Seena George @ Alphonsa Mathew vs State Of Kerala
2021 Latest Caselaw 20441 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE SUNIL THOMAS
        FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                          WP(C) NO. 11626 OF 2021
PETITIONERS:

            SEENA GEORGE @ ALPHONSA MATHEW
            AGED 56 YEARS
            D/O GEORGE,
            KANNIKATT (H),
            KAMPATTY P.O,
            VENMANI, WAYANAD-670644.

            BY ADVS.
            V.SHYAM
            P.ARUN



RESPONDENT/S:

    1       STATE OF KERALA
            REPRESENTED BY THE SECRETARY,
            LOCAL SELF GOVERNMENT, TRIVANDRUM, KERALA-695001.

    2       THAVINJAL GRAMA PANCHAYATH
            REPRESENTED BY ITS SECRETARY,
            THAVINJAL, WAYANAD DISTRICT-670644, KERALA.

    3       THE IMPLEMENTING OFFICER,
            PAIN AND PALIATIVE ,
            PHC VALAD, WAYANAD DISTRICT-670645.

    4       THE MEDICAL OFFICER
            PHC VALAD, WAYANAD.

    5       ADDL. R5.ELSY JOY
            SOUGHT TO BE IMPLEADED

    6       ADDL.R5. ELSY JOY

W/O. JOY, PULIKKAYATH (H). VIMALA NAGAR P.O., THAVINJAL, WAYANAD DISTRICT PIN - 670645 ADDL.R5 IS IMPLEADED AS PER ORDER DATED 01.07.2021 IN IA 1/2021 IN WPC NO. 1.06.20201.

BY ADVS.

SANTHARAM.P WP(C) Nos.11626/2021, 12472/2021 2

DAISY A.PHILIPOSE

OTHER PRESENT:

GP PARVATHY KOTTOL

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2021, ALONG WITH WP(C).12472/2021, THE COURT ON 1/10/2021 DELIVERED THE FOLLOWING:

WP(C) Nos.11626/2021, 12472/2021 3

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943 WP(C) NO. 12472 OF 2021 PETITIONER/S:

MANJUMOL C.V.

AGED 40 YEARS W/O. JOSE P. M., NADUTHARAPPIL HOUSE, THRISSILERY P. O., WAYANAD DISTRICT, PIN - 670646.

BY ADVS.

DAISY A.PHILIPOSE JAI GEORGE

RESPONDENT/S:

1 STATE OF KERALA REPRESENTED BY THE SECRETARY LOCAL SELF GOVERNMENT, TRIVANDRUM, KERALA - 695001.

2 THAVINJAL GRAMA PANCHAYAT THAVINJAL, WAYANAD DISTRICT, PIN - 670644, REPRESENTED BY ITS SECRETARY.

3 THE IMPLEMENTING OFFICER PAIN AND PALLIATIVE, PHC VALAD, VALAD P. O., WAYANAD DISTRICT, PIN - 670 645.

      4      SEENA GEORGE @ ALPHONSA MATHEW
             AGED 56 YEARS
             D/O. GEORGE, KANIKATT HOUSE, KAMPATTY P. O.,
             VENMANI, WAYANAD, PIN - 670 644.

             BY ADVS.
             SANTHARAM.P
             REKHA ARAVIND
 WP(C) Nos.11626/2021, 12472/2021   4

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2021, ALONG WITH WP(C).11626/2021, THE COURT ON 1/10/2021 DELIVERED THE FOLLOWING:

 WP(C) Nos.11626/2021, 12472/2021      5




                             COMMON JUDGMENT

The writ petitioner in 11626/2021 has been working as Pain

and Palliative Community Nurse at PHC, Valad under Thavinjal Panchayat,

Wayanad, on contract basis from 28/2/2011. The contract was being renewed

every year from 2011 till 2021. The latest contract was executed on 2/4/2020,

produced as Ext.P1. On expiry of the contract period, the petitioner requested

the Grama Panchayat for extension of contract for a further period of one

year. The second respondent Panchayat issued a letter dated 31/3/2021 to

the Medical officer informing him that the President of the Panchayat had

empowered him to take an appropriate decision regarding the post of

community nurse, since no new contract of appointment could be made as

assembly election was notified and the model code of conduct was in place.

