Seena George @ Alphonsa Mathew v State of Kerala; Manjumol C.V. AG v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 1[ST] DAY OF OCTOBER 2021 / 9TH ASWINA, 1943** **WP(C) NO. 11626 OF 2021** ## **PETITIONERS:** ||SEENA GEORGE @ ALPHONSA MATHEW| |---|---| ||AGED 56 YEARS| ||D/O GEORGE,| ||KANNIKATT (H),| ||KAMPATTY P.O,| ||VENMANI, WAYANAD-670644.| ||BY ADVS.| ||V.SHYAM| ||P.ARUN| |**NDE**|**NT/S:**| |1|STATE OF KERALA| ||REPRESENTED BY THE SECRETARY,| ||LOCAL SELF GOVERNMENT, TRIVANDRUM, KERALA-695001.| |2|THAVINJAL GRAMA PANCHAYATH| ||REPRESENTED BY ITS SECRETARY,| ||THAVINJAL, WAYANAD DISTRICT-670644, KERALA.| |3|THE IMPLEMENTING OFFICER,| ||PAIN AND PALIATIVE ,| ||PHC VALAD, WAYANAD DISTRICT-670645.| |4|THE MEDICAL OFFICER| ||PHC VALAD, WAYANAD.| |5|ADDL. R5.ELSY JOY| ||SOUGHT TO BE IMPLEADED| |6|ADDL.R5. ELSY JOY| ||W/O. JOY, PULIKKAYATH (H). VIMALA NAGAR P.O.,| ||THAVINJAL, WAYANAD DISTRICT PIN - 670645 ADDL.R5 IS| ||IMPLEADED AS PER ORDER DATED 01.07.2021 IN IA 1/2021 IN| ||WPC NO. 1.06.20201.| ||BY ADVS.| ||SANTHARAM.P| ## **RESPONDENT/S:** **WP(C) Nos.11626/2021, 12472/2021 2** DAISY A.PHILIPOSE ## **OTHER PRESENT:** GP PARVATHY KOTTOL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2021, ALONG WITH WP(C).12472/2021, THE COURT ON 1/10/2021 DELIVERED THE FOLLOWING: **WP(C) Nos.11626/2021, 12472/2021** **3** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 1[ST] DAY OF OCTOBER 2021 / 9TH ASWINA, 1943** ## **WP(C) NO. 12472 OF 2021** ## **PETITIONER/S:** MANJUMOL C.V. AGED 40 YEARS W/O. JOSE P. M., NADUTHARAPPIL HOUSE, THRISSILERY P. O., WAYANAD DISTRICT, PIN - 670646. BY ADVS. DAISY A.PHILIPOSE JAI GEORGE ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY LOCAL SELF GOVERNMENT, TRIVANDRUM, KERALA - 695001. 2 THAVINJAL GRAMA PANCHAYAT THAVINJAL, WAYANAD DISTRICT, PIN - 670644, REPRESENTED BY ITS SECRETARY. 3 THE IMPLEMENTING OFFICER PAIN AND PALLIATIVE, PHC VALAD, VALAD P. O., WAYANAD DISTRICT, PIN - 670 645. 4 SEENA GEORGE @ ALPHONSA MATHEW AGED 56 YEARS D/O. GEORGE, KANIKATT HOUSE, KAMPATTY P. O., VENMANI, WAYANAD, PIN - 670 644. BY ADVS. SANTHARAM.P REKHA ARAVIND **WP(C) Nos.11626/2021, 12472/2021** **4** THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2021, ALONG WITH WP(C).11626/2021, THE COURT ON 1/10/2021 DELIVERED THE FOLLOWING: **WP(C) Nos.11626/2021, 12472/2021** **5** ## **COMMON JUDGMENT** The writ petitioner in 11626/2021 has been working as Pain and Palliative Community Nurse at PHC, Valad under Thavinjal Panchayat, Wayanad, on contract basis from 28/2/2011. The contract was being renewed every year from 2011 till 2021. The latest contract was executed on 2/4/2020, produced as Ext.P1. On expiry of the contract period, the petitioner requested the Grama Panchayat for extension of contract for a further period of one year. The second respondent Panchayat issued a letter dated 31/3/2021 to the Medical officer informing him that the President of the Panchayat had empowered him to take an appropriate decision regarding the post of community nurse, since no new contract of appointment could be made as assembly election was notified and the model code of conduct was in place. Accordingly, her period was extended by the 4[th] respondent-medical officer till 31/5/2021, with one day break. After the conclusion of the assembly election, she got information that she has been terminated and the Panchayat was proceeding with appointment of another person of their choice. The petitioner placed reliance on G.O.(Ordinary) No.553/2019LSGD dated 7/3/2019, produced as Ext.P4, which laid down the guidelines for engagement of nurses appointed prior to the issuance of it. According to petitioner, by virtue of clause 2.13.3 of Ext.P4, all community nurses who had been on employment should be permitted to continue on contract basis. Petitioner claims that she was **WP(C) Nos.11626/2021, 12472/2021** **6** protected by the above clause and the respondents may be directed to continue to engage her in the light of Ext.P4. Apprehending that the second respondent is proceeding with appointment of a person of their choice, the petitioner has rushed to this court by filing the present writ petition. The prayer sought in this writ petition was to issue a writ directing the second respondent to extent the contract with the petitioner for a period of one year from 31/5/2021. When the matter came up for admission, this court by an interim order dated 3/6/2021 directed that, if no appointment has been made to the post in question, the petitioner should be permitted to continue. 