Jenson M. Joy and Jasmi Begum v. State of Kerala and Kudumbashree (W.P.(C) No. 34541 of 2017)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY ,THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940** ## **WP(C).No. 34541 of 2017** ## **PETITIONER/S:** **1 JENSON M.JOY DISTRICT PROGRAMME MANAGER, STATE POVERTY ERADICATION MISSION, (KUDUMBASHREE),DISTRICT MISSION KOZHIKODE, CIVIL STATION, KOZHIKODE-673020. 2 JASMI BEGUM CONSULTANT-MARKETING-I, STATE POVERTY ERADICATION MISSION, (KUDUMBASHREE),TRIDA BUILDING, MEDICAL COLLEGE,THIRUVANANTHAPURAM-11. BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA KUM.THULASI K. RAJ SRI.VARUN C.VIJAY** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**EXECUTIVE DIRECTOR**| ||**KUDUMBASHREE,(STATE POVERTY ERADICATION MISSION)**| ||**TRIDA BUILDINGS, THIRUVANANTHAPURAM-695001.**| |**3**|**KUDUMBASHREE (STATE POVERTY ERADICATION MISSION)**| ||**TRIDA BUILDINGS, THIRUVANANTHAPURAM-695001**| ||**REP. BY THE EXECUTIVE DIRECTOR.**| ||**BY ADV. SRI.RON BASTIAN, GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 34541 of 2017** **2** ## **JUDGMENT** **Petitioners, who were working as** **District Programme Manager and Consultant Marketing-1 respectively under the Kudumbashree Mission, are aggrieved by the order Ext.P19(a), terminating their services on the ground that their performance was not satisfactory.** **2. The 1[st] petitioner was appointed as District Programme Manager as per Ext.P1 order on 12.09.2011 on being successful in a process of selection and inclusion in the rank list as evident from Ext.P1 order itself. In the order of appointment, it was stated that her appointment would be for a period of one year on contract basis. Petitioner was asked to enter into an agreement with the Executive Director, Kudumbashree – the 2[nd] respondent. The appointment was renewed as per Ext.P2 order on 21.12.2012 for a period of one year with effect** **WP(C).No. 34541 of 2017** **3** **from 12.09.2012. While so, she was appointed as Consultant (Skills) in DMMU (Kudumbashree District Mission, Kannur) on annual contract basis on a remuneration of Rs.20,000/- per month. Petitioner entered into an agreement and continued as Consultant (Skills) executing agreements from time to time. While so, the Executive Director issued Ext.P5 order extending the appointment of all those working under the Kudumbashree on contract basis for the period up to 31.03.2017.** **3. The 2[nd] petitioner, who is an MBA holder, was rank no.1 in the process of selection conducted for appointment as Consultant Marketing-1. Her appointment was also on contract basis. She joined on 10.09.2008. In Ext.P7 order dated 16.09.2008, her remuneration was fixed as Rs.15,000/- per month. Ext P7 order refers to the advertisement calling for applications, the interview held** **WP(C).No. 34541 of 2017** **4** **thereafter and the rank list published as also the order of appointment issued to her. Petitioner points out that the post of Consultant (Marketing) was created as per Ext.P12 order dated 09.06.2008 for the purpose of the development of the Marketing network of Kudumbashree as it was found that technically qualified professionals were required. It was decided to create 8 posts of Consultant (Marketing) in different names. Petitioner was appointed as against one of these posts created in Ext.P12 order.** **4. While both the petitioners continued in their respective posts, all the employees working in the CDS were subjected to an interview, conducted by the State Mission in March, 2017. Ext.P19 order was issued on 01.04.2017 terminating the services of 12 employees including the petitioners on the ground that their performance was not found** **WP(C).No. 34541 of 2017** **5** **satisfactory in the Performance Appraisal and in the Interview held on 13[th] , 14[th] and 28[th] of March. As per Ext.P19(a), the 12 persons working in various posts like Consultant Marketing-1; Manager-Project Engineering (PMAY); Consultant – Gender; Balasabha (Social Development) Consultant; Consultant-ME; Marketing Consultant; Capacity Building Specialists, PMAY; NULM Manager, ME&FI; NULM Manager Skills and Livelihoods; Service Provider, Snehitha; District Programme Manager, DDU-GKY etc. are sent out. On the basis of the information obtained under the Right to Information Act, petitioner points out that in Ext.P17(a) Performance Appraisal Report furnished on 25.01.2016, the 1[st] petitioner was found to have technical and professional skill. Better co-ordination, communication skill, organised innovative activities, quick decisions etc, were found to be the qualities** **WP(C).No. 34541 of 2017** **6** **of petitioner, with the excellent and remarkable reports. She was given 9 marks out of 10 on various heads and 10 marks each in 3 heads out of 10. Thus petitioner was rated as between Excellent and Outstanding. The Information Officer informed that no adverse marks were reported in the Performance Appraisal Report. It was stated that her performance was reviewed on the basis of the recommendation made by the Interview Board after conducting an interview as entrusted by the Governing Body. The petitioner has also produced Ext.P17, the Evaluation Report in respect of all the candidates in the interview by the Interview Board. As against the name of the petitioners, it is stated that the Evaluation Report was 'not satisfactory' as there are deficiencies in the performance. The 2[nd] petitioner's case was also similar. At the same time, with respect to others who are not** **WP(C).No. 34541 of 2017** **7** **included in Ext.P19, the Evaluation Report was stated to be satisfactory. The petitioners have produced the Experience Certificate issued to them on 28.07.2017 and 07.04.2017 (Exts.P6 and P15) respectively, in which very good remarks were stated by the 2[nd] respondent with respect to the activities of the petitioners during their tenure from 2008 and 2011 respectively till the date of the termination on 31.03.2017.