Accordingly, her period was extended by the 4 th respondent-medical officer till

31/5/2021, with one day break. After the conclusion of the assembly election,

she got information that she has been terminated and the Panchayat was

proceeding with appointment of another person of their choice. The petitioner

placed reliance on G.O.(Ordinary) No.553/2019LSGD dated 7/3/2019,

produced as Ext.P4, which laid down the guidelines for engagement of nurses

appointed prior to the issuance of it. According to petitioner, by virtue of clause

2.13.3 of Ext.P4, all community nurses who had been on employment should

be permitted to continue on contract basis. Petitioner claims that she was WP(C) Nos.11626/2021, 12472/2021 6

protected by the above clause and the respondents may be directed to

continue to engage her in the light of Ext.P4. Apprehending that the second

respondent is proceeding with appointment of a person of their choice, the

petitioner has rushed to this court by filing the present writ petition. The prayer

sought in this writ petition was to issue a writ directing the second respondent

to extent the contract with the petitioner for a period of one year from

31/5/2021. When the matter came up for admission, this court by an interim

order dated 3/6/2021 directed that, if no appointment has been made to the

post in question, the petitioner should be permitted to continue.

2. Pending the proceedings, one candidate, claiming herself to be

qualified to be appointed as community nurse had approached this court by

filing W.P.(C) No.12472/2021. The case set up by her was that, the writ

petitioner in W.P.(C)No.11626/2021, who was arrayed as the 4 th respondent in

the present writ petition, was appointed as the Palliative community Nurse on

contract basis and her contract was being renewed from time to time. The

period of her appointment expired on 31/3/2021. She has crossed 56 years of

age. She claimed that by virtue of Ext.P1 Government Notification, which was

produced in W.P.(C) No.12472/2021, clause 2.13.3 directs that all community

nurses who had been appointed on contract basis should be allowed to

continue. In the meanwhile, another Government Notification No.1067/2021

dated 1/6/2021 was issued which was produced as Ext.P4 of local self

Government directing that in view of the spread of Covid, the persons who had

been engaged in various activities related to prevention of Covid shall be WP(C) Nos.11626/2021, 12472/2021 7

permitted to continue until further orders even if their contract of period had

expired.

3.The petitioner claimed that, Palliative Care Management of the

Panchayat in question had taken a decision to appoint a new nurse after

conducting an interview. On 19/2/2021, the Panchayat committee approved

the said decision and authorised the medical officer for conducting the

interview on 31/5/2021, to select a fresh candidate. Pursuant to a notification

published in a daily newspaper, the petitioner had responded to the notification

of the second respondent . To her information, about 315 applications were

received. Though interview was proposed to be conducted on 31/5/2021, due

to a violent situation created by the petitioner in W.P.(C) No.11626/2021, with

the assistance of political persons, the interview could not take place and the

Chairman of the standing committee was assaulted and had to be taken to the

hospital. It was stated that, Ext.P1 notification by which clause 2.13.3.directed

all contractual employees to be continued in service and Ext.P4 Government

Order No.1067/2021/LSGD dated 1/6/2021 directing the contractual employees

to be continued was illegal and against the settled legal principles. The

prayer sought in the writ petition was to quash clause 2.13.3 and clause 2.13.4

of Ext.P1 and Ext.P4 Government order as illegal. Another prayer sought was

to direct the Panchayat to terminate the service of the 4 th respondent and to

conduct the selection process for appointing palliative care nurse in the Grama

Panchayat.

