Anees C.K. v. State of Kerala & Ors., W.A No.1522 of 2021

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** **WA NO. 1522 OF 2021** **AGAINST THE JUDGMENT DATED 12.11.2021 IN WP(C)NO.23397/2021** **OF HIGH COURT OF KERALA** ## **APPELLANT/WRIT PETITIONER:** **ANEES.C.K., AGED 33 YEARS S/O.ADAM.C.K., CHAMAKKALAYIL HOUSE, VAZHAKKAD P.O., MALAPPURAM-673 640, WORKING OVERSEER (MGNREGS), VAZHAKKAD GRAMA PANCHAYATH, VAZHAKKAD, MALAPPURAM-673 640.** **BY ADVS. K.P.PRADEEP HAREESH M.R. T.T.BIJU T.THASMI M.J.ANOOPA RASMI NAIR T.** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY, LSGD DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 MISSION DIRECTOR, MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GURANTEE SCHEME** **KERALA, 5TH FLOOR, SWARAJ BHAVAN, NANTHANCODE, KAWADIAR P.O., THIRUVANANTHAPURAM-695 003.** - **3 VAZHAKKAD GRAMA PANCHAYATH,** **VAZHAKKAD, VAZHAKKAD P.O., MALAPPURAM-673 640, REPRESENTED BY ITS SECRETARY.** W.A No.1522 of 2021 2 - **4 SECRETARY, VAZHAKKAD GRAMA PANCHAYATH, VAZHAKKAD, VAZHAKKAD P.O., MALAPPURAM-673 640.** - ***ADDL R5 DIRECTOR OF PANCHAYATHS, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** **[SUO MOTU IMPLEADED AS PER ORDER DATED 29.03.2022 IN W.A NO.1522/2021]** **BY P.VISWANATHAN (SR.)** **BY ADV SAYED MANSOOR BAFAKHY THANGAL FOR R3 & R4** **SRI.SAIGI JACOB PALATTY, SR.GP FOR R1, R2 & R5** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No.1522 of 2021 3 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **=================================** ## **W.A No.1522 of 2021** [ _arising out of the impugned judgment dated 12.11.2021 in W.P(C) No.23397/2021_ ] **=================================** Dated this the 29[th] day of March, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** The unsuccessful writ petitioner in the instant Writ Petition (Civil), W.P(C) No.23397/2021, has filed the present _intra-court_ appeal under Sec.5(i) of the Kerala High Court Act, to impugn the judgment dated 12.11.2021 rendered by the learned Single Judge, dismissing the said W.P(C). 2. Heard Dr.K.P.Pradeep, learned counsel appearing for the appellant in the W.A/petitioner in the W.P(C), Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondent Nos.1, 2 & 5 and Sri.P.Viswanathan, learned Senior Counsel instructed and assisted by Sri.Sayed Mansoor Bafakhy Thangal, learned counsel appearing for R3 & R4 (Vazhakkad Grama Panchayat) in the W.A. 3. The prayers in the instant Writ Petition (Civil) filed by the appellant herein are as follows : W.A No.1522 of 2021 4 - _“i. To call for the records leading to issue Ext P3 and 4 issued by the 3[rd] and 4[th] respondents and to issue a Writ of Certiorari, or any other writs or order or direction to quash Ext P3 and P4._ - _ii. To declare that in view of Ext P11 and P12 orders issued by the 1[st] respondent, the disengagement of the petitioner is unreasonable and the petitioner is entitled to continue in the post of overseer, under the service of the 3[rd] respondent, in terms of Ext P11 and P12._ - _iii.To call for entire records leading to Ext P3 and P4 and to issue a writ of mandamus or any other appropriate writ or writs or order or direction directing the 2[nd] , 3[rd] and 4[th] respondents to renew the contract of employment and to retain the petitioner in the post of Overseer at the 3[rd] respondent, under Mahatma Gandhi National Rural Employment Guarantee Scheme, on the basis of his selection in Ext P2._ - _iv. To declare that the decision of the 3[rd] respondent in Ext P3 and P4 that the post of overseer has to be earmarked for Scheduled Caste Community and the post of Accredited Engineer is to be notified for General category is illegal and is in violation of Ext P7, P8 and P9._ _v. Direct the respondents to pay cost of this proceedings_ - _vi.Grant any other relief, in the interest of justice, which this Hon'ble Court deems fit in the facts and circumstances of the case.”