M.T. Jayaprakash and others v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **WP(C).No.15526 OF 2019(M)** ## **PETITIONER/S:** |**1**|**M.T.JAYAPRAKASH**| |---|---| ||**AGED 64 YEARS**| ||**S/O.M.N. THANKAPPAN NAIR,**| ||**STATE QUALITY MONITOR, KERALA STATE RURAL ROAD**| ||**DEVELOPMENT AGENCY, THIRUVANANTHAPURAM RESIDING AT**| ||**MADATHIL KOYIKKAL HOUSE, PAYYANAMON P.O, KONNI,**| ||**PATHANAMTHITTA DISTRICT.**| |**2**|**JOHN J ELAMKUNNAM,**| ||**AGED 62 YEARS**| ||**S/O. JOHN JOSEPH,STATE QUALITY MONITOR, KERALA**| ||**STATE RURAL ROAD DEVELOPMENT AGENCY,**| ||**THIRUVANANTHAPURAM RESIDING AT ELAMKUNNAM,**| ||**KOTTAMURI P.O, CHANGANACHERRY, KOTTAYAM DISTRICT.**| |**3**|**KOSHY JOHN,**| ||**AGED 62 YEARS**| ||**S/O. C.K. JOHN,STATE QUALITY MONITOR, KERALA STATE**| ||**RURAL ROAD DEVELOPMENT AGENCY, THIRUVANANTHAPURAM**| ||**RESIDING AT 70 BHAVANA NAGAR, KADAPPAKKADA, KOLLAM.**| |**4**|**LOHIDAKSHAN.N,**| ||**AGED 62 YEARS**| ||**S/O. KUTTIKRISHNAN NAIR, STATE QUALITY MONITOR,**| ||**KERALA STATE RURAL ROAD DEVELOPMENT AGENCY,**| ||**THIRUVANANTHAPURAM RESIDING AT KRISHNAKRIPA HOUSE,**| ||**KUTTIMUKKU, RAMAVARMA PURAM .P.O, THRISSUR.**| |**5**|**SURESH BABU K.K.,**| ||**AGED 64 YEARS**| ||**S/O .K. KELAN,STATE QUALITY MONITOR, KERALA STATE**| ||**RURAL ROAD DEVELOPMENT AGENCY, THIRUVANANTHAPURAM**| ||**RESIDING AT ASWATHI, KARUVASSERY, KOZHIKODE.**| - **6 MARY BERNERDIT K.J, AGED 63 YEARS W/O. DR. JOSEPH JOSE, STATE QUALITY MONITOR, KERALA STATE RURAL ROAD DEVELOPMENT AGENCY, THIRUVANANTHAPURAM RESIDING AT VALIYAMYALIL HOUSE,POST OFFICE ROAD, MARADU, KOCHI.** **7 V.M. PRAKASHAN, AGED 62 YEARS** **S/O. RAMADAS, STATE QUALITY MONITOR, KERALA STATE RURAL ROAD DEVELOPMENT AGENCY, THIRUVANANTHAPURAM RESIDING AT THEERTHAM, ERAMHOLI P.O, THALASSERY, KANNUR DISTRICT.** - **8 ANNAMMA P.C, AGED 62 YEARS** - **W/O.V.A. GEORGEKUTTY, STATE QUALITY MONITOR, KERALA STATE RURAL ROAD DEVELOPMENT AGENCY, THIRUVANANTHAPURAM RESIDING AT MRIYAICKAL GREENDALE, KARUMADY, ALAPPUZHA.** **BY ADVS. SRI.D.KISHORE SMT.MEERA GOPINATH** ## **RESPONDENT/S:** - **1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF RURAL DEVELOPMENT, KRISHI BHAVAN, DR. RAJENDRA PRASAD ROAD, NEW DELHI-110001.** - **2 THE NATIONAL RURAL ROADS DEVELOPMENT AGENCY, REPRESENTED BY ITS DIRECTOR, 5TH FLOOR, 15, NBCC TOWER, BHIKAJAI CAMA PALACE, NEW DELHI-110066.** - **3 KERALA STATE RURAL ROADS DEVELOPMENT AGENCY(KSRRDA) REPRESENTED BY ITS COMMISSIONER, 5TH FLOOR, SWARAJ BHAVAN, NANDANCODE, KOWDIAR P.O, THIRUVANANTHAPURAM-695003.** - **4 THE COMMISSIONER FOR RURAL DEVELOPMENT AND MEMBER SECRETARY.** - **4TH FLOOR SWARAJ BHAVAN, NANDANCODE, KOWDIAR P.O, THIRUVANANTHAPURAM-695003.** - **5 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT(DD) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **SMT.VANDANA P., CGC** ## **OTHER PRESENT:** ## **SRI.SUNIL KUMAR KURIAKOSE ,GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.15526/2019 ## **JUDGMENT** The petitioners are retired Superintending Engineers/Executive Engineers who were empanelled as State Quality Monitors (SQM) under the Kerala State Rural Road Development Agency. They are aggrieved by Ext.P8 order dated 01.06.2019, by which their empanellment is terminated. 2. Petitioners were empanelled as SQM as per Exts.P4, P4(a) and P5 orders issued on 31.01.2013, 13.03.2013 and 13.05.2013. According to the petitioners their services can be terminated only after evaluation as provided in paragraph 2, 4 etc of Ext.P3 guidelines. Ext.P4, Ext P4(a) and Ext.P5 orders, by which the petitioners were appointed, do not provide for any tenure for their appointment. It only says that their remuneration would be in accordance with the Government of India/NRRDA guidelines issued from time to time. The petitioners claim that they are entitled to continue in tune with Ext.P3 guidelines provided W.P.