Linu John v. Reshmi Remesh and Kodumon Grama Panchayat and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 28TH DAY OF MARCH 2018 / 7TH CHAITHRA, 1940 **WA.No. 772 of 2018** [AGAINST THE JUDGMENT IN WP(C) 14972/2017 of HIGH COURT OF KERALA DATED 07-03-2018] **APPELLANT** (S)/(NOT A PARTY IN W.P. LINU JOHN, AGED 41, S/O.LATE V.JOHNY, AMBANATTU PUTHEN VEEDU, PARAKODE P.O., EZHAKULAM, PATHANAMTHITTA DISTRICT - 691 554. (WORKING AS TECHNICAL ASSISTANT, KUDUMON GRAMA PANCHAYAT, KODUMON, PATHANAMTHITTA DISTRICT). BY ADVS.SRI.V.PHILIP MATHEW SRI.GIBI.C.GEORGE **RESPONDENTS(S)** /PETITIONER & RESPONDENTS IN W.P.: 1. RESHMI REMESH, AGED 30, W/O. VINEESH V. RESHMI BHAVAN, ANGADICKAL NORTH PO., KAIPATOOR VIA, PATHANAMTHITTA DISTRICT - 689648. 2. KODUMON GRAMA PANCHAYAT, KODUMON P.O., PATHANAMTHITTA, PIN-691555 REPRESENTED BY ITS SECRETARY. 3. THE SECRETARY, KODUMON GRAMA PANCHAYAT, KODUMON P.O., PATHANAMTHITTA -691 555. 4. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. R2 & R3 BY STANDING COUNSEL SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) R4 BY GOVERNMENT PLEADER SMT.K.R.DEEPA. BY ADV.SRI.MOHAN JACOB GEORGE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ---------------------------------------------------- W.A.No. 772 of 2018 ---------------------------------------------------Dated this the 28[th] day of March,2018. ## **JUDGMENT** ## **Ravikumar,J:** The appellant was not a party to W.P(C) No.14972 of 2017. This appeal has been preferred with leave against the judgment dated 7.3.2018 passed by the learned Single Judge in the above writ petition. The said writ petition was filed by the first respondent herein seeking the issuance of a writ of mandamus commanding respondents 1 and 2 to continue her in the post of Technical Assistant under Kodumon Grama Panchayath till 31.3.2018. Further prayer is to quash Exts.P5 and P6 and to declare that the decision of the Panchayath to replace the service of the petitioner with another temporary staff is illegal and not liable to be enforced and for such other reliefs. 2. The brief facts which led to the filing of the said writ W.A.No.772 of 2018 -:2:- petition are as follows:- The writ petitioner/the first respondent was appointed as Technical Assistant under the Panchayath initially under Ext.P1. Based on Ext.R1(a) scheme, the Government permitted the Panchayaths to appoint Technical Assistants in all Panchayaths in the State. The writ petitioner, who was a graduate in Commerce and holding Post Graduate Diploma in Computer Application (PGDCA) was given appointment after executing Ext.P1 agreement. Subsequently, based on Ext.P2 agreement, she was engaged for another one year. During the continuance of such service, the Government have issued Ext.P3. As per Ext.P3, those who were working as Technical Assistants under different Panchayaths were allowed to continue till 31.3.2018. While so, the first respondent-Panchayath resolved to conduct a fresh selection and to discontinue the service of the writ petitioner from 1.5.2017. The decision to engage her only up to 30.4.2017 and then to disengage her was intimated to the writ petitioner as per Ext.P5. ## W.A.No.772 of 2018 -:3:- Subsequently, based on the resolution, the Panchayath issued Ext.P6 calling for applications for engagement as a Technical Assistant. It is in the said circumstances that the writ petitioner approached this Court by filing W.P(C) No.14972 of 2017. When the matter came up for consideration, this Court passed an interim order on 2.5.2017. The writ petitioner was allowed to continue as Technical Assistant and the respondents were directed not to make any fresh appointment to the post on temporary basis. The Panchayath was constrained to file I.A.No.13390 of 2017 seeking permission to make appropriate alternative arrangement as the writ petitioner then applied for permission to enter on maternity leave for a period of six months. They were constrained to move such an application as the service of a Technical Assistant was then absolutely essential for completion of various projects. Evidently, an order was passed permitting them to make such alternative arrangement. In such circumstances, they issued fresh notification and obviously, the appellant had also responded to the said W.A.No.772 of 2018 -:4:- notification. After undergoing a process of selection, the appellant herein was engaged as Technical Assistant under the Panchayath as per Annexure I. In Annexure I dated 28.9.2017, after referring to the order passed by this Court in W.P(C) No.14972/2017 on 22.8.2017, it was made clear that the appointment of the appellant would be subject to the outcome of the above writ petition or till 31.3.2018. Though such a condition was specifically mentioned in Annexure I, the appellant has not chosen to get himself impleaded in W.P(C) No.14972/2017. On 27.2.2018, the Government had issued Annexure-2 order extending the period of service of those Technical Assistants, who were then continuing in service of different Local Self Government Institutions on the strength of Ext.P3 Govt. Order dated 18.3.2017, for one more year from 1.4.2017 till 31.3.2019. The contention of the appellant is that in the light of Annexure-2, he is having a right to continue as Technical Assistant till 31.3.2019 as he being the Technical Assistant, who was working as Technical Assistant