Kerala High Court
Saritha Thankappan vs State Of Kerala on 28 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 28TH DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943
WP(C) NO. 8914 OF 2021
PETITIONER/S:
SARITHA THANKAPPAN
AGED 37 YEARS
W/O.SINOJ K.G., TECHNICAL ASSISTANT, OKKAL GRAMA
PANCHAYAT, OKKAL P.O., ERNAKULAM 683 550 RESIDING
AT KALAMBATTUKUDI HOUSE, KOOVAPPADI P.O.,
PERUMBAVOOR, ERNAKULAM 683 544
BY ADVS.
P.NANDAKUMAR
SMT.AMRUTHA SANJEEV
VIVEK VIJAYAKUMAR
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL
SELF GOVERNMENT (IB) DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2 DEPUTY DIRECTOR OF PANCHAYATS
CIVIL STATION, ERNAKULAM 682 030
3 OKKAL GRAMA PANCHAYAT
OKKAL P.O., ERNAKULAM 683 550, REP.BY THE
SECRETARY.
4 THE PRESIDENT
OKKAL GRAMA PANCHAYAT, OKKAL P.O.,
ERNAKULAM 683 550
BY ADV TONY THOMAS (INCHIPARAMBIL)
GP PARVATHY KOTTOL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.10.2021, ALONG WITH WP(C)NO.9479/2021 &
WP(C)NO.9482/2021, THE COURT ON 28.10.2021 DELIVERED THE
FOLLOWING:
W.P.(C) No.8914, 9479 & 9482 of 2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 28TH DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943
WP(C) NO. 9479 OF 2021
PETITIONER/S:
SRI.UNNIKRISHNAN T.M
AGED 32 YEARS
S/O. MANI (LATE), WORKING AS TECHNICAL ASSISTANT,
ERUMAPETTY GRAMA PANCHAYAT, RESIDING AT
THOTTKKAVALAPPIL HOUSE, CHITTONDA P.O.
WADAKANCHERRY, THRISSUR 680 585.
BY ADV T.RAJASEKHARAN NAIR
RESPONDENT/S:
1 ERUMAPETTY GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, MANGAD, KOTTAPURAM
P.O. THRISSUR 680 584.
2 THE SECRETARY,
ERUMAPETTY GRAMA PANCHAYAT, MANGAD, KOTTAPURAM
P.O. THRISSUR 680 584.
3 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, LOCAL SELF
GOVERNMENT (I.B), DEPARTMENT, GOVERNMENT
SECRETARIAT, GOVERNMENT PRESS P.O.,
THIRUVANANTHAPURAM 695 001.
BY ADVS.
SHRI.SANTHOSH P. PODUVAL,, SC, ERUMAPPETTY GRAMA
PANCHAYAT
P.C.SASIDHARAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.10.2021, ALONG WITH WP(CNO.8914/2021 &
WP(C)NO.9482/2021, THE COURT ON 28.10.2021 DELIVERED THE
FOLLOWING:
W.P.(C) No.8914, 9479 & 9482 of 2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 28TH DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943
WP(C) NO. 9482 OF 2021
PETITIONER/S:
ANJU RAMANAN
AGED 29 YEARS
D/O. RAMANAN, ARACKAPARAMBIL HOUSE, KADAVOOR P.O.
PANAMKARA, ERNAKULAM DISTRICT.
BY ADVS.
K.S.ARUN KUMAR
SRI.JUSTINE JACOB
SMT.AMRUTHA P S
SMT.AMRUTHA K P
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL
SELF GOVERNMENT DEPARTMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 DIRECTOR OF PANCHAYATHS,
THIRUVANANTHAPURAM 695 001.
3 DISTRICT COLLECTOR,ERNAKULAM, CIVIL STATION,
KAKKANAD, ERNAKULAM 682 030.
4 PAINGOTTOOR GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, PAINGOTTOOR P.O.
ERNAKULAM DISTRICT 686 671.
SRI.GEORGE POONTHOTTAM (SR.)
SMT.NISHA GEORGE
GP PARVATHY KOTTOL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.10.2021, ALONG WITH WP(C).8914/2021&
WP(C)NO.9479/2021, THE COURT ON 28.10.2021 DELIVERED THE
FOLLOWING:
W.P.(C) No.8914, 9479 & 9482 of 2021
4
SUNIL THOMAS, J.
-------------------------------------
W.P.(C) No.8914, 9479 & 9482 of 2021
---------------------------------
Dated this the 28th day of October 2021
JUDGMENT
In all the above cases the respective petitioners were
appointed as technical assistants by different Grama Panchayaths.
Apprehending that the petitioners are likely to be terminated of their
contractual appointments, contrary to a Government order, petitioners
have approached this court.