** **5. The petitioners had submitted an appeal before Government, which was considered and rejected. Writ petition was filed thereafter challenging the orders of termination as well as the order rejecting their appeal. Petitioners point out that there is no basis for the termination of their services and the orders of termination without giving them an opportunity to defend their stand is illegal. It is alleged that merely on the basis of the** **WP(C).No. 34541 of 2017** **8** **remarks 'not satisfactory', their services should not have been terminated when there was nothing against them in their Performance Appraisal Reports.** **6. The respondents have filed a counter affidavit justifying the termination of services stating that the petitioners were appointed purely on contract basis and they do not have any right to continue. It is stated that the Governing Body of the Kudumbashree held on 01.12.2016 had decided to evaluate the performance of the existing Consultants and accordingly an Interview Board was constituted consisting of 2 eminent personalities in the public domain, the Executive Director, Director (A&E) and Programme Officer (Organisation). The Interview Board evaluated the performance of Consultants and decided not to renew the** **contract of 12 Consultants including petitioners while recommending the renewal of** **WP(C).No. 34541 of 2017** **9** **contract in respect of 150 persons. It is stated that the decision of the Interview Board was approved by the Governing Body, which was held on 16.05.2017. According to the respondents, the renewal of contract is on the basis of performance and mere continuance for a long period will not be a ground for permanent employment. It is further stated that the appeal was considered by Government after hearing petitioners and it was rejected. It is further stated that the members nominated by the Governing Body are among the most experienced members of the Governing Body, who are working for the last 20 years in the public domain. As the petitioners have been working on contract basis and as they were not delivering routine jobs like Group IV employees and the Kudumbashree expects professional output from the Consultants, it was decided not to renew their contract. It is further stated** **WP(C).No. 34541 of 2017** **10** **that the non renewal of agreement is not a matter of termination and the non-performing employees cannot have right to continue.** **7. Smt. Thulasi K. Raj, the learned counsel for the petitioner relies on the judgment of the** _**A.P.State Federation of Coop. Spinning Mills Ltd and Another v. P.V. Swaminathan :**_ **2001 (10) SCC 83 in support of her contention that the termination, which is stigmatic is liable to be interfered with even if the appointment was on contract basis. Pointing out the manner in which petitioners' service were terminated in Ext.P19(a) order, she points out the stigma attached to them and argued that on that ground itself, it is liable to be set aside.** **8. On the other hand Sri. Ron Sebastian, the learned Government Pleader relies on the judgment of the Apex Court in** _**Yogesh Mahajan v. Professor R.C. Deka, Director, All India**_ **WP(C).No. 34541 of 2017** **11** _**Institute of Medical Sciences**_ **: (2018) 3 SCC 218 in support of his contention that a contract employee cannot have any right to continue on completion of his contract period.** **9. Having heard the contentions on either side, it is seen that the appointment of petitioners were made after conducting a regular process of selection inviting applications by publication in newspapers, after conducting interview and publishing a rank list. Though the appointment was stated to be on contract basis, it continued on renewal. It is seen that in the case of the Consultant Marketing, the post was created as per Ext.P12 order and it was stated that the appointment was likely to be extended initially by one year and thereafter for a period of three years. The** |**2nd petitioner has been**|**continuing from 2008**| |---|---| |**onwards and the 1st**|**petitioner has been**| |**continuing from 2011 **|**onwards based on**| **WP(C).No. 34541 of 2017** **12** **appointment made after undertaking regular process of selection. The termination is stated to have been made after assessing their performance on account of the deficiency found in the Interview. But when such an assessment was made, the petitioners were not put on notice as to the deficiencies. In case such procedure of assessment is made, it is necessary that experienced hands like petitioners are given an opportunity to improve after intimating them of their deficiencies.