Dr. Vijayamma J. v. Kerala State Literacy Mission Authority & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **WEDNESDAY, THE 21ST DAY OF MARCH 2012/1ST CHAITHRA 1934** ## **WP(C).No. 34232 of 2011 (D)** ## **---------------------------** ## **PETITIONER(S): -------------** **DR.VIJAYAMMA J., ASSISTANT EDITOR,AKSHARA KAIRALI, KERALA STATE LITERACY MISSION AUTHORITY, VRINDAVAN, GANDHARI AMMANKOVIL STREET, PUTHENCHANTHA, THAMPANNUR, THIRUVANANTHAPURAM-695 001. AND RESIDENT OF SREE RANGAM, MYLOM P.O., KOTTARAKKARA,KOLLAM.** **BY ADVS.SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN** **RESPONDENT(S):** - **--------------** **1. THE KERALA STATE LITERACY MISSION AUTHORITY,** - **REPRESENTED BY ITS SECRETARY AND DIRECTOR,** **VRINDAVAN, GANDHARI AMMANKOVIL STREET, PUTHENCHANTHA, THAMPANNUR, THIRUVANANTHAPURAM-695 001.** **2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETRIAT, THIRUVANANTHAPURAM-695 001.** **3. SHERLY MATHEW, B-14 POLICE QUARTERS,** - **VIKAS BHAVAN P.O., THIRUVANANTHAPURAM- 685 001.** **BY ADVS. SRI.V.A.MOHAMMED, S.C., (KERALA STATE LITERACY MISSION AUTHORITY)** **SRI.M.K.CHANDRA MOHANDAS** **SRI.SOORAJ T.ELENJICKAL** **SRI.K.NIRMALAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **WP(C).No. 34232 of 2011** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **EXHIBIT P1 : COPY OF THE OFFICE ORDER REF.NO.KSLMA.ADMN/15/99 DATED 27/4/2007 OF THE 1ST RESPONDENT.** - **EXHIBIT P2 : COPY OF THE ORDER NO.A3-1559/10/KSLMA DATED 29/3/2010 OF THE 1ST RESPONDENT.** - **EXHIBIT P3 : COPY OF THE ORDER G.O.(Rt) NO.5622/2011/GEDN. DATED 16/12/2011.** - **EXHIBIT P4 : COPY OF THE DECISION OF THE EXECUTIVE COMMITTEE MEETING HELD ON 14.08.2009.** **EXHIBIT P5 : COPY OF THE NOTE SENT BY THE HONOURABLE MINISTER FOR EDUCATION.** ## **RESPONDENT(S) EXHIBITS :** - **EXHIBIT R1(A) : COPY OF THE NOTE SUBMITTED BY THE DIRECTOR DATED 25.04.2007.** - **EXHIBIT R1(B) : COPY OF THE APPLICATION FILED BY SMT. SHERLY MATHEW DATED 9.12.2011.** - **EXHIBIT R1(C) : COPY OF THE RELEVANT PAGE OF THE ATTENDANCE REGISTER.** - **EXHIBIT R3(A) : COPY OF THE COMMUNICATION DATED 25.04.2007 BETWEEN THE THEN DIRECTOR OF THE 1ST RESPONDENT AND THE THEN MINISTER OF THE STATE GOVERNMENT.** - **EXHIBIT R3(B)(1) : COPY OF THE B.SC DEGREE CERTIFICATE IN MATHEMATIVS ISSUED TO THE 3RD RESPONDENT FROM THE GANDHIJI UNIVERSITY, KOTTYAM.** **EXHIBIT R3(B)(2) : COPY OF THE M.A. DEGREE CERTIFICATE IN ECONOMICS ISSUED TO THE 3RD RESPONDENT FROM MAHATMA GANDHI UNIVERSITY.** - **EXHIBIT R3(B)(3) : COPY OF THE B.ED DEGREE CERTIFICATE ISSUED TO THIS RESPONDENT FROM BANGALORE UNIVERSITY.** **EXHIBIT R3(B)(4) : COPY OF THE POST GRADUATE DIPLOMA CERTIFICATE IN COMPUTER APPLICATIONS ISSUED TO THE 3RD RESPONDENT FROM THE INSTITUTE OF HUMAN RESOURCES DEVELOPMENT FOR ELECTRONICS.** **2/-** **-2-** **WP(C).No. 34232 of 2011** **EXHIBIT R3(C) : COPY OF THE CERTIFICATE DATED 2.05.08 ISSUED FROM THE OFFICE OF THE ST RESPONDENT. EXHIBIT R3(D) : COPY OF S.O.NO.96/2010/APB DATED 8.7.2010 ISSUED FROM THE AP BATTALION HEAD QUARTERS, THIRUVANANTHAPURAM.** **EXHIBIT R3(E) : COPY OF THE RELEVANT PAGES OF THE ATTENDANCE REGISTER FOR THE MONTH OF DECEMBER, 2011. EXHIBIT R3(F) : COPY OF THE OFFICE ORDER NO.A3/5825/2011/KSLMA DATED 20.12.2011 ISSUED BY THE 1ST RESPONDENT THROUGH ITS DIRECTOR.** **/ TRUE COPY /** **NS** **P.A. TO JUDGE** **K. SURENDRA MOHAN, J. -----------------------------------------------------------W.P(C) NO: 34232 OF 2011 ----------------------------------------------------------Dated this the 21[st] March, 2012.** ## **JUDGMENT** The petitioner is working as the Assistant Editor of a monthly by name 'Akshara Kairali', intended to impart instruction in Malayalam language to persons who have not had any formal education. She is working under the first respondent, the Kerala State Literacy Mission Authority, an educational autonomous body under the control of the General Education Department. 