Seema T.K. v. Muzhappilangad Grama Panchayat (and others)

W.P(c).No.13660/18 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY ,THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940** ## **WP(C).No. 13660 of 2018** ## **PETITIONER/S:** **SEEMA T.K. AGED 42 YEARS, W/O.PRAMODAN KAVIL PONNUNDIL HOUSE MUZHAPPILANGAD MUZHAPPILANGAD.P.O, KANNUR DISTRICT-670662.** **BY ADVS. SMT.GIRIJA K GOPAL SMT.K.N.VIGY** ## **RESPONDENT/S:** - **1 MUZHAPPILANGAD GRAMA PANCHAYAT EDAKKADU P.O. KANNUR DISTRICT, REP. BY ITS PRESIDENT, PIN- 670663.** - **2 SECRETARY MUZHAPPILANGAD GRAMA PANCHAYAT, EDAKKADU P.O., KANNUR DISTRICT, PIN-670663.** - **3 JOINT DEVELOPMENT COMMISSIONER/PROGRAMME COORDINATOR, MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME, VATTIYOORKAVU, THIRUVANANTHAPURAM-695013.** - **4 GRAMA VIKASANA COMMISSIONER AND MISSION DIRECTOR GRAMA VIKASANA COMMISSIONERATE, MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME, FIRST FLOOR, PUNARJANI, TC THIRUVANANTHAPURM - 695001** - **5 GOVERNMENT OF KERALA REP. BY PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.** W.P(c).No.13660/18 2 ## **ADDL.6 RAJEENA RAJ** **D/O. RAJAN T., USHUS, PALLIPRAM, P.O. MANDAYAD VARAM, KANNUR DISTRICT, NOW WORKING AS ACCOUNTANT CUM DATA ENTRY OPERATOR, MUZHAPPILANGAD GRAMA PANCHAYAT, EDAKKADU P.O., KANNUR DISTRICT - 670662. ----------------------------------------------------ADDITIONAL R6 IS IMPLEADED AS PER ORDER DATED 18/09/2018 IN IA NO.2/2018.** **BY ADVS. GOVERNMENT PLEADER SRI RON BASTIAN M.X.ANTONY LIJO SRI.C.P.PEETHAMBARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.11.2018, THE COURT ON 19.11.2018 DELIVERED THE FOLLOWING:** W.P(c).No.13660/18 3 ## _**P.V.ASHA, J.**_ **--------------------------** ## W.P(C) No.13660 of 2018-F ------------------------------------------- _Dated this the 19[th] day of November, 2018_ ## _**JUDGMENT**_ The petitioner, who had been working as an Accountant cum Data Entry Operator in the 1[st] respondent Panchayat from 01.01.2011 onwards on contract appointments renewed from time to time, is aggrieved by the denial of reappointment to her for the period from 1.04.2018, as per Ext.P9 letter of the 1[st] respondent, by which her request for renewal of contract is rejected. 2. The petitioner's appointment was made under the Mahatma Gandhi National Rural Employment Guarantee (MGNREG) Scheme, initially for a period of one year on contract basis. On the basis of agreements executed between the petitioner and the Panchayat, each year, she had been continuing. The last agreement Ext.P8 executed on 1.4.2016, was for a period of two years, for the period upto 31.3.2018. By the end of the contract period, she requested for renewal of contract. But the Panchayat rejected it as per Ext.P9 letter stating that the Panchayat Committee after detailed discussion on the matter, decided not to renew the contract. This Writ Petition was filed on 12.04.2018 challenging Ext.P9 order and seeking directions to the respondent Panchayat for reappointment. 3. The case of the petitioner is that as long as there is requirement of Accountant cum Data Entry Operator and the MGNREG Scheme continues, she is not liable to be replaced by another person resorting to another appointment on W.P(c).No.13660/18 4 contract basis. It is pointed out that as per Ext.P1 order dt.26.8.2009, the Government accorded sanction to the Grama Panchayats for appointment of Accredited Engineers, Overseers and Accountant cum Data Entry Operator against the temporary posts created under the Scheme for a period of one year and such sanction is being extended from time to time. The petitioner further claims that Ext.P2 Government order issued on 16.5.2011 and Ext.P4 order issued on 5.7.2012, envisage continuance of personnel in the posts of Assistant Engineer/Overseer and Accountant cum Data Entry Operator and that their services can be terminated only with the prior permission of Rural Development Commissioner. She claims that the Panchayat has not obtained such permission in this case. The petitioner also claimed continuance on the basis of Ext.P5 letter of the Rural Development Commissioner and Mission Director issued on 6.01.2016, in which all the District Coordinators were directed to see that the termination of services of those appointed under the Scheme does not adversely affect the completion of the ongoing projects and work relating to the preparation of labour budget, the payments to be made under the