2. Pending the proceedings, one candidate, claiming herself to be qualified to be appointed as community nurse had approached this court by filing W.P.(C) No.12472/2021. The case set up by her was that, the writ petitioner in W.P.(C)No.11626/2021, who was arrayed as the 4[th] respondent in the present writ petition, was appointed as the Palliative community Nurse on contract basis and her contract was being renewed from time to time. The period of her appointment expired on 31/3/2021. She has crossed 56 years of age. She claimed that by virtue of Ext.P1 Government Notification, which was produced in W.P.(C) No.12472/2021, clause 2.13.3 directs that all community nurses who had been appointed on contract basis should be allowed to continue. In the meanwhile, another Government Notification No.1067/2021 dated 1/6/2021 was issued which was produced as Ext.P4 of local self Government directing that in view of the spread of Covid, the persons who had been engaged in various activities related to prevention of Covid shall be **WP(C) Nos.11626/2021, 12472/2021** **7** permitted to continue until further orders even if their contract of period had expired. 3.The petitioner claimed that, Palliative Care Management of the Panchayat in question had taken a decision to appoint a new nurse after conducting an interview. On 19/2/2021, the Panchayat committee approved the said decision and authorised the medical officer for conducting the interview on 31/5/2021, to select a fresh candidate. Pursuant to a notification published in a daily newspaper, the petitioner had responded to the notification of the second respondent . To her information, about 315 applications were received. Though interview was proposed to be conducted on 31/5/2021, due to a violent situation created by the petitioner in W.P.(C) No.11626/2021, with the assistance of political persons, the interview could not take place and the Chairman of the standing committee was assaulted and had to be taken to the hospital. It was stated that, Ext.P1 notification by which clause 2.13.3.directed all contractual employees to be continued in service and Ext.P4 Government Order No.1067/2021/LSGD dated 1/6/2021 directing the contractual employees to be continued was illegal and against the settled legal principles. The prayer sought in the writ petition was to quash clause 2.13.3 and clause 2.13.4 of Ext.P1 and Ext.P4 Government order as illegal. Another prayer sought was to direct the Panchayat to terminate the service of the 4[th] respondent and to conduct the selection process for appointing palliative care nurse in the Grama Panchayat. 4. In both the writ petitions, Panchayat had filed counter affidavit. In **WP(C) Nos.11626/2021, 12472/2021** **8** W.P.(C) No.11626/2021 the President got herself impleaded as the additional 5[th] respondent. In W.P.(C) No. 12472/2021, the Panchayat has filed a detailed counter affidavit. The crux of the contentions set up by the Panchayat in both the cases indicates that, the writ petitioner in W.P.