2. The petitioner was appointed for a period of one year on contract basis as per Ext.P1 order dated 27-4-2007. It has been stated in Ext.P1 that the employment would be temporary, on contract basis and would be cancelled automatically on completion of the one year period. It has been further made clear in Ext.P1 that the employment would not confer any right on her to claim regular appointment. Even before the expiry of the period of engagement, her employment is liable to be terminated, according to Ext.P1. Subject to the stipulations contained in Ext.P1, the petitioner joined service and as per Ext.P2 she was put in full charge as the Assistant Editor of Akshara Kairali. The petitioner is WPC 34232/2011 2 aggrieved by Ext.P3 order dated 16-12-2011 by which, sanction has been accorded by the second respondent for the appointment of certain other persons on contract basis for a period of one year, with immediate effect. The third respondent has also been appointed as per Ext.P3. Her name appears as serial No:4 in the said order. It is specified that the third respondent has been appointed to the post of Assistant Editor on contract basis, terminating the contract appointment of the petitioner. Ext.P3 is dated 16-12-2011. 3. Since Ext.P3 has sought to terminate the petitioner, she challenged Ext.P3 by filing this writ petition on 20-12-2011. This writ petition came up for admission on 21-12-2011. On the said date, this Court passed the following order:- “Adv. M.K.Chandra Mohandas who appears for the first respondent on instructions submits that though the petitioner's term of contract had expired in 2008, she has been continuing to work without break till today, and that the incumbent as per Ext.P3 has not joined duty. The petitioner is far more qualified than the person who has been appointed as per Ext.P3, it is submitted. Therefore there shall be an interim stay of termination of the petitioner pursuant to Ext.P3.” 4. The petitioner has been continuing in service on the basis WPC 34232/2011 3 of the above interim order. However, she complains that she is not being paid her salary. According to the petitioner, Ext.P3 has been issued on extraneous considerations, without conducting any proper selection, at the instance of the third respondent's husband who is alleged to be the gun man of one of the Ministers. Therefore, the petitioner has sought for the issue of appropriate orders setting aside Ext.P3. 5. The third respondent entered appearance and filed I.A.2715/2012 on 17-2-2012 for vacating the interim order passed as stated above. In view of the above, the matter was heard. Since counter affidavits and reply affidavits have already been filed, by agreement of parties the writ petition itself has been heard. 6. The contentions of the petitioner are disputed by the counsel for the first respondent. A statement as well as a counter affidavit have been filed on behalf of the first respondent. According to the counter affidavit, the Kerala State Literacy Mission Authority is an educational autonomous body under the overall control of the Government. It comes under the General Education department. As per the counter affidavit, the petitioner was appointed as the Assistant Editor by the then Chairman of the Executive Committee, the Minister for Education, purely on the WPC 34232/2011 4 recommendations made by the then Director of the first respondent. Ext.R1(a) is the said order. Accordingly the petitioner joined duty on contract basis and continued in service. The term of appointment of the petitioner has already expired. However, she has been continuing to work thereafter though no fresh contract has been executed by her. It was in the above circumstances that the third respondent and others were appointed on contract basis as per Ext.P3 G.O. 7. According to the first respondent, the third respondent joined duty on 19-12-2011. The other incumbents appointed as per Ext.P3 G.O had joined duty on 17-12-2011 itself. However, the fact that the third respondent had joined duty on 19-12-2011 had not been brought to the notice of this Court while issuing the interim order in this case. It is pointed out that the then Standing Counsel had not been instructed to make the submissions that he had actually made in Court, since his term was over on 16-12-2011 itself. Therefore, it is contended that the interim order had been passed by this Court under a misconception created by the wrong submission