High Court of KeralaDivision Bench2022-03-30Writ appeal dismissed; Ombudsman’s order direct...

Chakkittappara Grama Panchayat v. The Ombudsman for Local Self Government, Thiruvananthapuram; Ravi Ulliyeri; Panchayat Deputy Director, Kozhikode; K. Sunil, President, Chakkittappara Grama Panchayat

Case / Petition Number:WA No. 396 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Manikumar
Shaji P. Chaly
Judgment Date: 2022-03-30
Court Decision / Holding: Appeal dismissed. The Division Bench upheld the writ court’s conclusion that the NRGA scheme does not prescribe an exclusive mode of employment, and that there is no mandatorily exclusive requirement to recruit only through Employment Exchanges. The Ombudsman’s order directing appointment through the Employment Exchange remains unaltered, and the petitioner's challenge to that mechanism fails.
Final Disposition: Writ appeal dismissed; Ombudsman’s order directing appointment through the Employment Exchange stands and the appellant’s challenge is rejected.

Parties to the Case

Appellants / Petitioners

Chakkittappara Grama Panchayat

Respondents

The Ombudsman for Local Self Government
Ravi Ulliyeri
Panchayat Deputy Director, Kozhikode District
K. Sunil, President, Chakkittappara Grama Panchayat

Legal Representation & Advocates

Counsels for Petitioners

• Kaleeswaram Raj
• Varun C.
• Vijay Thulasi K.
• Raj

Counsels for Respondents

• Sri. K. P. Harish

Case Synopsis & Summary

Chakkittappara Grama Panchayat, represented by its Secretary, challenges an order of the Ombudsman directing appointment through the Employment Exchange for contractual posts under the National Rural Employment Guarantee Scheme (MGNREGS). The writ appeal contends that the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 does not mandate recruitment through Employment Exchanges for temporary posts, and relies on Krishnankutty v. State of Kerala (2005 KHC 1494), which held that Section 4(4) and Sub-Sections (1)–(2) do not impose an obligation to recruit via the Employment Exchange merely because a vacancy is notified. It also invokes Bihar v. Upendra Narayan Singh (2009 KHC 4572). The writ court, and now this Court, consider Government orders and NRGA guidelines; they note these do not prescribe an exclusive mode of employment, and that posts under schemes often operate on contract and public advertisements, with Employment Exchanges as one possible sponsor if live registers exist. The respondents advocate adherence to guidelines that prioritise the Employment Exchange path for non-permanent posts. The Division Bench ultimately holds that the NRGA scheme does not specify a mandatory mode of employment and that the petition fails to show an exclusive contractual-only requirement, upholding the writ court’s order and dismissing the appeal, thereby preserving the Ombudsman’s directions.

Provisions of Law Cited

Employment Exchange (Compulsory Notification of Vacancies) Act, 1959Section 4(4) of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959Sub-Sections (1) and (2) of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959National Rural Employment Guarantee Act, 2005Kerala Public Service Commission Act, 1968

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant submits that the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 does not compel appointment through Employment Exchanges for temporary posts under the MGNREGS. Citing Krishnankutty v. State of Kerala (2005 KHC 1494), it is argued that Section 4(4) and Sub-Sections (1) and (2) do not create an obligation to recruit via the Employment Exchange merely because a vacancy is notified. It emphasizes that the NRGA guidelines and G.O. provisions do not prescribe a single mode of employment and that posts created under special projects are commonly filled on contract or daily-wage terms. The Panchayat contends that Employment Exchange sponsorship should be an option, not a mandate, and that the Ombudsman order should not override these facts or the lack of a binding directive mandating Employment Exchange recruitment.

