Cleetus K. S. v. State of Kerala and Others

W.P.(C).No.17819 of 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944** ## **WP(C) NO. 17819 OF 2022** ## **PETITIONER:** CLEETUS K. S. AGED 26 YEARS S/O. SEBASTIAN K.V., DIALYSIS UNIT CLEANING STAFF, GOVERNMENT TRIBAL HOSPITAL, NALLOORNADU, WAYANAD670645 RESIDING AT KOCHUKUDIYIL HOUSE, KUNNAMANGALAM, MANANTHAVADY, WAYANAD -670675. BY ADVS. KALEESWARAM RAJ THULASI K. RAJ SHILPA SOMAN ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF HEALTH & FAMILY WELFARE SECRETARIAT, THIRUVANANTHAPURAM695001 2 SECRETARY TO GOVERNMENT DEPARTMENT OF SOCIAL WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-695001. 3 SECRETARY TO GOVERNMENT DEPARTMENT OF SC DEVELOPMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 4 CHIEF SECRETARY GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001. W.P.(C).No.17819 of 2022 2 - 5 DIRECTOR OF PANCHAYATH DIRECTORATE OF PANCHAYATHS, PATTOM, THIRUVANANTHAPURAM-695001. - 6 MANANTHAVADY BLOCK PANCHAYAT REPRESENTED BY ITS SECRETARY, P. O. WAYANAD670645. - 7 SECRETARY MANANTHAVADY BLOCK PANCHAYAT, P. O. WAYANAD670645 - 8 THE PANCHAYAT COMMITTEE REPRESENTED BY ITS PRESIDENT, MANANTHAVADY BLOCK PANCHAYAT, WAYANAD- 670645. - 9 MEDICAL OFFICER GOVT. TRIBAL HOSPITAL NALLOORNAD, MANANTHAVADY, WAYANAD - 670645. - 10 ADDL.R10.JISHITH.K RESIDING AT ATHICHEL HOUSE, THARUANA P.O, PICHANKODU WYANAD 670645.(IMPLEADED AS PER ORDER DTD 21.6.22 IN IA 3/22) BY ADVS. K.S.ARUN KUMAR RAJEE P MATHEWS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.01.2023, THE COURT ON 14.02.2023 DELIVERED THE FOLLOWING: W.P.(C).No.17819 of 2022 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.17819 of 2022** **= = = = = = = = = = = = = = = = Dated this the 14[th] day of February, 2023** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following reliefs:- “i. To issue a writ of certiorari quashing Ext.P2 to the extent to which it calls for fresh applications to the post of Cleaning Staff; ii. To issue a writ of certiorari quashing Ext.P10 as unjust, arbitrary and illegal; iii. To declare that the petitioner is not liable to be terminated from service and that he is entitled to continue as a Dialysis Unit Cleaning Staff/Part Time Sweeper at Govt. Tribal Hospital, Nalloornadu; iv. To issue a writ of mandamus directing respondent Nos.6 to 9 to retain the petitioner in service as Dialysis Unit Cleaning Staff/Part Time Sweeper at Govt. Tribal Hospital, Nalloornadu; v. To issue a writ of mandamus directing the respondents to refrain from inducting fresh hands in the post of Dialysis Unit Cleaning Staff/Part Time Sweeper at Govt. Tribal Hospital, Nalloornadu.” W.P.(C).No.17819 of 2022 4 2. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 5 and 9 and the learned counsel for the respondents 6 to 8 as well as the learned counsel appearing for the additionally impleaded 10[th] respondent. 3. It is submitted that the petitioner was appointed as a Part Time Sweeper in the Government Tribal Hospital, Nalloornadu, Wayanad by the 9[th] respondent on 15.06.2020 initially for a period of 15 days by Ext.P1. The appointment was after conduct of the selection process. Thereafter, the petitioner continued on a temporary basis. He was relieved on 30.06.2020 and reappointed and continued in service. It is contended in the writ petition that a decision was taken by the Block Panchayat to terminate the services of the petitioner and a walk-in-interview for the post of cleaning staff was notified by Ext.P2 dated 28.04.2022. Relying on Ext.P3 certificate issued by the 9[th] respondent, Ext.P4 circular dated 12.01.2021 and Exts.P5 to P7 Government Orders, the petitioner contends that his services were not liable to be terminated to accommodate another ad hoc employee. W.P.(C).No.17819 of 2022 5 4. Reliance is placed on various decisions of the Apex Court including **State of Haryana V . Piara Singh [1992 (4) SCC 118], Manish Gupta & Another V. President, Jan Bhagidari Samiti & Ors.** [Civil Appeal Nos.3084-3088 of 2022 arising out of Special Leave Petition (Civil) No.1294612950 of 2017], **Dr.Barinder Kaur v. Guru Nanak Dev University, Amritsar and Others** [2015 SCC Online P&H 12156] **, Mohd. Abdul Kadir and Another v. Director General of Police, Assam and Others** [2009 (6) SCC 611], **Gohil Rajesh Mansukhbhai & Others v. State of Gujarat & Others** [2014 SCC Online Guj 470] **, Hargurpratap Singh v. State of Punjab and Ors.