Jacob Philip v. Vadasserikkara Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 6[TH] DAY OF DECEMBER 2021 / 15TH AGRAHAYANA, 1943** ## **WP(C) NO. 17313 OF 2021** ## **PETITIONER:** JACOB PHILIP, AGED 47 YEARS S/O. ABRAHAM PHILIP, AMBULANCE DRIVER, PALIATIVE CARE, VADASSERIKKARA FAMILY HEALTH CENTRE, VADASSERIKKARA GRAMA PANCHAYAT, PATHANAMTHITTA 689 662 RESIDING AT MULLANPARA, VADASSERIKKARA P.O, PATHANAMTHITTA 689 662 BY ADVS. S.MUHAMMED HANEEFF M.H.ASIF ALI 1 VADASSERIKKARA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, VADASSERIKKARA GRAMA PANCHAYAT OFFICE, VADASSERIKKARA P.O, PATHANAMTHITTA 689 662 2 THE SECRETARY VADASSERIKKARA GRAMA PANCHAYAT, VADASSERIKKARA GRAMA PANCHAYAT OFFICE, VADASSERIKKARA P.O, PATHANAMTHITTA 689 662 3 THE PRESIDENT VADASSERIKKARA GRAMA PANCHAYAT, VADASSERIKKARA GRAMA PANCHAYAT OFFICE, VADASSERIKKARA P.O, PATHANAMTHITTA 689 662 4 PALLIATIVE CARE POLICY PROJECT MANAGEMENT COMMITTEE VADASSERIKKARA GRAMA PANCHAYAT, REPRESENTED BY THE CHIEF MEDICAL OFFICER, PRIMARY HEALTH CENTRE, VADASSERIKKARA, PATHANAMTHITTA 689 662 BY ADV T.P.PRADEEP ## **RESPONDENTS:** ## **OTHER PRESENT:** GP V.VENUGOPAL W.P.(C) No.17313/2021 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON 6/12/2021 DELIVERED THE FOLLOWING: W.P.(C) No.17313/2021 3 ## **JUDGMENT** The writ petitioner claims that he was appointed on 9/2/2010 by the first respondent Panchayath as an Ambulance driver on contract basis consequent to a due selection process. He continued in service till December 2018. Thereafter, by Ext.P1 minutes of the respondent Panchayath, he was again appointed in August 2018. Panchayath committee, by its decision dated 8/5/2020, which is produced as Ext.P2 on 8/5/2020, decided to handover the duty of supervision of the entire Covid-19 preventive centres in the Panchayath to the petitioner. It was also decided later that ambulance under the Palliative care project be used for Covid-19 related duties and the service of the petitioner who is the driver be utilised. According to the petitioner, palliative care project has been initiated in the State, by Palliative Care Policy for Kerala 2008. Going by the policy, the palliative care policy project management committee of the local self government institutions, is the competent body to make recommendations to the Panchayath for proper implementation of the objects of the policy. The above committee is arrayed as the 4[th] respondent. By Ext.P5, the 4[th] respondent committee on 19/7/2021 decided to continue the service of the petitioner as well as the nurse appointed under the Palliative care project. However, the committee by its meeting dated 16/8/2021, which was produced as Ext.R2(a), decided to W.P.(C) No.17313/2021 4 terminate the services of the petitioner and to permit him to continue till 31[st] August 2021 and thereafter, authorized the medical officer to invite application for filling up vacancy of the ambulance driver. 2. Petitioner has approached this court contending that he is not liable to be terminated by virtue of Ext.P4 Government Order and that the Panchayath Committee has no authority to terminate him. Prayer sought in the writ petition was to direct the first respondent Panchayath to retain the petitioner in service as ambulance driver till regular hand joins duty. 3. The 2[nd] respondent appeared and filed detailed counter affidavit contending that he was engaged in 2018 on contract basis, that appointment was without following any legal formalities and considering the petitioner's experience as driver who had driven the ambulance earlier, he was appointed consequent to the termination of the driver who had been driving the ambulance. Subsequently, on 19/7/2021, the 4[th] respondent again decided to extend the service of the petitioner and the nurse and the decision was placed before the Panchayath Committee. The Panchayath Committee found that the appointment of the driver to the Ambulance was done without complying with the mandate of any valid process and no contract has been entered into governing the terms of the employment. However, the nurse was duly selected and has been continuing from 2012 onwards by renewing the contract every year. Hence, she was ordered to be retained and the service of the petitioner was terminated. Applications have been called for appointment of new driver and the notification was published in the Malayala Manorama daily. Ext. R2(c) is the news item. 43 applicants applied and W.P.