Contentions of Respondents

The respondents contend that government guidelines and orders direct that vacancies not of a permanent nature should be filled through the Employment Exchange, and that the NRGA implementation guidelines, annexures, and related orders contemplate an employment pathway via Employment Exchanges, especially for non-permanent posts. They point to Annexure I guidelines and Annexure VI clarifications showing the scheme’s framework and the continuing use of Employment Exchanges as a channel. They argue that termination or conversion of posts should adhere to the statutory framework of the Kerala Public Service Commission Act and the Compulsory Notification of Vacancies Act, and that the Employment Exchange route is, at minimum, a preferred practice for non-permanent posts.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Krishnankutty v. State of Kerala	2005 KHC 1494	Mentioned Only	Cited by the appellant as persuasive authority; the judgment notes the proposition but does not adopt it as controlling in the present facts.
State of Bihar v. Upendra Narayan Singh and Others	2009 KHC 4572	Distinguished	The court reasons that these decisions do not apply to the present factual scenario since they did not address the specific Employment Exchange mechanism under NRGA; thus they are distinguished.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944 ## WA NO. 396 OF 2022 JUDGMENT DATED 14.03.2022 IN WP(C) 7649/2022 OF HIGH COURT OF KERALA ## APPELLANT/PETITIONER: CHAKKITTAPPARA GRAMA PANCHAYAT, CHAKKITTAPPARA P.O, CHAKKITTAPPARA, KOZHIKODE DISTRICT- 673 526, REPRESENTED BY ITS SECRETARY, ANEESH ARAVIND, AGED 39 YEARS, S/O. ARAVINDAN, PERAMBRA, KOZHIKODE 673 525. BY ADVS. KALEESWARAM RAJ VARUN C.VIJAY THULASI K. RAJ ## RESPONDENTS/RESPONDENTS: - 1 THE OMBUDSMAN FOR THE LOCAL SELF GOVERNMENT, SAPHALYAM COMPLEX, 4TH FLOOR, TRIDA BUILDING, UNIVERSITY POST, PALAYAM, THIRUVANANTHAPURAM 695 034. - 2 RAVI ULLIYERI, ULLIYERI POST, KOYILANDI, KOZHIKODE DISTRICT-672 232 - 3 PANCHAYAT DEPUTY DIRECTOR, KOZHIKODE DISTRICT, CIVIL STATION, KOZHIKODE, KOZHIKODE DISTRICT 673 020. - 4 K. SUNIL, PRESIDENT, CHAKKITTAPPARA GRAMA PANCHAYAT, CHAKKITTAPPARA P.O, CHAKKITTAPPARA, KOZHIKODE DISTRICT 673 526. SRI. K.P.HARISH, SR GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 396/2022 : 2 : ## **Dated this the 30[nd] day of March, 2022. JUDGMENT** ## **S. MANIKUMAR,CJ.** Challenge in this writ appeal is to the judgment made in W.P.(C) No. 7649 of 2022, by which the writ court declined to interfere with the order dated 04.02.2022 passed by the Ombudsman for Local Self Government Institutions, Thiruvananthapuram in Complaint Nos. 455/2021 and 458/2021 directing the appellant Panchayat to make appointment through Employment Exchange. 2. Before the writ court, the appellant contended that the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 ('Act, 1959' for short) do not provide appointment through Employment Exchanges in respect of the posts created on temporary basis for implementation of the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREG). 3. The appellant has further contended that the Division Bench of this Court in _**Krishnankutty v. State of Kerala**_ [2005 KHC 1494] held that even considering the provisions of the Act, 1959, in particular, the stipulations contained in Section 4(4) of the said Act, W.A. No. 396/2022 : 3 : nothing contained in sub-Sections (1) and (2) shall be deemed to impose any obligation on the employer to recruit any person through the Employment Exchange to fill up any vacancy, merely because that vacancy has been notified under any of those sub-Sections. 