was incumbent on the Corporation in incorporate such restrictive covenant as a pre-condition for regularization. That has not been done or even no steps were taken to terminate the settlement. Therefore, the Corporation cannot revert back from the settlement and contend that the writ petitioners cannot seek to count the daily wage service put in by them before regularization for the purpose of retiral benefits in the light of the said clause in the settlement.

4. As regards the petitioner in W.P.(C) No.33819/05 leading to W.A. No.2243/06, he was a person appointed on daily wages as per Ext.P1 dated 24.2.1993 and was later regularized on advice by the P.S.C. As per Ext.P2 dtd. 07.07.2000. His case is also squarely covered by Clause XXIII of the settlement. Therefore, the learned Single Judge was perfectly justified in directing th Corporation to count the provisional service put in by him for the purpose of calculating his retiral benefits. This point is also covered in favour of the respondents in terms of the decision in Idicula Abraham's case (cited supra), which had been confirmed by the Supreme Court as well, refusing leave to appeal at the instance of the appellant/Kerala State Road Transport Corporation." 

"Sri. Idiculla Abraham, Driver retired from KSRTC in the AN of 30.4.02 had filed O.P.No.32977/12 for a direction to the KSRTC to count Employment Exchange service rendered by him prior to his regularization of appointment in the advise of KPSC as qualifying service for pension. The Hon'ble High Court of Kerala dismissed his petition and held that Clause XXIII(3) of the settlement arrived at by the Management and the employees of the Corporation is applicable only in the case of employees appointed as daily wage through PSC and Employment Exchange daily wage service cannot be counted for pension. Aggrieved by this, the petitioner filed W.A. No.1636/13 before the Hon'ble High Court. In this WA the Hon'ble Division Bench reversed the order of the learned Single Judge and observed that the wordings in the settlement are very clear and that it was very clearly stated in the settlement that daily wages period will be counted as qualifying service for pension. It was also observed that no restrictions are mentioned in the settlement that the Clause will be applicable only to those workers who were given appointment by PSC. On the above grounds the Division Bench directed the KSRTC to count provisional service of the petitioner as qualifying service for pension and weightage. Corporation preferred SLP against this judgment. However the Hon'ble Supreme Court dismissed the SLP. Thereafter following the advise of our standing counsel at Supreme Court, Corporation issued a circular memorandum on 8.6.06 clarifying that the spirit and intention of Clause XXIII(3) of 1999 agreement is only to count daily wage period of service rendered after appointment through PSC/Compassionate employment scheme excluding the daily wage Employment Exchange/Empanel service. The judgment rendered on the basis of the decision in the Idiculla Abraham's Case were challenged in appeal by the Corporation on the basis of the Clarification issued on 8.6.2006. But the Hon'ble High Court was not inclined to accept out contentions and the Writ Appeals were also dismissed by the common judgment dt. 18.12.06 in Writ Appeal No.2279/16 and connected cases. Opinion of our standing counsel at High Court regarding the scope of filing SLP was also sought. He opined that any clarification or amendment in the memorandum of settlement executed between KSRTC and recognized unions could be done only with the consent of all the parties to the agreement and that the clarification issued by the KSRTC is unilateral and not binding on the workmen. According to him, there is no scope for a successful appeal before the Supreme Court as no substantial question of Law is involved in the judgment in the Writ Appeals. Having considered all the above aspects in detail, Corporation is pleased to issue orders to count daily wage service rendered by Conductors, and Mechanical staff appointed through Employment Exchange as qualifying service for pension subject to the restrictions laid down in Clause XXIII(3) of the agreement dt.13.4.1999. In view of Clause X of the agreement this Order will be applicable only to those who retired from service on or after 1.2.99." 

"1. The issues that have been formulated for consideration by the Full Bench can be, as a matter of convenience, encapsulated as hereunder: 

(1) Whether the service as a daily wage employee rendered by a person, at the instance of the employer, after he has been selected for regular appointment by the Public Service Commission (for short 'the Commission') and duly advised in that regard, can be taken as qualifying service for the purpose of pension and other retirement benefits? 

(2) As a corollary, does the service rendered as a daily wage employee or a casual employee in an organization, where the Kerala Service Rules have been adopted for all relevant purposes, in circumstances other than what is mentioned in Issue No. 1 above, be eligible to be treated as qualifying service for the purpose of pension?" 

"20. We are, therefore, of the definite view that the entirety of the services rendered by the writ petitioner with effect from 30/05/1989 till the date of his retirement on 31/08/1998 is eligible to be treated as qualifying service for the purpose of pension and other retirement benefits. Consequently, the writ petitioner would also be entitled to the benefits that are due to a retired employee as per the long term settlement arrived at between the Corporation and the workers on 13/04/1999. We also take note of the fact that a Bench of this Court had, in WA No. 3146/01, declared that employees, who retire between 01/03/1997 and 31/10/1999 are entitled not only to the revised monthly pension, but also other pensionary benefits such as Death Cum Retirement Gratuity, Commuted Value of Pension etc., subject to eligibility at the revised rate." 