(C) No.17313/2021 5 the selection process have been progressing. At that stage, the petitioner approached this court and sought an interim order. 4. A reply affidavit was filed by the petitioner reiterating the allegations in the writ petition. 5. Heard both sides and examined the records. 6. Though the learned counsel for the petitioner vehemently asserted that he was first appointed on 9/2/2010 and continued in service till August 2012, it seems that it is confirmed by Ext.P7 reply given by the Panchayath, in which it is stated that only a decision of the Panchayath engaging the petitioner in 2010 was available. However, it is an admitted fact that he was re-engaged in August 2018, after the termination of the then driver who was terminated for misconduct. In his place, the petitioner was resolved to be appointed, having regard to his earlier engagement as a driver of the Palliative Ambulance. Evidently, the contention of the Panchayat that he has been continuing thereafter and that the selection was without following any procedure and after giving an opportunity to other eligible persons, appears to be true. It also seems that no contract was entered into regarding the petitioner's appointment and the terms of his employment. 7. The learned counsel for the petitioner vehemently contended that he is not liable to be terminated in the light of Ext.P4 G.O .issued by the Local Self Government on 1/6/2021 by which contract employees engaged for Covid related activities shall not be terminated, until further orders. The learned counsel contended that the petitioner was engaged in Covid related activities and hence, he is not liable to be terminated. To substantiate it, the learned counsel relied on W.P.(C) No.17313/2021 6 Ext.P6, by which the vehicle along with the driver was deputed in connection with Covid 19 activities. The learned counsel also referred to Ext.P2, by which the petitioner was autorised to supervise all Covid care centres and to look after covid related activities. 8. Though the learned counsel heavily relied on the above documents to contend that the claim of the petitioner that he was entitled for protection under Ext.P4, the claim does not appear to be sustainable. Ext.P4 relates to termination of persons who are engaged on contract basis for Covid related activities. In fact, the petitioner was appointed as an ambulance driver of Palliative Care Unit of Panchayath. As a temporary measure, he along with the ambulance was permitted to be utilized for covid related works. He was also given the duty of supervising the covid care centres. Since he was not engaged for the purpose of covid related activities, he is not entitled to the benefit of section Ext.P4. 9. The main contention advanced by the petitioner was that, in the light of the Palliative Care Policy for Kerala 2008, Palliative Care Policy Management Committee has been created and entrusted with the entire duties in relation to the implementation of the projects of the policy. It was also stated that hence the petitioner was brought under the control of the 4[th] respondent and necessarily he can be terminated on the directions of the 4[th] respondent alone. To establish the ambit and scope of 4[th] respondent committee, the learned counsel placed before me the Palliative Care Policy for Kerala,2008 issued by the Government of Kerala. Though the policy declaration relates to various Palliative Care activities and the constitution of various committees including the 4[th] respondent is referred to, it is W.P.(C) No.17313/2021 7 not clear whether this has been brought into effect. It is also not clear about the actual role of the 4[th] respondent in relation to engagement and detailing of the various employees. Though the palliative care policy seems to be of the year 2008, it is evident that it was by virtue of Ext.P1 decision of the Vadasserikkara Grama Panchayath on 13/8/2018 the petitioner was engaged. Evidently, the appointing authority is the Grama Panchayath. The petitioner was also authorized to take care of Covid related activities and his services was rendered for supervising the covid care centres by the order of the Grama Panchayath by Ext.P2. Again by Ext.P3 proceedings of the Grama Panchayath, his services and the ambulance were provided for Covid related activities. Even though the 4[th] respondent recommended that the petitioner may be permitted to continue, it seems that this was not ratified by the Panchayath. These facts clearly show that the appointing authority was the Panchayath and the decision of the 4[th] respondent seems to be only that of recommendatory in nature and subject to the confirmation by the Panchayath. In the light of the above, I find no reason to sustain the contention of the petitioner that the petitioner can be terminated only by the 4[th] respondent. 