P.V.ALEYAMMA & P. SUBBARAJ v STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933** ## **WP(C).No. 13931 of 2011(N)** **----------------------** **PETITIONER(S):** **-----------------------** **1. P.V.ALEYAMMA, PART TIME OFFICE SWEEPER, MUNNAR GRAMA PANCHAYAT, MUNNAR, IDUKKI DISTRICT.** **2. P. SUBBARAJ, PART TIME POUND KEEPER, MUNNAR GRAMA PANCHAYAT, MUNNAR, IDUKKI DISTRICT.** **BY ADVS. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN** **RESPONDENT(S):** - **--------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF ADMINISTRATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM - 695 001.** **3. THE DEPUTY DIRECTOR OF PANCHAYATS, THODUPUZHA, IDUKKI - 685 584.** **4. THE SECRETARY, MUNNAR SPECIAL GRADE GRAMA PANCHAYAT, MUNNAR, IDUKKI DISTRICT - 685 612.** **5. THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM - 695 001.** **R1 TO R3 & R5 BY GOVT. PLEADER SMT. SMITHA SUKUMAR R4 BY ADV. SMT.AYSHA YOUSEFF, SC, MUNNAR G. PANCHAYAT** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/07/2011, ALONG WITH WPC NO. 14348 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** **WP(C).No. 13931 of 2011(N)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : COPY OF THE DECISION DATED 30.5.2000.** - **EXT.P2 : COPY OF THE ORDER DATED 27.10.2000 APPOINTING THE 1ST PETITIONER AS PART TIME OFFICE SWEEPER.** - **EXT.P3 : COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 9.1.2001 AND THE CONSEQUENT COMBINED ORDER DATED 27.1.2001 PASSED BY THE 3RD RESPONDENT.** - **EXT.P4 : COPY OF THE JUDGMENT DATED 10.4.2002 IN W.A. NO. 343/2002.** - **EXT.P5 : COPY OF THE ORDER DATED 6.8.2002 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P6 : COPY OF THE JUDGMENT IN W.A. NO. 1954/2003.** - **EXT.P7 : COPY OF THE ORDER DATED 30.4.2005.** - **EXT.P8 : COPY OF THE ORDER DATED 7.4.2007 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P9 : COPY OF THE NOTICE DATED 16.5.2011 ISSUED TO THE 1ST PETITIONER.** - **EXT.P9(a) : COPY OF THE NOTICE DATED 16.5.2011 ISSUED TO THE 2ND PETITIONER. EXT.P10 : COPY OF THE INTERIM ORDER DATED 18.5.2010 IN WP(C) NO. 12208/2010.** ## **RESPONDENT'S EXHIBITS - NIL** **//TRUE COPY//** ## **P.A. TO JUDGE** **Mn** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos. 13931 & 14348 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of July, 2011** ## **J U D G M E N T** In these writ petitions, the petitioners are persons who have been included in a list stated to have been forwarded by the Town Employment Exchange, Adimali for selection and appointment to various posts. They were subsequently appointed pursuant to the list stated to have been forwarded from the Employment Exchange. Subsequently it was found out that the list alleged to have been forwarded from the Employment Exchange is a bogus list since there was no employment officer whose name appears in the list as the sponsoring officer. Accordingly their services were proposed to be terminated. They approached this Court. This Court directed the Director of Panchayats to reconsider the matter after hearing the parties pursuant to which Exhibit P8 order (in WP(C) 15845/2004) was passed by the Director holding that the appointments of the W.P.(C)Nos. 13931 & 14348 of 2011 **-2-** petitioners in these writ petitions and others were illegal and unsustainable. It culminated in judgment dated 16.03.2004 in W.A. Nos.1953 & 1954/2003. The said judgment reads as follows: “These two writ appeals arise from a common judgment disposing of two original petitions, i.e. O.P.Nos.26276 and 26407 of 2002. The facts are almost identical. The order under challenge in both the cases is the same. The grounds of attack are also similar. Hence these appeals are disposed of by this common judgment. 2. Appellants are the petitioners in O.P.Nos.26276 and 26407 of 2002. The challenge was against order dated 6.8.2002 passed by the Director of Panchayats, Thiruvananthapuram, directing the Grama Panchayats to terminate the services of the appellants along with other parttime contingent employees whose appointments were made by the Grama Panchayats allegedly from a bogus list of candidates. A learned single Judge of this Court dismissed the original petitions by the impugned judgment. Aggrieved, the appellant have filed these appeals under Section 5 of the Kerala High Court Act. 3. For the sake of convenience facts are taken from W.A.No.1954 of 2003. 4. Learned Counsel for the appellants raised the following points: (i) The appellants were appointed by the competent authorities, namely, the concerned Grama Panchayats. (ii) They had registered their names in the Employment Exchanges. (iii) Procedure prescribed for the selection and appointments was strictly followed (iv) Appellants had no knowledge about any fraudulent fact and they were not parties to any such fraud. (v) Appellants hail from socially and economically poor sections of the society and they are the sole break-winners of their family and they deserve compassion. 5. Having heard Shri.K.M.Joseph, Learned counsel for the appellants and perused Ext.P8 order dated 6.8.2002 passed by the Director of Panchayats as also the counter affidavits filed W.P.