Binu Joy vs Ayyampuzha Grama Panchayat
2021 Latest Caselaw 2363 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942

                      WP(C).No.10330 OF 2020(M)


PETITIONER:

               BINU JOY
               AGED 36 YEARS
               S/O. JOY, MADAN HOUSE, AYYAMPUZHA P.O.,
               ALUVA TALUK, ERNAKULAM 683 581.

               BY ADV. SRI.S.RENJITH

RESPONDENTS:

      1        AYYAMPUZHA GRAMA PANCHAYAT
               AYYAMPUZHA P.O. MANJAPRA,
               ERNAKULAM 683 581, REP BY ITS SECRETARY.

      2        NATIONAL HEALTH MISSION,
               ANCHORAGE, NO. 9 PALLIYIL LANE,
               ERNAKULAM 682 016, REP BY ITS DIRECTOR.

      3        MEDICAL OFFICER,
               PRIMARY HEALTH CENTER AYYAMPUZHA, CULLI P.O.
               AYYAMPUZHA, ERNAKULAM 683 581.,

      4        SINIMOL.V.R.
               AGED 49 YEARS
               W/O. SASI.V.R.,
               VELLAPPILLIL HOUSE, AAYYAMPUZHA P.O. ALUVA TALUK,
               ERNAKULAM 683 581.

      5        ANILA BIJU,
               THANIKKATH HOUSE, AYYAMPUZHA P.O. POTTA,
               ALUVA TALUK, ERNAKULAM 683 581.

               R1 BY ADV. SRI.K.S.ARUN KUMAR
               R1 BY ADV. SRI.JUSTINE JACOB
               SRI. SUNIL KUMAR KURIAKOSE - GP, SRI. M.AJAY - SC(R2)

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.01.2021, ALONG WITH WP(C).10674/2020(H), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C).10330 & 10674/2020          2

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942

                      WP(C).No.10674 OF 2020(H)


PETITIONER:

               RACHEL. M.T
               AGED 32 YEARS
               W/O.LAIJU DAVIS, PARAKKA HOUSE,
               KALADY PLANTATION P.O.,
               ATHIRAPPILLY ESTATE, VETTILAPPARA,
               AYYAMPUZHA, ERNAKULAM, PIN-683583.

               BY ADV. SRI.S.RENJITH

RESPONDENTS:

      1        AYYAMPUZHA GRAMA PANCHAYAT
               AYYAMPUZHA P.O., MANJAPRA,
               ERNAKULAM, PIN-683581, REP. BY ITS SECRETARY.

      2        NATIONAL HEALTH MISSION,
               ANCHORAGE, NO.9, PALLIYIL LANE,
               ERNAKULAM, PIN-682016, REP. BY ITS DIRECTOR.

      3        MEDICAL OFFICER,
               PRIMARY HEALTH CENTER AYYAMPUZHA, CULLI P.O.,
               AYYAMPUZHA, ERNAKULAM, PIN-683581.

      4        SINIMOL V.R.,
               AGED 49 YEARS
               W/O.SASI V.R., VELLAPPILLIL HOUSE, AYYAMPUZHA P.O.,
               ALUVA TALUK, ERNAKULAM, PIN-683581.

      5        TEENA SIBY,
               CHULLY P.O., AYYAMPUZHA, ERNAKULAM, PIN-683581.

      6        SANDHYA P.B.,
               PERILAPARAMBIL HOUSE, VETTILAPPARA, AYYAMPUZHA,
               ERNAKULAM, PIN-683581.

      7        AJITHA V.K.,
               VETTUKATTIL HOUSE, AYYAMPUZHA P.O., POTTA,
               ERNAKULAM, PIN-683581.
 WP(C).10330 & 10674/2020       3

      8      MAJI SAJI,
             KALADY PLANTATION P.O., TSR FACTORY, VETTILAPPARA,
             AYYAMPUZHA, ERNAKULAM, PIN-683581.

      9      ANILA BIJU,
             THANIKKATH HOUSE, AYYAMPUZHA P.O., POTTA, ALUVA
             TALUK, ERNAKULAM, PIN-683581.

      10     MATIYAM M.O @ ALPHONSA PAPPACHAN,
             KILUKKAN HOUSE, AYYAMPUZHA P.O., ERNAKULAM, PIN-
             683581.

