Anu K. P vs The State Of Kerala
2021 Latest Caselaw 32 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

     MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

                       WP(C).No.18018 OF 2020(B)


PETITIONER:

               ANU K. P.
               AGED 36 YEARS
               S/O. MURALI GOPI, CLERK CUM STORE KEEPER,
               DISTRICT TOURISM PROMOTION COUNCIL, KANNUR - 670 002.
               (RESIDING AT LAKSHMI QUARTERS, PUTHIYA THERU,
               CHIRAKKAL P. O., KANNUR - 670 011).

               BY ADVS.
               SRI.A.JAYASANKAR
               SRI.MANU GOVIND

RESPONDENTS:

      1        THE STATE OF KERALA
               REPRESENTED BY SECRETARY TO GOVERNMENT,
               TOURISM (A) DEPARTMENT, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM - 695 001.

      2        DIRECTOR
               TOURISM DEPARTMENT, PARK VIEW,
               THIRUVANANTHAPURAM - 695 003.

      3        THE DISTIRCT TOURISM PROMOTION COUNCIL
               TALUK OFFICE COMPOUND, KANNUR - 670 002,
               REPRESENTED BY ITS SECRETARY.

               SRI.SUNIL KURIAKOSE, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-12-
2020, ALONG WITH WP(C).18063/2020(G), THE COURT ON 04-01-2021
DELIVERED THE FOLLOWING:
 WP(C).Nos.18018 & 18063 OF 2020

                                     2


               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

              THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

     MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

                      WP(C).No.18063 OF 2020(G)

PETITIONER:

               RAGINI DILEEP
               AGED 50 YEARS
               W/O LATE DILEEP KUMAR, SREE KRISHNA,
               KADACHIRA P.O., KANNUR-670 621.

               BY ADVS.
               SRI.GEORGE POONTHOTTAM (SR.)
               SRI.A.L.NAVANEETH KRISHNAN
               SMT.NISHA GEORGE

RESPONDENTS:

       1       STATE OF KERALA
               REPRESENTED BY ITS SECRETARY,
               DEPARTMENT OF TOURISM , GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM -695 001.

       2       THE DIRECTOR,
               DEPARTMENT OF TOURISM, PARK VIEW,
               THIRUVANANTHAPURAM-695 033.

       3       THE DISTRICT TOURISM PROMOTION COUNCIL,
               TALUK OFFICE COMPOUND, KANNUR-670 002,
               REPRESENTED BY ITS SECRETARY

       4       THE EXECUTIVE COMMITTEE,
               THE DISTRICT TOURISM PROMOTION COUNCIL,
               TALUK OFFICE COMPOUND, KANNUR-670002,
               REPRESENTED BY ITS CHAIRMAN

               SRI.SUNIL KURIAKOSE, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-
12-2020, ALONG WITH WP(C).18018/2020(B), THE COURT ON 04-01-2021
DELIVERED THE FOLLOWING:
 WP(C).Nos.18018 & 18063 OF 2020

                                     3



                               JUDGMENT

The petitioners in these writ petitions were working as

Clerk cum Store Keeper and Receptionist respectively in the

District Tourism Promotion Council (for short 'DTPC'), Kannur.

It is submitted that they were appointed in the year 2013 and

had been in continuous service since then. It is submitted that

the appointments were duly approved by the executive

committee of the DTPC on 24.10.2013. The appointments were

regularised from 29.4.2015. While so, a report was sought for

from the Secretaries of the various DTPCs with regard to

method of appointment followed by them. It is submitted that

detailed replies had been given. However, after the change in

the Government, vindictive steps had been taken to terminate

the services of the petitioners on purely political grounds.

Ext.P11 letter was issued by the Government requiring the

DTPC to terminate the services of the petitioners herein. On the

said basis, steps were taken to terminate their services, which

are challenged before this Court on the ground that the 1 st

respondent cannot dictate terms to the 4th respondent in

respect of service conditions of its employees and that the WP(C).Nos.18018 & 18063 OF 2020

direction to terminate the petitioners was politically motivated.

The petitioners are continuing service on the basis of interim

orders of stay issued by this Court.

2. A counter affidavit has been placed on record by

respondents 1 and 2. The learned Government Pleader submits

that he has instructions to appear on behalf of the DTPC as well.

It is submitted that the appointments in the DTPC, which is a

society registered under the Travancore-Cochin Literary,

Scientific and Charitable Societies Registration Act, are to be

made specifically in terms of the guidelines issued by the

Government. It is submitted that the entire financial support for

the functioning of the DTPCs is provided by the Department of

Tourism of the Government. It is submitted that Ext.R1(c)

circular had been issued as early as on 21.12.1999 directing

appointment on contract basis for a specified period and

prescribing procedure for such appointments as well. It is

submitted that the appointments of the petitioners were in total

violation of the standing instructions and that a complaint had

been received in that behalf as Ext.R1(d). The Government had

directed the Vigilance Officer of the Department of Tourism to

enquire into the complaint and to submit a report and Ext.R1(e) WP(C).Nos.18018 & 18063 OF 2020

report was submitted on 29.7.2019. It was found that the

petitioners had been appointed against a post which was not

approved by the executive committee, that there was no

notification for appointment and no selection procedure was

conducted. It is stated that it was in the above circumstances

that Ext.P11 directions had been issued.

