Rahul Raveendran v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** ## **WP(C).No. 27101 of 2018** ## **PETITIONER/S:** **RAHUL RAVEENDRAN AGED 27 YEARS, S/O.RAVEENDRAN, OVERSEER, VAZHATHOPPE GRAMA PANCHAYAT, THODIYAMPADU P.O, IDUKKI-685602, RESIDING AT KALOVARATHOTTATHIL HOUSE, PONMUDY P.O, IDUKKI -685564.** **BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA SMT.RIYA RAYMOL IYPE SRI.VARUN C.VIJAY** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**LOCAL SELF GOVERNMENT DEPARTMENT,**| ||**SECRETARIAT,THIRUVANANTHAPURAM - 695 001.**| |**2**|**RURAL DEVELOPMENT COMMISSIONER & MISSION DIRECTOR**| ||**MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE**| ||**SCHEME, FIRST FLOOR, PUNARJANI,**| ||**T.C.26/1333(2),PANAVILA JUNCTION,**| ||**THIRUVANANTHAPURAM -695 001.**| |**3**|**VAZHATHOPE GRAMA PANCHAYAT**| ||**REPRESENTED BY ITS SECRETARY,THADIYAMPADU P.O,**| ||**IDUKKI -685 602.**| |**4**|**SECRETARY, VAZHATHOPE GRAMA PANCHAYAT**| ||**THADIYAMPADU P.O, IDUKKI -685 602.**| **WP(C).No. 27101 of 2018** **2** **5 THE PANCHAYAT COMMITTEE REPRESENTED BY ITS PRESIDENT, VAZHATHOPE GRAMA PANCHAYAT,THADIYAMPADU P.O, IDUKKI -685 602.** **BY ADVS. JIMMY GEORGE (THADATHIL) SRI.RAJU SEBASTIAN VADAKKEKKARA SRI.RON BASTIAN,GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 27101 of 2018** **3** ## **JUDGMENT** **The petitioner, who was working as an Overseer under the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) in the 3[rd] respondent Panchayat has filed this writ petition challenging Exts.P4 and P6 orders and seeking a direction to the respondents to permit her to continue as Overseer.** **2. Petitioner was appointed as Overseer on contract basis for a period of two years. She has executed Ext.P1 agreement with the Panchayat, according to which the appointment is for a period of two years from the date of her joining duty on a monthly consolidated remuneration of Rs.13,200/-. As per the agreement his appointment was from 01.08.2016 and it was to terminate on the date of completion of two years from the date of joining duty or on the date on which his services are terminated or on such other date as mutually agreed between the Secretary of the** **WP(C).No. 27101 of 2018** **4** **Panchayat and petitioner. Thus as per Ext.P1 agreement, the period of her appointment came to an end on 31.07.2018.** **3. Petitioner had requested the Panchayat to renew his contract and that request was considered by the Panchayat Committee in its meeting held on 09.07.2018 and as per Ext.P4 resolution the Committee decided not to renew the contract with him and to make a fresh appointment to the post. By Ext.P6, the Panchayat notified the vacancy of Overseer inviting applications. Petitioner thereupon approached this Court filing this Writ Petition on 08.08.2018. In view of the fact that the Division Bench of this Court had in Writ Appeal No.1621/2018 and connected cases, issued interim orders directing to re-induct the persons who were working under the MGNREGS Programme even after the contract period, interim order was passed directing the Panchayat to reinduct the petitioner initially for a period of one month and it was extended thereafter.** **WP(C).No. 27101 of 2018** **5** **4. The respondents 3 to 5 - the Secretary, the Grama Panchayat and the Panchayat committee have filed a counter affidavit opposing the interim orders passed by this Court and the claim of the petitioner for retention.** **5. In the counter affidavit, the respondents 3 to 5, have stated that the petitioner who was appointed on contract basis does not have any right to continue after the contract period is over on expiry of two years. It is stated that petitioner who entered service after executing Ext.P1 agreement in which he has agreed to the condition that the appointment was only for two years and that the said appointment would not confer on him any right for future appointment or for re-appointment, is bound by the terms of the agreement and therefore he is not entitled to make any further claims based on the said appointment after the expiry of the contract period. It is also stated that petitioner's representation Ext.P2 for renewal of** **WP(C).No. 27101 of 2018** **6** **his contract was considered by the Committee when it was