(C)Nos. 13931 & 14348 of 2011 **-3-** by respondents 4 and 5, we are of the view that there is no merit in these appeals. It is true that the appointment orders were issued by the Grama Panchayats having the power to issue such orders after interview and selection. But these facts will not make the appointments valid if the very basis of those appointments was a bogus list fabricated with the connivance of interested parties. The appointment orders have been cancelled and the appellants' services terminated not on the ground that the panchayat was incompetent to appoint PartTime contingent employees nor for the reason that no interview was conducted but on the ground that the appellants were chosen from a list of candidates falsely foisted to defraud genuine claimants. It is common case that the Panchayats should obtain the list of candidates from the Employment Exchange as per Govt. order dated 7.8.1996 (Ext.P2). The Employment Officer informed the Deputy Director of Panchayats, Idukki that the appointments of Part Time employees in Munnar, Marayur, Kanthallur, Vellathuval and Pallivasal Grama Panchayats of Devikulam Taluk in the year 1999-2000 were made on the basis of a bogus list allegedly issued by Town Employment Exchange, Adimaly. The Deputy Director of Panchayats, conducted an enquiry and found truth in the allegation. On the basis of the facts disclosed in that enquiry, the appointments were cancelled. Orders thus issued were challenged before this court. Since the services of the appellants and others were terminated without affording them an opportunity of being heard, a Division Bench of this Court directed the Director Panchayats to pass a fresh orders after issuing notice to the affected employees and hearing them. As directed by this Court, the Director of Panchayats issued notice to the Part-Time employees who were appointed from the alleged bogus list. The explanations submitted by the employees were considered. Appellants and others as also the Presidents of the Five Grama Panchayats in Devikulam Taluk were also heard in person. The Director of Panchayats recorded the statement of the Employement Officer also. After considering the contentions raised by the parties and perusing the relevant records, the Director of Panchayats found that appointments of Part-time contingent employees made in Munnar, Marayur, Kanthallur, Pallivasal and Vellathuval Grama Panchayats in the year 1999-2000 were on the basis of fabricated documents and were the outcome of a conspiracy. The facts and circumstances noticed by the Director of Panchayats to come to the findings recorded in this order dated 6.8.2002 (Ext.P8) are the following: “On examining the files of the Marayur, Kanthallur, W.P.(C)Nos. 13931 & 14348 of 2011 **-4-** Pallivasal, Munnar, Vellethuval Panchayats and by the information given by the Adimali Town Employment Officer it is seen that there has been well planned fraud in all the appointments made in these Panchayats to the part-time vacancies. In the case of Marayur Panchayat, no letter is seen sent requesting the list of candidates. In the case of the Kanthallur Grama Panchayat, it is seen that the covering letter of the list received from the employment exchange is not in proper form in the case of Munnar Panchayat, only the Photostat copies of the letter already written to the employment exchange and the proforma which is to be sent along with are found. Manuscript is not found. The employment officer vehemently contended that, the lists allegedly received from the employment exchange by the above said Panchayats have not actually been sent from the employment exchange. M.K.Chellappan who has signed the impugned list has never marked in the Adimali employment office. No list has been sent from the employment exchange to the Munnar Grama Panchayat. In the list sent to the Vellathuval Panchayat the names of the candidates are not in a proper order. The list of Pallivasal panchayat was sent on 29.4.1999. The employment officer who signed in the said retired on the next day on 30.4.1999. The names of the candidates in the list are not found in the employment register” 6. From the facts thus proved in the enquiry, it is difficult to appreciate the contention of the appellants that they should be spared, as according to them, the fraudulent acts were committed without their knowledge. We do not find any material on record to believe the above version of the appellants. There is absolutely no reason to assume that the mal-practices were committed not for the benefit of those who enjoy the fruits of the fraudulent act. When the very list which forms the basis of the selection and appointment is not genuine but bogus and artificial, none included in that list can make a valid claim for appointment. Appellants who got appointments on the basis of a fabricated document, cannot be heard to say that they should be allowed to enjoy and retain the illegal benefit thus derived. Appointments made from a bogus list for that vitiating factor along, can never be in conformity with procedure laid down for making appointments. Hence, we are clearly of the view that the contentions raised on behalf of the appellants are liable to be rejected. W.P.