3. The learned counsel appearing for the petitioners in

these cases would contend that the Government has no statutory

control over the DTPCs and that the functioning of the DTPCs

are regulated by the bye-laws of the society as duly registered.

It is contended that Rule 8 of Ext.P2 bye-laws provides for the

executive committee and the functions thereof. Rule 10(iii)

provides that all appointments shall be made by the Chairman in

consultation with the executive committee. It is further

contended that Ext.R1(c), which is produced along with the

counter affidavit and is relied on, is a circular which specifically

relates to the posts of Secretary, Clerk-cum-computer operator

and Peon-cum-driver, which were sanctioned to the DTPCs and it

was only with regard to appointment against such sanctioned

posts that the procedure was prescribed in Ext.R1(c). It is

further contended that the appointments of the petitioners were WP(C).Nos.18018 & 18063 OF 2020

in respect of posts which were required to be filled up in the

exigencies of service and that the appointments had been

approved after due deliberations by the executive committee as

is evident from Ext.P3 minutes. It is submitted that Ext.P7

would show that the appointments of the petitioners were on the

basis of the need felt by the executive committee and were made

by the DTPC after considering all relevant aspects and had been

ratified by the executive committee of the DTPC. It is submitted

by the learned counsel for the petitioner in W.P.(C)

No.18063/2020 that most of the appointments made by the

DTPC were following the very same procedure as has been

adopted in the petitioner's case as is evident from Exts.P13 and

P14 documents and that the singling out of the petitioners alone

for termination of their services is clearly illegal and is vitiated

by extraneous considerations.

4. Having considered the contentions advanced on either

side, I am of the opinion that in view of the fact that the

petitioners are employees of the DTPC, even on daily wages, it is

for the DTPC itself to consider the necessity of their continuance

in service and the irregularity, if any, in the matter of their

appointment. The direction issued by the Government as per WP(C).Nos.18018 & 18063 OF 2020

Ext.P11 for termination of services of two of the employees, who

had apparently been appointed in the DTPC and whose

appointments had been approved by the executive committee, is

completely unwarranted in view of the fact that there is no

statutory provision providing for such administrative control by

the Government over the appointments made by the DTPC.

5. Ext.R1(d), which is produced along with the counter

affidavit filed in these cases, is a complaint preferred against the

appointment of the petitioners in these writ petitions alone. The

said complaint is preferred before the Deputy Superintendent of

Police, Vigilance and Anti Corruption Bureau, Kannur. However,

it appears that the complaint was enquired into by the Vigilance

Cell of the Tourism Department of the Government and

Ext.R1(e) report was submitted on 29.7.2019. It is contended by

the learned counsel appearing for the petitioners that the

allegation in Ext.R1(d) and the finding in Ext.R1(e) are that the

provisions of Ext.R1(c) circular are violated in the appointment

of the petitioners. It is the specific contention of the petitioners

that the provisions of Ext.R1(c) are totally inapplicable to the

petitioners since Ext.R1(c) specifically refers to only the

contract appointments to be made against the post of clerk-cum- WP(C).Nos.18018 & 18063 OF 2020

computer operator and peon-cum-driver, which are the only

sanctioned posts. It is contended that Ext.P2 specifically confers

power on the Chairman to make appointments in other posts in

consultation with the executive committee. Though the learned

Government Pleader submits that the appointments of the

petitioners were made by the Secretary and not by the

Chairman, the petitioners' counsel would submit that all other

appointments on daily wages, which are continuing in the DTPC,

Kannur were made by identical means and that the fact that the

executive committee had considered the necessity for the

appointments and had approved the appointments cannot be

wished away.

6. In any view of the matter, I am of the opinion that the

Government could not have acted on its own and issued a

direction in the nature of Ext.P11. In case a complaint was

received and an enquiry was conducted and a report generated,

it was imperative on the part of the Government to put such

report to the DTPC. The DTPC, being the appointing authority,

should have considered the issue and taken an appropriate

decision in the matter. The direction contained in Ext.P11 to

terminate the petitioners' services without as much as a show WP(C).Nos.18018 & 18063 OF 2020

cause notice being issued to them is completely untenable.

             In        the   above   view       of     the   matter,   Ext.P11

 communication is set aside.          There will be a direction to the

respondents to put the petitioners on notice of the allegations

against them and to consider the issue on merits and pass

appropriate orders in accordance with law. Since the complaint

relied on as well as the enquiry report are produced in these

writ petitions as Exts.R1(d) and R1(e) respectively, the

petitioners need not be served with additional copies of those

documents. However, a notice shall be issued to the petitioners

showing the allegations against them and they shall be

permitted to submit their written objections thereto.

Thereupon, the matter shall be placed before the executive

committee of the DTPC, who shall consider the matter on merits.