resolved not to renew the contract and accordingly Ext.P4 resolution was passed. On the basis of the resolution, the respondent Panchayat made arrangements to appoint another competent and efficient person. Ext.P6 notification was issued calling for applications. It is further stated that there are several other qualified and experienced persons residing within the Panchayat; petitioner also participated in the interview conducted pursuant to Ext.P6 notification on 10.08.2018, pursuant to the interim order of this court; but he secured lesser marks and another person who ranked no.1 is awaiting appointment, on being found meritorious and hence selected. The respondents have also stated that the permission from the 2[nd] respondent is necessary only if the service of petitioner was terminated before the expiry of the contract period.** **6. The petitioner has filed a reply** **WP(C).No. 27101 of 2018** **7** **affidavit refuting the contentions in the counter affidavit.** **7. The learned counsel for petitioner argued that for the purpose of termination of service of those who are employed under the MNREG scheme, permission from the Rural Development Commissioner is required. The basis of this contention is Ext.P11 Government Order issued on 29.03.2012. This Government Order is seen issued seeing that there were widespread complaints regarding termination of services of those appointed on contract basis without any reason. In order to avoid such complaints, it was directed that before termination of service of the Assistant Engineers/ Overseers/ Accountant/ Data Entry Operators who are in service, prior permission shall be obtained and the termination shall be effective only after permission is granted. It was also directed that the termination orders issued after 1[st] January, 2012 shall be considered again by the Rural** **WP(C).No. 27101 of 2018** **8** ## **Development Commissioner.** **8. The petitioner has also relied on Ext.P12 letter of the 2[nd] respondent issued on 06.01.2016 to the District Co-ordinators in which also certain guidelines were issued, referring to Ext.P11 order dated 29.03.2012 and another Government order dated 05.07.2012, directing that the services of those who are continuing on contract basis shall not be terminated until further orders, as the absence of such experienced hands at a time when several works relating to budget, etc were are to be completed in a time bound manner, for which their presence would be required.** **9. The learned Counsel for the petitioner relied on the judgments in** _**State of Haryana v. Piara Singh and others**_ **: (1992) 4 SCC 118;** _**Barinder Kaur v. Gurunanak Dev University and others**_ **: 2015 (3) SCT 608** _**, Dr. Pramod Anatrao Pathrew v. State of Maharashtra**_ **: (2007)(109) Bombay LR 962** _**,**_ **etc and argued that when the** **WP(C).No. 27101 of 2018** **9** **scheme continues one contract employee shall not be replaced by another contract employee.** **10. The learned Counsel for the respondents 3 to 5, relied on the judgment of the Apex Court in** _**Yogesh Mahajan v. Professor R.C.Deka, Director, All India Institute of Medical Science**_ **: 2018 (3) SCC 218, and argued that no contract employee has a right to get his contract renewed from time to time. The judgment dated 28.2.2018 in W.P.(C) No. 3357 of 2018 of this court was also relied on and argued that petitioner cannot also have any right either to get the contract renewed or to continue in service, once the contract period expired.** **11. According to the learned Government Pleader, the order Ext.P11 was issued in order to check the premature termination of the employees engaged under the Scheme, seeing that several Panchayats were terminating the service of the contract employees even before completion of the contract period. It is also pointed out that** **WP(C).No. 27101 of 2018** **10** **Government had by its order G.O.(Rt) No. 47/16/ LSGD dated 03.03.2016 issued orders directing that the contract period of those employed under the MGNREG Scheme shall be for a period of two years. It is argued that there are no orders in force directing to obtain permission of the Rural Development Commissioner, for relieving/ terminating the services of those who completed the contract period.