under W.A.No.772 of 2018 ## -:5:- Kodumon Panchayath as on the date of issuance of Annexure-2. The appellant further contends that the learned Single Judge went wrong in granting reliefs not sought for and thereby allowing the writ petitioner to continue as Technical Assistant beyond 31.3.2018. It is further contended that the writ petitioner/the first respondent herein, being a person engaged on contract basis, was not entitled to get the benefit of the Maternity Act,1961. In short, according to the appellant, the writ petitioner was not having any right to rejoin duty as she was not at all entitled to get the benefit of the Maternity Act. In support of the said contention, the learned counsel appearing for the appellant relied on the provisions under Rule 101 of Part I of the Kerala Service Rules and Appendix VIII thereunder. To buttress the said contention, the learned counsel also relied on the decision of a Division Bench of this Court v. reported in **Jisha.P.Jayan Sree Sankaracharya University of Sanskrit, Kalady and others** [2013(3) KHC 434 (DB)]. 3. Per contra, the learned counsel appearing for the first W.A.No.772 of 2018 -:6:- respondent/the writ petitioner contended that the decision in **' s case Jisha.P.Jayan** (supra) cannot be said to be a decision which will go against the petitioner as virtually, she had been in the service of the Panchayath on contract basis for more than one year. That apart, it is submitted that based on the interim order passed by this Court on 2.5.2017, the first respondent was entitled to continue till it is vacated. It is submitted that since the judgment in the writ petition is in his favour, the first respondent is entitled to continue till 31.3.2018 or till the period based on orders passed by the State Government regulating the tenure of Technical Assistants. In prayer 'C' therein, it reads as follows:- “ _C. Grant such other reliefs moulding Reliefs A & B in the interests of justice.”_ A perusal of paragraph 4 of the impugned judgment would reveal that virtually the factum of issuance of Annexure 2 order viz., G.O(Rt) No.571/18/LSGD dated 27.2.2018 also was taken into consideration by the learned Single Judge. It is taking into account W.A.No.772 of 2018 -:7:- the aforesaid Government Order that the learned Single Judge moulded the relief and permitted the writ petitioner to join duty with effect from 1.4.2018, and to continue thereafter evidently taking note of Annexure-2 order dated 27.2.2018. It is submitted by the learned counsel for the first respondent/writ petitioner that in such circumstances, the appellant would not be justified in contending that the writ petitioner was not having any right to continue beyond 31.3.2018. It is also contended that the fact that the first respondent had entered on maternity leave could not have been a reason to deprive the writ petitioner the benefit of the said Government Order dated 27.2.2018 and the appellant is not justified in contending that being the Technical Assistant under the third respondent as on the date of issuance of Annexure 2, he should be permitted to continue. It is contended that the appellant could not legally claim the benefit of Annexure 2 as he was engaged only as an alternative arrangement and the said fact was specifically mentioned in his order of appointment itself as can be W.A.No.772 of 2018 ## -:8:- seen from Annexure-1. Being a person, who accepted the said conditional appointment without any demur, the appellant would not be justified in staking such a claim, it is submitted. 4. As noticed hereinbefore, to canvass the position that the writ petitioner was not entitled to get the maternity leave by virtue of the provisions under the Maternity Benefit Act, 1961, the learned counsel appearing for the appellant relied on the judgment in **'s case Jisha.P.Jayan** (supra). In the light of the said decision, what is contended is that since the period of contract of appointment of the writ petitioner was not beyond one year, in terms of the provisions under Rules 100 and 101 of the Kerala Service Rules, the writ petitioner was not entitled to get the benefit of the Maternity Benefit Act,1961. In the context of the said contention, another indisputable fact would assume relevance. The writ petitioner's initial engagement as Technical Assistant was followed by Ext.P2 whereunder she obtained the right to continue for one more year. It is during such continuance that Ext.P3 came W.A.No.772 of 2018 ## -:9:- to be issued by the Government entitling employees working under different Panchayats as Technical Assistants to continue till 31.3.2018. A possible disengagement thereafter pursuant to the resolution passed by the Panchayath to conduct fresh selection, the fact which was intimated to her through Ext.P5, could not materialise because of the interim order passed by this Court on 2.5.2017 in W.P(C) No.14972 of 2017. As noticed earlier, going by the said interim order, the official respondents were directed not to make fresh selection to the post of Technical Assistant on temporary basis and the writ petitioner was to be allowed to continue as Technical Assistant in Kodumon Grama Panchayath. The Panchayath was constrained to move this Court through I.A.No.13390 of 2017 in W.P(C) No.14972 of 2017 solely because the writ petitioner was permitted to enter on maternity leave