_ 4. The learned Single Judge after hearing both sides, has rendered the impugned judgment on 12.11.2021, dismissing the above W.P(C), on the ground that no valid grounds in public law have been made out to interfere with the impugned decision of the respondent-Grama Panchayat to terminate the contractual appointment of the petitioner. It is this judgment, dismissing the above W.P(C) that is under challenge in this writ appeal. W.A No.1522 of 2021 5 5. A brief recital of the facts of this case would be relevant. According to the appellant, he has been appointed on contractual basis as Overseer under the Mahatma Gandhi National Rural Employment Guarantee (MGNREG) Scheme in the 3[rd] respondent-Grama Panchayat, as per Ext.P-2 proceedings dated 26.05.2012 rendered by the 3[rd] respondentPanchayat. The said contractual appointment was renewable from time to time. The case of the respondent-Panchayat is that later, one post of Overseer in the respondent-Panchayat had to be set apart for Scheduled Caste candidates, as per Ext.P-7 circular dated 11.12.2019 issued by the 2[nd] respondent-Director, Mahatma Gandhi National Rural Employment Guarantee Scheme. Hence, the respondent-Panchayat had resolved not to extend the contractual term of appointment of the writ petitioner and to issue selection notification calling for fresh applications to fill up the post of Overseer by contractual appointment by setting apart the same for Scheduled Caste community reservation. Ext.P-4 is the notification said to have been published by the 3[rd] respondent-Grama Panchayat in that regard. Whereas, the contention of the writ petitioner was that he was terminated from service by the respondent-Panchayat due to extraneous considerations and that the termination order itself was invalid, etc., the relief sought for is to quash Ext.P-3 dated 17.05.2021 and Ext.P-4 selection W.A No.1522 of 2021 6 notification and to declare that, in view of Ext.P-11 G.O(Rt.) No.1149/2021/LSGD dated 15.06.2021 and Ext.P-12 G.O(Rt.) No.1496/2021/LSGD dated 09.08.2021 issued by the competent authority of the 1[st] respondent-Government in the Local Self Government Department, the very disengagement of the appellant from contractual appointment by the 3[rd] respondent-Panchayat, was illegal and unreasonable and that the writ petitioner is entitled to continue in the post of Overseer on contractual basis, in terms of the Government orders issued by the 1[st] respondent, as per Exts.P-11, P-12 G.Os, etc. Yet another relief has also been sought to direct the 2[nd] , 3[rd] & 4[th] respondents to renew the contractual term of appointment of the writ petitioner, etc. 6. The plea of the writ petitioner has been strongly resisted by the respondent-Grama Panchayat. They would contend that the beneficial provisions contained in Exts.P-11 & P-12 G.Os would not be attracted in the case of the appellant. Further that, going by the stipulations in Ext.P-7 order issued by the 2[nd] respondent-Mission Director, at least one post of Overseer in the 3[rd] respondent-Grama Panchayat had to be set apart for Scheduled Caste community candidate on contractual basis and that, since the appellant had continued on