(C) No.15526/2019 **==> picture [19 x 8] intentionally omitted <==** their services are satisfactory. 3. As per Ext.P3 guidelines performance of State Quality Monitors needs to be evaluated by the concerned SRRDAs on regular basis. It also provides for assessment in respect of the following aspects during the performance evaluation: - _a. Whether the SQM has carried out inspection as per the guidelines prescribed under the 2[nd] tier._ _b. Whether there is any lack of application of mind by SQM in recording observations. c. Whether there is a tendency to avoid desirable technical observation._ _d. Whether the SQM has left inspection format incomplete without any reason._ _e. Whether the SQM has filled up formats mechanically without appropriate testing or observations in a professional manner._ _f. Whether the SQM has uploaded the quality grading abstracts and the requisite number of photographs in OMMAS._ ## 4. Clause 3 of Ext.P3 Guidelines reads as follows: _3. Independent Committee: The review of reports of SQMs shall be carried out by an independent Performance Evaluation Committee constituted by concerned State Government. The Evaluation Committee may consist of the following:_ _a. Two members of STAs/PTA of the concerned State-Member b. One retired Engineer not below the level of CE-Member c. SQC – Convener_ _If State desires, one NQM could also be nominated by NRRDA. The performance evaluation of SQMs shall be based on review of 5-10% of the inspection reports or number, say 10, whichever is more, for inspection conducted in last one year just preceding the month of review._ **==> picture [397 x 12] intentionally omitted <==** ## W.P.(C) No.15526/2019 **==> picture [19 x 8] intentionally omitted <==** performance evaluation and how marks have to be awarded. The petitioners also relied on Ext.P1 order issued by the National Rural Roads Development Agency with respect to empanelment of National Quality Monitors under the Pradhanmanthri Grama Sadak Yojna. It is provided therein that the candidates should not be allowed to work as NQM after completing the age of 70 years under the Scheme; only those candidates who have retired from the post not below the level of Superintending Engineer or equivalent are to be appointed, etc. 6. According to the petitioners as long as they have not completed 70 years and there is no adverse reports on the evaluation of their performance if any conducted against them they are entitled to continue. The orders of appointment does not prescribe any particular tenure for their appointment. 7. Respondents have filed counter affidavit stating that the power to appoint as well as to terminate is on them. It is stated that after evaluating the performance of empanelled SQMs, it was W.P.(C) No.15526/2019 **==> picture [19 x 8] intentionally omitted <==** felt that there is need to have fresh hands and it was decided to remove those who have completed 5 years in the empanelled list and to give fresh hands a chance. It is stated that the petitioners have completed more than 5 years duty as State Quality Monitors. It is also stated that the appointing authority have the right to replace the petitioners by experienced and talented young blood. According to them other persons who are qualified also have a right to be engaged as quality monitors. 8. Petitioners have filed a reply affidavit pointing out that no evaluation is conducted and order of termination does not refer to any such evaluation. Relying on the judgment in _**Senkumar T.P. IPS vs. Union of India and others : 2017 (2) KHC 612**_ the learned Counsel for the petitioners argued that the respondents cannot be allowed to supplement reasons by filing counter affidavit. 