(C) No.11626/2021 was appointed as a nurse on contract basis in the Pain and Palliative care unit and her contract of engagement was being extended from time to time. The last contract of employment expired on 31/3/2021. The Panchayat standing committee on health and education in its meeting held on 18/2/2021 recommended to appoint a palliative care nurse, after conducting an interview as per decision No.28/2021. This was discussed in the panchayat committee meeting held on 19/2/2021, which took a decision to conduct an interview for selection of an eligible candidate. The committee meeting authorised the Medical Officer of Primary Health Centre to conduct interview to complete the selection process. In the meanwhile, the petitioner was permitted to continue till 31/5/2021. It was due to the existence of model code of conduct which came into force on 26/2//2021. It was contended by the Panchayat that the medical officer of the Primary Health Centre, Valad who was the convener of the Palliative Management Committee, had invited applications pursuant to the decision of the Palliative Management Committee. However, interview scheduled on 31/5/2021 could not be conducted since persons belonging to the writ petitioner in W.P.(C) No.11626/2021 created an unpleasant situation in the premise of the panchayat office. Therefore, interview was deferred. In the meanwhile, petitioner has approached this court and obtained an interim order. **WP(C) Nos.11626/2021, 12472/2021** **9** 5. It was contended that the guidelines contained in clause 2.13.3 of Ext.P4 will not come to the rescue of the writ petitioner. The guidelines were issued in the year 2019, which provided for certain qualifications for the appointment of Palliative Care nurse. According to the Secretary of the Panchayat, the above direction did not mean that the nurses who have completed their period of contract of employment cannot be terminated. According to the panchayat, clause 2.13.3. of Ext.P4 says that those who were appointed prior to the guidelines with lower qualification to the qualities as prescribed in 2.13.2 (1) and (2) can continue in the service on the basis of their contract. Further, the writ petitioner was engaged on contract basis and her appointment was not against any sanctioned post. It was not an appointment under Rule 9 or 9A of the Kerala State and Subordinate Services Rules. She does not have a vested right in the said post seeking continuation in her service. The claim of other eligible candidates cannot be neglected. They should also be given an opportunity to apply to the post on account of the fact that earlier no applications have been invited by public notice or otherwise. 6. The counter affidavit filed in both the cases clearly show that, after the expiry of the contractual period of the petitioner in W.P.(C) No.11626/2021 she was permitted to continue till 31/5/2021 since the model code of conduct was in place. It has also come on record that the Panchayat had taken a decision not to renew the contract of engagement of the petitioner and to take necessary action for appointment of a person in accordance with the procedure and the Medical officer was authorised. It is also on record that **WP(C) Nos.11626/2021, 12472/2021** **10** paper publication was given and applications were invited openly. Nothing prevented the petitioner also from participating in the interview by submitting an application. 7. Petitioner is essentially relying on Ext.P1 which is the Government Order. As asserted by the petitioner, the person in the qualification prescribed was either ANM/GNM B.Sc.nursing /Qualification, required was prescribed under clause 2.13.2. Clause 2.13.3.provides that, a person who had satisfied the above clause and continuing on contract basis earlier shall be permitted to continue on contractual employment. The petitioner has no case that she was qualified under clause 2.13.2. There is absolutely no record to indicate that the initial appointment of the petitioner was by calling for open application and in a process of conducting interview. It is clear from clause 2.13.3 that such persons who are qualified under 2.13.2. and appointed prior to the notification dated 7/3/2019 were permitted to continue by virtue of Ext.P4 in W.P.(C) No.11626/2021. In the absence of any averments to the effect that the petitioner is a person qualified under clause 2.13.2, she cannot take advantage of clause 2.13.3. 8. To defend the case of the writ petitioner in W.P.