MGNREG Scheme, etc. The petitioner also points out that as per Ext.P6 order issued by the Government on 03.03.2016 the contract period of the Accredited Engineers, Overseers, Data Entry Operators, IT Professional etc. is enhanced from one year to 2 years. In effect the petitioner's contention is that she is not liable to be replaced by any other person engaged on contract basis and the scheme under which she is appointed does not envisage such a replacement and that her appointment is co-terminus with the scheme. W.P(c).No.13660/18 5 4. Respondents 1 and 2 have filed a statement in which it is stated that the petitioner's appointment was purely on contract basis and after the expiry of the contract period she is not entitled to continue or to claim reappointment. It is stated that she is bound by the conditions in the agreement she executed. It is stated that the application submitted by the petitioner on 17.02.2018 for renewal of contract was discussed by the Panchayat Board on 28.3.2018 and as per resolution No.154/18 it was decided not to renew the contract and the decision was communicated to her as per Ext.P9 letter. It is also stated that based on the resolution dated 9.4.2018 the vacancy of the Accountant cum Data Entry Operator was advertised in Deshabhimani daily, calling for applications from qualified hands and in the interview held thereafter, 32 candidates appeared. It is also stated that Smt.Rajeena Raj who was ranked no.1 in the selection process, was appointed as per Ext.R2(b) order dated 27.4.2018 and she continues in the post since then. 5. The petitioner thereafter filed I.A.No. 2 of 2018 on 17.09.2018 for impleading the additional 6[th] respondent- the candidate appointed in her place. The additional 6[th] respondent has filed a counter affidavit stating that the petitioner does not have any right to claim continuance or reappointment and that she was appointed on being ranked one in the selection conducted pursuant to Ext.R2(a) notification and thereafter she has executed an agreement similar to Ext.P8 and started working as Accountant cum Data Entry Operator in April, 2018. 6. The 4[th] respondent-the Grama Vikasana Commissioner of MGNREG Scheme has filed a counter affidavit. It is stated that MGNREG Scheme is a centrally W.P(c).No.13660/18 6 sponsored scheme and its implementation in tune with the MGNREG Act, 2005 and guidelines issued thereunder; As per Section 18 of the Act, it is for the State Government to make available the technical support and supporting staff to the District Programme Co-ordinators, for the effective implementation of the scheme; as per Chapter 4 of the MGNREG guidelines, supporting staff could be hired on contract basis, to provide professional service; the recruitment policy is left to the State Government. The Grama Panchayats are the implementing agencies of the Scheme in Kerala. As per G.O.(Rt).No.1549/11/LSGD dated 29.06.2011, the power to appoint contract staff under the scheme and the power to decide on the question of renewal or otherwise was delegated to the Grama Panchayats. It is stated that Ext.P2/P20 order relied on by the petitioner was cancelled as per order dated 29.06.2011. It is stated that para.3 of Ext.P3 order which required permission of Rural Development Commissioner, before ending the service of contract staff was modified by Ext.P4 order dated 05.07.2012 and thereafter permission is required only for termination before the expiry of contract period. It is further stated that Ext.P5 letter issued by the 4[th] respondent on 06.01.2016 was to ensure smooth implementation of the scheme during 2015-16 and for that reason the petitioner cannot claim continuance. It is stated that the power to appoint the supporting staff, the power to decide what should be the duration of such appointments, etc. under the scheme, are vested in the Panchayats. Government have as per Ext.P6 issued on 03.03.2016, ordered that the contract period shall be for two years. Therefore, according to the 4[th] respondent, the petitioner is bound by the conditions in the W.P(c).No.13660/18 7 agreement executed by her with the Panchayat and in order to relieve the petitioner on expiry of the contract period, permission was not required. 