      11     SINDHU BIJU,
             AMBATTU HOUSE, AYYAMPUZHA P.O., ERNAKULAM, PIN-
             683581.

      12     JINI V.J,
             W/O.SHYJU P.V., PALATTY HOUSE, AYYAMPUZHA P.O.,
             ERNAKULAM, PIN-683581.

             R1 BY ADV. SRI.K.S.ARUN KUMAR
             R1 BY ADV. SRI.JUSTINE JACOB
             R3 BY GOVERNMENT PLEADER
             R4-5 BY ADV. SMT.AMRUTHA K P

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.01.2021, ALONG WITH WP(C).10330/2020(M), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C).10330 & 10674/2020             4

                                 JUDGMENT

The petitioners in these two writ

petitions - which have been heard together on

account of the similarity of factual factors

and circumstances pleaded and the analogous

nature of the reliefs sought for - are stated

to have applied for being appointed as

Accredited Social Health Activists (ASHA)

under the Ayyampuzha Grama Panchayat, pursuant

to Ext.P1 notification produced along with

W.P(C)No.10644 of 2020.

2. The petitioners challenge the Rank

Lists prepared by the 1st respondent -

Panchayat resultant to the selection process

on various grounds, but primarily that two

separate Rank Lists have been prepared

illegally for Wards 1 and 4 separately; that

Smt.Sinimol V.R., who has arrayed as

respondent No.4 in both these cases, is over

aged; and that she is permanently working in

another establishment, thus being disqualified

to even apply for, much less being selected,

as an ASHA Worker.

           3.    The           learned           counsel      for      the

      petitioners               -          Shri.S.Renjith,               in

      substantiation            of     the       afore      contentions,

submitted that the guidelines applicable to

the selection of ASHA Workers make it clear

that there can be only one Rank List for one

interview process and therefore, that

publication of two Rank Lists, which have been

produced as Exts.P4 and P5 in W.P(C)No. 10674

of 2020, is egregiously improper and

consequently that the entire process is

vitiated. He, therefore, prayed that said Rank

Lists be set aside and the Panchayat be

directed to redo the whole process, after

following the relevant guidelines.

4. In response to the afore submissions

of the learned counsel for the petitioners,

the learned Government Pleader - Shri.Sunil

Kumar Kuriakose, submitted that, along with

memo dated 15/12/2020, the order of the

Government dated 24/02/2007 with respect to

implementation of the ASHA Worker Scheme has

been placed on record. He submitted that the

criteria for selection of ASHA Worker is

specified in the said Government Order, which

makes it manifest that the candidate must

primarily be a woman, resident of the

Village/Coastal Areas/Urban Slums and who is

preferably in the age group of 25 to 45 years.

5. Sri.Sunil Kumar Kurikose then,

submitted that, as far as the selection is

concerned, the process enumerated in the said

Government Order renders it limpid that an

ASHA Worker will be selected by a Committee

consisting of the Panchayat President/

Chairperson of Municipality or Corporation,

Ward Member/Councillor, Medical Officer and a

Junior Public Health Nurse. He submitted that

this clearly postulates that there shall be

different Rank Lists for different Wards,

since the stipulation that a Ward Member shall

take part in the selection process makes this

indubitable.

6. As regards the allegation regarding

the age of Smt.Sinimol V.R. is concerned, the

learned Government Pleader submitted that the

criterion for selection only makes it

preferable that the candidate be within 25 to

45 years, but that in exceptional

circumstances where the candidates have got

large experience and are found to be

absolutely suitable, such relaxations can

always be given, since this is not an

imperative condition in the Government Order.

He submitted that the Government has, of

course, no particular preference among any of

the candidates and that he leaves it to this

Court to take an appropriate decision in the

factual circumstances.

7. The learned Standing Counsel for the

1st respondent - Panchayat, Shri.K.S.Arunkumar,

submitted that a counter affidavit has been

filed on record, wherein, it has been

explained that even though there was only one

interview conducted on account of the COVID-19

pandemic restrictions, the Members of both

Ward Nos.1 and 4 had participated and that

thereafter, a separate list for each of the

Wards, as specified by the Government in their

order mentioned above by the learned

Government Pleader, had been prepared.

8. As regards Smt.Sinimol is concerned,

Shri.K.S.Arunkumar explained that she is a

permanent staff of the Kallala Estate of

Plantation Corporation but that since she is

working inside the same Panchayat limits,

there is no restriction in her being

considered for appointment, going by Ext.P6

Circular which makes it clear that no

candidate will be entitled to participate if

she is working in a job outside the limits of

the respective Panchayat/Municipality/

Corporation. The learned Standing Counsel

submitted that the afore mentioned Smt.Sinimol

has been placed as Rank No.1, taking note of

her large experience of over 8 years as an

ASHA Worker and therefore, the allegations of

the petitioners do not have any cogent legs to

stand on. He, therefore, prayed that this writ

petition be dismissed.