9. I heard the learned counsel for the petitioners and the learned Government Pleader. 10. The orders of appointment of petitioners do W.P.(C) No.15526/2019 **==> picture [19 x 8] intentionally omitted <==** not provide for any tenure. No agreement or contract is stated to have been executed, for prescribing the period of appointment. Respondents do not dispute the applicability of guidelines contained in Ext.P1 or Ext.P3. However the respondents claim that they can replace the petitioners by others as and when they deem it necessary. When there is no provision relating to the period of appointment of SQMs, it is not fair or proper to issue orders of termination all on a sudden even without a notice or an intimation in advance. Ext.P3 guidelines though do not provide that the SQMs can continue till they attain the age of 70 years, it provides that the age at the time of appointment as SQM shall not exceed 70 years. That would show that there is no prohibition in allowing continuance till the petitioners attain the age of 70 years unless and until their services are found to be unsatisfactory on the basis of evaluation made in tune with Ext.P3 guidelines and by the committee constituted in accordance with paragraph 3 of Ext.P3. Even though respondents have stated that the performance of petitioners was W.P.(C) No.15526/2019 **==> picture [19 x 8] intentionally omitted <==** evaluated, the order Ext.P8 does not refer to any such evaluation. What is stated in Ext.P8 order is that works in PMGSY Scheme are now sanctioned by giving importance to new construction technologies and therefore it was decided to appoint recently retired officers as State Quality Monitors, who are familiar with such technologies and that applications were called for appointment of State Quality Monitors and eligible candidates are selected by interview. No material is also produced regarding the evaluation. 11. Therefore, I am of the view that the petitioners' services are not liable to be terminated for the reasons stated in Ext.P8 order. Therefore, Ext.P8 order shall stand set aside. It is made clear that this will not stand in the way of respondents in taking action in accordance with Ext.P3 guidelines. The Writ Petition is disposed of accordingly. **==> picture [30 x 11] intentionally omitted <==** ## **P.V.ASHA** rkc **JUDGE** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE PROCEEDINGS NO.P-**| |---|---| ||**14013/3/2003-P-III PUBLISHED IN THE WEBSITE**| ||**OF THE 2ND RESPONDENT.**| |**EXHIBIT P2**|**TRUE COPY OF THE PRESS NOTE DATED**| ||**30.11.2011 ISSUED BY THE 4TH RESPONDENT.**| |**EXHIBIT P3**|**TRUE COPY OF THE GUIDELINES DATED 11.1.2013**| ||**FOR THE PERFORMANCE EVALUATION OF STATE**| ||**QUALITY MONITORS ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P4**|**TRUE COPY OF THE GO(RT) NO.261/13/LSGD**| ||**DATED 31.1.2013 OF THE 1ST RESPONDENT.**| |**EXHIBIT P4 A**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**PROCEEDINGS**| ||**NO.1701/AB4/2010/KSRRDA DATED 13.3.2013**| ||**ISSUED TO THE 1ST PETITIONER.**| |**EXHIBIT P5**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**| ||**NO.1701/AB4/2010/KSRRDA DATED 13.5.2013 OF**| ||**THE 4TH RESPONDENT.**| |**EXHIBIT P6**|**TRUE COPY OF THE PROCEEDINGS DATED**| ||**15.06.2017 ISSUED BY THE STATE QUALITY**| ||**COORDINATOR OF THE 3RD RESPONDENT.**| |**EXHIBIT P7**|**TRUE COPY OF THE CERTIFICATE ISSUED TO THE**| ||**1ST PETITIONER BY THE NATIONAL INSTITUTE OF**| ||**TECHNOLOGY CALICUT.**| |**EXHIBIT P8**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**| ||**NO.417/AB4/2016/KSRRDA DATED 1.6.2019 OF**| ||**THE 4TH RESPONDENT.**| |**EXHIBIT P9**|**TRUE COPY OF THE INSPECTION SCHEDULE OF**| ||**SQMS FOR THE MONTH OF JULY, 2019**| |**EXHIBIT P10**|**TRUE COPY OF THE INSPECTION SCHEDULE OF**| ||**SQMS FOR THE MONTH OF AUGUST, 2019**|