"24. The Supreme Court in Umadevi was essentially concerned with the question of regularisation of persons, who were appointed on a casual or ad hoc basis. It was contended on behalf of casual employees seeking regularisation, that persons who are appointed in public service otherwise than by following the notified and established system of selection and appointment and who have continued for long period in such capacity should be treated as entitled to regularisation in service, as a recognition of their right under Art.14, 16 and 21 of the Constitution. The Supreme Court held that adherence to the principles of equality is a basic feature of our Constitution and since the rule of law is the core of our Constitution, the Court would certainly be disabled from passing an order upholding the violation of Art.14 or in overlooking the need to comply with the requirement of Art.14 read with Art.16 of the Constitution. The following observations made by the Supreme Court in paragraph 43 of the judgment is apposite in this context:

'43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Art.14 or in ordering the overlooking of the need to comply with the requirements of Art.14 read with Art.16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Art.226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The Courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.' 

25. The Court held in categoric terms that appointments made otherwise than in accordance with the procedure notified for the public service in question are irregular appointments and an appointee rendering service on the basis such irregular appointment cannot, in law, claim parity with the regular employee. Such irregular appointments cannot be regularised as it would tantamount to regularizing back door or irregular appointments. This, the Supreme Court held, would be unconstitutional, apart from being illegal, as being violative of Art.14 and 21 of the Constitution.

26. Keeping the aforementioned law laid down by the Supreme Court in the background, can it be said that casual service or daily rated service by an employee, should, in all circumstances, be treated as regular service to be so reckoned for all intents and purposes? As we have held above, the nomenclature of the service rendered by a person advised by the Commission to a post forming part of the regular cadre service in the Corporation is not decisive. His service will have to be treated as regular service. This is because his entry into service, is not through the back door but by a regular legitimate process laid down in that behalf. It will not be open to the Corporation to appoint a person who has been advised by the Commission as casual employee because it suited the Corporation to do so. But, at the same time, it might even be necessary for the Corporation to appoint persons on a casual or daily wage basis. This administrative exigency is recognised by the Supreme Court in Umadevi as well. Such service is treated only as casual service and the fact that the said employee was later absorbed into regular service, after being found eligible in a due process of selection, cannot transform the earlier casual service rendered by him as a regular service. To recognise such a principle would, in effect, be a regularisation of an irregular appointment, which, as the Supreme Court held in Umadevi is anathema in the constitutional scheme of appointments in public service. Obviously, the direction to treat such casual service as regular service would mean that the employee concerned would be entitled to treat his entry into service as commensurate with the commencement of casual service.

27. For the reasons mentioned above, we are of the view that the principle laid down in Idicula, to the extent to which directs that any kind of casual service of an employee, followed by an entry of such employee in regular service would be eligible to be treated as regular service for all intents and purposes does not lay down the correct principle. No doubt, the Bench in Idicula was essentially trying to construe a term contained in the conciliation settlement between the management and the employees. But, we cannot, but take note of the fact that regular selection and appointment of persons in the Corporation has been done for the past 30 years, only on the advice of the Commission. The Corporation, an instrumentality of the State, cannot be considered as having agreed to any settlement which will not bear true allegiance to the constitutional principles that should invariably govern the affairs of an instrumentality of the State. Thus, where a term of settlement, to which an instrumentality of a State is a party, provides for treating casual service also as part of regular service for all intents and purposes, then it will only be appropriate to treat only such casual service, rendered by a person, who has already been advised by the Commission for regular appointment against the post in question as part of regular service. Any other kind of casual service would only be casual service, that cannot be considered as synonymous with regular service. We hold that the contrary principle laid down in Idicula does not lay down the correct law." 

"......The Corporation, an instrumentality of the State, cannot be considered as having agreed to any settlement which will not bear true allegiance to the constitutional principles that should invariably govern the affairs of an instrumentality of the State. Thus, where a term of settlement, to which an instrumentality of a State is a party, provides for treating casual service also as part of regular service for all intents and purposes, then it will only be appropriate to treat only such casual service, rendered by a person, who has already been advised by the Commission for regular appointment against the post in question as part of regular service. Any other kind of casual service would only be casual service, that cannot be considered as synonymous with regular service. We hold that the contrary principle laid down in Idicula does not lay down the correct law." 

