Shrirama.K. vs State Of Kerala
2021 Latest Caselaw 10266 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943

                       WP(C).No.3064 OF 2021(G)


PETITIONER:

               SHRIRAMA.K., ACCREDITED ENGINEER, PAIVALIKE GRAMA
               PANCHAYAT, KASARGOD-671 348, RESIDING AT 9/245-E,
               SHREE MATHA, NR.SPOORTHY VIDYANIKETHANA, THANTRI
               ROAD, BADAJE, MAJESWARA P.O., KASARGOD-671 923.

               BY ADVS.
               SRI.KALEESWARAM RAJ
               SRI.VARUN C.VIJAY
               KUM.A.ARUNA
               SMT.MAITREYI SACHIDANANDA HEGDE

RESPONDENTS:

      1        STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
               GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT,
               SECRETARIAT, THIRUVANANTHAPURAM-695 001.

      2        DIRECTOR OF PANCHAYATS,
               THIRUVANANTHAPURAM-695 001.

      3        RURAL DEVELOPMENT COMMISSIONER AND MISSION DIRECTOR,
               MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE
               SCHEME, FIRST FLOOR, PUNARJANI, T.C.26/1333(2),
               PANAVILA JUNCTION, THIRUVANANTHAPURAM-695 001.

      4        PROGRAMME CO-ORDINATOR/DISTRICT COLLECTOR,
               CIVIL STATIN, VIDYANAGAR, KASARGOD-671 123.

      5        PROJECT DIRECTOR AND JOINT PROGRAMME CO-ORDINATOR,
               CIVIL STATION, VIDYANAGAR, KASARAGOD-671 123.

      6        PAIVALIKE GRAMA PANCHAYAT,
               REPRESENTED BY ITS SECRETARY, KASARGOD-671 348.

      7        SECRETARY, PAIVALIKE GRAMA PANCHAYAT,
               KASARGOD-671 348.

      8        THE PANCHAYAT COMMITTEE, REPRESENTED BY ITS
               PRESIDENT, PAIVALIKE GRAMA PANCHAYAT,
               KASARGOD-671 348.
 WPC 3064/21
                                2

              BY ADVS. SRI.M.SASINDRAN
              SRI.SUNIL KUMAR KURIAKOSE -GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 3064/21
                                           3



                                     JUDGMENT

The petitioner says that he was engaged as

an 'Accredited Engineer' by Paivalike Grama

Panchayath, Kasaragod, on contract basis,

under the aegis of Mahatma Gandhi National

Rural Employment Guarantee Scheme (MGNREGS);

and asserts that even though he entered into a

contract with the Panchayat, namely Ext.P2,

specifically being aware that it will have

effect from 01.02.2019 and will terminate on

the day of completion of two years, it would

not apply to him, since he has been engaged

under the scheme and therefore, that his

continuation must be construed to be co-

terminus to the same.

2. The petitioner relies on various

judgments in support of this proposition,

including Mohd. Adbul Kadir and antoher v.

Director General of Police, Assam [(2009)6 SCC

611]; State of Haryana and other v. Piara WPC 3064/21

Singh and others [1992(4)SCC 118] and Abhinav

Chaudhary and others v. Delhi Technological

University and another [2015 SCC online Del

6780).

3. Smt.Thulasi K. Raj - learned counsel

for the petitioner, submitted that the ratio

in the afore judgments of the Honourable

Supreme Court and that of the Delhi High Court

would clearly show that one contractual

employee cannot be replaced by another one and

that if this is done, it will amount to gross

arbitrariness. She thus contends that her

client's contract must be construed to be

automatically extended till the period of the

Scheme. She then submitted that in Mohd. Abdul

Kadir (supra), it has been well-settled by the

Honourable Supreme Court that adhoc

appointments under the Schemes are normally

co-terminus with it, subject to earlier

termination, either on medical or disciplinary WPC 3064/21

grounds or for unsatisfactory service or on

attainment of age of superannuation. She

submitted that in the case at hand, no such

allegations have been made against her client

and therefore, that he should be allowed to

continue until the scheme expires.

4. The learned counsel for the 6th

respondent-Grama Panchayath - Sri.M.Sasindran,

in response, submitted that the afore

assertions of the learned counsel for the

petitioner would obtain no support in law

because, as is manifest from Ext.P2, he had

entered into the contract being fully aware

that it is only for a period of two years. He

submitted that even as per the provisions of

the Scheme and the various Government Orders

which hold the field, such contracts cannot be

granted for over two years and that in fact,

it was earlier only for a period of one year.

He explained that the period of the contract WPC 3064/21

was subsequently extended by the Government

for a period of two years, making it clear

that any termination of subsisting contract

will have to obtain the concurrence of the 3 rd

respondent-Rural Development Commissioner.

5. Sri.M.Sasindran, thus argued that

petitioner cannot now rue that his contract

has expired and that Panchayat is initiating a

further process for identification of a new

person, in which, he is also entitled to

participate, based on the experience

certificate to be issued by them. He concluded

his submissions by saying that none of the

arguments of the petitioner as afore can be

now countenanced in view of the binding

judgment of a learned Division Bench of this

Court in Noorjihan A. v. State of Kerala (Writ

Appeal No.1570/2018 & connected matters. He,

therefore, prayed that this Writ Petition be

dismissed.