and through that I.A. what was sought for is only the permission to make alternative arrangement. The appellant was engaged as Technical Assistant only under the said circumstances. In ## W.A.No.772 of 2018 -:10:- Annexure 1, it was specifically made clear that his engagement would be subject to the result of W.P(C) No.14972 of 2017. In such circumstances, it is evident, but for entering on maternity leave, the writ petitioner would have functioned as the Technical Assistant in the Panchayath. In the light of Annexure -2, dated 27.2.2018, the writ petitioner could not have been denied the right to continue till 31.3.2019, if she was then working as Technical Assistant. The fact that in between, she remained absent rather availed maternity leave cannot be a factor which should deprive her the benefit under Annexure 2 order dated 27.2.2018. We are of the considered view that the question whether the writ petitioner was entitled to get the benefit of Maternity Benefit Act,1961 need not be looked into this case. No challenge was made against the granting of leave to the writ petitioner. In fact, it need only to be construed that the writ petitioner who was entitled to continue as Technical Assistant on the strength of the interim order dated 2.5.2017, did not continue to function solely because she was then ## W.A.No.772 of 2018 -:11:- in the family way and evidently, she remained absent not unauthorisedly. It is to be noted that the appellant was subsequently engaged as Technical Assistant by the respondentPanchayath, only in the circumstances explained above and it is not in dispute that his engagement was effected, making it very clear that his continuance would be subject to the outcome of W.P(C) No.14972 of 2017. Evidently, even when such conditional order of engagement was issued and with open eyes, the appellant accepted the said order without any demur, he could not seek for any larger right. He had not chosen to get himself impleaded as a party to the writ petition though his right to continuance was made subject to the outcome of the said writ petition and that fact was mentioned in Annexure -I. He has chosen to file this appeal with leave, evidently, in the light of Annexure 2 order. Therefore, essentially, the question is who is the rightful claimant for getting the benefit flowing from Annexure-2. While the writ petitioner contends that she is entitled to get the benefit, the learned counsel W.A.No.772 of 2018 -:12:- appearing for the appellant contends that the appellant is the rightful claimant. In the light of the interim order passed by this Court, which was not vacated till the passing of the impugned judgment in W.P(C) No.14972/2017, the writ petitioner could have continued in service and obtained the benefit of the order dated 27.2.2018. She remained absent from duty with authorisation under the aforesaid circumstances and hence, we do not have any hesitation to hold that the learned Single Judge was right in appreciating the aforesaid circumstances. The respondentPanchayath do not have a case that they were made to effect double payment. In other words, they got a case that during the aforesaid period, both the writ petitioner and the appellant were paid. The appellant happened to discharge the duties attached to the Technical Assistants under the respondent-Panchayath only in a fortuitous circumstance and was paid wages during the period he worked. In the light of the interim order, which has never been vacated, the writ petitioner could have continued uninterruptedly. W.A.No.772 of 2018 -:13:- It is to be noted that the ultimate decision in W.P(C) No.14972 of 2017 is also in favour of the writ petitioner. In such circumstances, the appellant cannot be permitted to snatch the benefit from the writ petitioner. In the light of the specific condition made in Annexure-I order, the appellant cannot be heard to contend that he is entitled to get the benefit of Annexure 2 order solely because, at the relevant point of time, he was the person, who was being engaged as Technical Assistant. There is yet another reason for holding that he is not entitled to get the benefit of Annexure A2. A perusal of Annexure A2 would reveal that the continuance beyond or up to the period 31.3.2019 is conferred on those persons, who are actually continuing on the strength of Ext.P3 order. The appellant did not have a case that he was in service at the time of issuance of Ext.P3 order or that he was continuing on the strength of Ext.P3 order. In fact as on that date, the writ petitioner was the who was as Technical Assistant in the person, engaged respondent-Panchayath. Taking into account all such aspects, we W.A.No.772 of 2018 -:14:- do not find any reason to hold that the learned Single Judge had committed an error warranting interference. The contention that the learned Single Judge had granted larger reliefs then sought for, is also not bereft of any basis or merits as what was done by the learned Single Judge is only moulding of the reliefs taking into account the circumstances, to do justice. No ground has been made out to interfere with the judgment in W.P(C) No.14972 of 2017. Hence, this writ appeal fails and accordingly, it is dismissed. Sd/- **C.T.RAVIKUMAR, JUDGE** sd/- **MARY JOSEPH, JUDGE** MBS/ -true copy- P.S.TO JUDGE W.A.No.772 of 2018 -:15:- W.A.No.772 of 2018 -:16:-