(a) the Apex Court having held in Umadevi's case (supra) that daily wage employees, who were not appointed following regular process of public employment cannot be regularised in service, and such service is treated only as casual service and the fact that such employees were later absorbed in regular service after being found eligible in due process of selection cannot transform the earlier casual service rendered by him as a regular service. To recognise such a principle would, in fact, be a regularisation of an irregular appointment, which, as the Supreme Court held in Umadevi's case (supra) is anathema in the constitutional scheme of appointments in public service; 

(b) The Corporation, an instrumentality of the State, cannot be considered as having agreed to any settlement which will not bear true allegiance to the constitutional principles that should invariably govern the affairs of an instrumentality of the State. Thus, where a term of settlement, to which an instrumentality of a State is a party, provides for treating casual service also as part of regular service for all intents and purposes,then it will only be appropriate to treat only such casual service, rendered by a person,who has already been advised by the Commission for regular appointment against the post in question as part of regular service. Any other kind of casual service would only be casual service, that cannot be considered as synonymous with regular service.

"43. ....... It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates." 

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 

"18. xx xx xx 

The ratio of any decision must be understood in the background of the facts of the case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. (See Lord Halsbury in Quinn v. Leathem). But in view of the mandate of Article 141 that the ratio of the decision of this Court is a law of the land, Shri. Gobind Das submitted that the ratio of a decision must be found out from finding out if the converse was not correct." 

"59. A decision, as is well known, is an authority for which it is decided and not what can logically be deducted therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.[See Ram Rakhi v. Union of India, Delhi Admn. (NCT of Delhi) v. Manohar Lal, Haryana Financial Corpn. v. Jagadamba Oil Mills and Nalini Mahajan (Dr) v. Director of Income Tax (Investigation)]" 

"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (AC at p. 761) Lord MacDermott observed: (All ER p. 14 C-D) 

"The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge,..." 

10. In Home Office v. Dorset Yacht Co. (All ER p. 297g- h) Lord Reid said, 

"Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances". 

Megarry, J. in Shepherd Homes Ltd. v. Sandham (No.2) observed: 

"One must not, of course, construe even a reserved judgment of Russell, L.J. as if it were an Act of Parliament." 

And, in Herrington v. British Railways Board Lord Morris said: (All ER p. 761c) 

"There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case." 

11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

12. The following words of Lord Denning in the matter of applying precedents have become locus classicus: "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. * * * Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it." 

"XXIII-3. Daily wages period of Conductors, Drivers and Mechanicals Staff before their regular appointment in full, will count for pension provided there should be at least ten days duty in a month. If there is no duty in a month, that month will be excluded and 50% will be taken as qualifying service of the months in which the number of duty is below 10 or 50% of the total daily wage period excluding the months having no duty whichever is beneficial to the employee." 

"24. We should point out that there is some misconception about this aspect of the case. The question of adjudication has to be distinguished from a voluntary settlement. It is true that this Court has laid down certain principles with regard to the fixation of dearness allowance and it may be even shown that if the appeal is heard the said principles have been correctly followed in the award. That, however, will be no answer to the parties agreeing to a lesser amount under certain given circumstances. By the settlement, labour has scored in some other aspects and will save all unnecessary expenses in uncertain litigation. The settlement, therefore, cannot be judged on the touchstone of the principles which are laid down by this Court for adjudication.

25.There may be several factors that may influence parties to come to a settlement as a phased endeavor in the course of collective bargaining. Once cordiality is established between the employer and labour in arriving at a settlement which operates well for the period that it is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding friction and unhealthy litigation. This is the quintessence of settlement which courts and tribunals should endeavor to encourage. It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinising an award in adjudication. The Tribunal fell into an error in invoking the principles that should govern in adjudicating a dispute regarding dearness allowance in judging whether the settlement was just and fair." 

"....However, Standing Counsel for the respondents contended that the said provision in the settlement will apply only in respect of the persons advised by the PSC but appointed on daily wage basis. We are not in a position to accept this argument. First of all the claim of the appellant stands already upheld by this court in Ext.P3 judgment. Further, if we accept this contention of the respondent, that will have the effect of modifying clause XVII of the settlement which is not a qualified one as now sought to be made by the respondent. ......" 

"5. On the other hand learned counsel for the respondent submitted that in Umadevi (3) case the powers of the industrial adjudicator were not under consideration. There is a difference between a claim raised in civil suit or a writ petition and one adjudicated by the industrial adjudicator. It was submitted that the Labour Court can create terms existing in the contract to maintain industrial peace and, therefore, it can vary the terms of the contract. Therefore, it was submitted that the orders of the High Court do not warrant any interference.

6. It is true as contended by learned counsel for the respondent that the question as regards the effect of the industrial adjudicators' powers was not directly in issue in Umadevi (3) case. But the foundational logic in Umadevi (3) case1 is based on Article 14 of the Constitution of India. Though the industrial adjudicator can vary the terms of the contract of the employment, it cannot do something which is violative of Article 14. If the case is one which is covered by the concept of regularisation, the same cannot be viewed differently.