2. In W.P.(C) No.8914/2021, the petitioner was appointed as the
technical assistant by the third respondent-Grama Panchayath by order
dated 22/10/2012 for a period of one year. It was extended from time to
time and lastly it was extended till 31/3/2021. Ext.P2 is the copy of the
relevant service book. In the meanwhile, the State Government issued
Ext.P3 circular dated 1-2-2021, by which it was directed that the period of
all technical assistants subject to their performance appraisal may be
extended up to 31/3/2022. However, the president of the Panchayath is
stated to have issued an oral direction not to permit the petitioner to
continue her service. Accordingly, Ext.P4 letter was issued by the
Secretary informing that the services of the petitioner stood terminated on
expiry of the contractual period. This is under challenge in the above writ
petition. The prayer sought was to quash Ext.P4 and to direct the
W.P.(C) No.8914, 9479 & 9482 of 2021
petitioner to continue in service.
3. In W.P.(C)No.9479/2021,the petitioner was appointed as the
technical assistant on 1/1/2015 by Ext.P1 order dated 31/12/2014. The
period was extended from time to time. In the meanwhile, the
Government Order was issued extending the period of employment till
31/3/2022. In spite of the above, Panchayat had orally instructed the
petitioner that he need not attend the office thereafter. Apprehending
termination, the petitioner has approached this court. The reliefs sought
in the writ petition was for a direction to the Grama Panchayath to permit
her to continue in service.
4. In W.P.(C) No.9482/2021 the petitioner was appointed as a
technical assistant on contract basis in 2017. The period was renewed
from time to time. Ext.P1 was the copy of the agreement executed for the
period 2020 - 21. According to the petitioner, after the new panchayath
committee took office, they were not interested in continuing her services.
In the meanwhile, the Government Order was issued extending the
period till 31/3/2022. Ext.P4 was the performance appraisal report which
recommended her continuance. According to the petitioner, she was
orally instructed not to come to the office from 1-4-2021. She submitted
Ext.P5 representation which was pending consideration. Apprehending
termination, the petitioner has approached this court.
5. In all the writ petitions,ex parte interim orders were granted
permitting the petitioners to continue in service subject to the result of the
W.P.(C) No.8914, 9479 & 9482 of 2021
writ petitions.
6. In W.P.(C) No.8914/2021, the Panchayath filed a detailed
counter affidavit contending that the Government had no authority to
extend the period of contract of employees engaged by them. The act of
the Government amounted to colourable exercise of the power and it
affected the autonomy and independence of Local Self Government
Institutions. It was stated that, the technical assistants were appointed as
part of e-Governance initiatives by the panchayaths, which had the
authority to appoint employees as well as to remove them. Their rights
cannot be circumscribed by the Government. It was stated that the
petitioner was only a contract employee and he had no right to seek
continuance in service. The Government had no power to interfere in the
right of the panchayath to take decision. It was also alleged that the
conduct of the petitioner was in total disregard to her duties.
7. In W.P.(C)No.9479/2021, Panchayath contended that the
respondent was appointed on a contract basis. His engagement was not
based on any proper selection and hence, he cannot seek any relief for
his continuance. Pursuant to the decision of the panchayath committee to
terminate him and to appoint a new person, notification dated 16/3/2021
was issued . That notification was issued to give equal opportunity to all
competent persons. The petitioner was also free to participate in that.
The Government order will not confer any right on her.
8. In W.P.(C) No.9482/2021, a counter affidavit was filed by the
W.P.(C) No.8914, 9479 & 9482 of 2021
Panchayath contending that the dispute will come under section 28 of
the Administrative Tribunals Act, 1985 and Kerala Administrative Tribunal
Rules and hence, this court has no jurisdiction to entertain such disputes.
The post was one coming under the Kerala Panchayath Service Rules.
The petitioner was engaged by the Panchayath and the salary was paid
by the Panchayath. The Government had no role in such engagement.
Further, all the staff had gained technical knowledge and hence the
service of the petitioner was no longer required. Being a contract
employee appointed as a part of the E governence, she cannot claim
continuance in service. The Government Order cannot restrict the power
of the panchayath. It was further stated that performance appraisal
report was only recommendatory in nature and it was ultimately for the
managing committee of the panchayath to take appropriate decision on it.
9. Heard the learned counsel for the respective petitioners and the
respective counsel for the contesting respondents. In all the above
cases, petitioners were appointed on contract basis, which was
renewable at the end of the respective panchayath. In all the cases, the
respective petitioners placed reliance on the Government Order No.
265 /2021/LSGD dated 1-2-2021, by which, relying on a request made by
certain organization of technical assistants to extend their period, the
period of contract was extended from 1-4-2021 to 31-3-2022, subject to
the performance appraisal.
10. Disputing the claim of the petitioners, the panchayaths took up
W.P.(C) No.8914, 9479 & 9482 of 2021
the stand that the Government had no authority to issue such order and
interdict or restrict the powers of the panchayaths in appointing and
removing of its employees. It was also contended by them that the
respective petitioners are not entitled to seek continuance in service being
contract employees for a fixed period. In one case, it was specifically
contended that her conduct was beyond acceptance and she was liable to
be terminated. In W.P.(C) No.9482/2021, the Panchayath had taken up a
case that in spite of the performance appraisal report, they were not
interested in continuing the technical assistants, since their services were
not required as all the employees had attained proficiency in IT
Governance.