of the then Standing Counsel. My attention is also drawn to Ext.R1(b) request submitted by the third respondent for joining duty and Ext.R1(c) photocopy of the relevant pages of the WPC 34232/2011 5 attendance register to submit that the third respondent had joined duty on 19-12-2011 and had been continuously attending to her duties as evident from the attendance marked by her continuously for the said date. On the contrary, the petitioner whose name appears at serial No:9 is seen to have been absent on 19[th] , 20[th] and 21[st] of December and is seen to have started marking attendance register only thereafter. The endorsements on the right side margin of Ext.R1(c) to the effect that the petitioner has been terminated as well as to the endorsement on the next page to the effect that the third respondent has joined duty are also referred to. 8. It is contended by the counsel for the first respondent that the petitioner being a contractual employee has no right to continue in service beyond the expiry of her period of contract. Therefore, her termination cannot be described as illegal. The third respondent being a person who has been appointed on contract basis, the said order of appointment cannot be challenged at the instance of the petitioner who has no right to continue in office. Since the respondents have the right to make such contract appointments, it is contended that the appointment of the third respondent is in order. WPC 34232/2011 6 9. A separate counter affidavit has been filed by the third respondent contending that she is educationally well qualified and eminently suited for appointment to the post. She has a certificate to show that she is a Post graduate, holder of a B.Ed degree and a post graduate diploma holder in computer applications. The third respondent also contends that this Court was actually misled into passing the interim order and that, at that time the fact that the petitioner had joined duty was wilfully suppressed. 10. The petitioner has filed a reply affidavit refuting the contentions of respondents 1 and 3. The petitioner has also produced Ext.P5 a note issued by the Minister for Education directing the issue of Ext.P3 order by which the third respondent and others were appointed. In answer to Ext.P5, the counsel for the first respondent draws my attention to Ext.R1(a) which shows that the petitioner's appointment was also made by the then Minister of Education. The third respondent has a further case that the petitioner had been continuing in office illegally since the term of her contract was already over. Therefore, it is contended by respondents 1 and 3 that the writ petition is liable to be dismissed. 11. I have heard the counsel for the petitioner as well as the counsel for respondents 1 and 3 at length. I have also considered WPC 34232/2011 7 the rival contentions anxiously. 12. It is no doubt true that the petitioner is a contract appointee. She has been appointed as per Ext.P1 dated 27-4-2007 for a period of one year, on a monthly honorarium. Pursuant to Ext.P1, it is not in dispute that she had executed a regular contract with the first respondent on the basis of which she continued. Though it is not in dispute that the petitioner's term had expired in the year 2008, she continued to work uninterruptedly. It is not clear under what circumstances she was permitted to continue. Though the counsel for the petitioner contends that she had continued on the strength of Ext.P2, Ext.P2 is only a posting order and is not an order permitting continuance of the petitioner beyond the period of contract. Though the petitioner has later on produced Ext.P4 which is the copy of the minutes of a meeting of the Executive Committee dated 14-8-2009, the same also does not contain any authorisation for the petitioner to continue to work. As per decision No:5, what has been decided is only to recommend to the Executive Committee to extend the term of office of all the employees of the first respondent. Therefore, it is not clear how the petitioner has continued to work. However, it is not disputed that the petitioner has been continuing to work, at any rate WPC 34232/2011 8 till 17-12-2011. 