9. The learned counsel appearing for

Smt.Sinimol, Smt.Amrutha K.P., submitted that

a counter affidavit has been filed by his

client, in which, she has enumerated her

experience of over 8 years as an ASHA Worker

and contending that her present job with the

Plantation Corporation would be of no bar on

account of Ext.P6 Circular produced in W.P.

(C)No.10674 of 2020. He, therefore, prayed

that this writ petition be dismissed.

10. In reply, Shri.Renjith, learned

counsel appearing for the petitioners,

submitted that Smt.Sinimol - who is respondent

No.4 in these cases and Smt.Teena Siby - who

is respondent No.5 in W.P(C)No.10674 of 2020,

cannot be appointed because the former is a

resident of Ward No.13 and she has been

proposed to be appointed in Ward No.4; while

the latter is residing in Ward No.4 and she

has been proposed to be appointed in Ward

No.1. He, therefore, contended that for this

reason also the selection process is vitiated.

            11. I        have         considered               the         afore

      submissions very carefully.


            12. As       I    have     said       above,        the     issues

      involved      in       this   case      are    relating          to    the

      publication        of     two    Rank       Lists     for       the    two

      Wards;     the         age    limit         prescribed          in     the

applicable Government Order; the residential

status of the candidates, as has been

mentioned in the criteria for selection in the

said order; and whether a person from one Ward

can be appointed to the other one.

12. When I consider the afore

submissions, I will have to first examine the

order of the Government dated 24/02/2007,

which has been produced by the learned

Government Pleader.

14. The criteria for selection in the

said order makes it perspicuous that a

candidate must primarily be a women of the

Village/Coastal Area/Urban Slums, who is

either married or widowed or a divorcee and

preferably in the age group of 25 to 45 years.

Further, the prescribed selection process

stipulates that candidates will be selected by

a Committee consisting of the Panchayat

President/ Chairperson of Municipality or

Corporation, Ward Member/Councillor, Medical

officer and Junior Public Heath Nurse.

15. The afore stipulations make it

inevitable that a candidate will be entitled

to be appointed to any Ward of the

Village/Coastal Area/Urban Slums, provided he

or she resides within such area. Therefore,

the contention that Smt.Sinimol and Smt.Teena

Siby cannot be appointed to Wards where they

are not residing cannot appeal to me.

16. As regards preparation of two Rank

Lists for the two Wards is concerned, I am

certain that this is in conformity with the

selection process, as stipulated in the afore

mentioned Government Order, since it is clear

that every Selection Committee should have the

Ward Member of the particular Ward, into which

the selection is made. In this case, what has

been done by the 1st respondent - Panchayat is

to have one Selection Committee comprising of

the Ward Members of both Wards and to have

then published two different Rank Lists, so as

to effectuate appointment to such Wards.

17. I cannot find anything wrong with

this because there is no allegation that

Members of these two Wards were not available

in the Selection Committee and this is vital

because all the other members are common,

going by the selection process stipulated by

the Government.

18. This finally, leaves me with the

question as to whether Smt.Sinimol will have

to be declared disqualified on account of the

fact that she is 49 years of age and since she

is permanently working with one of the estates

of the Plantation Corporation.

19. For this, I would require to examine

Ext.P6 Circular produced in W.P(C)No.10647 of

2020 by the petitioners themselves, wherein,

it mandates that a candidate, for being

appointed as an ASHA Worker, shall not be

permanently employed in an area outside the

Panchayat in question. There is no restriction

in the said Circular that a candidate shall

not be employed at all, but it only specifies

that he or she shall not be employed outside

the limits of the Panchayat for which the

selection is now being made.

20. That being said, going by the

Government Order dated 24/02/2007, there is no

doubt that preference has been given to women WP(C).10330 & 10674/2020 14

who are in the age group of 25 to 45 years.

However, there is no imperative prohibition

that a person beyond 45 years in age shall not

be considered because the word conspicuously

used therein is 'preferably'. I cannot,

therefore, find the selection and appointment

of Smt.Sinimol to be vitiated for the reasons;

and further, since she is admittedly working

within the limits of the 1st respondent -

Panchayat, her appointment cannot be found in

error on account of the fact that she is so

employed.

In the afore circumstances and for the

reasons above, I find no cause to interfere

with the Rank Lists now impugned in these writ

petitions and therefore, dismiss these writ

petitions without any further orders.

Sd/-

DEVAN RAMACHANDRAN

JUDGE

MC/21.1.2021

APPENDIX OF WP(C) 10330/2020

EXHIBIT P1 TRUE COPY OF THE LETTER ISSUED BY THE CHAIRMAN, DEVELOPMENT OF STANDING COMMITTEE, AYYAMPUZHA DATED 27.11.2019 TO THE MEDICAL OFFICER.

