Sathyabhama P. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 29TH DAY OF JUNE 2020 / 8TH ASHADHA, 1942** ## **WP(C).No.10829 OF 2020(C)** ## **PETITIONER:** **SATHYABHAMA P., ACCOUNTANT-CUM-DATA ENTRY OPERATOR, PULLUR PERIYA GRAMA PANCHAYATH, P O CHALINGAL, HARIPURAM, KASARGOD-671531.** **BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE** ## **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 MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME, FIRST FLOOR, PUNARJANI, T.C. 26/1333(2), PANAVILA JUNCTION, THIRUVANANTHAPURAM-695001.** - **3 PULLUR PERIYA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, CHALLINGAL, HARIPURAM, KASARAGOD-671531.** - **4 SECRETARY, PULLUR PERIYA GRAMA PANCHAYATH, CHALLINGAL, HARIPURAM, KASARAGOD - 671531.** - **5 THE PANCHAYAT COMMITTEE, REPRESENTED BY PRESIDENT, PULLUR PERIYA GRAMA PANCHAYATH, CHALLINGAL, HARIPURAM, KASARGOD-671531.** **WP(C).No.10829 OF 2020(C)** 2 **6 THE PROJECT DIRECTOR AND JOINT PROGRAM CO-ORDINATOR, MAHATMA GANDHI NATIONAL EMPLOYMENT GUARANTEE SCHEME, P.A.U, KASARAGOD-671123.** **BY ADV. SRI.M.SASINDRAN** ## **OTHER PRESENT:** **SRI.SUNIL KUMAR KURIAKOSE , GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.10829 OF 2020(C)** 3 ## **J U D G M E N T** Petitioner, who has been working as Accountant Cum Data Entry Operator under the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), has once again approached this Court, challenging Ext.P8 order and seeking a direction to the respondents to permit her to continue in service as Accountant Cum Data Entry Operator. 2. Petitioner had been working as Accountant Cum Data Entry Operator in the 3[rd] respondent Panchayat based on her initial appointment as per order dated 29.08.2012 on contract basis on execution of agreements from time to time. She had approached this Court in W.P.(C).No.5332 of 2019 on 21.02.2019 when the contract period of her appointment was due to expire on 25.02.2019. This Court had, in Ext.P5 judgment dated 02.03.2020 held that petitioner is not entitled to continue beyond the contract period which expired on 25.02.2019. Ext.P5 judgment was rendered **WP(C).No.10829 OF 2020(C)** 4 following a series of judgments of this Court including the judgment in W.P.(C).No.35907 of 2018, etc, as affirmed in the judgment in W.A.No.243 of 2019, judgment dated 09.11.2018 in W.P.(C).No.13660 of 2018 which was upheld by the Division Bench by common judgment dated 05.02.2020 in W.A.No.158 of 2020 and connected cases, etc. As against Ext.P5 judgment, petitioner had filed W.A.No.625 of 2020, which was dismissed as per Ext.P6 judgment, following the common judgment in W.A.No.1570 of 2018 and connected cases. Though contract period expired on 25.02.2019, petitioner was continuing on the basis of interim orders passed in the writ petition. On dismissal of the writ petition Panchayat took a decision on 22.05.2020 to terminate the services of petitioner referring to its earlier decision for the same on 30.01.2019. It was also ordered that her case would be considered in accordance with rules as directed in Ext.P5 judgment. Petitioner has now challenged the termination as per Ext.P8 order on the **WP(C).No.10829 OF 2020(C)** 5 ground that it is in violation Ext.P7 letter of Government of India, issued on 20.03.2020 advising all the employers of public or private establishments to extend the period of engagement of the casual or contractual workers and not to reduce their wages due to outbreak of COVID-19, stating that the termination of employees from the job or reduction in wages in this scenario would further deepen the crisis and will not only weaken the financial condition of the employee but also hamper their morale to combat their fight with the epidemic. She also relies on Ext.P12 letter dated 27.05.2020 of the Project Director, referring to Ext.P7 letter of the Central Government, directing the Panchayat that its decision to terminate the services of the petitioner shall be kept in abeyance. According to petitioner, in view of Ext.P7 and Ext.P12 letters, the Panchayath ought to have allowed the petitioner to continue in service at least till the lock down is over. 3. The 3[rd] respondent has filed a counter **WP(C).No.10829 OF 2020(C)** **==> picture [7 x 7] intentionally omitted <==** affidavit. It is stated that Ext.P8 is a communication issued to the petitioner, based on Ext.R3(b) decision of the Panchayat which is in turn taken on 22.05.2020 on the basis of Ext.R3(a) decision of the Panchayat taken on 30.01.2019, to terminate the services of petitioner on expiry of contract period and also on the basis of Exts.P5 and P6 judgments of this Court dated 02.03.2020 and 20.03.2020. According to them Ext.P7 letter would not apply to the circumstances of the present case where the decision was taken in January 2019. Regarding Ext.P12 letter, it is stated that the appointing authority of Accountant cum Data Entry Operators like petitioner is the Panchayat and the Project Director has no authority to issue any direction as in Ext.P12. It is stated that the interparte judgment Ext.P6 of the Division Bench would subsist even if a different order is passed by any other authority in general or in particular, concerning the issue, unless the judgments Exts.P5 and P6 are reviewed and **WP(C).No.10829 OF 2020(C)** 7 reversed. 4. Smt.Thulasi the learned counsel for the petitioner, relying on paragraph 9 of the judgment of a Full Bench of this Court in **Pavithran V.K.M and Another v. State of Kerala and others** [2009 (4) KHC 4], argued that unless and until Ext.P12 is challenged and got set aside by the Panchayath through valid legal proceedings, the Panchayath is bound to act upon it and to retain the petitioner in service. 