Nisha Balakrishnan.K v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941** ## **WP(C).No.6414 OF 2019(B)** ## **PETITIONER:** **NISHA BALAKRISHNAN.K, AGED 41 YEARS W/O.JAYESH C, ACCREDITED ENGINEER, KOZHIKODE BLOCK PANCHAYATH, KOZHIKODE-673014.** **BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA SMT.RIYA RAYMOL IYPE** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 RURAL DEVELOPMENT COMMISSIONER AND MISSION DIRECTOR, MAHATHMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME, FIRST FLOOR, PUNARJANI, T.C.26/1333(2), PANAVILA JUNCTION, THIRUVANANTHAPURAM-695001.** - **3 KOZHIKKODE BLOCK PANCHAYAT, REPRESENTED BY ITS SECRETARY, KOZHIKKODE BLOCK PANCHAYAT, KOZHIKKODE-673014.** - **4 SECRETARY, KOZHIKKODE BLOCK PANCHAYAT, KOZHIKKODE-673014.** - **5 THE PANCHAYAT COMMITTEE, REPRESENTED BY PRESIDENT, KOZHIKKODE BLOCK PANCHAYAT, KOZHIKKODE-673014.** - **6 BLOCK PROGRAM OFFICER, KOZHIKKODE BLOCK PANCHAYAT, KOZHIKKODE-673014.** **R3-5 BY ADV. SRI.K.M.FIROZ R3-5 BY ADV. SMT.M.SHAJNA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-06-2019, THE COURT ON 02-09-2019 DELIVERED THE FOLLOWING:** WP(C).No.6414 OF 2019(B) 2 ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 6414 of 2019 ----------------------------------------------Dated this the 2[nd] day of September, 2019** ## **JUDGMENT** The petitioner, who was working as an Accredited Engineer under the 3[rd] respondent Block Panchayat under the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), has approached this Court challenging the termination of her service for inducting fresh hands pursuant to Exhibit P4. It is submitted that the petitioner had entered service as Accredited Engineer under the Scheme on 24.8.2011. Though her initial contract was for a period of one year, the contract was extended from time to time and by Exhibit P2, the same was extended for two years from 4.12.2016. When the petitioner's term was to come to an end on 4.12.2018, she submitted a representation to the 6[th] respondent seeking further extension of the contract. It is stated that the governing body of the 3[rd] respondent Block Panchayat had decided that appropriate decision would be taken after culmination of the enquiry proceedings against the petitioner. It is contended that the governing body decided only to warn the petitioner and the petitioner was therefore entitled to extension of her contract. However, Exhibit P4 proceedings were issued inviting applications for WP(C).No.6414 OF 2019(B) 3 appointment to the post which is under challenge. 2. It is stated that Exhibit P5 Government order has been issued directing the extension of contract of employees under the Scheme and that as such, the action taken by the 3[rd] respondent to terminate the petitioner's service and to replace her with other temporary hands is completely unwarranted. Exhibits P7 to P10 interim orders as well as Exhibit P12 are relied upon to contend that in similar cases, the contractual appointees are being allowed to continue, pursuant to the orders issued by this Court. 3. A counter affidavit has been filed by respondents 3 to 5. It is stated therein that the petitioner is only a contract employee and is not entitled to any of the reliefs. It is stated that the last of the contracts entered into between the 3[rd] respondent and the petitioner had expired on 3.12.2018 and that the petitioner had been permitted to continue on a daily wage basis only until the vacancy is duly filled up. It is submitted that pursuant to Exhibit P4, an interview was held on 5.3.2019 and selections have already been effected. It is stated that the interim orders relied upon are of no application in the instant case and the petitioner who had been found to be unfit to continue as Accredited Engineer cannot claim that her services cannot be terminated especially in view of the fact that she had accepted the WP(C).No.6414 OF 2019(B) 4 contractual appointment with open eyes and since the period of contract has already expired. It is contended that there were several allegations against the petitioner with regard to the issuance of valuation certificates and it had been found that the petitioner had kept more than 40 valuation certificates in a signed and sealed condition and that an enquiry had been conducted as against employees of the Panchayat. It was found that the petitioner was also equally responsible and since she was only a contract employee, a decision was taken not to extend the contract of the petitioner. It is stated that the petitioner's request for renewal of contract had been considered by the Panchayat Committee and Exhibit R3(d) decision was taken to terminate the contract and to permit the petitioner to continue as Accredited Engineer on daily wage basis only until the enquiry proceedings are over. It is stated that an enquiry was conducted and Exhibit R3(e) report