Civic Responsibilities and Empowerment Association (CREA) v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** ## **WP(CRL.) NO. 684 OF 2022** ## **PETITIONER:** CIVIC RESPONSIBILITIES AND EMPOWERMENT ASSOCIATION(CREA) HAVING REGISTERED OFFICE PRESENTLY AT VAZHOOR, KOTTAYAM DISTRICT,PIN-686504, REPRESENTED BY ITS SECRETARY MR.SHIBU JACOB, AGED 49 YEARS, S/O.JACOB, THAKADIYEL, VAZHOOR.P.O, KOTTAYAM DISTRICT. BY ADVS. P.M.JOSHI SIJI K.PAUL ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR URBAN ADMINISTRATION AND AFFAIRS, THIRUVANANTHAPURAM- 695 001 3 DIRECTOR VIGILANCE & ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM- 695 001. 4 THE CHAIRMAN, PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 695 004. 5 THE KAYAMKULAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL BUILDING, KAYAMKULAM, PIN-690 502. 6 MR.SATHEESAN, AGED ABOUT 45 YEARS, S/O NOT KNOWN TO THE THOTTUPURATHU HOUSE, WARD NO.XII, KAYAMKULAM MUNICIPALITY, ERUVA EAST P.O, KAYAMKULAM. 2 W.P(Crl) No.684 of 2022 BY ADVS. R.RAJASEKHARAN PILLAI SRI. RAJESH.A SPL.G.P. (VIGILANCE) SMT. REKHA.S. SR.P.P SRI. T.R. RAJAN. SC THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(Crl) No.684 of 2022 3 ## K.BABU, J. -------------------------------------- W.P(Crl) No.684 of 2022 --------------------------------------Dated this the 20[th] day of October, 2022 ## JUDGMENT The petitioner is an Association registered under the Travancore Cochin Literary, Scientific, Charitable Societies Act, 1955 by name 'Civic Responsibilities and Empowerment Association' (CREA) having its registered office at Vazhoor, Kottayam district, represented by its Secretary. 2. The official respondents 1 to 5 are respectively the State of Kerala represented by the Secretary (Local Self Government), the Director, Urban Administration and Affairs, Director Vigilance, The Chairman of the Public Service Commission and the Kayamkulam Municipality represented by its Secretary. Party respondent No.6 is a contingent worker employed in 5[th] respondent-Municipality. 3. The crux of the allegations in the Writ Petition is that party respondent No.6 is deployed as a driver in the official vehicle of the 5[th] respondent-Municipality, though he is absorbed in the W.P(Crl) No.684 of 2022 4 Municipality as a contingent worker. The writ petitioner essentially seeks a writ in the nature of Mandamus or any other appropriate writ, order or direction, commanding respondent No.3 to investigate and take action on Ext.P10 complaint. In Ext.P10 complaint, it is essentially alleged that there is an element of corruption and favouritism in the matter of deployment of respondent No.6 as driver in the official vehicle of the 5[th] respondent-Municipality. 4. Heard Sri. P.M.Joshi, the learned counsel appearing for the petitioner, Smt. Rekha.S, the learned Senior Public Prosecutor appearing for respondent Nos.1 to 4, Sri. T.R.Rajan, the learned Standing Counsel appearing for respondent No.5-Municipality and Sri. R.Rajasekharan Pillai, the learned counsel appearing for respondent No.6. 5. The learned Standing Counsel for respondent No.5 Sri.T.R.Rajan, on instructions, submitted that respondent No.6, who is a contingent worker, is deployed as driver of the vehicle being used for cleaning, sanitation and other conservancy activities of the Municipality. It is further submitted by the learned Standing Counsel, on instructions, that as only one post of the driver has W.P(Crl) No.684 of 2022 5 been sanctioned, the appointment of drivers on provisional/temporary basis of the Employment Exchange could not be done. The Municipality used to deploy those contingent workers who have valid driving licence and experience to drive heavy vehicles for handling the vehicles used in connection with the sanitation activities. It is further submitted that deployment of those contingent workers is only a temporary arrangement and it is the discretion of the Secretary of the Municipality. 