contractual basis in the said post from May, 2012 onwards, their decision to terminate his service or not to extend his W.A No.1522 of 2021 7 contractual appointment, cannot be said to be illegal or improper, etc. Further that, the very term of contractual appointment of the appellant was over on 31.03.2021 and it was not extended further and that he is not in service, etc. _7. Per contra_ , the contention of the appellant is that he is entitled to get the benefits of the Government orders, as per Exts.P-11 & P-12, having regard to the existence of Covid-19 pandemic issues and that the Government has issued directions that all contractual employees under the above scheme in respect of the governmental bodies, including Grama Panchayats, may continue till 31.03.2022, etc. Further that, as per Ext.P12, a clarification was issued by which Ext.P-1 notification was given retrospective operation, etc. and that it was clarified that those contractual employees in local bodies, whose contractual appointments are to expire for the period from 01.04.2021 to 14.06.2021, shall be permitted to continue as provided under Ext.P-11. Hence, it is the specific case of the appellant that Exts.P-11 & P-12 Government Orders, would cover contractual employees in Local Self bodies, whose term would have expired between 01.04.2021 and 31.03.2022, etc. 8. As regards, the contention of the 3[rd] respondent-Panchayat, based on Ext.P-7 circular issued by the 2[nd] respondent-Mission Director, W.A No.1522 of 2021 8 the appellant would contend that Ext.P-9 Government circular dated 15.02.2021 has been issued by the 1[st] respondent-State Government in the Local Self Government Department, wherein it has been subsequently clarified that if a post to be filled up on contractual appointment is vacant, then SC/ST reservation may be effectuated in such a vacant post and that, according to the appellant, this would imply that a contractual hand, who is continuing in service and who is occupying a post, need not be disturbed so that SC/ST reservation can be worked out as against a vacant post, if any, in the local body concerned. Further that, the appellant is occupying the post of Overseer on contractual basis and the higher category post of accredited Engineer is vacant and that, going by the clarification issued by the Government as above, the SC/ST reservation is to be worked out as against the vacant post of accredited Engineer, since the said post is vacant, so that the contractual hand, like the applicant, who is continuing his service, based on the abovesaid Government order, need not be disturbed. Further that, Exts.P-11 & P-12 are Government orders, which would provide that such contractual appointments in local bodies may be permitted to be continued till 31.03.2022 in view of the Covid-19 pandemic issues and that the 5[th] respondent-Director of Panchayats has also earlier issued circular/order No.PAN/14760/2020-E9(DP) dated 12.01.2021 on those aspects. W.A No.1522 of 2021 9 9. As indicated hereinabove, the specific case of the 3[rd] respondent-Grama Panchayat is that the benefit of Exts.P-11 & P-12 cannot be claimed in the instant case and further that, the contractual appointment of the appellant has already expired on 31.03.2021 and that he has not been in service thereafter and hence, this Court may not interfere in the matter and further that, the termination of the service of the appellant is necessary, so as to provide SC/ST reservation even in contractual appointments in local bodies going by the departmental norms. 