** [MANU/SCOR/00045/2003] **and Union of India and Another v. International Trading Co. and Another** [2003 (5) SCC 437] **.** - 5.It is contended that after filing of the writ petition, Ext.P10 order was issued by the 9[th] respondent relieving the petitioner from service on 31.05.2022. It is stated that an interim order was passed by this Court on 01.06.2022 directing maintenance of status quo with regard to the petitioner’s employment. Thereafter, though the petitioner actually worked on the 1[st] to W.P.(C).No.17819 of 2022 6 - 3[rd] of June, 2022, the 10[th] respondent was required to assume charge and the petitioner was not permitted to work thereafter. - 6.The learned counsel for the petitioner contends that the petitioner was appointed after a due selection process and is entitled to continue until regular hands joined duty. It is submitted that the entire procedure, including the notification of the post held by the petitioner as well as the denial of permission to the petitioner to work in spite of the interim orders granted by this Court are illegal and liable to be set right in these proceedings. 7. Detailed counter affidavits have been placed on record. The 9[th] respondent has filed a counter affidavit stating that the petitioner was initially appointed as part time sweeper in the Nalloornadu Government Tribal Hospital for fifteen days from 15.06.2020 to 30.06.2020. The said appointment was made by the National Health Mission. Thereafter the petitioner was appointed as cleaning staff in the Dialysis Unit run from the plan fund of the Block Panchayat for a period of 179 days and that the period of employment was completed on 31.03.2022. W.P.(C).No.17819 of 2022 7 Thereafter, the petitioner’s services were terminated on 31.05.2022 afternoon as per the decision of the Panchayat Committee. Ext.R9(b) relieving order is also produced. Ext.R9(c) decision of the Panchayat Committee dated 12.05.2022 directing the appointment of the 10[th] respondent as cleaning staff is also produced. It is submitted that pursuant to the decision of the Managing Committee, a notice was published inviting applications for all posts in the Dialysis Unit in the Government Tribal Hospital. It is submitted that an interview was conducted on 06.05.2022 in which the petitioner participated. It is submitted that in the ranked list published the petitioner was included as rank No.6 and the 10[th] respondent, who got the highest marks, was included as rank No.1. It is stated that the 10[th] respondent was appointed by the 6[th] respondent on 01.06.2022 and the said decision was implemented by the 9[th] respondent. It is stated that the 10[th] respondent belongs to the Scheduled Tribe Community and that he had joined duty on 01.06.2022. It is submitted that the petitioner had trespassed into the 9[th] respondent’s chamber and affixed his signature in the attendance register on 01.06.2022 and a police complaint in this regard had been filed. W.P.(C).No.17819 of 2022 8 - 8.A reply affidavit is also on record. It is stated that the petitioner was informed that he will be allowed to continue in service till the month of September and that even in Ext.R9(c), specific date for termination of petitioner is not mentioned. It is further contended that petitioner did not get physically relieved and continued to attend the office till 03.06.2022, based on the status quo order passed by this Court. From 04.06.2022, the 9[th] respondent prevented the petitioner fromsigning the attendance register in violation of the interim orders passed by this Court and that Mr. Jishith cannot get any superior claim over the petitioner to replace the petitioner. It is also contended that the Police complaint lodged by the respondents was to create a false defence. - 9.The additional 10[th] respondent has also filed a counter affidavit specifically stating that the 10[th] respondent was appointed in a project under the 6[th] respondent as cleaning staff of the Dialysis Unit after facing a due selection process. It is submitted that he had joined duty on 01.06.2022 and that he is entitled to continue in service. W.P.(C).No.17819 of 2022 9 10.The 7[th] respondent has also placed a detailed counter affidavit placed on record, producing the Block Panchayat Resolution dated 12.05.2022. 