(C)Nos. 13931 & 14348 of 2011 **-5-** 7. Learned counsel for the appellant cited before us the decision of the Supreme Court in Excise Superintendent Malkapatnam, Krishna District, A.P v. K.B.N. Visweshwara Rao & Others ((1996) 6 SCC 216) and contend that selection of candidates need not be confined to those sponsored by the Employment exchange and that the selection can be made on the basis of advertisement on broader basis. In our view, the decision reported in (1996) 6 SCC 216 (Supra) cannot be applied to the facts of these cases. There, the Supreme Court was considering the selection of candidates who had independently applied for appointment to the notified posts, whose appointments were found legal and valid by the Andhra Pradesh Administrative Tribunal. The selection conducted was to fill up 723 posts and having regard to the peculiar facts and circumstances therein, Supreme Court held that applications can be invited by publication to newspaper, announcement on radio, television etc., in addition to requisitioning the names from employment exchange. As far as the present appeals are concerned the appointments of the appellants have been found illegal for the reason that those appointments were made from a list of candidates brought into existence by unlawful means. Counsel cited the more decision of the Supreme Court. In H.C.Puttaswamy & others V/ The Hon'ble Chief Justice of Karnataka High Court ((1991) Supp. (2) S.C.C 421) to contend for the position that the hardship of the appellants whose appointments have been cancelled needs to be mitigated on humanitarian consideration. It was also contended that the appellants deserve justice by mercy. We do not think that it will be in the interest of justice to quash the order passed by the Director of Panchayats, on compassionate grounds. The scope for sustaining the illegal appointment orders on sympathetic considerations was considered by the Director of Panchayats himself. Dealing with that issue the respondent-Directors said in the impugned order as follows: “Though the appointees are poor and people struggling for their livelihood, it cannot be said that they are eligible for appointment, because is difficult to believe that the appointments, having been made illegally was without their knowledge. Jobs achieved improperly are not deserving”. Touching the very same issue, the view expressed by the learned single Judge in the impugned judgment is as follows: “Sufficient opportunities had been granted to the petitioners and it appears that the orders of the Director are passed on a fair examination of relevant facts. When the basis W.P.(C)Nos. 13931 & 14348 of 2011 **-6-** claims are traceable to a forged list, whatever be the merits of the petitioners, or however pathetic their cases might be, the orders cannot be unsettled. The claimants on the other side also are entitled to equal protection of law. We agree with the view expressed by the learned single Judge. The appeals are devoid of merit. In the result, both the appeals are dismissed.” The appellants in those writ appeals are the petitioners in these writ petitions. It appears that subsequent to the judgment these petitioners were suspended from service on the registration of a vigilance case. But on a recommendation of the Vigilance & Anti Corruption Bureau they were reinstated in service by Exhibit P7 order. Accordingly by Ext.P8 order, they were given reappointment in the respective Panchayats. But later on it was realized that these petitioners were the persons whose appointments were found to be bogus, which finding was upheld in the judgment in W.A. Nos.1953 & 1954/2003. On realizing the same, their services were again proposed to be terminated. Accordingly the petitioners were issued with the impugned show cause notices. It is those notices that the petitioners are challenging in these writ petitions. On W.P.(C)Nos. 13931 & 14348 of 2011 **-7-** ## 10.06.2011, I passed the following order. “The learned Government Pleader shall see that a comprehensive affidavit of the Secretary, Local Self Administration Department is filed in these writ petitions stating as to who are all of these writ petitions were included in the list forwarded by the Employment Exchange which the Division Bench found to be a bogus list and as to how after a Division Bench of this Court finding that the petitioners were included in the bogus list, the petitioners could be reinstated in service.” It is not now disputed before me that these petitioners were parties to the said writ appeals. When a Division Bench of this Court had upheld the finding of a learned Single Judge that the appointment of the petitioners were pursuant to a bogus list stated to have been forwarded by the concerned Employment Exchange, the petitioners have no right whatsoever to continue in service. Therefore, there is no merit whatsoever in these writ petitions. Accordingly they are dismissed. I am distressed by the fact that even after a Division Bench of this Court finding that the petitioners were appointed pursuant to a bogus list stated to have been issued from the Employment Exchange, the Vigilance & Anti Corruption Bureau had chosen to recommend the W.P.(C)Nos. 13931 & 14348 of 2011 **-8-** reinstatement of the petitioners. The Vigilance & Anti Corruption Bureau is the authority which is entrusted with the task of preventing such fraud in Government matters. If they themselves act in this way that too contrary to a Division Bench decision of this Court that is a matter which should gain the immediate attention of the Government. The Government should conduct an enquiry into the whole affair and take appropriate action against the persons who are responsible for the situation. Accordingly, I direct the Government to conduct an enquiry into the whole affair including against the officers of the Vigilance & Anti Corruption Bureau who recommended reinstatement of the petitioners and submit a report before this Court within three months. For this purpose the writ petitions shall be posted after four months. Sd/S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/