O.P(KAT) No.77 of 2016 (Z)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938** ## **O.P(KAT).No. 77 of 2016 (Z)** ## **---------------------------** ## **AGAINST THE ORDER IN O.A.(EKM) NO. 1190/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM, DATED 13-06-2016** ## **PETITIONER(S)/APPLICANT:** **----------------------------------------** **1. DEVANANDAN.B., S/O. GOVINDAN NAIR, AGED 52 YEARS, DRIVER ON DAILY WAGES, DESAMANGALAM GRAMA PANCHAYAT, DESAMANGALAM P.O.,TRISSUR, RESIDING AT VELUTHEDATHU HOUSE, DESAMANGALAM.** ## **BY ADV. SRI.P.C.SASIDHARAN** |**RESPONDENT(S):**|**RESPONDENT(S):**| |---|---| |**------------------------**|| |**1.**|**STATE OF KERALA,**| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2.**|**THE DIRECTOR OF PANCHAYATS,**| ||**DIRECTORATE, THIRUVANANTHAPURAM-695 001.**| |**3.**|**DEPUTY DIRECTOR OF PANCHAYATS,**| ||**THRISSUR-680001**| |**4.**|**DESAMANGALAM GRAMA PANCHAYAT,**| ||**DESAMANGALAM P.O., TRISSUR,**| ||**REPRESENTED BY ITS SECRETARY**| ||**PIN-680 001.**| **R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.T.RAJASEKHARAN NAIR R4 BY ADV. SRI.SUNIL JACOB JOSE** **THIS O.P. (KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD ON 20-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(KAT).No. 77 of 2016 (Z) -------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **------------------------------------EXHIBIT P1 TRUE COPY OF THE O.A.(EKM) NO. 1190 OF 2015 WITH ITS ANNEXURES EXHIBIT P2 TRUE COPY OF THE ORDER DATED 11/02/2016 IN O.A. (EKM) NO.1190 OF 2015** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 13/6/2016 IN O.A.(EKM) NO.1190 OF 2015** **RESPONDENT(S)' EXHIBITS** **--------------------------------------EXHIBIT R4(1) PHOTOCOPY OF THE DECISION NO.66(9) DATED 20/2/1999 OF THE PANCHAYATH** **EXHIBIT R4(a) PHOTOCOPY OF THE REPLY STATEMENT WITH ITS ANNEXURE FILED BEFORE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL IN OA(EKM). NO.1190/15.** ## **//True Copy//** ## **P.A. To Judge** **Bb** ## **P.R. RAMACHANDRA MENON & P.SOMARAJAN, JJ.** ....................................................................... **O.P(KAT)No.77 of 2016** ......................................................................... **Dated this the 20[th] day of October, 2016** ## **J U D G M E N T** ## P.R.Ramachandra Menon, J. Challenge is against Ext.P3 interim order, dated 13.06.2016, passed by the Kerala Administrative Tribunal, whereby, the interim order of stay granted earlier and subsequently extended as per Ext.P2, dated 11.02.2016, came to be vacated, facilitating removal of the petitioner from the service, based on Annexure A4 resolution taken by the Panchayat on 26.11.2015 and making it clear that, engagement of any fresh hand on daily wages as sought to be pursued and decided by the Panchayat will be subject to the result of the Original Application. 2. The sequence of events is as follows: The petitioner was having a valid driving licence and O.P.(KAT)No.77 of 2016 : 2 : based on his credentials, he was engaged by the Panchayat as a 'Driver' on daily wages, admittedly from 20.02.1999. It is contended by the petitioner and conceded by the 4[th] respondent Panchayat that, he was continuing so for nearly 17 years. Annexure A1 is a copy of the resolution taken by the Panchayat, whereby, such engagement was ordered to be effected with reference to the sanction given by the State Government to purchase a Jeep for meeting the requirements of the Panchayat. 3. Case of the petitioner is that, he was serving the Panchayat to the utmost satisfaction of all concerned and without any complaint from any corner. While so, pursuant to the situations prevailing in various Local Authorities resulting in engagement and continuance of daily-waged employees for quite long, the Government took a policy decision to have the service regularised in respect of the persons who were having more than '10 years' of service. It was accordingly, that Annexure A2 communication was O.P.(KAT)No.77 of 2016 : 3 : issued on 07.08.2015 from the office of the Deputy Director of Panchayat, Thrissur, for furnishing the particulars to the requisite extent, for considering the case of regularisation of the eligible employees. The name of the petitioner has been included at Sl.No.8, also giving all the relevant particulars and the matter is stated as pending consideration before the Government. 