7. The petitioner filed a reply affidavit producing Exts.P12 to P21 in which Exts.P13 to P18 are the information she collected under the Right to Information Act from various Panchayats in which it is stated that the Data Entry Operators have been continuing in those Panchayats since 2008/2009, etc., on renewal of their contract from time to time. Referring to Ext.P20 order, (which is the same as Ext.P2), the petitioner claims that the Panchayat concerned has to forward an appraisal report to the District Programme Coordinator, before the contract period expires and the continuance or termination of appointments can only be with his permission after perusal of the appraisal reports. It is also stated that the District Programme Coordinator/District Collector is the authority to grant permission to terminate the services of persons appointed under the scheme and such procedure is prescribed in order to see that the work under the Scheme is going on without hindrance and the Panchayats are not acting on their whims and fancies. The petitioner claims that the services of those appointed under the Scheme, cannot be terminated merely on expiry of the contract period, except after getting permission from the District Programme Coordinator, as provided in Exts.P2/P20 and Exts.P3 to P6. It is also the case of the petitioner that the Secretary of the Panchayat had expressed her dissent recommending the continuance of the petitioner, pointing out the orders on the point, at the time when the Panchayat took the decision not to renew the contract with the petitioner. According to the petitioner, the issue is covered by the judgment of the W.P(c).No.13660/18 8 Apex Court in _**Muhammed Abdul Khader and another v. Director General of Police, Assam and Ors. :**_ (2009) 6 SCC 611 and various judgments of the High Courts of Bombay and Gujarat. 8. Relying on the judgment dated 1.7.2016 of a learned Single Judge of the Gujarat High Court in Prajapati Hitesh Mohanlal & others v. State of Gujarat & others and a batch of Special Civil Applications, Smt.Girija K.Gopal, the learned counsel for the petitioner vehemently argued that the petitioner is entitled to continue as long as the Scheme continues, as the issue is covered by the said judgment. 9. The learned Government Pleader as well as the learned Counsel for the Panchayat pointed out that the petitioner does not have any right to claim reappointment or continuance once the contract period expired. It is also pointed out that prior permission is required only in a case where termination is sought to be made before the expiry of the contract period. 10. Having heard the Contentions advanced by the learned Counsel on either side, it is seen from Ext.P3 order that Ext.P2 order relied on by the petitioner is already superseded by G.O.(Rt) No. 1549/11/LSGD dated 29.06.2011 and Ext.P3 order, to the extent it required prior permission for terminating the appointments of those appointed under the Scheme is again modified by Ext.P4 order. Therefore, prior permission from the Rural Development Commissioner and Mission Director is required only if the Panchayat resorts to premature termination, that is, before the expiry of the contract period. The learned Government Pleader points out that as at present no orders are in force which mandate prior permission from the Rural W.P(c).No.13660/18 9 Development Commissioner except in cases where premature termination is sought to be effected. It is also pointed out that subsequent to Ext.P6 order issued on 03.03.2016, directing that the contract period shall be two years, further restrictions are not brought about by the Government. Based on Ext.P6 order, the contract period of the petitioner as per Ext.P8 agreement was for two years which ended on 31.03.2018. 11. Several writ petitions filed by the Data Entry Operators/Accredited Engineers, etc. employed under the MGNREG Scheme have already been considered by this Court and seeing that all appointments were on contract basis, it was held that those employees do not have any right to insist continuance on expiry of the contract period as they are governed by the conditions in the agreement executed by them with the Panchayat. It is pertinent to note that when the persons appointed under the Scheme for one year on contract basis claimed continuance and sought the benefit of the Government order issued on 03.03.2016 (Ext.P6/P19), a learned Single Judge of this Court dismissed the writ petition (W.P.