(C) No.11626/2021, the petitioner in 12472/2021 had relied on the decision of the Supreme Court in **S** _**ecretary,State of Karnataka v. Umadevi**_ **(** 2 _**006 (4)SCC 1)**_ wherein the equity arising out of giving of temporary employment or engagement on daily wages and continuance of such persons for certain length of time was deprecated and the court held that, the court should not encourage and **WP(C) Nos.11626/2021, 12472/2021** **11** approve appointments made or engagements given outside the constitutional scheme. It was held that approval of such acts would result in depriving many of their opportunity to competent for public employment. He also relied on the decision reported in **State of Haryana v. Piara Singh & Ors (** 1 _**992 (3) SCR 826)**_ wherein the Supreme Court had held that the normal rule, of course, should be a regular recruitment through the prescribed agency but exigencies of administration may call for an ad hoc of temporary appointment to be made in such a situation, the efforts should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such a regular selection/appointment. If he gets selected well and good. But if he does not, he must give way to the regularly selected candidate. Though the W.P.(C) No.12472/2021, the writ petitioner therein produced Ext.P4 which is the Government Notification dated 1/6/2021 and sought to quash it, on the ground that in the light of Covid preventive activities, various persons who have contractual employees who were engaged in such activities shall not be terminated. The premise on which it was produced and sought to quash is on a premise that there is another G.O.based on which the writ petitioner in W.P.(C) No.11626/2021 is seeking continuance. Thus Ext.P4 has no relevance in the facts of that case. It relates to those persons, who were engaged in various local self Governments to meet the spread of Covid. The petitioner in W.P.(C) 11626/2021 was appointed much earlier and cannot be considered as a person appointed to meet the Covid activities. Hence, writ **WP(C) Nos.11626/2021, 12472/2021** **12** petitioner in W.P.(C) No.11626/2021 cannot take advantage of the above notification and hence above is not liable to be quashed in the present case. 9. Having considered the entire facts, the claim set up by the petitioner in W.P.(C) No.11626/2021 is without any basis and the writ petition is liable to be dismissed. Necessarily, the interim order will stand vacated. In the light of dismissal of W.P.(C) No.11626/2021 and for the reasons mentioned earlier, the clause 2.13.3 and 2.13.4 of the notification dated 7/3/2019 produced as Ext.P1 in W.P.(C) 12472/2021 does not call for any interference. Likewise Ext.P4 also does not call for any interference. Accordingly, W.P.(C) No.12472/2021 is disposed of directing the respondents to proceed with the appointment of selected candidates pursuant to Ext.P2 notification in W.P.(C) No.12472/2021. The process shall be completed as expeditiously as possible. Sd/- ## **SUNIL THOMAS** **Judge** dpk **WP(C) Nos.11626/2021, 12472/2021** **13** ## **APPENDIX OF WP(C) 12472/2021** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE RELEVANT EXTRACT OF G.O.NO.553/2019/LSG DATED 07.03.2019. Exhibit P2 A TRUE COPY OF THE ADVERTISEMENT PUBLISHED IN MALAYALA MANORAMA DAILY DATED 25.05.2021. Exhibit P A TRUE COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY DATED 01.06.2021. Exhibit P4 A TRUE COPY OF THE G.O.NO.1067/2021/LSGD DATED 01.06.2021. EXT.R2(A): COPY OF THE EXTRACT OF DECISION NO.4/2 DATED 19/2/2021 OF THAVINJAL GRAMA PANCHAYATH **WP(C) Nos.11626/2021, 12472/2021** **14** ## **APPENDIX OF WP(C) 11626/2021** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE AGREEMENT DATED 02.04.2020 BETWEEN THE PETITIONER AND THE IMPLEMENTING OFFICER. Exhibit P THE TRUE COPY OF THE LETTER DATED 31.03.2021 OF THE SECRETARY, THAVINJAL GRAMA PANCHAYAT, WAYANAD. Exhibit P3 THE TRUE COPY OF THE ORDER DATED 31.03.2021 OF THE MEDICAL OFFICE, PHC, VALAD, WAYANAD. Exhibit P4 THE TRUE COPY OF G.O(ORDINARY) NO.553/2019 LSGD DATED.