6. The learned Special Government Pleader submitted that a report has been prepared by the DYSP, VACB, Alappuzha after conducting a surprise check in relation to Ext.P10 complaint. The relevant portion of the report reads thus: “4. The surprise check revealed that during the year 2003, the 6[th] respondent while working as a taxi driver, appointed as a temporary contingent worker on daily wages at health department of Kayamkulam Municipality. His duty was to drive the vehicle for cleaning purposes. During the year 2013, the 6[th] respondent approached the authorities of Kayamkulam Municipality for regularising him as a contingent worker. As the application was rejected by the authorities of Kayamkulam Municipality, the 6[th] respondent filed W.P(C) No.19820/2012 before the Hon'ble High Court, Kerala. The Hon'ble Court directed the Secretary, Local Self Government Department, Govt. of Kerala to consider the application and regularise the service but the application rejected by the Government stating that the post of driver is to be filled from the W.P(Crl) No.684 of 2022 6 candidates advised by the public service commission. 5. Aggrieved by the above order, the 6[th] respondent again approached this Hon'ble Court. This Hon'ble Court issued an order W.P(C) No.12797/13 dated 05.06.2013 stating that if the Municipality is satisfied, then it will be free to proceed further with its resolution to regularise him as contingent worker. Accordingly, the 6[th] respondent was regularised with effect from 25.07.2012 with retrospective effect under Section 224(1) of the Kerala Municipality act. 6. It is also submitted that there is only one permanent post of driver in Kayamkulam Municipality. At present Sri.Manoj Kumar, K.B is working as driver. The 6[th] respondent is also being deployed by the authorities at the Kayamkulam Municipality as driver. 7. It is submitted that no monetary benefits are given to the 6[th] respondent for doing the above work nor any sanctioned post was filled to prevent an eligible candidate from claiming his due share. 8. It is most respectfully submitted that Vigilance & Anti Corruption Bureau, initiated action by conducting a Surprise Check. But no offence under the Prevention of Corruption Act was detected for the suomoto registration of the case. Even according to the writ petitioner, the subject matter is mere violation of Circulars and Government Orders in engaging contingent workers in the duty of driver which apparently does not constitute an offence under the Prevention of Corruption Act. Hence the averments raised by the petitioner against the 3[rd] respondent are not sustainable.” ## 7. Respondent No.6 filed a counter affidavit denying the allegations levelled against him. The relevant portion of the counter reads thus: “2. This respondent has been working as contingent cleaning employee under the respondents for the last several years based on the resolution No.15 dated 07.10.2002 of Kayamkulam Municipality. Ever since this respondent has been working as a cleaning worker on daily wages under the W.P(Crl) No.684 of 2022 7 Health Department of the Kayamkulam Municipality on daily. He continued to work on the daily wages for about nine years and more and thereafter he requested the Municipal Council to incorporate his name in the list of contingent employees as per his request dated 22.02.2012. Considering the genuine nature of the request of the petitioner, the council of the Municipality as per resolution No.2 dated 25.07.2012 accepted the request of the respondent and decided to include his name in the list of contingent employees and the regularize his service for which Municipality had addressed the Secretary to the Local Self Govt. and also the Director Urban Administration Affairs, Thiruvananthapuram. It is submitted that the petitioner has been continuing as contingent daily rated cleaning worker and for more than ten years and as such applying the dictum laid down in AIR 2006 SC 1806 State of Karnataka v. Uma Devi this respondent's service ought to have been regularized. 