4. While so, the new Committee who assumed the office pursuant to the Election in the year 2015, on coming across Annexure A2 proceedings dated 07.08.2015, took a unilateral decision as per Annexure A4 resolution, dated 26.11.2015, to disengage the petitioner from the service of the Panchayat and to appoint another person in his place, again on 'daily wages', absolutely for no reason or no fault on the part of the petitioner. This made the petitioner to have the same challenged by filing the Original Application before the Tribunal with the following prayers: _“(i) Issue a writ of certiorari, or any other appropriate_ O.P.(KAT)No.77 of 2016 : 4 : _writ, order or direction to quash Annexure-A4, in so far as it relates to the disengagement of the applicant and appointing fresh daily wages driver in the service of the 4[th] respondent._ - _(ii) To declare that since the Applicant is continuing in the service for the last 16 years, he is entitled for regularization in the service of the 4[th] respondent applying the principles laid down in paragraph 52 of Umadevi's case._ - _(iii) Issue a writ of mandamus or any other writ, order or direction, commanding and compelling the respondents to regularize the service of the applicant under the 4[th] respondent._ - _(iv) Award the cost of the proceedings.”_ 5. After considering the nature of reliefs sought for, an interim order of stay was granted, which was subsequently extended as per Ext.P2 order, dated 11.02.2016. After hearing the version of the Panchayat, the Tribunal vacated the interim order (with reference to the modified interim order passed in O.A.No.44/2016 filed by another applicant), virtually permitting the Panchayat to proceed with the steps for filling up the vacancy by 'daily- O.P.(KAT)No.77 of 2016 : 5 : rated employee', however, making it subject to the result of the Original Application. This is under challenge in this Original Petition. 6. The Panchayat has filed a counter affidavit dated 22.08.2016, pointing out that, Annexure A4 decision was taken by the Panchayat, since the applicant was engaged as Driver on daily wages, absolutely without any process of selection and hence, it was an illegal engagement. It was also pointed out that, there was no approval or test of driving for the petitioner, to get regularised and that no order of regularisation had ever been issued by the Government so far. The contention of the Panchayat is that, the decision taken on 26.11.2015, was only to have the course of proceedings made transparent, with intent to engage a new person for the purpose of driving the Panchayat Jeep, after effecting paper publication and calling applications from qualified hands. It is added that, pursuant to the paper publication effected on 03.12.2015, 'five' O.P.(KAT)No.77 of 2016 : 6 : applications have already been received. It is also pointed out that, there is no sanction to the post of Driver and as such, the relief sought for is not liable to be entertained under any circumstances. 7. When the matter came up for consideration on 30.08.2016, this Court, prima facie found it difficult to reconcile with the facts and figures, especially, in the light of undisputed fact that the petitioner was being engaged for more than 17 years, right from 1999, though on daily-wage basis. It was also observed by this Court, whether, under such circumstances, the petitioner would be entitled to get the benefit of the observations made by the Apex Court in paragraph 55 of the decision rendered in **Secretary, State of Karnataka and others vs. Umadevi (3) and others [2006 (4) SCC 1]** . The said order reads as follows: _“The learned counsel for the 4[th] respondent submits that a similar issue has already been_ O.P.(KAT)No.77 of 2016 : 7 : _considered by this Court, wherein interference was declined and the petitioner was relegated to move the Tribunal where the O.A. was pending, as per the judgment dated 05.07.2016 in O.P.(KAT)No.78 of 2016._ _2. We have gone through the said judgment, but the factual position herein stands different. It prima facie appears that the petitioner in this case may be eligible to have the benefit flowing from paragraph 55 of the decision of the Apex Court in_ _**Secretary, State of Karnataka and others vs. Umadevi (3) [2006**_ _**(4) SCC1].