4. In both the writ petitions, Panchayat had filed counter affidavit. In WP(C) Nos.11626/2021, 12472/2021 8

W.P.(C) No.11626/2021 the President got herself impleaded as the additional

5th respondent. In W.P.(C) No. 12472/2021, the Panchayat has filed a

detailed counter affidavit. The crux of the contentions set up by the Panchayat

in both the cases indicates that, the writ petitioner in W.P.(C) No.11626/2021

was appointed as a nurse on contract basis in the Pain and Palliative care unit

and her contract of engagement was being extended from time to time. The

last contract of employment expired on 31/3/2021. The Panchayat standing

committee on health and education in its meeting held on 18/2/2021

recommended to appoint a palliative care nurse, after conducting an interview

as per decision No.28/2021. This was discussed in the panchayat committee

meeting held on 19/2/2021, which took a decision to conduct an interview for

selection of an eligible candidate. The committee meeting authorised the

Medical Officer of Primary Health Centre to conduct interview to complete the

selection process. In the meanwhile, the petitioner was permitted to continue

till 31/5/2021. It was due to the existence of model code of conduct which

came into force on 26/2//2021. It was contended by the Panchayat that the

medical officer of the Primary Health Centre, Valad who was the convener of

the Palliative Management Committee, had invited applications pursuant to the

decision of the Palliative Management Committee. However, interview

scheduled on 31/5/2021 could not be conducted since persons belonging to

the writ petitioner in W.P.(C) No.11626/2021 created an unpleasant situation in

the premise of the panchayat office. Therefore, interview was deferred. In the

meanwhile, petitioner has approached this court and obtained an interim order.

WP(C) Nos.11626/2021, 12472/2021 9

5. It was contended that the guidelines contained in clause 2.13.3 of

Ext.P4 will not come to the rescue of the writ petitioner. The guidelines were

issued in the year 2019, which provided for certain qualifications for the

appointment of Palliative Care nurse. According to the Secretary of the

Panchayat, the above direction did not mean that the nurses who have

completed their period of contract of employment cannot be terminated.

According to the panchayat, clause 2.13.3. of Ext.P4 says that those who were

appointed prior to the guidelines with lower qualification to the qualities as

prescribed in 2.13.2 (1) and (2) can continue in the service on the basis of their

contract. Further, the writ petitioner was engaged on contract basis and her

appointment was not against any sanctioned post. It was not an appointment

under Rule 9 or 9A of the Kerala State and Subordinate Services Rules. She

does not have a vested right in the said post seeking continuation in her

service. The claim of other eligible candidates cannot be neglected. They

should also be given an opportunity to apply to the post on account of the fact

that earlier no applications have been invited by public notice or otherwise.

6. The counter affidavit filed in both the cases clearly show that, after the

expiry of the contractual period of the petitioner in W.P.(C) No.11626/2021 she

was permitted to continue till 31/5/2021 since the model code of conduct was

in place. It has also come on record that the Panchayat had taken a decision

not to renew the contract of engagement of the petitioner and to take

necessary action for appointment of a person in accordance with the

procedure and the Medical officer was authorised. It is also on record that WP(C) Nos.11626/2021, 12472/2021 10

paper publication was given and applications were invited openly. Nothing

prevented the petitioner also from participating in the interview by submitting an

application.

7. Petitioner is essentially relying on Ext.P1 which is the Government

Order. As asserted by the petitioner, the person in the qualification prescribed

was either ANM/GNM B.Sc.nursing /Qualification, required was prescribed

under clause 2.13.2. Clause 2.13.3.provides that, a person who had satisfied

the above clause and continuing on contract basis earlier shall be permitted to

continue on contractual employment. The petitioner has no case that she was

qualified under clause 2.13.2. There is absolutely no record to indicate that the

initial appointment of the petitioner was by calling for open application and in a

process of conducting interview. It is clear from clause 2.13.3 that such

persons who are qualified under 2.13.2. and appointed prior to the notification

dated 7/3/2019 were permitted to continue by virtue of Ext.P4 in W.P.(C)

No.11626/2021. In the absence of any averments to the effect that the

petitioner is a person qualified under clause 2.13.2, she cannot take

advantage of clause 2.13.3.