** **12. I have heard the learned Counsel for the petitioner as well as the learned Counsel for the respondents 3 to 5 and the learned Government Pleader. Though the learned Counsel for the petitioner requested for a posting after 15.11.2018, pointing out the interim orders Exts.P6, P7 and P8 in the Writ Appeals in which very same issue is arising, I am disposing of the writ petition, as the learned Counsel for the respondents 3 to 5 pressed for a hearing and for a final decision.** **13. The petitioner who joined duty after** **WP(C).No. 27101 of 2018** **11** **executing Ext.P1 agreement is bound by the terms of the agreement, according to which his service commenced on 01.08.2016 and his termination stood determined to 31.07.2018. Petitioner cannot be heard to raise any claim for a renewal of contract or an extension of his tenure or even a re-appointment as he has agreed that the appointment would not confer on him any right for any further appointment. Ext.P1 is a composite document with respect to the appointment as well as termination of service of the petitioner. Therefore even in the absence of an order of termination, petitioner is not entitled to work on expiry of the contract period that is on completion of two years from the date of joining, in the absence of another order of appointment or another agreement to that effect.** **14. As rightly pointed out by the learned counsel for Panchayat, in the light of Ext.P1 agreement and in the light of the judgment of the Apex Court in** _**Yogesh Gupta's case (supra)**_ **, the** **WP(C).No. 27101 of 2018** **12** **petitioner who was appointed on contract basis does not have any right to claim renewal of contract. The respondents have conducted a fresh selection in which petitioner had also participated. Rank no.1 in that process of selection is awaiting appointment. By the mere fact that he worked for a period of 2 years petitioner cannot claim any preference in the fresh selection. At any right the contention of the petitioner is that he shall not be replaced by another contract employee. I have already considered several cases of the very same nature under the very same scheme and dismissed those cases. It is also pertinent to note that similar issue arose in the judgment in W.P.(C) No. 20613 of 2016 when this court did not even permit the employee to continue for another one year when government issued order dated 03.03.2016 directing that the appointments shall continue for a period of two years. In the judgment dated 21.10.2016 in W. A. 2071 of 2016, the Division** **WP(C).No. 27101 of 2018** **13** **Bench approved the finding that the contract employees do not have any right to seek continuation of their employment. They were allowed to continue only for a further period of one year, seeing that the employees are entitled to the benefit of the Government Order dated 03.03.2016. In the judgment dated 28.02.2018 in W.P.(C) No.3357/2018, also the claim of the contract employee to continue beyond contract period was rejected.** **Therefore petitioner cannot have any right to continue beyond 31.07.2018** **Accordingly, writ petition fails and is dismissed.** **Sd/-** **P.V.ASHA JUDGE** ## **WW** **WP(C).No. 27101 of 2018** **14** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AGREEMENT DATED 1.8.2016 ENTERED INTO BETWEEN THE PETITIONER AND THE 4TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 5.7.2018 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 9.7.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE DECISION OF THE 5TH RESPONDENT DATED 9.7.2018 EXHIBIT P5 TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED 3.8.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P6 TRUE COPY OF THE ADVERTISEMENT APPEARED IN MALAYALA MANORAMA DAILY DATED 3.8.2018 EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER DATED 1.11.2017 IN W.A.1417/17 EXHIBIT P8 TRUE COPY OF THE INTERIM ORDER DATED 12.4.2018 IN W.A.NO.875/2018 EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 13.4.2018 IN W.A.NO.863/2018 EXHIBIT P10 TRUE COPY OF THE INTERIM ORDER DATED 14.6.2018 I W.A.NO.1139.2018 EXHIBIT P11 TRUE COPY OF THE G.O(MS)NO.952/12/LSGD DATED 29.3.2012 EXHIBIT P12 TRUE COPY OF THE COMMUNICATION NO.2655/EGSB/15/REGS DATED 6.1.2016**