5. On the other hand the learned Standing Counsel for the 3[rd] respondent, relying on the judgment in **Union of India v Central Administrative Tribunal** [2002 KHC 175: 2002(1) KLT 840] argued that a judgment interparties which attained finality cannot be nullified even by a subsequent supreme court judgment. 6. Having heard the contentions on both sides, it is seen that the contract entered into by the petitioner with the Panchayat ceased to be in force **WP(C).No.10829 OF 2020(C)** 8 as early as on 25.02.2019. Petitioner could continue thereafter only on the basis of interim orders passed in W.P.(C).No. 5332 of 2019. But when the writ petition was dismissed rejecting her claim to continue beyond the contract period, as per Ext.P5 judgment on 02.03.2020, which was affirmed in Ext.P6 judgment on 20.03.2020, petitioner cannot have any claim for retention or for re-appointment based on either Ext.P7 or Ext.P12. Ext.P8 was only the implementation of Ext.R3(a) decision of the 3[rd] respondent in its meeting held on 30.01.2019. Either as on 20.03.2020 when Ext.P7 advisory was issued or when Ext.P12 letter was issued the petitioner was not continuing on the basis of any contract. Ext.P12 letter by which the Panchayat was asked to keep in abeyance the decision to terminate the services of the petitioner is issued on the basis of Ext.P7 letter, that too after the petitioner was relieved on 25.05.2020 and the decision of the Panchayat to disengage her by not renewing the contract, was one **WP(C).No.10829 OF 2020(C)** 9 already taken on 30.01.2019 and the last agreement based on which the petitioner was working ceased to be in force on 25.02.2019. Ext.P12 is a letter issued after implementation of the decisions in Exts.R3(a) and R3(b). 7. In **Pavitran** 's case (supra) the Full Bench of this Court was considering a case where the claim raised by a teacher against the seniority list was rejected by the Assistant Educational Officer by his order dated 13.06.1994 and the appeal filed by him against that order also was rejected by the District Educational Officer on 15.06.1995. Without challenging those orders, that teacher submitted a represented before the AEO after a period of 10 years, when it was rejected on the ground that it was already rejected in 1994. But in revision petition Government passed orders in his favour. That order of Government was under challenge and this Court held that unless the orders passed by the AEO and DEO who were the competent authorities, were challenged and **WP(C).No.10829 OF 2020(C)** 10 reversed and in case the teacher suffered the seniority position for a long time without demur, he cannot be allowed to stake a claim for seniority later, even if the orders rejecting his claim were not in accordance with rules. It is in that context that this Court applied the observations in Wade on Administrative Law and held that whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum the said order would remain effective, even if it is a nullity. In this case there is no order issued by any competent authority which the Panchayat should challenge or get set aside. Therefore I am of the view that the Full Bench Judgment of this Court in **Pavitran** 's case (supra) will not apply to the factual circumstances of the present case. The appointing authority of the petitioner is the Panchayat. The letter Ext.P12 will not bind the Panchayat, in such a manner to compel re-appointment or re-engagement of the petitioner who was already relieved. Petitioner **WP(C).No.10829 OF 2020(C)** 11 cannot not have any right to insist that she should be re-engaged on the basis of the letter Ext.P12 letter. 8. As rightly pointed out by the learned Standing Counsel for the 3[rd] respondent petitioner cannot have raise any further claim to continue under the 3[rd] respondent on the basis of Ext.P7 letter or Ext.P12 letter, in view of the interparte judgments Exts.P5 and P6. However it will be open to the Panchayath to allow the petitioner to continue in service in case there is any work, as already directed in Ext.P5 judgment. Accordingly this writ petition is dismissed. Sd/- **P.V.ASHA, JUDGE** AS **WP(C).No.10829 OF 2020(C)** 12 ## **APPENDIX** **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 29.08.2012 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE REQUEST DATED 15.01.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED 13.02.2019.** - **EXHIBIT P4 TRUE COPY OF THE MEETING NOTICE DATED 26.01.2019 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 02.03.2020 IN WP(C) NO. 5332/2020.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 20.03.2020 IN WA NO.625/2020.** - **EXHIBIT P7 TRUE COPY OF THE LETTER D.O. N O. M.11011/08/2020-MEDIA DATED 20.03.2020.** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO.A1/1714/2019/S C1 DATED 22.05.2020.** - **EXHIBIT P9 TRUE COPY OF REQUEST MADE TO THE 4TH RESPONDENT DATED 25.05.2020.** - **EXHIBIT P10 TRUE COPY OF REQUEST MADE TO THE 6TH RESPONDENT DATED 25.05.2020.** - **EXHIBIT P11 TRUE COPY OF REQUEST MADE TO THE DISTRICT COLLECTOR DATED 25.05.2020.** - **EXHIBIT P12 TRUE COPY OF THE LETTER NO.P.A.U/K.S.D ISSUED BY THE PROJECT DIRECTOR DATED 27.05.2020.** **EXHIBIT P13 TRUE COPY OF THE INTERIM ORDER DATED 25.05.2020 IN WPC NO.9544/2020.** **WP(C).No.10829 OF 2020(C)** 13 **EXHIBIT P14 TRUE COPY OF THE ORDER IN SLP NO.41387/2017.** **RESPONDENT'S EXHIBITS:** **EXHIBIT R3(A) TRUE COPY OF THE RESOLUTION DATED 30.01.2019 ADOPTED BY THE COMMITTEE OF THE PANCHAYAT DECIDING NOT TO EXPEND THE CONTRACT OF THE PETITIONER EXHIBIT R3(B) TRUE COPY OF THE RESOLUTION DATED 22.05.2020 ADOPTED BY THE PANCHAYAT TO DISENGAGE THE PETITIONER FROM SERVICE.**