The Secretary vs Akhil S Kumar
2021 Latest Caselaw 14004 Ker

WA NO. 814 OF 2021

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                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                     &
                 THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
         WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
                            WA NO. 814 OF 2021
 AGAINST THE ORDER/JUDGMENT IN WP(C) 3053/2021 OF HIGH COURT OF KERALA,
                                 ERNAKULAM
APPELLANT/S:

            THE SECRETARY
            NANNIYODE GRAMA PANCHAYAT, NANNIYODE, PACHA P.O.,
            THIRUVANANTHAPURAM DISTRICT 695 562

            BY ADV LATHEESH SEBASTIAN



RESPONDENT/S:

     1      AKHIL S KUMAR
            AGED 30 YEARS, S/O.J. SREEKUMAR, ACCOUNTANT -CU,-DATE ENTRY
            OPERATOR, MAHATHMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE
            SCHEME (MGNRGS), (NOW TERMINATED), NANNIYODE GRAMA PANCHAYAT,
            NANNIYODE PACHA P.O., THIRUVANANTHAPURAM , RESIDING AT
            SREERAMA VILASAM, ANAKULAM MEENMUTTY P.O., PACHA, PALODE,
            THIRUVANANTHAPURAM 695 562

     2      STATE OF KERALA
            REP. BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT
            DEPARTMENT, THIRUVANANTHAPURAM 695 001

     3      THE DIRECTOR OF PANCHAYAT
            PUBLIC BUILDINGS, MUSEUM P.O., THIRUVANANTHAPURAM 695 033

     4      THE DISTRICT PROGRAMME CO-ORDINATOR
            MAHATHMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME,
            DISTRICT OFFICE, THIRUVANANTHAPURAM 695 003

     5      SMT. RETHIKA
 WA NO. 814 OF 2021

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           PRAKASH BHAVAN, PULIYOOR, PACHA P.O., TVM DIST. 695 562

    6.     Addl.R6 : Commissioner for Rural Development Authorities,
           Government of Kerala, Thiruvananthapuram
           (suo motu impleaded as per order dated 7.7.2021)


OTHER PRESENT:

           SRI.V.A. MUHAMMED, SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER




     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA NO. 814 OF 2021

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                                      JUDGMENT

ALEXANDER THOMAS & A. BADHARUDEEN, JJ.

========================================== Writ Appeal No.814/2021 (Arising out of the judgment in W.P.(C)No.3053/2021 dated 16.03.2021) ================------------------================ Dated this the 7th day of July, 2021

JUDGMENT

The 4th respondent in the afore-captioned writ petition (W.P.

(C)No.3053/2021) has come up before us in the intra court appeal filed

under Section 5 of the High Court Act, so as to impugn the judgment dated

16.3.2021 rendered by a learned Single Judge, in the above writ petition

filed by the 1st respondent herein - the writ petitioner.

2. Heard Sri Latheesh Sebastian, learned Counsel appearing for the

appellant, 4th respondent in the writ petition, Sri.V.A. Muhamood, learned

Counsel appearing for the 1st respondent and Sri.B.Unnikrishna Kaimal,

learned Government Pleader appearing for respondents, 2, 3, 4 and 6, In

the nature of the order proposed to be passed by this Court in this appeal,

notice to the 5th respondent is dispensed with.

3. The writ petitioner was appointed as Accountant-cum-Data

Entry Operator under the Mahatma Gandhi National Rural Employment

Guarantee Scheme (MGNREGS) by the appellant Grama Panchayat from

the year 2016 onwards on contract basis. The writ petitioner has averred WA NO. 814 OF 2021

that his last contract was entered into on 30.6.2020 and is valid upto

30.6.2022. The complaint of the writ petitioner was that without assigning

any reasons, the 4th respondent in the writ petition/the appellant herein has

terminated the services of the writ petitioner as a contractual appointee, as

per impugned order dated 30.1.2021.