** **10. From Ext.P17(a) Performance Appraisal Report in the case of the 1[st] petitioner, it can be seen that her performance was assessed as excellent and as outstanding on certain heads. This Appraisal Report was issued on 25.01.2016. Similarly, in the case of the 2[nd] petitioner, she was informed that there was no adverse remarks in her Appraisal Report. It is only in the interview that her performance is** **WP(C).No. 34541 of 2017** **13** **found 'not satisfactory'. If at all, the respondents decided to evaluate the performance of persons like petitioners, who have been continuing for several years for the purpose of renewal or termination it was incumbent for the respondents to give them an opportunity before they sought to terminate their services. Therefore, as pointed out by the learned counsel for the petitioner, the termination of services referring to their non-satisfactory performance would definitely affect their service career. Such terminations of service cannot be sustained though the appointments were made on contract basis. Before petitioners are sent out on such allegations, they should have been given an opportunity to show cause or to improve their performance informing them the deficiency found in the assessment. Whoever may be the members of the Governing Body who constituted the Interview Board, the decision** **WP(C).No. 34541 of 2017** **14** **of the Governing Body to abruptly terminate the services on the basis of such assessments is arbitrary and unsustainable.** **11. The judgment of the Apex Court relied on by the learned Government Pleader would not apply in the circumstances of the case, as the termination of the services of petitioners were not merely on completion of contract period but it was after the alleged assessment by the Interview Board, which found their performance unsatisfactory in the absence of any materials and stating the same in the order of termination. It is also relevant to note that from Paragraph 7 of the judgment of the Apex Court, it is clear that the appointment of the petitioner therein was not made observing any procedure for regular selection or following rules. That being so, the said judgment will not apply to the circumstances of the case.** **12. Though the petitioners had claimed** **WP(C).No. 34541 of 2017** **15** **that there were vacancies available in which they could be accommodated, the respondents contended that petitioners are not eligible for further appointment. From the instructions made available by the learned Government Pleader regarding the vacancies pointed out by the petitioners, it is seen that the vacancy which arose at Wayanad on 16.10.2018 in the post of District Programme Manager and two vacancies in Kozhikode, where the process of selection of third batch of candidates are going on, remain unfilled. From these details, it is clear that vacancies are available and petitioners can be appointed without disturbing anybody.** **In the above circumstances, I find that the termination of the services of petitioners are illegal. The order Ext.P19(a) to the extent it relates to the petitioners is set aside. Petitioners shall be reinstated within a period** **WP(C).No. 34541 of 2017** **16** **of two months from the date of receipt of a copy of this judgment.** **Sd/-** **P.V.ASHA, JUDGE.** ## **ww** **WP(C).No. 34541 of 2017** **17** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER NO.S/E/597/2011 OF THE 1ST PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 21.12.2012. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 30.10.2013. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17.11.2015. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 8.3.2017. EXHIBIT P6 TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 28.7.2017. EXHIBIT P7 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 17.2.2012. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 16.8.2016. EXHIBIT P10 TRUE COPY OF THE PARTICIPATION CERTIFICATE OF THE 1ST PETITIONER. EXHIBIT P11 TRUE COPY OF THE PARTICIPATION CERTIFICATE OF THE 1ST PETITIONER PERTAINING TO THE MANAGEMENT DEVELOPMENT PROGRAMME. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 9.8.2008. EXHIBIT P13 TRUE COPY OF THE RANKED LIST DATED 29.8.2008. EXHIBIT P14 TRUE COPY OF THE MINUTES OF THE EXECUTIVE COMMITTEE MEETING DATED 21.6.2011. EXHIBIT P15 TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED 7.4.2017. EXHIBIT P16 TRUE COPY OF THE HEARING NOTE SUBMITTED BY THE 2ND PETITIONER TO THE PRINCIPAL SECRETARY LSGD.** **WP(C).No. 34541 of 2017** **18** **EXHIBIT P17 TRUE COPY OF THE EVALUATION REPORT OF THE PETITIONERS.** **EXHIBIT P17(A) TRUE COPY OF THE PERFORMANCE REVIEW DATED 25.1.2016. EXHIBIT P18 TRUE COPY OF THE APPLICATION UNDER THE RTI ACT PERTAINING TO THE 2ND PETITIONER. EXHIBIT P19 TRUE COPY OF THE REPLY DATED 2.9.2017. EXHIBIT P19(A) TRUE COPY OF THE ORDER DATED 1.4.2017. EXHIBIT P20 TRUE COPY OF THE ORDER DATED 1.4.2017 ISSUED BY THE EXECUTIVE DIRECTOR. EXHIBIT P21 TRUE COPY OF THE JUDGMENT DATED 12.4.2017 IN W.P.(C) NO.13893/2017. EXHIBIT P22 TRUE COPY OF THE ORDER DATED 23.9.2017. EXHIBIT P23 TRUE COPY OF THE ORDER DATED 6.7.2017 IN W.A.NO.1417/2017.**