Vinitha M. vs Secretary
2021 Latest Caselaw 5695 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

  WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942

                  WP(C).No.22067 OF 2020(G)


PETITIONER :-

            VINITHA M., AGED 35 YEARS
            W/O.SINUKUMAR V, RADHEYAM, CHEKKIDIKADU P.O.
            PACHA EDATHUA, ALAPPUZHA, PIN - 689 573.

            BY ADVS.
            SRI.R.HARISHANKAR
            SMT.PARVATHY NAIR

RESPONDENTS :-

      1     SECRETARY
            TRAVANCORE DEVASWOM BOARD, NANTHANCODE,
            THIRUVANANTHAPRUAM, PIN - 695 003.

      2     DEVASWOM COMMISSIONER,
            TRAVANCORE DEVASWOM BOARD, NANTHANCODE,
            THIRUVANANTHAPRUAM, PIN - 695 003.

      3     ASSISTANT DEVASWOM COMMISSIONER,
            TRAVANCORE DEVASWOM BOARD, MAVELIKKARA,
            ALAPUZHA, PIN - 695 101.

            BY ADV. SRI.G.BIJU, SC


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05-02-2021, THE COURT ON 17-02-2021 DELIVERED THE FOLLOWING:
 WP(C).No.22067 OF 2020(G)

                                      -: 2 :-


                                   JUDGMENT

Dated this the 17th day of February, 2021

This writ petition is filed seeking the following reliefs :-

"i) issue a writ of certiorari or other appropriate writs, directions, or orders calling for the records leading to exhibit P11 (Order No.ROC 16838/17/Est.II dated 09-09-2020) and quash the same.

ii) issue a writ of mandamus or other appropriate writs, directions or orders directing the respondents to appoint the petitioner in the post of 'Peon' on duty basis in Harippad Group or Ambalapuzha Group or Thiruvalla Group or in the present place of duty i.e., Mavelikkara Vigilance Office as expeditiously as possible or at any event within a period of one month.

iii) declare that petitioner is entitled to be accommodated in a supernumerary post of 'Peon' until a suitable post is available or until the age of superannuation of the petitioner, if it is not possible to adjust the petitioner against any post as per 2 nd proviso of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

2. Heard the learned counsel for the petitioner and the

learned Standing Counsel appearing for the respondents.

3. It is submitted by the learned counsel for the petitioner

that she was employed as Kazhakam in the Koypallykaranma

Devaswom in the Mavelikkara Group under the 3rd respondent.

She joined duty on 5.5.2018. She suffered a serious injury during

the floods in August, 2018 and Ext.P2 is the medical certificate WP(C).No.22067 OF 2020(G)

issued in respect of the same. Thereafter, on her request, she was

accommodated as clerk on duty basis in the Vigilance Office of the

TDB at Mavelikkara. It is stated that the petitioner has to undergo

several surgeries and has been advised to take rest, to use a

lumbar corset and to avoid bending, lifting weights, prolonged

sitting, travel, etc. It is stated that Ext.P7 disability certificate has

also been issued to her. Thereafter, the petitioner had submitted

Exts.P8 and P9 representations for accommodation to the post of

peon on duty basis, which were directed to be considered by

Ext.P10 judgment. However, the request has been rejected by

Ext.P11 order of the 1st respondent, which is under challenge in

this writ petition.

4. The learned counsel for the petitioner submits that the

petitioner is entitled to an accommodation in a post, the duties of

which she can perform, failing which, she will be put to extreme

prejudice and hardship. It is stated that the petitioner is still on

medical leave and that she is unable to carry out the duties of

Kazhakam which she would have to perform in the light of Ext.P1.

5. A statement has been placed on record by the learned

Standing Counsel appearing for the Board, specifically stating that

the petitioner, who is a Kazhakam, a post which comes within the

category of 'temple employees' under the Board, does not have any WP(C).No.22067 OF 2020(G)

right to claim that she should be continued as an 'establishment

employee'. It is stated in paragraph 6 of the statement as follows :-

"6. It is submitted that one of the suggestions in the report was to stop the duty arrangement basis, since the same is causing huge financial commitment to the Board. When a temple employee is posted on duty arrangement basis in another office, such employee has to be paid his salary and in addition to that, the Board has to arrange substitute arrangement in the original post and payment is to be made by the Board for such substitute engagement to do the work in the temples. The duty arrangement basis is found to be causing additional financial burden to the tune of Rs.1 Crore 66 Lakhs and 44 thousand rupees per year."