10. On merits, the learned counsel for the petitioner contended that the termination of the petitioner, being a contract employee, was intended for appointing another contract employee. Evidently, the post was not a sanctioned post. It seems that one person can be appointed only on a contract basis. It is seen that the learned counsel heavily relied on the decision of the supreme court in _**State of Haryana and others v. Piara Singh and others (1992) 4 SCC 118)**_ to W.P.(C) No.17313/2021 8 contend that one set of temporary employees cannot be replaced by another set of temporary employees. Evidently, petitioner is a contract employee and he is proposed to be replaced by another set of employee. Still, I feel that the decision in Piara Singh 's case (supra) may not have any impact on the facts of the present case. The appointment made in case of the petitioner was not by regular method of inviting applications. It is also seen further that his appointment is not governed by any specific contract. Hence,it emerges that the Panchayath is justified in deciding to call for applications. Even though a contract employee was sought to be replaced by another contract employee, the crux of the decision of Piara Singh(supra) was that selection has to be on a fair basis. If the Panchayath had gone for inviting candidates from the Employment Exchange also, it would have been ideal. However, at this juncture, since selection process is completed, I do not propose to tinker with the selection process on that ground. However, it is evident that a publication was effected. It was published in news paper and 43 candidates had turned up. By virtue of interim order of this court, the petitioner was also given an opportunity to participate. To that extent his right remains intact. He cannot have any further grievance since he was also given a reasonable opportunity to participate. According to the Panchayath, they have entrusted the process of selection with the medical officer concerned and that they have not interfered in the selection process. 11. Since the selection process as such is not the subject matter of consideration and this Court is confined only to the termination of the petitioner, I am not inclined to go into the merit of the selection process which is kept open for W.P.(C) No.17313/2021 9 consideration in appropriate proceedings. Suffice to hold that the petition lacks merits and is liable to be dismissed. In the result, the writ petition fails and is accordingly dismissed. Sd/- **SUNIL THOMAS** **Judge** dpk W.P.(C) No.17313/2021 10 ## **APPENDIX OF WP(C) 17313/2021** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE MINUTES OF THE MEETING OF THE 1ST RESPONDENT PANCHAYAT COMMITTEE DT 1308-2018 Exhibit P2 A TRUE COPY OF THE MINUTES OF THE PANCHAYAT MANAGING COMMITTEE DT 08-05-2020 Exhibit P3 A TRUE COPY OF THE MINUTES OF THE PANCHAYAT MANAGING COMMITTEE DT 14-09-2020 Exhibit P4 A TRUE COPY OF THE ORDER BEARING G.O(P) NO. 1067/2021/LSGD DT 01-06-2021 Exhibit P5 A TRUE COPY OF THE MINUTES OF MEETING OF THE 4TH RESPONDENT COMMITTEE DT 19-07-2021 Exhibit P6 A TRUE COPY OF THE MEETING NOTICE DT 13-082021 ISSUED BY THE 3RD RESPONDENT. Exhibit P7 A TRUE COPY OF THE COMMUNICATION BEARING NO.A.3 4798-21 DATED 07/10/2021 ISSUED BY THE 2ND RESPONDENT ALONG WITH MINUTES OF MEETING OF THE PANCHAYAT COMMITTEE DT.29/1/2010 AND 9/2/2010 Exhibit P8 A TRUE COPY OF THE RELEVANT PAGES OF THE MEETING OF THE PANCHAYAT RESPONDENTS EXHIBITS: EXT.R2(A): COPY OF THE MINUTES OF THE PANCHAYAT COMMITEE DATED 16/8/2021 EXT.R2(B): COPY OF THE NOTICE DATED 27/8/2021 PUBLISHED BY THE MEDICAL OFFICER. EXT.R2(C): COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY DATED 29/8/2021.