ANEES C.K. v. STATE OF KERALA & OTHERS

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943** **WP(C) NO. 23397 OF 2021** ## **PETITIONER:** ANEES C.K. AGED 33 YEARS S/O. ADAM C.K., CHAMAKKALAYIL HOUSE, VAZHAKKAD P.O., MALAPPURAM-673640, WORKING OVERSEER (MGNREGS), VAZHAKKAD GRAMA PANCHAYATH, VAZHAKKAD, MALAPPURAM673640. BY ADVS. K.P.PRADEEP HAREESH M.R. RASMI NAIR T. T.T.BIJU T.THASMI M.J.ANOOPA SWATHI GUPTHA ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY SECRETARY, LSGD DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 MISSION DIRECTOR, MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME, KERALA, 5TH FLOOR, SWARAJ BHAVAN, NANTHANCODE, KAWADIAR P.O., THIRUVANANTHAPURAM-695003. 3 VAZHAKKAD GRAMA PANCHAYATH, VAZHAKKAD, VAZHAKKAD P.O., MALAPPURAM-673640, REPRESENTED BY ITS SECRETARY. 4 SECRETARY, VAZHAKKAD GRAMA PANCHAYATH, VAZHAKKAD, VAZHAKKAD P.O., MALAPPURAM-673640. BY ADVS. P.VISWANATHAN (SR.) FOR R3 & R4 SAYED MANSOOR BAFAKHY THANGAL W.P(C)NO.23397/2021 2 ## **OTHER PRESENT:** GP V.VENUGOPAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 8.11.2021, THE COURT ON 12/11/2021 DELIVERED THE FOLLOWING: W.P(C)NO.23397/2021 3 ## **JUDGMENT** The writ petitioner was appointed as overseer under the Mahatma Gandhi National Rural Employment Guarantee Scheme by Ext.P2 decision dated 26/5/2012 of the third respondent Panchayath. It was on a contract basis, which was renewable from time to time. In the meanwhile, one post of the overseer in the above Panchayath was reserved for SC candidate by Ext.P7 order of the Mission Director. By Ext.P3 decision of the Grama Panchayath dated 17/5/2021, it was resolved to terminate the service of the petitioner and to issue notification calling fresh application. Accordingly, Ext.P4 notification was issued inviting applications from the scheduled caste candidates to fill up the above vacancy. Contending that the petitioner was terminated by the Panchayath due to extraneous reasons and that the termination was invalid, the petitioner has approached this court challenging the termination. The reliefs sought were to quash Exts.P3 and P4 and to declare that in view of Exts.P11 and P12 orders issued by the first respondent, disengagement of the petitioner was unreasonable and the petitioner was entitled to continue in the post of overseer in terms of Ext.P11 and P12. Another relief sought was to direct the 2[nd] ,3[rd] and 4[th] respondents to renew the contract of employment. 2. The third respondent Panchayath appeared and filed a common counter affidavit on behalf of respondents 3 and 4. In the counter affidavit, the various allegations and claims set up by the petitioner were vehemently denied. W.P(C)NO.23397/2021 4 3. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned senior counsel for the third and fourth respondents. 4. There is no dispute that the petitioner was appointed as an overseer, on the strength of Ext.P1 Government Order, under MGNREGS, by virtue of the decision of the Panchayath, evidenced by Ext.P2 decision No.1/12 dated 26/5/2012. There is also no dispute that it was on contract basis and his period was being extended from time to time. In the third respondent Panchayath, there were two posts of overseers. In the light of Ext.P7 dated 11/12/2019, one post of accredited engineer/overseer was reserved for scheduled caste. Thereafter, by Ext.P3 resolution of the Panchayath dated 17/5/2021, it was resolved to renew the contract of one overseer and not to extend the contract of the petitioner, herein since one vacancy had to be set apart for the scheduled caste candidate. 5. Though the learned counsel for the petitioner alleged that, the termination was mala fide and that the Panchayath intended to appoint a person of their choice, there is absolutely no material to substantiate it. There is nothing on record to indicate that the Panchayath was actuated by any mala fide motive in terminating the petitioner. On the other hand, it seems that by virtue of Ext.P7, one post of overseer was reserved in the respondent Panchayath for SC candidate and by Ext.P8 G.O.dated 28/12/2020, all the Grama Panchayaths and local governments were directed to ensure that maximum appointments were given to scheduled W.P(C)NO.23397/2021 5 caste community against reserved vacancies and for any reason, in the absence of SC community, other person can be appointed for a limited term of two years on contract basis. 6. The learned counsel for the petitioner strongly relied on Ext.P11 Government Order dated 15/6/2021, by which, having regard to the existence of Covid-19 pandemic, it was directed that all those contract employees engaged under the Mahatma Gandhi National Rural Employment Guarantee Scheme, whose period of tenure expired before 31/3/2022, were permitted to continue till 31/3/2022. It seems that, by a subsequent notification, a copy of which was produced as Ext.P12, a clarification was issued, by which Ext.P11 notification was given a retrospective operation. It was clarified that those contract employees whose contracts expire during 1- 4-2021 to 14-6-2021 shall be permitted to continue as provided under Ext.P11. Virtually, Exts.P11 and P12 covered contract employees whose term expire between 1-4-/2021 to 31/3/2022. 