3. As a matter of fact being a contingent worker he should have been regularized on completion of 245 days of continuous work. However, since no action has been taken this respondent approached this Hon'ble Court in W.P(C)No.12797/2013 inter alia seeking for a direction to direct the respondents to regularize his service retrospectively. This Hon'ble Court unambiguously held that “Thus it is obvious that the grievance of the petitioner now stands redressed by the steps taken by the 3[rd] respondent exercising the powers vested in it. In the said circumstances by recording the facts the request of the petitioner for regularization in service as contingent worker under the 3[rd] respondent was granted by the 3[rd] respondent and his name has been included in the list of Contingent Substitute Workers, this petitioner is closed. Needless to say that the benefits if any arising out of such regularization shall be worked out and disbursed to the petitioner expeditiously.” A true copy of the judgment is produced herewith and marked as Exhibit R6. Against this judgment the State has filed and Appeal W.A No.1953/2013 alleging that only the Govt and the PSC has the power to appoint drivers. But the Municipality took the contention that under Section 224(1) of the Municipalities Act it was entirely within the realm and W.P(Crl) No.684 of 2022 8 jurisdiction of the Municipality to deal with its contingent cleaning workers and finally this Hon'ble Court disposed of the Writ Appeal in the following terms “Therefore if as claimed by the Municipality the post against which the 1[st] respondent claimed regularization is covered by the contingent establishment, the Municipality is well within its right to regularize the 1[st] respondent” And finally came to the conclusion in the following terms. “In the aforesaid circumstances we dispose of this appeal directing that if, on examination, the Municipality is satisfied that the post against which the first respondent claimed regularization is one borne in the contingent establishment it will be free to proceed further with its resolution dated 25.07.2012.” A true copy of the judgment is produced and marked as Exhibit-R6A. It is in this circumstances that this respondent has been regularized as a contingent driver.” 8. The learned counsel for the petitioner relied on Ext.P8, an information supplied by the Public Information Officer, Kayamkulam Municipality, stating the details of the persons deployed for driving various vehicles. Exhibit P8 would show that respondent No.6 had been deployed as driver of lorry bearing No.KL-29-L-2881 during the period 2014-2016 and vehicle No KL-29-L-1189 [Secretary's vehicle (Bolero)] during the period 2018-2020 and 2019-2020. 9. In response to this, the submission of the learned Standing Counsel is that the deployment of respondent No.6 was only a part of the working arrangement and that too, when there was a W.P(Crl) No.684 of 2022 9 shortage in the availability of drivers in driving the vehicles. 10. The result of the above discussion is that the petitioner could not establish any element of corruption or favouritism as alleged in this Writ Petition. The Writ Petition (Criminal) lacks merits and it stands dismissed. Sd/K.BABU, JUDGE KAS W.P(Crl) No.684 of 2022 10 ## **APPENDIX OF WP(CRL.) 684/2022** PETITIONER EXHIBITS |Exhibit P1|THE TRUE COPY OF THE REGISTRATION| |---|---| ||CERTIFICATE DATED 16-3-2016 ISSUED TO| ||THE PETITIONER FROM THE REGISTRAR OF| ||SOCIETIES; ERNAKULAM| |Exhibit P2|THE TRUE COPY OF THE GO LMS 14/82/LBR| ||THIRUVANANTHAPURAM DATED 22-04-1982| |Exhibit P3|THE TRUE COPY OF THE CIRCULAR| ||NO.2591/MI.A4/82/ LA & SWD DATED 27-1-| ||1982| |Exhibit P4|THE TRUE COPY OF THE CIRCULAR CIRCULAR| ||NO.70972/AU/ 33/ LA & SWD DATED 20-12-| ||1983| |Exhibit P5|THE TRUE COPY OF THE LETTER DATED 22-| ||12-2014 ISSUED BY 5TH RESPONDENT TO THE| ||LOCAL FUND DEPUTY DIRECTOR, ALAPPUZHA| |Exhibit P6|THE TRUE COPY OF THE CIRCULAR NO.| ||03/2019/FIN. DATED, THIRUVANATHAPURAM| ||11-1-2019| |Exhibit P7|THE TRUE COPY OF THE APPLICATION DATED| ||5-9-2020 TO THE PUBLIC INFORMATION| ||OFFICER UNDER RIGHT TO INFORMATION ACT,| ||2005| |Exhibit P8|THE TRUE COPY OF REPLY DATED 13-10-2020| ||RECEIVED UNDER THE RIGHT TO INFORMATION| ||ACT| |Exhibit P9|THE TRUE COPY OF THE G.O NO. 65/92/| ||VIG. DATED 12TH MAY 1992| |Exhibit P10|THE TRUE COPY OF THE COMPLAINT DATED| ||21-2-2022 SUBMITTED BY THE PETITIONER| ||TO THE 3RD RESPONDENT| |RESPONDENT EXHIBITS|| |Exhibit R6|TRUE COPY OF THE JUDGMENT DATED| ||5.6.2013 IN W.P.(C) NO. 12797/2013 OF| ||THIS HON'BLE COURT.| |Exhibit R6(A)|TRUE COPY OF THE JUDGMENT DATED| ||5.6.2014 IN WA NO. 1953/2013 OF THIS| ||HON'BLE COURT.|