(C) No.20613 of 2016), referring to the conditions in the agreement entered into between the petitioners therein and the Panchayat. In the judgment Ext.P10 in W.A.No.2071/2016, the Division Bench of this Court approved the proposition observing that “ _**it is no doubt true that the appellants are working on contract basis and also that the contract employees do not have right to seek continuation of their employment”**_ . However it was found that the appellants therein were entitled to continue for one more year in the light of Ext.P6 order. The interference with the judgment of the learned Single Judge was W.P(c).No.13660/18 10 only with respect to the duration of the contract period, in the light of the Government Order Ext.P6 issued on 3.3.2016. It is relevant to note that the Apex Court has even in the judgment in _**Yogesh Mahajan v. Professor R.C.Deka, Director,**_ _**All India Institute of Medical Science**_ : 2018(3) SCC 218, held that those who are appointed on contract basis do not have any right to claim renewal of contract. In this case the petitioner did not even choose to submit an application for appearing in the fresh process of selection or to participate in it. The additional 6[th] respondent has since been appointed on the basis of fresh selection and she is continuing since 27.04.2018. 12. In the judgment of the Gujarat High Court, relied on by the learned counsel for the petitioner, a learned Single Judge directed the retention of those employed in various posts under the MGNREG Scheme, without subjecting them to any further selection ordered by the Government of Gujarat in 2014, which prescribed revised qualifications. However, it is seen that several of such employees had already cleared the written test and interview conducted in 2011 and most of them cleared the new test also. It is also seen that the initial appointment of all of them were made, after being successful in a regular process of selection. The learned Single Judge of the Gujarat High Court, following the judgments in _**State of Haryana V Piare Singh: (1992) 4 SCC 118, Mohamed Abdul Khader**_ 's case ( _supra_ ), etc, directed the Gujarat Government to permit those employed under the Scheme to continue as long as the Scheme continues. 13. In this context it is relevant to note that the consistent policy adopted W.P(c).No.13660/18 11 in the State of Kerala is to provide opportunity to maximum number of candidates, to work at least for a minimum period, on rotation basis, as is provided in Rule 9(a) (i) of the Kerala State and Subordinate Service Rules, which by its proviso prohibits re- appointment of an employee, on completion of 179 days or one year as the case may be. In _**C. Latha v. State** :_ 1993 (2) KLJ 497 **,** this Court had elaborately considered the applicability of the judgment in _**Piare Singh** 's_ case while considering the claim of those employees appointed under Rule 9(a)(i) of KS&SSR with reference to the conditions prevailing in Kerala. It was held as follows: 7. In our view, the proviso to R.9 appears to be based upon a policy which is peculiar to the State of Kerala. Here number of jobs are limited, and the persons available are in thousands. The policy of the Government appears to be to have the post filled up by rotation from among the candidates registered in the Employment Exchange, and this is to go on till regular appointments are made through Public Service Commission or other competent authority. There is always a heavy backlog of candidates registered in the Employment Exchange. These are given temporary posting for less than 180 days by rotation. Such a policy has been adopted in the peculiar conditions prevailing in this State where jobs in private employment are few, and there is a clamour for Government employment. XXXX.”” The very same position was reiterated in _**Vinod v. State of Kerala:**_ 1998(1) KLT 607, _**Sajan Abraham V State of Kerala**_ : 1998(2) KLT 153, etc. Though appointments under MGNREG Scheme are not made under the provisions of KS&SSR, the principle underlying those rules would apply to public employments. In this case appointment is made on contract basis and the conditions in the agreement provide for commencement and termination of appointment. 