4. During the course of hearing of the writ petition, learned Single

Judge had requested the respondent - State Government authorities to get

instructions in the matter. Thereupon, after getting instructions, the learned

Government Pleader appearing for the 1 st respondent has stated that as per

the norms framed by the Government as per G.O.(Rt) No.952/12/LSGD

dated 29.3.2012, it has been stipulated by the Government that if the

contractual appointment of an Assistant Engineer/Overseer/Accountant-

cum-Data Entry Operator is terminated from service by the local body

concerned earlier than the stipulated expiry of their contract period of

appointment, then the prior permission from the Commissioner of Rural

Development, Government of Kerala is necessary. Later, it appears that the

Government has issued G.O.(Rt) No.1876/12/LSGD dated 5.7.2012 dated

5.7.2012, wherein it has been stipulated that such prior permission is

required only in the cases where a contract is terminated ahead of the term

mentioned therein. In the instant case there does not appear any factual

dispute that the contractual appointment after its renewal was valid upto WA NO. 814 OF 2021

30.6.2020. So, before passing an order in the nature of Ext.P2 dated

30.1.2021, which is the effect of prematurely terminating the contract before

the stipulated period, then prior permission of the 6 th respondent, the

Commissioner for Rural Development was necessary. It is also common

ground that such prior permission from the Commissioner of Rural

Development was not secured by the appellant Panchayath authorities.

5. In this view of the matter, the learned Single Judge has held that

the impugned termination order dated 30.2.2021 issued by the appellant

Panchayat is illegal and ultra vires solely on the ground of not securing

prior permission from the Commissioner of Rural Development as

mandated in the Government norms.

6. After hearing both sides, we are of the view that the learned

Single Judge was fully right in holding so. There is no dispute that after

renewal of the contractual appointment, the period of appointment of the

writ petitioner was valid up to 30.6.2022. Hence prior permission of the 6 th

respondent, the Commissioner for Rural Development is mandatory, before

the appellant Panchyat could have prematurely terminated the contractual

appointment of the writ petitioner.

7. We find no error of law or jurisdiction in the rendering of

impugned judgment. That apart, the learned Single Judge has specifically

noted that even the Panchayat Secretary had clearly opined that the prior WA NO. 814 OF 2021

permission of the Commissioner for Rural Development is mandatory in

this case and it appears that the said opinion of the Panchayat Secretary was

overruled by the Panchayat committee.

8. Sri.Latheesh Sebastian, learned Counsel appearing for the

appellant - Panchayat pointed out that the steps for getting prior

permission from the Government authority, the Commissioner for Rural

Development may take some time etc.

9. Taking note of the facts and circumstances of the case, it is for

the appellant panchayat authority to immediately make a request to the 6 th

respondent, the Commissioner for Rural Development stating the reasons

for the proposed action for terminating the contractual appointment of the

writ petitioner before the expiry of his contractual term of appointment. The

details regarding his initial contractual appointment and its extension and

the reasons found by the appellant panchayat for premature termination of

the contractual appointment etc. should be delineated in the request that

may be given by the appellant panchayat committee. Steps in that regard

shall duly be completed by the panchayat authority within two weeks.

Thereupon, the Commissioner for Rural Development will afford an

opportunity of being heard to both the appellant Panchayat represented by

the Secretary as well as the writ petitioner and on that basis, it is for the 6 th

respondent Commissioner for Rural Development to take a decision on the WA NO. 814 OF 2021

above said request of the appellant and communicate the copy of the

proceedings issued in that regard to the Panchayat Secretary as well as to

the writ petitioner.

10. Thereafter it is for the appellant Panchayat to take a decision in

the matter in the light of the proceedings issued by the 6 th respondent, the

Commissioner for Rural Development as aforesaid. We make it clear that we

have not considered the matter on merits and the aforesaid directions are

issued only to ensure that the unnecessary delay is avoided and also to

ensure minimal procedural fairness in the matter.

11. With these observations and directions, the above Writ Appeal

stands finally disposed of.

Sd/ ALEXANDER THOMAS, JUDGE

sd/

. BADHARUDEEN, JUDGE

jm/