10. After hearing both sides, we are of the view that the main matter in issue may be covered against the writ appellant, on the basis of the judgment rendered by a Division Bench of this Court in the case in _**Noorjihan v. State of Kerala & Ors.**_ [W.A No.1570/2018 & connected cases]. However, the abovesaid Government Orders at Exts.P-11 & P-12 and the circular of the Director of Panchayats, etc., have been issued later. Hence, in the case of certain contractual appointments in local bodies, we had not entered into the merits of the controversy and had rendered a judgment dated 27.09.2021 in W.A No.807 & 925 of 2021, directing that the appellants therein may approach the respondent-Director of Panchayats and it was ordered that the issue as to whether the appellants would get the benefit of the abovesaid Government Orders and the W.A No.1522 of 2021 10 departmental circulars, may be decided by the Director of Panchayats, after hearing the appellants and also after eliciting the considered views of the local body concerned. The same line of directions was also later issued by this Court in a recent judgment rendered by us on 09.03.2022 in W.A Nos.81 & 82 of 2022. Hence, in those cases we had also directed that the appellants therein may continue on temporary contractual basis till a considered decision is rendered by the Director of Panchayats. Hence, we propose to take resort to the same line of directions, instead of deciding the issue on merits as to whether the Government Orders at Exts.P-11 & P-12 are applicable in the case of the appellant and also as to whether reservation issue could be effectuated by making appointments as against the vacant posts and not as against the posts already occupied by a contractual hand, etc. Since the appellant mainly relies on Government Orders and departmental circulars and since the 3[rd] respondent-employer is a Grama Panchayat, coming under the jurisdiction of the 5[th] respondentDirector of Panchayats, we feel that these issues can be resolved by the 5[th] respondent-Director of Panchayats instead of this Court deciding these issues on merit, at this stage. 11. Further, we are also apprised that the Government has now issued G.O(Rt.)No.758/2022/LSGD dated 26.03.2022, ordering that the W.A No.1522 of 2021 11 contractual appointees in local bodies may be retained on temporary basis for a further period upto 30[th] June, 2022. Since the said G.O dated 26.03.2022 has not been formally produced in this writ appeal, it may be relevant to refer to the contents of the said G.O (Rt.) No.758/2022/LSGD dated 26.03.2022, which reads as follows : " ഉതരവ ക��വ�ഡ� 19 രണ�� തര�ഗത�ന� പശ�തലത�ൽ, മഹ�ത�ഗ�ന� ക�ശ�യ ഗ�മ�ണ നത�ഴ�ല!റപ� പദത�യ!ന% ��ഴ�ൽ സ�സ'�നനത തക)ശ സ*യ�ഭരണ സ'�പനങള�ൽ �ര�ർ അ%�സ'�നത�ൽ ക0�ല� ന1യ�2വരന �ര�ർ 0�വനക�ര�ൽ 2022 മ�ർച� 31 ന മ!ൻപ�യ� �ര�ർ ��ല�വധ� അവസ�ന�കന എല� 0�വനക�നരയ!� 2022 മ�ർച� 31 വനര കസവനത�ൽ 2%ര�ൻ അനവ��ച!ന��ണ� പര�മർശ� (1) പ��ര� . ഉതരവ�യ�ട! ളത�ണ� സമ�നമ�യ ആനകലB� അയങ�ള� നഗര നത�ഴ�ല!റപ� പദത�ക� ��ഴ�ൽ ക0�ല� ന1യ�2 വരന �ര�ർ 0�വനക�ർക� അനവ��ച! പര�മർശ� (3) ഉതരവ!� പ!റനപ%! വ�ച�- ട! ളത�ണ�. 2. ക�ശ�യ നത�ഴ�ല!റപ� പദത�യ�ൻ ��ഴ�ൽ വ�വ�ധ തസ�ത���ള�ൽ �ര�ർ അ%�സ'�നത�ൽ ക0�ല� ന1യ�2വരന പര�1യസമനര� വ��ഗ�ധപര�ശ�ലന� ലഭ�ച2മ�യ 0�വനക�നര മത�യ�യ ��രണങള�ല�നത ഒഴ�വ�കനത� പദത�യ!ന% പ!കര�ഗത�നയ സ�രമ�യ� ബ�ധ�കനത�നണന� ന�ലവ�ൽ ന%നവരന സ�കങത��വവ�ഗ�ധB� ആവശBമ�യ GIS അധ�ഷK�ത ന�ർത% പര�പ�ലന പവർതനങള!� നവക�രള മ�ഷനമ�യ� ബനനപട പവർതനങള!� വ�0യ�രമ�യ� ന%തനത�ന� പര�ശ�ലന� കന%�യവര� പര�1യമ!ളവരമ�യ 0�വനക�രന% കസവന� ഒഴ�ച!ക%�ന�വ�തത�നണന� ഇകത�ന%�പ� ക��വ�ഡ� മഹ�മ�ര� �!ര�തങൾ പO ർണമ�യ!� വ�നട�ഴ�യ�ത സ�ഹ1രB� ക%� �ണക�നല%! ത� മഹ�ത�ഗ�ന� ക�ശ�യ ഗ�മ�ണ നത�ഴ�ല!