13. In Ext.P3 G.O, sanction has been accorded for the appointment of the persons mentioned therein 'on contract basis' for a period of one year, with immediate effect. The appointment of serial No:1 Shri. U.Rasheed is to an existing vacancy. However, the appointment of all the others are upon termination of the incumbents already in office. What is stated at serial No:4 is extracted hereunder for convenience of reference:- “Smt. Sherly Mathew, B-14 Police Quarters, Vikas Bhavan P.O., Thiruvananthapuram to the post of Assistant Editor in the office of the Director on contract basis terminating the contract appointment of Smt. Vijayamma.” Thus, on the appointment of the third respondent on contract basis, the contract appointment of the petitioner has been terminated. From the reference to the petitioner's continuance as 'contract appointment' it appears that the authorities have proceeded on the basis that the petitioner was still continuing on contract basis. 14. It has been contended by the counsel for the respondents that a contract appointee like the petitioner has no right to continue in service or to insist that she can be terminated only by WPC 34232/2011 9 the appointment of a regular hand. The counsel for the first respondent has also placed reliance on a Division Bench decision of this Court reported in **Reji Joseph v. KSEB {1993(1) KLT 393}** . Therefore, it is contended that no right of the petitioner has been prejudiced or violated by Ext.P3. Since pursuant to her appointment the third respondent had already joined duty before the interim order of this Court, it is contended that the third respondent is entitled to continue. Therefore, the respondents pray that the interim order be vacated. At present, the petitioner is permitted to attend office and to sign the attendance register, without discharging any official duties in deference to the interim order of this Court. It is true that a perusal of the records show that the third respondent had joined duty on 19-12-2011. However, it is also clear from the attendance register that the petitioner had not handed over charge to the third respondent. Going by Ext.R1 (c), it appears that the petitioner had been on leave on 19[th] , 20[th] and 21[st] on which dates she has not marked her attendance. Irrespective of the above controversy relating to the question as to whether the third respondent had taken charge before issue of this Court's interim order, the question as to whether Ext.P3 can be sustained has to be examined. Since the right of the third WPC 34232/2011 10 respondent to continue to work would depend on the sustainability of Ext.P3, it is the said question that has to be addressed first. Though a number of documents have been produced on behalf of the respondent, there is nothing on record to show that any process of selection had preceded Ext.P3. To a specific question as to whether any process of selection was adopted to select the incumbents in Ext.P3, the answer of the counsel for the first respondent was in the negative. According to the counsel for the first respondent, the third respondent was a person who had worked under the first respondent earlier, as evident from Ext.R3(c). Therefore, she was appointed by Ext.P3. I do not think it necessary to consider the case of the other persons appointed as per Ext.P3 for the reason that such appointments are not called in question in these proceedings. 15. The counsel for the petitioner places reliance on Ext.P5 which is a note issued by the present Minister for Education of the State. The names of all the five persons appointed in Ext.P3 find a place in Ext.P5. On the left hand side margin of Ext.P5, appears a query to the following effect:- ## “Do we have post for this? Put up.” The date of the said endorsement is not clear. It appears from the WPC 34232/2011 11 above endorsement that while issuing Ext.P5 it was not even clear whether any posts were available for such appointments. Ext.P3 appears to have been issued on the basis of Ext.P5. It is pointed out by the counsel for respondents 1 and 3, referring to Ext.R1(a) that the petitioner had also been appointed by the then Minister of Education. However, a