In case any other material is being relied on against the

petitioners, I make it clear that the petitioners will be entitled to

a copy of those documents as well. The executive committee

shall consider the contentions of the petitioners and shall pass a

speaking order, taking note of all such contentions including the

specific contention that Ext.R1(c) circular is not applicable to

the petitioners, who have not been appointed against sanctioned WP(C).Nos.18018 & 18063 OF 2020

posts. The entire procedure shall be completed within a period

of six weeks from the date of receipt of a copy of this judgment.

The petitioners shall be permitted to continue in service till

then.

These writ petitions are ordered accordingly.

Sd/-

ANU SIVARAMAN

JUDGE

Jvt/8.12.2020 WP(C).Nos.18018 & 18063 OF 2020

APPENDIX OF WP(C) 18018/2020 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LETTER DATED NIL ISSUED BY THE FIRST RESPONDENT TO THE 2ND RESPONDENT ALONG WITH RETYPED COPY.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1A A TRUE COPY OF THE GOVERNMENT ORDER DATED 28.7.1988

EXHIBIT R1B A TRUE COPY OF GOVERNMENT ORDER APPOINTING THE GOVERNING BODY AND EXECUTIVE COMMITTEE OF DTPC, DATED 9.6.2020

EXHIBIT R1C A TRUE COPY OF THE CIRCULAR DATED 21.12.1999

EXHIBIT R1D A COPY OF THE COMPLAINT SUBMITTED BY SRI C.K.ASOKAN BEORE THE GOVERNMENT

EXHIBIT R1E A COPY OF THE REPORT DATED 29.7.2019 OF THE VIGILANCE OFFICER OF DEPARTMENT OF TOURISM.

WP(C).Nos.18018 & 18063 OF 2020

APPENDIX OF WP(C) 18063/2020 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE MODEL MEMORANDUM OF ASSOCIATION OF DISTRICT TOURISM PROMOTION COUNCIL, CANNANORE.

EXHIBIT P2 TRUE COPY OF THE RULES & REGULATIONS OF DISTRICT TOURISM PROMOTION COUNCIL, CANNANORE

EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE MEETING OF THE EXECUTIVE COMMITTEE DATED 24.10.2013

EXHIBIT P4 TRUE COPY OF THE RELEVANT PORTION OF THE LIST SUBMITTED BY THE 3RD RESPONDENT TO THE KANNUR MUNICIPAL CORPORATION

EXHIBIT P4 (A) TRUE COPY OF THE DETAILS OF EPF CONTRIBUTION

EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS DATED 29.4.2015 ISSUED BY THE CHAIRMAN OF THE 4TH RESPONDENT/DISTRICT COLLECTOR

EXHIBIT P6 TRUE COPY OF THE LETTER NO E4/124/2014 DATED 5.7.2014 ISSUED BY THE DEPARTMENT OF TOURISM

EXHIBIT P7 TRUE COPY OF THE REPLY NO REF DTPC/151/2014 DATED 6.8.2014

EXHIBIT P8 TRUE COPY OF THE ORDER REF DTPC/151/2018 DATED 21.2.2019 ISSUED BY THE DTPC

EXHIBIT P9 TRUE COPY OF THE LETTER NO DTPC/3291/19 DATED 11.3.2019 ISSUED BY DTPC

EXHIBIT P10 TRUE COPY OF THE CERTIFICATE ISSUED BY GEMS OUR OWN ENGLISH SCHOOL, DUBAI ALONG COVERING LETTER DATED 24.8.2020 SUBMITTED TO THE CHAIRMAN

EXHIBIT P11 TRUE COPY OF THE LETTER NO TOUR A4/98/19-

TOUR DATED 28.7.2020 WP(C).Nos.18018 & 18063 OF 2020

EXHIBIT P12 TRUE COPY OF THE G.O(ms) NO.8/2017/TSM DATED 17/6/2017 ISSUED BY THE UNDER SECRETARY TO GOVERNMENT, TOURISM DEPARTMENT

EXHIBIT P13 TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY, D.T.P.C. ALONG WITH THE NOTE SIGNED BY THE SECRETARY DATED 18/01/2018.

EXHIBIT P14 TRUE COPY OF THE RTI REPLY BEARING NO.DTPC/PKD/RTI/8/2019 DATED 09/07/2019 ISSUED BY DTPC.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1A A TRUE COPY OF THE GOVERNMENT ORDER DATED 28.7.1988

EXHIBIT R1B A TRUE COPY OF GOVERNMENT ORDER APPOINTING THE GOVERNING BODY AND EXECUTIVE COMMITTEE OF DTPC, DATED 9.6.2020

EXHIBIT R1C A TRUE COPY OF THE CIRCULAR DATED 21.12.1999

EXHIBIT R1D A COPY OF THE COMPLAINT SUBMITTED BY SRI C.K.ASOKAN BEORE THE GOVERNMENT

EXHIBIT R1E A COPY OF THE REPORT DATED 29.7.2019 OF THE VIGILANCE OFFICER OF DEPARTMENT OF TOURISM.