** The circumstances under which the service of the petitioner, who was serving the Panchayat for more than 17 years, was dispensed with on a fine morning, merely stating that the initial engagement was illegal and now seeking to engage some other person 'on daily wages' again; is not properly explained to the satisfaction of this Court. Similarly, when the 4[th] respondent contends that no post of driver was sanctioned by the Government, it is not satisfactorily explained, how the vehicle (jeep) came to be purchased by the Panchayat or under what circumstance, the same was made available to the Panchayat by the Government, without having a sanctioned post of driver._ _3. The learned counsel for the 4[th] respondent/Panchayat seeks for time to file a detailed affidavit, explaining the facts and circumstances, also_ O.P.(KAT)No.77 of 2016 : 8 : _producing copies of the relevant documents. Stand of the first respondent shall also be revealed by filing proper counter affidavit. The O.P. stands admitted. Service is complete._ _4. Interim order will stand extended by one month._ _Post after Onam vacation.”_ 8. As observed by this Court, when the Panchayat contended that there was no sanctioned post, under what circumstances a Jeep was allotted or permitted to be purchased as sanctioned by the Government, was set as a matter of mystery. Equally important was to see the undisputed fact that, such exercise of engagement on 'daily wages' continued for more than 17 years. It was taking note of the factual position as existing in various Local Authorities, that the Government had taken 'a policy decision', to have the question of regularisation considered, thus leading to Annexure A2 proceedings, dated 07.08.2015, calling for the particulars of employees eligible O.P.(KAT)No.77 of 2016 : 9 : for regularisation. Admittedly, name of the petitioner has been shown as Sl.No.8 and it is under consideration of the Government. 9. The learned Senior Government Pleader submits that the issue is pending consideration before the Government and that such a decision has been taken as a matter of policy, to safeguard the rights and interests of all concerned. This being the position, permitting the Panchayat to implement Annexure A4 decision, dispensing with the service of the petitioner who was serving the Panchayat for more than 17 years and permitting the Panchayat to fill up the vacancy again on daily wages (by substituting another hand) does not appear to be correct or proper. This is more so, in view of the law declared by the Apex Court in **State of Haryana Vs. Piara Singh [(1992) 4 SCC 118]** and the observations to the extent, they are applicable as considered in Umadevi's Case (supra). This Court does not intend to express anything with regard to O.P.(KAT)No.77 of 2016 : 10 : the merits of the case, as to the eligibility of the petitioner, as the same has to be considered, based on the actual facts and figures. The observation made by this Court in the forgoing paragraphs is only in relation to the interim order passed by the Tribunal, vacating the interim order of stay and permitting the Panchayat to disengage the petitioner and to fill up the resultant vacancy by some other person on similar terms. We make the interim order of stay absolute. We permit the parties to complete the pleadings and proceedings before the Tribunal. It is for the Tribunal to have the issue finalised, passing appropriate orders in accordance with law. The right of regularisation will depend upon the decision to be taken by the Government, considering the merit of each candidate, in terms of the decision to be taken by the Government. 10. The Original Petition stands disposed of as above. We hope that the Tribunal will expedite the matter at the earliest, especially since the case of regularisation is O.P.(KAT)No.77 of 2016 : 11 : pending consideration before the Government (as a matter of policy) and the benefit to the extent payable to the deserving candidates is extended to them, at the earliest. Sd/- **P.R. RAMACHANDRA MENON, JUDGE** Sd/- **P.SOMARAJAN, JUDGE** Bb/21/10/2016 _[True copy]_ _P.A to Judge_