WPC 3064/21

6. The learned Government Pleader -

Sri.Sunil Kumar Kuriakose, adopted most of the

submissions of Sri.M.Sasindran, adding that

petitioner has not challenged any of the

Government Orders which allow the Panchayat to

enter into a fresh contract every two years,

through a new process. He supplemented his

submissions by saying that if the petitioner

is interested in continuing the contract, he

can always take part in the process to be

initiated by the Panchayat and that there is

no legal impediment in the same. He,

therefore, prayed that this Writ Petition be

dismissed.

7. I have given anxious thought to the

rival contentions of the parties and have also

examined the materials available on record.

8. At the outset, I find force in the

submissions of Sri.M.Sasindran and Sri.Sunil

Kumar Kuriakose, that the issues impelled in WPC 3064/21

this Writ Petition are covered by the judgment

of a learned Division Bench of this Court in

Noorjihan A. (supra), to be completely

accurate. This is because, the learned

Division Bench was considering identical

issues and after doing so, declared the

position as under:

Hence, we make it clear that in cases where the contractual period is not over, necessarily termination or allegation of misconduct can only be after following due procedure. However, even if allegations are raised against an employee in the contractual period or when continued after that for reason of interim order of Court; if now the contractual period is over and he/she has been continued on the basis of the interim order of this Court, necessarily on the dismissal of the appeals there could be termination simpliciter. We caution that, in such cases there should be no stigma attached and the terminated contractual employee should also be issued with an experience certificate and allowed participation in the fresh selection if they are eligible to be so participated on the basis of the notification published, unless they do not satisfy the essential qualification required.

9. That said, when one evaluates the

various judgments cited by the petitioner, it WPC 3064/21

is clear that the Honourable Supreme Court, as

well as other High Courts, were only concerned

that one contract employee be not terminated

without cause and substituted by another

contract employee and this was found to be

deleterious and contrary to fair play.

10. However, in the instant case, this

principle may not apply because, the

petitioner worked under the contract knowing

well that he has been appointed for a period

of only two years and he was admittedly aware

that this was being done on the basis of

certain valid Government Orders, which have

not been challenged by him even in these

proceedings. The applicable Government Orders

initially fixed the term of the contract as

one year, which was subsequently increased to

two years; but with a specific rider that

cancellation of the contract during its period

will alone require prior consent of the 3rd WPC 3064/21

respondent-Development Commissioner.

11. Therefore, Government Orders have

incorporated built-in mechanisms to ensure

that there is no arbitrariness or

capriciousness in giving contracts by the

Panchayats; and I cannot see how the

petitioner can now stake a claim that every

contract under the MGNREGS should be deemed to

be co-terminus with the scheme. In the absence

of any challenge to the Government Orders or

to the provisions of the Scheme - the Scheme

also having not been placed on record - I fail

to see how the petitioner can now turn around

and say that his contract, granted through

Ext.P2, should be reckoned to be co-terminus

to the Scheme itself and that he cannot be

terminated, even though Ext.P2 makes it

unequivocally clear that it is only for a

period of two years.

In the afore circumstances, being guided WPC 3064/21

by the judgment of a learned Division Bench of

this Court in Noorjihan A. (supra), I dismiss

this Writ Petition; however, making it clear

that petitioner will be at liberty to

participate in the process to be initiated by

the Panchayat for selection of a fresh

candidate and that until the same is over and

a new incumbent appointed, he will be allowed

to continue under the earlier interim orders

of this Court.

Sd/-

                                       DEVAN RAMACHANDRAN
       RR                                    JUDGE
 WPC 3064/21




                            APPENDIX
       PETITIONER'S/S EXHIBITS:

       EXHIBIT P1        TRUE COPY OF THE APPOINTMENT ORDER

NO.40184/NREGA/07/LAD DATED 30.01.2010 ISSUED BY THE SECRETARY OF THE PANCHAYAT.

EXHIBIT P1 A TRUE COPY OF THE RESOLUTION NO.01/2010/BLDGAG OF THE MAHESWARA BLOCK D.A.G. COMMITTEE DATED 25.03.2010.

EXHIBIT P2 TRUE COPY OF THE AGREEMENT FOR CONTRACT STAFF DATED 01.02.2019.

EXHIBIT P3 TRUE COPY OF THE RESOLUTION NO.1/1 DATED 28.01.2021.

EXHIBIT P4 TRUE COPY OF THE LETTER S.C.1-70/21 DATED 29.01.2021 ISSUED BY THE SECRETARY OF THE PANCHAYT TO THE PETITIONER.

EXHIBIT P5 TRUE COPY OF THE LETTER DATED 11.01.2021 ISSUED BY THE MISSION DIRECTOR TO THE PANCHAYAT DIRECTOR.

EXHIBIT P6 TRUE COPY OF THE LETTER DATED 12.01.2021.

EXHIBIT P7 TRUE COPY OF GO NO.47/16/LSGD DATED 03.03.3016.

EXHIBIT P8 TRUE COPY OF GO NO.952/12/LSGD DATED 29.03.2012 ISSUED BY THE LSGD.

EXHIBIT P9 TRUE COPY OF THE ORDER DATED 19.01.2021 IN WPC NO.1321/2021.

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 20.03.2020 ISSUED BY THE MINISTRY OF LABOUR AND EMPLOYMENT, GOVERNMENT OF INDIA.