4. That apart, reliance has also been made on the decision of the Hon'ble Supreme Court in State of _**Bihar v. Upendra Narayan Singh and Others**_ [2009 KHC 4572]. Having considered the above submissions, the writ court, at paragraph No.4, held thus: “4. Having considered the contentions advanced and having noticed the contents of Ext.P3, I notice that what was before the learned Ombudsman was a specific contention that the method of appointment to the contractual post was by appointment through the Employment Exchange. The Ombudsman has specifically referred to Government orders which specify that appointments to the vacant posts which are not of a permanent nature have to be made through the Employment Exchange. I am of the opinion that in the said factual situation, the decisions relied on by the learned counsel for the petitioner have no application since those decisions were not considering the specific situation where the method of appointment described by the Government is through the Employment Exchange and through no other W.A. No. 396/2022 : 4 : ## means.” Being aggrieved, instant writ appeal is filed. 5. Inviting the attention of this Court to Annexure I Government Order, G.O.(MS) No. 68/2006/LSGD dated 28.02.2006, Ms. Thulasi K. Raj, learned counsel for the appellant, submitted that the Government has issued guidelines for implementation of the Employment Guarantee Scheme, under the National Rural Employment Guarantee Act, 2005. 6. Placing reliance on Annexure VI letter of the Panchayat Director addressed to all Panchayat Deputy Directors, learned counsel submitted that appointment can be made only on contract basis. 7. She further submitted that all the Panchayats in Kerala have appointed workers under the special projects or schemes, only on contract basis and there is no sponsorship from the Employment Exchanges. Accordingly, notifications have been issued by way of public advertisements. 8. To a specific query as to whether the scheme or Annexure I guidelines specifies any mode of employment, the learned counsel submitted that no specific mode of employment is prescribed neither under the scheme nor by the Government in the Guidelines. Said W.A. No. 396/2022 : 5 : submission is recorded. 9. At this juncture, we deem it fit to extract Annexure I guidelines issued by the Government for the implementation of the National Rural Employment Guarantee Act. “Local Self Government (Rural Development) Department-National Rural Employment Guarantee Act- 2005- Approved guidelines for implementation through three tier panchayats in Palakkad and Wayanad District of the state- issuing the Order ## **Local Self Government (D.P) Department** G.O (M.S) No. 68/2006/LSGD Date, Thiruvananthapuram 28.02.2006 -------------------------------------------------------------------------------------------------- Reference 1. G.O (M.S) No. 45/2006/LSGD dated 31.01.2006 2. Decision taken by the State Level Co-ordinating Committee on Decentralized Planning- 8.2.2006. ## **ORDER** With the issuance of the notification by the Central Government on 2d February 2006, the National Rural Employment Guarantee Act has been implemented in 1988 other districts of the country as well as in Wayanad and Palakkad districts of Kerala. As per the guidelines and norms issued by the Central Government, the State Government has issued an order in reference to the implementation of the scheme in these districts. Under this Act, the Panchayati Raj Institutions are the main implementers of the Employment Guarantee Scheme. Therefore, an W.A. No. 396/2022 : 6 : order is issued approving the following guidelines for the implementation of this scheme through the three tier panchayats in Wayanad and Palakkad districts. The functions of the Panchayats according to the scheme, at each level are described below. ## A- Grama Panchayats 1. Prepare a 'Shelf of Projects' activities which can be undertaken within the limits of the Gram Panchayat as determined by the Gram Sabhas. Prepare an annual action plan from it and send it to the Block Program Officer. 2. Prepare a list of estimated/approximate expenditure of works to be undertaken within the limits of the Gram Panchayat. 3. Set a timetable for the implementation of activities to be undertaken within the limits of the Gram Panchayat 4. Determine the activities that can be undertaken under the scheme and the nature of their employment potential. 5. Match job opportunities with job requirements. 6. Accept applications for registration. 