7. The plea of learned counsel for the respondent that at the time the High Court decided the matter, decision in Umadevi (3) case was not rendered is really of no consequence. There cannot be a case for regularisation without there being employee-employer relationship. As noted above the concept of regularisation is clearly linked with Article 14 of the Constitution. However, if in a case the fact situation is covered by what is stated in para 45 of Umadevi (3) case the industrial adjudicator can modify the relief, but that does not dilute the observations made by this Court in Umadevi (3) case about the regularisation.

8. On facts it is submitted by learned counsel for the appellants that Respondent 2 himself admitted that he never worked as a pump operator, but was engaged as daily labourer on daily-wage basis. He also did not possess the requisite qualification. Looked at from any angle, the direction for regularisation, as given, could not have been given in view of what has been stated in Umadevi (3) case." 

"42. The aforesaid analysis, according to us, is not correct inasmuch as the Regulations do not take in their sweep an employee who is not regularly appointed. The distinction between temporary and purely temporary, as made by the High Court, does not commend acceptance as there is an inherent fallacy in the same inasmuch as Regulation 2(i) clearly provides "regularly appointed to the service of the University" which has been reiterated in Regulation 22. In fact, as we perceive, the High Court has proceeded on the basis that their services have to be treated as regular. Once it is not regular service, the infrastructure collapses as a consequence of which the superstructure is bound to founder and, hence, the distinction made by the High Court is flawed.

43. The High Court, as has been stated earlier, has pressed into service Regulation 23 and relying on the same, it has held that the services of the respondents shall be deemed to have been confirmed as in the instant cases the University has never opined that their services were not satisfactory. The language of Regulation 23 is couched in a different manner. It fundamentally deals with the computation of the period of service of an employee. That apart, Regulation 23(b) uses the words "if he is confirmed". It is a conditional one and it relates to officiating services. Both the concepts have their own significance in service jurisprudence. The respondents were not in the officiating service and by no stretch of imagination, could they have been treated to be confirmed because the words "if he is confirmed" required an affirmative act to be done by the University. The High Court, as we find, has applied the doctrine of deemed confirmation to the case at hand which is impermissible. In this context, we may, with profit, refer to the decision in Lawrence School v. Jayanthi Raghu wherein it has been ruled thus: (SCC p. 804, para 38) 

"38. ... A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed." 

"i) The Full Bench judgment of this Court in District Transport Officer v. Kunchan (2009(3) KLT 954(FB)) does not lay down the correct law in holding that daily wage period of Drivers, Conductors and mechanical staff in the KSRTC is eligible for the purpose of pension only when the appointment was made subsequent to the recommendation in favour of the employees by the Kerala Public Service Commission. No such restriction can be read in clause XXIII-3 of the settlement. 

ii) The petitioners in the Writ Petitions before us, including in W.A.Nos.149 and 150 of 2010 were entitled to reckon their daily wage period of working for the purpose of pension in addition to their period of regular service. 

iii) Clause XXIII-3 of the settlement dated 13.4.1999 is binding on the KSRTC. The judgment of the Supreme Court in Secretary, State of Karnataka & others v. Umadevi(3) and others [(2006) 4 SCC 1] was not applicable while interpreting clause XXIII-3 of the settlement dated 13.4.1999. 

(a) W.P(C).Nos.31599 of 2009, 7910 of 2013 and 15379 of 2013 are disposed of with the following directions: 

I) The decision of the Kerala State Road Transport Corporation rejecting the claim of the petitioners to reckon their period of provisional/daily wage services is set aside. 

II) We hold that the petitioners are entitled to count their provisional/daily wage services rendered prior to their regular appointment for the purpose of pensionary benefits. 

III) The Managing Director of the Kerala State Road Transport Corporation is directed to issue necessary consequential orders by adding the provisional/daily wage services of the petitioners for pensionary benefits within a period of one month from the date of production of a copy of this judgment before the Managing Director. 

IV) The Managing Director of the Kerala State Road Transport Corporation is further directed to release the consequential pensionary benefits to the petitioners within a further period of two months. 

(b). W.A.Nos.149 and 150 of 2010 are dismissed. However, there shall be directions in W.P(C).Nos.30374 of 2008 and 2596 of 2009, giving rise to W.A.Nos.149 and 150 of 2010, to the same effect as noted above in direction No.(a). 

(c). W.P(C).Nos. 7032 and 7816 of 2013 are disposed of with the following directions: 

i) The petitioners shall be entitled to reckon their provisional period of service prior to their regular appointment on the advice of the Kerala Public Service Commission for the purpose of pension. 

ii) The petitioners' claim for adding their provisional period for the purpose of seniority is left open to be decided by the Managing Director of the Kerala State Road Transport Corporation, in the event the petitioners submit representation to that effect within a period of one month from today.