14. In the judgment in _**Mohamed Abdul Khader**_ 's case, the Apex Court was dealing with the claim of Ex-servicemen for regularisation. The project in which they were appointed was for the benefit of Ex-servicemen and Ex-servicemen alone were employed in the project also. Their retention was ordered in such a project. W.P(c).No.13660/18 12 15. As far as the appointment of the petitioner is concerned neither the petitioner nor the Panchayat has stated anything regarding the process of selection underwent by her. The judgment of Gujarat High Court refers to regular process of selection including written test and interview. The orders produced by the petitioner with respect to the appointments in MGNREG Scheme do not refer to the procedure if any to be adopted in the selection. Public appointments cannot be allowed to be made at the whims and fancies of those who are in the helm of affairs of the Panchayats from time to time enabling them to pick and choose in accordance with the colour. 16. I have already dismissed a series of similar cases including W.P. (c).No.27101 of 2018 by judgment dated 31.10.2018, as was being done in similar writ petitions, some of which had resulted in Ext.P10 judgment of the Division Bench. Even as per the judgment of the Division Bench in Ext.P10, such employees could continue only for a period of one more year in the light of Ext.P6 Government order when the contract period in respect of all such appointments was enhanced to 2 years. Even while permitting such continuance, the proposition that the right of the contract employees are determined by the terms of the contract and that they cannot claim continuance or renewal stands affirmed by various decisions of the Division Bench of this Court. I am bound by these judgments rendered by this Court. 17. Therefore I do not find any reason to interfere with the termination of services of the petitioner, which is effected on expiry of the contract period as evident from Ext.P8 agreement. W.P(c).No.13660/18 13 In the above circumstances, the writ petition fails and is accordingly dismissed. _Sd/-_ _**(P.V.ASHA, JUDGE)**_ _rtr/_ W.P(c).No.13660/18 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF THE G.O.DATED 26/8/2009.**| |---|---| |**EXHIBIT P2**|**A TRUE COPY OF THE G.O.DATED 16/5/2011.**| |**EXHIBIT P3**|**A TRUE COPY OF THE G.O.DATED 29/3/2012.**| |**EXHIBIT P4**|**A TRUE COPY OF THE G.O.DATED 5/7/2012.**| |**EXHIBIT P5**|**A TRUE COPY OF THE COMMUNICATION DATED**| ||**6/1/2016 ISSUED BY THE 4TH RESPONDENT.**| |**EXHIBIT P6**|**A TRUE COPY OF THE ORDER DATED 3/3/2016 OF**| ||**THE STATE GOVERNMENT.**| |**EXHIBIT P7**|**A TRUE COPY OF THE ORDER DATED 18/1/2006**| ||**ISSUED BY THE COMMISSIONER OF RURAL**| ||**DEVELOPMENT TO THE DISTRICT COLLECTOR,**| ||**WAYANAD/PALAKAD.**| |**EXHIBIT P8**|**A TRUE COPY OF THE CONTRACT AGREEMENT DATED**| ||**1/4/2016.**| |**EXHIBIT P9**|**A TRUE COPY OF THE DECISION DATED 28/3/2018**| ||**OF THE GOVERNING COUNCIL OF THE PANCHAYAT.**| |**EXHIBIT P10**|**A TRUE COPY OF THE JUDGMENT DATED 21/10/2016**| ||**IN W.A.2071/2016.**| |**EXHIBIT P11**|**A TRUE COPY OF THE COMMUNICATION DATED**| ||**6/4/2018 FORWARDED BY THE BLOCK PROGRAMME**| ||**OFFICER, THALASSERY BLOCK.**| |**EXHIBIT P12**|**TRUE COPY OF THE REPLY DATED 07/05/2018**| ||**RECEIVED UNDER THE RTI FROM THE PUBLIC**| ||**INFORMATION OFFICER AND SECRETARY,**| ||**MUZHAPPILANGAD GRAMA PANCHAYAT.**| |**EXHIBIT P13**|**TRUE COPY OF THE INFORMATION DATED**| ||**14/05/2018 ISSUED BY THE SECRETARY,**| ||**EZHUMATTUR, GRAMA PANCHAYAT.**| |**EXHIBIT P14**|**TRUE COPY OF THE INFORMATION DATED**| ||**10/05/2018 ISSUED BY THE SECRETARY, KOTTAYAM**| ||**GRAMA PANCHAYAT.**| |**EXHIBIT P15**|**TRUE COPY OF THE INFORMATION DATED**| ||**16/05/2018 ISSUED BY THE SECRETARY, PARASSLA**| ||**BLOCK PANCHAYAT.**| W.P(c).No.13660/18 15 **EXHIBIT P16 TRUE COPY OF THE INFORMATION DATED 10/05/2018 ISSUED BY THE SECRETARY NEELESWARAM BLOCK PANCHAYAT. EXHIBIT P17 TRUE COPY OF THE INFORMATION DATED 10/05/2018 ISSUED BY THE SECRETARY, KASARAGOD BLOCK PANCHAYAT. EXHIBIT P18 TRUE COPY OF THE INFORMATION DATED 09/05/2018 ISSUED BY THE SECRETARY, KARIMKUNNAM GRAMA PANCHAYAT. EXHIBIT P19 TRUE COPY OF THE ORDER DATED 03/03/2016. EXHIBIT P20 TRUE COPY OF THE GO (RT) 1216/11 DATED 16/05/2011. EXHIBIT P21 TRUE COPY OF THE MINUTES OF THE DECISION NO.154 TAKEN ON 17/03/2018, OBTAINED UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P22 TRUE COPY OF THE INTERIM ORDER DATED 02/07/2018 IN WPC NO.35322/2017 PASSED BY THIS HON'BLE COURT. EXHIBIT P23 TRUE COPY OF THE INTERIM ORDER DATED 02/07/2018 IN WP(C) NO.21978/2018. RESPONDENTS' EXHIBITS EXHIBIT R2(a) TRUE COPY OF THE LETTER OF THE PANCHAYATH ADDRESSED TO THE EDITOR, DESHABHIMANI DAILY, KANNUR. EXHIBIT R2(b) TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO RAJEENA RAJ DATED 27.4.2018.**