7. Distribute employment cards. 8. Inform the applicants the date and place where the job will be allotted. 9. Publish a list of activities undertaken under the scheme, schedule of programs and list of registered workers. - 10.Carry out works for 50% of Grama Panchayat share. W.A. No. 396/2022 : 7 : 11. For the National Rural Employment Guarantee Act scheme, manage funds for the scheme through a specially opened account in a nationalized bank. 12.Supervise and monitor project management at the Grama Panchayat level. - 13.Distribute wages and unemployment wages as per the scheme. 14. Keep the documents of Project Implementation/ Master Roll/ Family Employment Card /Details of job opportunities given to each person. 15.The Grama Panchayat Secretaries will inform the employment registration authority under the scheme. B- Block Panchayat. 1. Conduct project planning at block level and supervise and audit activities at Gram Panchayat level. 16. Send the approved block level plan to the District Program Coordinator. 17.Carry out works for 30% of the block panchayat share. C- District Panchayat 18. Approve District Level Shelf Projects which have been codified by the District Program Coordinator along with the block level shelf projects which have been added in order of priority with the allowable activities up to 20% of the District Panchayat share. 19.Supervise and monitor activities at the district and block level. 20.Carry out activities for 20"% of the District Panclhayat share. As part of the implementation of this Scheme, the following rules can be W.A. No. 396/2022 : 8 : applied to the Grama/Block Panchayats on contract basis. a. Grama Pancinayat - (i)An Agricultural/Assistant Engineer (Civil)- Rs 5000 (Monthly) (Consolidated) An Overseer, in case if a qualified person is not available. - (ii) An Accountant cum Computer Operator- Rs 4000 (Monthly) (Consolidated) ## b. Block Panchayat i) An Assistant Engineer (Civil)- Rs 5000(monthly) (consolidated) ii)An Accountant cum Computer Operator- (to help Block Program Officer) Rs.4000 (Monthly) (Consolidated). As per the Governor's Order ## **S.M Vijayanad Government Principal Secretary”** 10. The details of the posts in Panchayat sought to be filled up on contract basis, including the name of the persons occupying the posts now, as set out in the statement of facts, are as follows: |Sl. No.|Name of Employee|Category|Method of appointment|Details of the Government Orders| |---|---|---|---|---| W.A. No. 396/2022 : 9 : |1|Amala Briji Mathews|Technical Assistant|On the basis of the Contract|1. G.O. No. 1772/2012 dated 27.06.2012 2. G.O. No. 265/2021 dated 01.02.2021| |---|---|---|---|---| |2|Swetha P|Accredited AE|On the basis of contract|G.O. No. 305/2008 dated 18.11.2008| |3|Prabeesh M. D|Overseer NREGS|On the basis of contract|| |4|Susheela N|Overseer NREGS|On the basis of contract|G.O. No. 342/2012 dated 03.02.2012 G.O. No. 439/2013 dt. 18.12.2013| |5|Belint K.P.|Accountant cum IT Assistant NREGS|On the basis of contract|| |6|Rubeena V.K.|Accountant-cum IT Assistant NREGS|On the basis of Contract|-do| |7|Babitha P. Balan|Accountant -cum IT Assistant NREGS|On the basis of contract|| |8|Sujana N|Cashier/Part Time Sweeper|Daily wages|G.O. No.501/2005 Fin dated 25.11.2005 G.O. No. 61/2010 Fin dated 09.02.2010| 11. When a query was raised as to whether new appointments can be made on contract/daily wages through employment exchanges W.A. No. 396/2022 : 10 : after the expiration of the term of the temporary employees, currently working in Grama Panchayats, it is stated that when there was a misconception of the directions issued earlier for the termination of the daily/contract employees, the Panchayat Director, Government of Kerala, has issued Annexure VI clarification as hereunder: “According to the Kerala Public Service Act referred to in Note Two and the Compulsory Notification of Vacancies Act referred to in Note 3, there is a provision for appointment through the Kerala Public Service Commission of Employment Exchange only to the existing posts. According to the Kerala Public Service Act, Ref (2) above and the Compulsory Notification of Vacancies Act, Ref (3) above, there is a provision for appointment only through the Kerala Public Service Commission of Employment Exchange to the existing posts. Therefore, it is clarified that no measures is to be taken to terminate the employees in Grama Panchayats, who have been appointed on contract/daily basis as per Government Order as part of a special project or scheme.” 