7. Relying on the above, learned counsel for the petitioner vehemently contended that the petitioner was continuing in service and hence he was entitled to the benefit of Exts.P11 and P12. 8. Vehemently opposing this contention, learned senior counsel invited the attention of the court to the fact that the contract of the petitioner stood expired on 31/3/2021. Petitioner was not terminated from his service. His service came to an end due to non renewal of his contract of employment. It was contended that there was no termination of service of the petitioner. It W.P(C)NO.23397/2021 6 was the natural culmination of employer- employee relationship by virtue of non-renewal of contract of employment. However, the petitioner moved the Kerala Administrative Tribunal and obtained an interim order evidenced by Ext.P13. He continued in service on the strength of an interim order. It was pointed out by the learned senior counsel that the petitioner was not re employed and was only continuing in service by virtue of an interim order. Since the proceedings before the KAT was found to be not sustainable, the petitioner moved this court and naturally, the interim order came to an end. It was contended by the learned senior counsel that the petitioner is not entitled to get any benefit on the basis of an interim order which was not confirmed. It was also pointed out by the learned senior counsel that though the contract expired on 31/3/2021, the model code of conduct came into force on 10/3/2021 due to the legislative assembly election and that bye election in Malappuram Parliamentary Constituency within whose jurisdiction, the 3[rd] respondent Panchayath fell. Accordingly, the third respondent was not in a position to hold the meetings and take a decision with regard to compliance of Exts.P6 to P9 issued by the Government. However, on 17/5/2021, as per the decision taken by the 3[rd] respondent Panchayath with respect to the renewal of contract of MGNREGS workers, it was decided not to renew the contract of the petitioner and thereby the term of the petitioner came to an end. 9. The learned senior counsel, to buttress his contention that the employee appointed on a contract basis has no right to continue and that 7 W.P(C)NO.23397/2021 contract employee has no right to have his or her service renewed from time to time, relied on the decisions of the supreme Court in _**State of Rajasthan and Others v. Daya lal and Others (2011) 2 Supreme Court Cases 429)**_ and Y _**ogesh Mahajan v. Prof.R.C.Deka Director All India Institute of Medical Sciences (2018 KHC 6057).**_ The learned senior counsel also placed reliance on the decisions of this court in **W.P. (C)No.13660/2018** , **W.P.(C) No.22402/2018** and **W.P.(C) No.27101/2018,** wherein identical situations came up for consideration before this Court. This court, after elaborately referring to the various decisions of this Court, refused to interfere with the termination of the services of the employees consequent to non renewal of the contract. It was held that contract employee could continue only for the specified period in the light of the contract, and in such appointments even while permitting such continuance, the proposition that the right of the contract employees stood determined by the terms of the contract and that they cannot claim continuance or the renewal of the contract, stands affirmed by the various decisions of the Division Bench of this Court. Having evaluated the above, I find no reason to grant any relief to the writ petitioner. The writ petition fails and is dismissed. Sd/- ## **SUNIL THOMAS** ## **Judge** dpk W.P(C)NO.23397/2021 8 ## **APPENDIX OF WP(C) 23397/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE GO (RT) NO.952/12/LSGD DATED 29.3.2012. Exhibit P2 TRUE COPY OF THE DECISION NO.1/12 DATED 26.5.2012 ISSUED BY THE 3RD RESPONDENT. Exhibit P3 TRUE COPY OF THE DECISION NO.7/1 DATED 17.5.2021 ISSUED BY THE 3RD RESPONDENT. Exhibit P4 TRUE COPY OF THE SELECTION NOTIFICATION PUBLISHED BY THE 3RD RESPONDENT. Exhibit P5 TRUE COPY OF THE GO (RT) NO.346/2012/LSGD DATED 3.2.2012. Exhibit P6 TRUE COPY OF THE GO (MS)NO.41/2017/LSGD DATED 20.2.2017. Exhibit P7 TRUE COPY OF THE RELEVANT PAGES OF THE CIRCULAR NO.314/C1/17/REGS DATED 11.12.2019 ISSUED BY THE 2ND RESPONDENT. Exhibit P8 TRUE COPY OF THE CIRCULAR NO.210/DD2/2020/LSGD DATED 28.12.2020. Exhibit P9 TRUE COPY OF THE CIRCULAR NO.210/DD2/2020/LSGD DATED 15.2.2021. Exhibit P10 TRUE COPY OF THE MEETING NOTICE NO.22/2021 DATED 28.5.2021 OF THE 3RD RESPONDENT. Exhibit P11 TRUE COPY OF THE ORDER GO (RT) NO.1149/2021/LSGD DATED 15.6.2021. Exhibit P12 TRUE COPY OF THE GO (RT) NO.1496/2021/LSGD DATED 9.8.2021. Exhibit P13 TRUE COPY OF THE ORDER DATED 2.6.2021 IN OA (EKM) NO.817 OF 2021 OF THE KERALA ADMINISTRATIVE TRIBUNAL. W.P(C)NO.23397/2021 9