റപ� പദത�യ�നല വ�വ�ധ വ�ഭ�ഗ� �ര�ർ 0�വനക�നര2022 മ�ർച� 31 വനര പ�ര�ച!വ�%! നത� വ�ലകന പര�മർശ� (1) ഉതരവ�ന� പ�ബലB� അ%! ത സ�മത�� വർഷകതക� ക%� ��ർഘ�പ�ച! നൽകനത� ഉ1�തമ�യ�ര�ക� എന� നത�ഴ�ല!റപ! മ�ഷൻ ഡയറ��%ർ പര�മർശ� (4) . പ��ര� ശ�പ�ർശ ന1യ!�യ!ണ�യ� W.A No.1522 of 2021 12 3. സമ�നമ�യ� പര�മർശ� (3) ഉതരവ�ന� ��ല�വധ� ��ർഘ�പ�കണനമന� നഗര��രB ഡയറ��%റ!� പര�മർശ� (5) �ത� പ��ര� . ആവശBനപ%! �യ!ണ�യ� 4. സർക�ർ ഇക�രB� വ�ശ�മ�യ� പര�കശ�ധ�ച! കമൽവ�വര�ച സ�ഹ1രBത�ൽ പര�മർശ� (1), (2), (3) ഉതരവ!�ള!ന% അ%�സ'�നത�ൽ കസവനത�ൽ 2%രന മഹ�ത�ഗ�ന� ക�ശ�യ ഗ�മ�ണ നത�ഴ�ല!റപ� പദത�യ�നലയ!� അയങ�ള� നഗര നത�ഴ�ല!റപ� പദത�യ�നലയ!� വ�വ�ധ വ�ഭ�ഗ� �ര�ർ 0�വനക�രന%യ!� 2022 ജൺ 30 ന� മ!ൻപ� ആയ� �ര�ർ ��ല�വധ� അവസ�ന�കന 0�വനക�രന%യ!� �ര�ർ ��ല�വധ� 2022 ജൺ 30 വനര ��ർഘ�പ�ച� ന��ണ� ഉതരവ� പ!റനപ%! വ�കന.” 12. Accordingly, it is ordered that the appellant may file a detailed representation before the 5[th] respondent-Director of Panchayats stating his claim on the basis of Exts.P-11 & P-12 G.Os, the abovesaid circular, said to have been issued by the Director of Panchayats as well as his contentions based on Ext.P-9 Government circular, etc. Such representation may be filed by the appellant, along with a certified copy of this judgment, within 10 days from the date of receipt of a certified copy of this judgment,. An advance copy of the said representation shall also be sent by him by registered post to the 4[th] respondent-Secretary of the Grama Panchayat concerned. The 3[rd] respondent may give their report in the matter to the 5[th] respondent-Director of Panchayats regarding their contention, based on the applicability or otherwise of Exts.P-11, P-12, P-9, etc., as well as the abovesaid G.O (Rt.) No.758/2022/LSGD dated 26.03.2022. Decision on W.A No.1522 of 2021 13 the above regard shall be duly rendered by the 5[th] respondent-Director of Panchayats without much delay, preferably within a period of four weeks from the date of hearing of the appellant, as above. A copy of the said report of the 3[rd] respondent shall also be given in advance by the 3[rd] respondent to the appellant. Further, as per the interim order passed by this Court, the post of Overseer, which was earlier occupied by the appellant, was directed to be kept vacant and we are told that the said post is vacant even now. Hence, it is ordered in the interest of justice that the 3[rd] respondent-Grama Panchayat will temporarily permit the appellant to continue as a contractual hand in the said post of Overseer, immediately and he may be allowed to continue till a decision is taken by the 5[th] respondent-Director of Panchayats, as above and his further continuance thereafter, will be dependent on the decision to be rendered by the 5[th] respondent-Grama Panchayat, as above. The abovesaid interim arrangement has been made by us since such interim directions have been issued by us in the other writ appeals referred to hereinabove. 13. We make it clear that we have not entered into the merits of the controversy in any manner and it is for the 5[th] respondent-Director of Panchayats to decide the issue appropriately as regards the applicability or otherwise of the abovesaid Government Orders, Government circulars, etc. W.A No.1522 of 2021 14 These aspects of the matters have not been duly taken note of in the rendering of the impugned judgment. Accordingly, it is ordered that the impugned judgment dated 12.11.2021, dismissing W.P(C) No.23397/2021, will stand set aside. With these observations and directions, the above Writ Appeal will stand finally disposed of. ## **Sd/ALEXANDER THOMAS, JUDGE** **Sd/-** **VIJU ABRAHAM, JUDGE** vgd