12. Posed with a question as to whether there exists posts under the scheme or project, learned counsel fairly submitted that the posts exist. From the above, we find that as per the provisions of the W.A. No. 396/2022 : 11 : Kerala Public Service Commission Act, 1968 and the Act, 1959, there is a provision for appointment through the Kerala Public Service Commission or through Employment Exchanges only to the existing posts. Clarification issued is only in respect of the termination of employees in Grama Panchayats appointed on contract/daily wage basis as part of the project or scheme. Even though the learned counsel contended that appointments have been made only on contract basis, no Government order has been placed before this Court that such appointments in the special projects or schemes have to be made only on contract basis and not through Employment Exchanges, against the exiting posts. That apart, no prejudice would be caused, if the Employment Exchanges also sponsor suitable candidates for the posts, though temporary in nature. 13. As the scheme does not prescribe any mode of employment, merely because all the Panchayats in the State of Kerala make appointments through public advertisements calling for suitable candidates to the post, in our view, that will not serve the best interest of the Panchayat, when suitable or skilled candidates are available in the live register of the Employment Exchanges. 14. In our opinion, the Panchayats will get the most suitable W.A. No. 396/2022 : 12 : candidates, if they consider the candidates, sponsored by the Employment Exchanges and on public advertisements also, as there is no mandate either under the Scheme or under any Government Order specifying the mode of appointment. This we say because for another reason that the posts are to be filled up in the Panchayat under the Project or scheme, are mostly technical posts, as stated supra. 15. In as much the appellant has not placed any material before this Court mandating that appointment can be made only on contract basis, we are not inclined to interfere with the impugned judgment. Accordingly, this appeal is dismissed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_ W.A. No. 396/2022 : 13 : ## **APPENDIX OF WA 396/2022** PETITIONER'S ANNEXURES: Annexure I TRUE COPY OF THE G.O(MS) NO. 68/2006/LSGD DATED 28.02.2006. Annexure II TRUE COPY OF THE G.O(MS) NO. 47/16/LSGD DATED 03.03.2016. Annexure III TRUE COPY OF THE G.O(RT) NO. 1149/2021/LSGD DATED 15.06.2021. Annexure IV TRUE COPY OF THE G.O (RT) NO. 1067/2021/LSGD DATED 01.06.2021. Annexure V TRUE COPY OF THE JUDGMENT DATED 30.06.2021 IN WA NO. 807/2021 Annexure VI TRUE COPY OF THE ORDER PAN/14760/2020- E9 (DP) DATED 12.01.2021 ISSUED BY THE DIRECTOR OF PANCHAYATS. Annexure VII TRUE COPY OF THE G.O(MS) NO. 1496/2021/LSGD DATED 9.08.2021. Annexure VIII TRUE COPY OF G.O(MS) NO. 3128/2007/LSGD DATED 17.11.2007. Annexure IX TRUE COPY OF G.O (RT) NO. 950/2013 DATED 08.04.2013. Annexure X TRUE COPY OF G.O(MS) NO. 171/2014/LSGD DATED 8.10.2014. Annexure XI TRUE COPY OF G.O(RT) NO. 1108/2016/LSGD DATED 3.03.2016. Annexure XII TRUE COPY OF G.O(RT) NO. 756/2017/LSGD DATED 18.03.2017. Annexure XIII TRUE COPY OF G.O(RT) NO. 571/2018/LSGD DATED 27.02.2018. Annexure XIV TRUE COPY OF G.O NO. 445/2019/LSGD DATED 27.02.2019. Annexure XV TRUE COPY OF G.O(RT) NO. 722/2020/LSGD DATED 31.03.2020. Annexure XVI TRUE COPY OF G.O(RT) NO. 265/2021/LSGD DATED 01.02.2021. Annexure XVII TRUE COPY OF CIRCULAR NO. 74207/IB/2013/LSGD DATED 11.11.2014 DETAILING THE DUTIES TO BE PERFORMED BY THE TECHNICAL ASSISTANT. RESPONDENTS' EXHIBITS: NIL /True Copy/