EXHIBIT P2 TRUE COPY OF THE IDENTITY CARD OF THE PETITIONER FOR PARTICIPATING IN THE ASWAMEDHAM 2019 PROGRAM.

EXHIBIT P3 TRUE COPY OF THE MARK LIST OF WRITTEN TEST OF ASHA WORKER.

EXHIBIT P4 TRUE COPY OF THE LETTER DATED 23.112.2019 OF THE MEDICAL OFFICER AYYAMPUZHA PRIMARY HEALTH CENTER.

EXHIBIT P5 TRUE COPY OF THE FINAL RANK LIST OF ASHA WORKERS OF WARD NO. IV OF AYYAMPUZHA GRAMA PANCHAYAT.

EXHIBIT P6 TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED TO THE 4TH RESPONDENTS SINIMOL.

EXHIBIT P7 TRUE COPY OF THE LETTER ISSUED BY THE PLANTATION CORPORATION DATED 08.05.2020 TO THE SECRETARY, AYYAMPUZHA GRAMA PANCHAYAT.

EXHIBIT P8 TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE PANCHAYAT DATED 14.05.2020.

EXHIBIT P9 TRUE COPY OF THE RECEIPT ACKNOWLEDGING THE EXT. P8 COMPLAINT.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF THE REQUEST LETTER FROM MEDICAL OFFICER, PHC, AYYAMPUZHA DATED 13/02/2019

EXHIBIT R1(B) TRUE COPY OF JOB APPLICATION OF 4TH RESPONDENT DATED 27.02.2019

EXHIBIT R1(C) TRUE COPY OF MINUTES OF PANCHAYAT MEETING DATED 13.11.2019

EXHIBIT R1(D) TRUE COPY OF THE NOTICE PRODUCED FOR PUBLIC EXAM DATED 18.11.2019

EXHIBIT R1(E) TRUE COPY OF THE CIRCULAR DATED 27.07.2018 WP(C).10330 & 10674/2020 17

APPENDIX OF WP(C) 10674/2020 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 18.11.2019 OF THE 3RD RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE MARK LIST OF WRITTEN TEST OF ASHA WORKER.

EXHIBIT P3 TRUE COPY OF THE LETTER DATED 23.12.2019 OF THE MEDICAL OFFICER, AYYAMPUZHA PRIMARY HEALTH CENTRE.

EXHIBIT P4 TRUE COPY OF THE FINAL RANK LIST OF ASHA WORKERS OF WARD NO.I OF AYYAMPUZHA GRAMA PANCHAYAT.

EXHIBIT P5 TRUE COPY OF THE RANK LIST OF ASHA WORKERS OF WARD NO.IV OF AYYAMPUZHA GRAMA PANCHAYAT.

EXHIBIT P6 TRUE COPY OF THE CIRCULAR DATED 27.07.2018 ISSUED BY THE HEALTH DEPARTMENT.

EXHIBIT P7 TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED TO THE 4TH RESPONDENT SINIMOL.

EXHIBIT P8 TRUE COPY OF THE LETTER ISSUED BY THE PLANTATION CORPORATION DATED 18.05.2020 TO THE SECRETARY, AYYAMPUZHA GRAMA PANCHAYAT.

EXHIBIT P9 TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE PANCHAYAT DATED 14.05.2020.

EXHIBIT P10 TRUE COPY OF THE APPLICATION ALONG WITH INTERVIEW MARK LIST OF THE PETITIONER.

EXHIBIT P11 TRUE COPY OF THE APPLICATION ALONG WITH INTERVIEW MARK LIST OF THE 4TH RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE APPLICATION ALONG WITH INTERVIEW MARK LIST OF THE 5TH RESPONDENT.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF THE REQUEST LETTER FROM MEDICAL OFFICER, PHC, AYYAMPUZHA DATED 13.02.2019

EXHIBIT R1(B) TRUE COPY OF JOB APPLICATION OF 4TH WP(C).10330 & 10674/2020 18

RESPONDENT DATED 27.02.2019

EXHIBIT R1(C) TRUE COPY OF THE MINUTES OF PANCHAYAT MEETING DATED 13.11.2019

EXHIBIT R1(D) TRUE COPY OF THE NOTICE PRODUCED FOR PUBLIC EXAM DATED 18.11.2019

EXHIBIT R1(E) TRUE COPY OF THE CIRCULAR DATED 27.07.2018

EXHIBIT R4(A) TRUE COPY OF THE CIRCULAR DATED 27.07.2018.