8. To defend the case of the writ petitioner in W.P.(C) No.11626/2021,

the petitioner in 12472/2021 had relied on the decision of the Supreme Court

in Secretary,State of Karnataka v. Umadevi (2006 (4)SCC 1) wherein the

equity arising out of giving of temporary employment or engagement on daily

wages and continuance of such persons for certain length of time was

deprecated and the court held that, the court should not encourage and WP(C) Nos.11626/2021, 12472/2021 11

approve appointments made or engagements given outside the constitutional

scheme. It was held that approval of such acts would result in depriving many

of their opportunity to competent for public employment. He also relied on the

decision reported in State of Haryana v. Piara Singh & Ors (1992 (3) SCR

826) wherein the Supreme Court had held that the normal rule, of course,

should be a regular recruitment through the prescribed agency but exigencies

of administration may call for an ad hoc of temporary appointment to be made

in such a situation, the efforts should always be to replace such an ad

hoc/temporary employee by a regularly selected employee as early as

possible. Such a temporary employee may also compete along with others for

such a regular selection/appointment. If he gets selected well and good. But if

he does not, he must give way to the regularly selected candidate. Though the

W.P.(C) No.12472/2021, the writ petitioner therein produced Ext.P4 which is

the Government Notification dated 1/6/2021 and sought to quash it, on the

ground that in the light of Covid preventive activities, various persons who

have contractual employees who were engaged in such activities shall not be

terminated. The premise on which it was produced and sought to quash is

on a premise that there is another G.O.based on which the writ petitioner in

W.P.(C) No.11626/2021 is seeking continuance. Thus Ext.P4 has no

relevance in the facts of that case. It relates to those persons, who were

engaged in various local self Governments to meet the spread of Covid. The

petitioner in W.P.(C) 11626/2021 was appointed much earlier and cannot be

considered as a person appointed to meet the Covid activities. Hence, writ WP(C) Nos.11626/2021, 12472/2021 12

petitioner in W.P.(C) No.11626/2021 cannot take advantage of the above

notification and hence above is not liable to be quashed in the present case.

9. Having considered the entire facts, the claim set up by the petitioner in

W.P.(C) No.11626/2021 is without any basis and the writ petition is liable to be

dismissed. Necessarily, the interim order will stand vacated.

In the light of dismissal of W.P.(C) No.11626/2021 and for the reasons

mentioned earlier, the clause 2.13.3 and 2.13.4 of the notification dated

7/3/2019 produced as Ext.P1 in W.P.(C) 12472/2021 does not call for any

interference. Likewise Ext.P4 also does not call for any interference.

Accordingly, W.P.(C) No.12472/2021 is disposed of directing the respondents

to proceed with the appointment of selected candidates pursuant to Ext.P2

notification in W.P.(C) No.12472/2021. The process shall be completed as

expeditiously as possible.

Sd/-

                                                  SUNIL THOMAS

                                                         Judge

      dpk
 WP(C) Nos.11626/2021, 12472/2021    13




                       APPENDIX OF WP(C) 12472/2021

PETITIONER EXHIBITS

Exhibit P1                 A TRUE COPY OF THE RELEVANT EXTRACT OF
                           G.O.NO.553/2019/LSG DATED 07.03.2019.

Exhibit P2                 A TRUE COPY OF THE ADVERTISEMENT PUBLISHED
                           IN MALAYALA MANORAMA DAILY DATED
                           25.05.2021.

Exhibit P                  A TRUE COPY OF THE NEWS ITEM PUBLISHED IN
                           MALAYALA MANORAMA DAILY DATED 01.06.2021.

Exhibit P4                 A TRUE COPY OF THE G.O.NO.1067/2021/LSGD
                           DATED 01.06.2021.




                           EXT.R2(A): COPY OF THE EXTRACT OF DECISION
                           NO.4/2 DATED 19/2/2021 OF THAVINJAL GRAMA
                           PANCHAYATH
 WP(C) Nos.11626/2021, 12472/2021    14




                       APPENDIX OF WP(C) 11626/2021


PETITIONER EXHIBITS

Exhibit P1                 THE TRUE COPY OF THE AGREEMENT DATED
                           02.04.2020 BETWEEN THE PETITIONER AND THE
                           IMPLEMENTING OFFICER.

Exhibit P                  THE TRUE COPY OF THE LETTER DATED
                           31.03.2021 OF THE SECRETARY, THAVINJAL
                           GRAMA PANCHAYAT, WAYANAD.

Exhibit P3                 THE TRUE COPY OF THE ORDER DATED
                           31.03.2021 OF THE MEDICAL OFFICE, PHC,
                           VALAD, WAYANAD.

Exhibit P4                 THE TRUE COPY OF G.O(ORDINARY) NO.553/2019
                           LSGD DATED.