reading of Ext.R1(a) shows that the said order was issued after considering the recommendation of the Director of the first respondent to make the said appointment. As per the counter affidavit of the first respondent, in paragraph 3 thereof the Minister for Education was the Chairman of the Executive Committee. If that be so, the issue of Ext.R1(a) cannot be found fault with. It is also evident that Ext.R1(a) was preceded by a recommendation of the Director. However, whether any selection process was involved in the selection of the petitioner also, is not clear. Be that as it may, the appointment of the petitioner was in the year 2007 and it is not necessary to consider the legality thereof at this length of time. Even if it is assumed that the petitioner's appointment was illegal, the same cannot justify the appointment of the third respondent if the procedure adopted is wrong. 16. The counsel for the petitioner has placed reliance on the WPC 34232/2011 12 judgment of this Court in WPC 33190/2010 wherein this Court has made the following observation while considering the appointments of drivers on temporary basis. “The appointment to the post of driver, even if temporary, in a Panchayat or Municipality is a public appointment. Every person qualified for the post is entitled to be considered for such appointment. Therefore, if appointments are made without giving all intending applicants to compete for the post, that would violate the fundamental rights of those persons who have an equal right to be considered for selection to the post. Therefore, I am of opinion that unless the petitioners have been so appointed after undergoing a selection process in which notification inviting applications has been published in at least one newspaper, the petitioners cannot claim continuance in the post. The petitioners have not been able to satisfy me that they were appointed pursuant to such a selection process. As such, they are not entitled to continuation in service on the basis of their earlier temporary engagement, which was not after a valid selection process.” I am in respectful agreement with the above observations. The above dictum applies to the first respondent also being an establishment under the control of the State. Since the appointment of the third respondent as per Ext.P3 has not been WPC 34232/2011 13 preceded by any process of selection as indicated by this Court, Ext.P3 in so far as it relates to the petitioner and the third respondent cannot be sustained. The petitioner is justified in contending that if any such selection had been notified, that would have provided her with a chance to compete for the selection and appointment to the notified post. The denial of such an opportunity to all eligible persons have been found to be unsustainable by this Court. Therefore, the appointment of the third respondent cannot be sustained. The counsel for the third respondent has put forward a contention that the third respondent has been appointed along with certain others by following the same procedure and therefore, if her appointment is set aside, that would work injustice to her for the reason that the others have been left untouched. The appointment of the other persons mentioned in Ext.P3 are not under challenge in this writ petition. The said persons are also not parties to this writ petition. As only the appointment of the third respondent is under challenge here, the observations and findings herein are confined to the third respondent alone. Since the third respondent's appointment is found to be unsustainable, the same would have to be set aside. 17. For the above reasons this writ petition is allowed on the WPC 34232/2011 14 following terms: i) Ext.P3 G.O(Rt)No:5622/2011/Gedn dated 16-12-2011 to the extent it relates to the petitioner and the third respondent is hereby set aside. ii) The setting aside of Ext.P3 is without prejudice to the right of the respondents to make a fresh appointment to the said post, after following a proper procedure for selection. iii) Until such selection is conducted, the petitioner shall continue in service. Sd/K. SURENDRA MOHAN Judge jj /True copy/ P.S.to Judge WPC 34232/2011 15