11. The learned counsel for the respondents relied on the decisions
reported in Yogesh Mahajan v. Professor R.C.Deka, Director, All
India Institute of Medical Sciences(2018)3 SCC 218), Vidyavardhaka
Sangha and Another v. Y.D.Deshpande And Others(2006) 12 SCC
482), in V.V.Mohanan v. State of Kerala and Ors
(MANU/KE/3315/2020), in Rajasthan State Roadways Transport
Corporation v. Paramjeet Singh ( 2019 KHC 6584) and the judgment of
this Court in W.P.(C) No.15098/2019, to contend that in the case of
contractual appointments, they have no right to insist for continuance in
service. It was held in those decisions that termination of service in the
case of contractual service, was a purely contractual appointment and
services could be dispensed with notice at any stage.
W.P.(C) No.8914, 9479 & 9482 of 2021
12. There is no dispute that contractual appointees have no right to
insist for continuance of service and their services were terminable by
efflux of time or by notice. However, in the case at hand, all the
petitioners are placing reliance on the Government Order, which directed
the continuance. It was contended by the learned counsel for the
petitioners that the Government has no authority to issue such an order.
However, the learned Government Pleader invited my attention to
Section 189 of the Kerala Panchayath Raj Act , which conferred a general
power on the Government to issue guidelines. Section 189 provides that
notwithstanding anything contained in the Act, the Government shall have
the power to issue general guidelines to the Panchayath in accordance
with the National and State Policies in matters such as finance,
maintenance of accounts, office management formulation of schemes,
selection of sites and beneficiaries, proper functioning of Grama Sabha
etc. The appointment of technical assistant is undertaken as a part of
E- Governence scheme introduced by the Government. In the light of
the above, the question whether the Government has got the power
cannot be agitated in a proceeding initiated by the petitioners herein. It
seems that the panchayath has not challenged the above notification. As
long as it stands, petitioners will be entitled to claim protection under the
Act. Further, the Government order makes it clear that it will be subject to
the performance appraisal.
13. Having considered the above facts, I feel that the each of the
W.P.(C) No.8914, 9479 & 9482 of 2021
petitioner is entitled to continue subject to the performance appraisal in
the light of the G.O No.265/2021/LSGD dated 1-2-2021. Accordingly,
Ext.P4 in W.P.(C) No.8914/2021 stands quashed. All the writ petitions
are allowed directing the respective panchayaths to permit the petitioners
to continue till 31/3/2022. subject to the performance appraisal report.
Sd/-
SUNIL THOMAS
Judge
dpk
W.P.(C) No.8914, 9479 & 9482 of 2021
APPENDIX OF WP(C) 8914/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF GO(RT) NO.1772/2012/LSGD
DATED 27.6.2012
EXHIBIT P2 TRUE COPY OF RELEVANT EXTRACT OF THE
SERVICE BOOK OF THE PETITIONER.
EXHIBIT P3 TRUE COPY OF GO(RT) NO.265/2021/LSGD
DATED 1.2.2021 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P4 TRUE COPY OF LETTER DATED 3.4.2021
ISSUED BY THE SECRETARY OF 3RD
RESPONDENT.
EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 14.11.2018
IN W.P.(C) NO.17891 OF 2018 AND
CONNECTED CASE.
RESPONDENT EXHIBITS
Exhibit R4(A) TRUE COPY OF THE AGREEMENT FOR CONTRACT
STAFF OF PETITIONER DATED 01/04/2020
Exhibit R4(B) TRUE COPY OF THE PERFORMANCE APPRAISAL
REPORT DATED ON 26/05/2021
Exhibit R4(C) TRUE COPY OF THE MINUTES OF THE
PANCHAYATH COMMITTEE DATED 07/06/2021
W.P.(C) No.8914, 9479 & 9482 of 2021
APPENDIX OF WP(C) 9479/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER
DATED 31.12.20214 ISEUD BY THE 1ST
RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE GO (RT) NO. 265/2021
LSGD DATED 1.2.2021.
W.P.(C) No.8914, 9479 & 9482 of 2021
APPENDIX OF WP(C) 9482/2021
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE AGREEMENT FOR THE
LAST YEAR I.E., 2020-21 BETWEEN THE
PETITIONER AND GRAMA PANCHAYAT.
EXHIBIT P2 A TRUE COPY OF THE REPRESENTATION DATED
08/02/2021 SUBMITTED BEFORE 4TH
RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE G.O. NO.
265/2021/LSGD DATED 01/02/2021.
EXHIBIT P4 A TRUE COPY OF THE PERFORMANCE
APPRAISAL REPORT DATED 25.02.2021 OF
THE PANEL.
EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DATED
07.04.2021 SUBMITTED BY THE PETITIONER
BEFORE 4TH RESPONDENT.