was submitted by the Enquiry Committee which was placed before the Block Panchayat Committee and a show cause notice was issued to the petitioner. It is stated that the explanation submitted by the petitioner was also considered and the petitioner was strictly warned to avoid similar instances in future. In view of the fact that the petitioner's term of engagement was already expired, a decision was also taken to notify the vacancy of WP(C).No.6414 OF 2019(B) 5 Accredited Engineer and to make contract appointments against the said vacancy. It is stated that the writ petitioner is not a temporary employee and that the decisions relied upon by learned counsel for the petitioner have absolutely no application in the instant case. Judgments of the learned single Judge of this Court in W.P(C).No.22402 of 2018 and W.P(C).No.13660 of 2018 are relied upon by the learned counsel for the respondents to contend that the petitioner has absolutely no claim for re-engagement or for continuance in service in view of the fact that the appointment was purely contractual in nature and the term of the contract appointment has long expired. 4. Learned counsel for the petitioner would contend it is evident from the counter affidavit filed by the 3[rd] respondent that the decision taken to replace the petitioner with another contract employee was actually punitive in nature and that as such, the termination of the petitioner without conducting a proper enquiry in accordance with law is legally impermissible. It is further contended that the Apex Court has, in _**State of Haryana and others v. Piara Singh and others**_ [(1992)4 SCC 118], held that one set of contractual employees cannot be replaced by another set of such employees and that the petitioner, who has been in service from 2011, should be allowed to continue as long as the project and the necessity for an Accredited Engineer WP(C).No.6414 OF 2019(B) 6 continues. 5. I have considered the contentions advanced. The arguments raised by the petitioner with regard to the replacement of one set of contractual employees with another set have been considered by this Court in its judgment dated 19.11.2018 in W.P(C).No.13660 of 2018. The issue with regard to the applicability of the Government order and the necessity for any permission from the Rural Development Commissioner for termination of contract appointments as also the right of contractual employees to continue after the period of contract has expired have already been considered by this Court in the said judgment. It was held that prior permission is required only in case where termination is sought for before the expiry of the term of the contract. It was held that the decision in _**Piara Singh's case (supra)**_ and _**Muhammed Abdul Khader and another v. Director General of Police, Assam and Ors.**_ [(2009)6 SCC 611] is not applicable to the situation prevalent in the State of Kerala, where the number of educated unemployed youth is high and there is no dearth of qualified candidate to man the posts. 6. Since no orders of termination, punitive or otherwise, are under challenge before me and in view pf the fact that the petitioner's contract had already expired on 3.12.2018, I am of the opinion that the WP(C).No.6414 OF 2019(B) 7 grounds raised in the writ petition do no justify the grant of the reliefs sought for. The petitioner, who was admittedly a contract employee and whose contract has as long as expired, has no right to claim that her services are liable to be continued. The writ petition fails and the same is accordingly dismissed. Sd/- **ANU SIVARAMAN JUDGE** _vgs_ WP(C).No.6414 OF 2019(B) 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**A COPY OF THE AGREEMENT DATED 24.8.2011**| |---|---| ||**ENTERED INTO BETWEEN THE PETITIONER AND THE**| ||**6TH RESPONDENT.**| |**EXHIBIT P2**|**A COPY OF THE AGREEMENT DATED 4.12.2016**| ||**ENTERED INTO BETWEEN THE PETITIONER AND THE**| ||**6TH RESPONDENT.**| |**EXHIBIT P3**|**A COPY OF THE RELEVANT PAGES OF THE**| ||**DECISION DATED 6.12.2018 BY THE GOVERNING**| ||**BODY OF THE 3RD RESPONDENT PANCHAYAT.**| |**EXHIBIT P4**|**A COPY OF THE NEWS APPEARED IN DESHABHIMANI**| ||**DAILY DATED 28.2.2019.**| |**EXHIBIT P5**|**A COPY OF G.O.(MS)NO.952/12/LSGD DATED**| ||**29.3.2012.**| |**EXHIBIT P6**|**A COPY OF THE INTERIM ORDER DATED 1.11.2017**| ||**IN W.A.1417/17.**| |**EXHIBIT P7**|**A COPY OF THE INTERIM ORDER DATED 12.4.2018**| ||**IN W.A.NO.875/2018.**| |**EXHIBIT P8**|**A COPY OF THE ORDER IN SLP NO.41387/2017.**| |**EXHIBIT P9**|**A COPY OF THE INTERIM ORDER DATED 15.7.2019**| ||**IN WPC.NO.4725/2019.**| |**EXHIBIT P10**|**A COPY OF THE G.O.(MS)NO.41/2017/LSGD DATED**| ||**20.2.2017.**| |**EXHIBIT P11**|**TRUE COPY OF THE DECISION NO.D.288/18 DATED**| ||**13/03/2018**| |**EXHIBIT P12**|**TRUE COPY OF THE ORDER DATED 6.9.2018 IN**| ||**W.A.NO.1139/2018.**|