11.I have considered the contentions advanced. The decisions relied on by the learned counsel for the petitioner relate to ad hoc appointments in regular posts under the Government or Governmental authorities. It is the specific case of the respondents that the appointment in question in this writ petition is as a cleaning staff in the Dialysis Unit of the Government Tribal Specialty Hospital, which is part of a scheme financed by the Block Panchayat. The petitioner was initially appointed for 15 days through the NHM. Thereafter, it appears that he has been engaged for 179 days by Ext.R9(a) order by the Block Panchayat. The petitioner’s engagement was not to any regular post or vacancy and was as a temporary cleaning staff in the Dialysis Unit. The petitioner,in the writ petition, had stated that a notification had been issued by the Block Panchayat inviting applications for the post in the Dialysis Unit and had produced the notification. However, the fact that the petitioner had participated in the selection process subsequent to the W.P.(C).No.17819 of 2022 10 notification was conspicuously absent in the pleadings placed on record by the petitioner. 12.The respondents specifically contended that the petitioner had also participated in the selection procedure and had been included as Rank No.6 in the ranked list prepared. Ext.R7 (a) produced by the 7[th] respondent would show that the petitioner had also been included in the ranked list. It was the person included as Sl.No.1 in the ranked list, who was appointed to replace the petitioner. 13.Having considered the contentions advanced on either side, I am of the opinion that the petitioner, who had participated in the selection process pursuant to the notification issued could not have challenged the selection, after having been unsuccessful in the said selection. I notice that the writ petition was filed only on 01.06.2022. Respondents 7 to 9 had specifically contended that the petitioner had participated in the interview held on 06.05.2022, which is now not denied by the petitioner also. Having participated in the selection conducted pursuant to Ext.P2 public notice, the petitioner could not have challenged the appointment of the 10[th] respondent pursuant to the said W.P.(C).No.17819 of 2022 11 selection. For that simple reason, the petitioner is not entitled to the discretionary reliefs as sought for in the writ petition. The further contentions raised by the petitioner and the decisions relied upon also do not apply in the facts and circumstances of the instant case, since the appointment was only on a temporary basis in a scheme financed by the Block Panchayat. I find no sustainable grounds raised or facts pleaded to justify the reliefs sought for. The writ petition fails and the same is accordingly dismissed. **==> picture [24 x 11] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.17819 of 2022 12 ## **APPENDIX OF WP(C) 17819/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE APPOINTMENT LETTER OF THE PETITIONER DATED NIL. Exhibit P2 TRUE COPY OF THE ONLINE ARTICLE PUBLISHED ON 28.04.2022 IN 'OPEN NEWSER' Exhibit P3 TRUE COPY OF THE CONDUCT CERTIFICATE ISSUED BY THE 9TH RESPONDENT DATED 0505-22. Exhibit P4 TRUE COPY OF THE ORDER PAN/14760/2020-E9 (DP) DATED 12.01.2021, ISSUED BY THE DIRECTOR OF PANCHAYATS. Exhibit P5 TRUE COPY OF THE G.O. (RT.) NO.1067/2021/LSGD DATED 01.06.2021, ISSUED BY THE 1ST RESPONDENT. Exhibit P6 TRUE COPY OF THE G.O (RT) NO. 1149/2021/LSDG DATED 15.06.2021 ISSUED BY THE DEPARTMENT OF LOCAL SELF GOVERNMENT. Exhibit P7 TRUE COPY OF G.O (MS) 1496/2021/LSGD DATED 09.08.2021. Exhibit P8 TRUE COPY OF JUDGMENT IN WRIT APPEAL NO.925/2021 AND CONNECTED CASE DATED 27.09.2021. Exhibit P9 TRUE COPY OF THE INTERIM ORDER IN WP(C) NO. 9231/2022 DATED 18.03.2022. Exhibit P10 TRUE COPY OF THE ORDER BEARING NO.146/2022/GTH DATED 31.05.2022 ISSUED BY THE 9TH RESPONDENT. W.P.(C).No.17819 of 2022 13 Exhibit P11 TRUE COPY OF INTERIM ORDER DATED 19.09.2021 IN W.P(C)NO.19248/2021. Exhibit P12 TRUE COPY OF THE EXTRACT OF THE ATTENDANCE REGISTER DATED IN THE MONTH OF JUNE 2022. RESPONDENT EXHIBITS EXHIBIT R9(a) TRUE COPY OF THE APPOINTMENT ORDER DATED 04.10.2021 OF THE PETITIONER. EXHIBIT R9(b) TRUE COPY OF THE RELIEVING ORDER DATED 31.05.2022 OF THE PETITIONER. EXHIBIT R9(C) TRUE COPY OF THE DECISION OF MANANTHAVADY PANCHAYATH COMMITTEE DATED 12.05.2022 EXHIBIT R9(d) TRUE COPY OF THE APPOINTMENT ORDER OF JISHITH K EXHIBIT R9(e) TRUE COPY OF THE COMPLAINT OF 9th RESPONDENT BEFORE STATION HOUSE OFFICER, MANANTHAVADY ON 04.06.2022 Exhibit R7(A) A TRUE COPY OF PANCHAYAT COMMITTEE DECISION DATED 12/5/2022 True copy PS to Judge