It is further stated that the petitioner has been granted a

convenient posting as Kazhakam in the Koypallykaranma

Devaswom in the Harippad Group, which is very close to the

petitioner's place of residence. It is further submitted by the

learned Standing Counsel appearing for the Board that the said

Devaswom has two Kazhakam, two Adichuthali and watcher posts

available and that the petitioner will not have to undertake any

strenuous duties in the said Devaswom.

6. Though a reply affidavit has also been placed on record

stating that the petitioner will be unable to carry out the duties of

Kazhakam, having considered the contentions advanced on either

side, I am of the opinion that in the absence of any sustainable

claim that can be raised by the petitioner for appointment as a WP(C).No.22067 OF 2020(G)

Peon, since her substantial appointment is admittedly as a

Kazhakam (temple employee), the further prayer sought for in the

writ petition cannot be granted.

I am of the opinion that the petitioner's eligibility would

only be for an appropriate posting as a temple employee

(Kazhakam) in any of the temples under the Devaswom Board.

Since it is now submitted that the petitioner has been

accommodated at the Koypallykaranma Devaswom and since it is

submitted by the learned Standing Counsel that the petitioner will

not have to carry out any strenuous duties in the said posting, I am

of the opinion that the substantial grievances of the petitioner

stands redressed. I, therefore, deem it appropriate to close this

writ petition with a direction to the respondents to see that the

petitioner is permitted to continue as Kazhakam and that she be

assigned light duties that she can carry out taking note of her

physical condition as well.

Sd/-

ANU SIVARAMAN JUDGE Jvt/11.2.2021 WP(C).No.22067 OF 2020(G)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF COMMUNICATION ISSUED BY 3RD RESPONDENT TO THE PETITIONER DATED 4.5.2018

EXHIBIT P2 TRUE COPY OF CERTIFICATE DATED 17.10.2018 ISSUED BY DR. JOLLY GEORGE OF HOLY FAMILY HOSPITAL, THODUPUZHA

EXHIBIT P3 TRUE COPY OF THE ORDER NO 16838/17/EST-2 DATED 26.10.2018 ISSUED BY 1ST RESPONDENT

EXHIBIT P4 TRUE COPY OF DISCHARGE SUMMARY ISSUED BY HOLY FAMILY HOSPITAL, THODUPUZHA DATED 30.1.2019

EXHIBIT P5 TRUE COPY OF DISCHARGE SUMMARY ISSUED BY THE BELIEVERS CHURCH MEDICAL COLLEGE HOSPITAL, THIRUVALLA DATED 25.12.2019

EXHIBIT P6 TRUE COPY OF DISCHARGE SUMMARY ISSUED BY HOLY FAMILY HOSPITAL, THODUPUZHA DATED 11.4.2020

EXHIBIT P7 TRUE COPY OF CERTIFICATE OF DISABILITY DATED 28.1.2020 ISSUED BY THE SUPERINTENDENT AND CHAIRMAN OF MEDICAL BOARD OF GOVERNMENT T.D HOSPITAL ALAPUZHA.

EXHIBIT P8 TRUE COPY OF REPRESENTATION SUBMITTED BY PETITIONER ON 15.5.2020 BEFORE THE 2ND RESPONDENT

EXHIBIT P9 TRUE COPY OF REPRESENTATION SUBMITTED BY PETITIONER ON 11.6.2020 BEFORE THE 2ND RESPONDENT

EXHIBIT P10 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN WRIT PETITION NO 13590/2020 DATED 7.7.2020

EXHIBIT P11 TRUE COPY OF ORDER PASSED BY 1ST RESPONDENT BEARING NO ROC 16838/17/EST.11 DATED 9.9.2020

EXHIBIT P12 TRUE COPY ORDER DATED 05-10-2018 NO.ROC.NO.13489/2012/MIS-C OF 2ND RESPONDENT

EXHIBIT P13 TRUE COPY OF ORDER OF 2ND RESPONDENT DATED 16-12-

2020 BEARING NO.ROC-14555/20/EST-B/MIS-C

EXHIBIT P14 TRUE COPY OF ORDER NO.ROC.15691/15/EST-1 DATED 14/03/2017.

WP(C).No.22067 OF 2020(G)

EXHIBIT P15 TRUE COPY OF ORDER NO.ROC.15691/15/EST-1 DATED 06/07/2017.

EXHIBIT P16 TRUE COPY OF ORDER NO.ROC.245/09/EST-1 DATED 04/10/2019.

EXHIBIT P17 TRUE COPY OF CIRCULAR DATED 22/12/2018 ISSUED BY THE 2ND RESPONDENT.

//TRUE COPY//

P.A. TO JUDGE