Shrirama K. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** ## **WP(C).No.3064 OF 2021(G)** ## **PETITIONER:** **SHRIRAMA.K., ACCREDITED ENGINEER, PAIVALIKE GRAMA PANCHAYAT, KASARGOD-671 348, RESIDING AT 9/245-E, SHREE MATHA, NR.SPOORTHY VIDYANIKETHANA, THANTRI ROAD, BADAJE, MAJESWARA P.O., KASARGOD-671 923.** **BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA SMT.MAITREYI SACHIDANANDA HEGDE** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM-695 001.** - **3 RURAL DEVELOPMENT COMMISSIONER AND MISSION DIRECTOR, MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME, FIRST FLOOR, PUNARJANI, T.C.26/1333(2), PANAVILA JUNCTION, THIRUVANANTHAPURAM-695 001.** - **4 PROGRAMME CO-ORDINATOR/DISTRICT COLLECTOR, CIVIL STATIN, VIDYANAGAR, KASARGOD-671 123.** - **5 PROJECT DIRECTOR AND JOINT PROGRAMME CO-ORDINATOR, CIVIL STATION, VIDYANAGAR, KASARAGOD-671 123.** - **6 PAIVALIKE GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KASARGOD-671 348.** - **7 SECRETARY, PAIVALIKE GRAMA PANCHAYAT, KASARGOD-671 348.** - **8 THE PANCHAYAT COMMITTEE, REPRESENTED BY ITS PRESIDENT, PAIVALIKE GRAMA PANCHAYAT, KASARGOD-671 348.** WPC 3064/21 2 **BY ADVS. SRI.M.SASINDRAN SRI.SUNIL KUMAR KURIAKOSE -GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 3064/21 3 ## **JUDGMENT** The petitioner says that he was engaged as an 'Accredited Engineer' by Paivalike Grama Panchayath, Kasaragod, on contract basis, under the aegis of Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS); and asserts that even though he entered into a contract with the Panchayat, namely Ext.P2, specifically being aware that it will have effect from 01.02.2019 and will terminate on the day of completion of two years, it would not apply to him, since he has been engaged under the scheme and therefore, that his continuation must be construed to be coterminus to the same. 2. The petitioner relies on various judgments in support of this proposition, including **Mohd. Adbul Kadir and antoher v. Director General of Police, Assam** [(2009)6 SCC 611]; **State of Haryana and other v. Piara** WPC 3064/21 4 **Singh and others** [1992(4)SCC 118] and **Abhinav Chaudhary and others v. Delhi Technological University and another** [2015 SCC online Del 6780). 3. Smt.Thulasi K. Raj – learned counsel for the petitioner, submitted that the ratio in the afore judgments of the Honourable Supreme Court and that of the Delhi High Court would clearly show that one contractual employee cannot be replaced by another one and that if this is done, it will amount to gross arbitrariness. She thus contends that her client's contract must be construed to be automatically extended till the period of the Scheme. She then submitted that in **Mohd. Abdul Kadir** (supra), it has been well-settled by the Honourable Supreme Court that adhoc appointments under the Schemes are normally co-terminus with it, subject to earlier termination, either on medical or disciplinary WPC 3064/21 5 grounds or for unsatisfactory service or on attainment of age of superannuation. She submitted that in the case at hand, no such allegations have been made against her client and therefore, that he should be allowed to continue until the scheme expires. 4. The learned counsel for the 6th respondent-Grama Panchayath – Sri.M.Sasindran, in response, submitted that the afore assertions of the learned counsel for the petitioner would obtain no support in law because, as is manifest from Ext.P2, he had entered into the contract being fully aware that it is only for a period of two years. He submitted that even as per the provisions of the Scheme and the various Government Orders which hold the field, such contracts cannot be granted for over two years and that in fact, it was earlier only for a period of one year. He explained that the period of the contract WPC 3064/21 6 was subsequently extended by the Government for a period of two years, making it clear that any termination of subsisting contract will have to obtain the concurrence of the 3rd respondent-Rural Development Commissioner. 5. Sri.M.Sasindran, thus argued that petitioner cannot now rue that his contract has expired and that Panchayat is initiating a further process for identification of a new person, in which, he is also entitled to participate, based on the experience certificate to be issued by them. He concluded his submissions by saying that none of the arguments of the petitioner as afore can be now countenanced in view of the binding judgment of a learned Division Bench of this Court in **Noorjihan A. v. State of Kerala** (Writ Appeal No.1570/2018 & connected matters. He, therefore, prayed that this Writ Petition be dismissed. WPC 3064/21 7 6. The learned Government Pleader – Sri.Sunil Kumar Kuriakose, adopted most of the submissions of Sri.M.Sasindran, adding that petitioner has not challenged any of the Government Orders which allow the Panchayat to enter into a fresh contract every two years, through a new process. He supplemented his submissions by saying that if the petitioner is interested in continuing the contract, he can always take part in the process to be initiated by the Panchayat and that there is no legal impediment in the same. He, therefore, prayed that this Writ Petition be dismissed. 7. I have given anxious thought to the rival contentions of the parties and have also examined the materials available on record. 8. At the outset, I find force in the submissions of Sri.M.Sasindran and Sri.Sunil Kumar Kuriakose, that the issues impelled in WPC 3064/21 8 this Writ Petition are covered by the judgment of a learned Division Bench of this Court in **Noorjihan A.** (supra), to be completely accurate. This is because, the learned Division Bench was considering identical issues and after doing so, declared the position as under: Hence, we make it clear that in cases where the contractual period is not over, necessarily termination or allegation of misconduct can only be after following due procedure. However, even if allegations are raised against an employee in the contractual period or when continued after that for reason of interim order of Court; if now the contractual period is over and he/she has been continued on the basis of the interim order of this Court, necessarily on the dismissal of the appeals there could be termination simpliciter. We caution that, in such cases there should be no stigma attached and the terminated contractual employee should also be issued with an experience certificate and allowed participation in the fresh selection if they are eligible to be so participated on the basis of the notification published, unless they do not satisfy the essential qualification required. 9. That said, when one evaluates the various judgments cited by the petitioner, it WPC 3064/21 9 is clear that the Honourable Supreme Court, as well as other High Courts, were only concerned that one contract employee be not terminated without cause and substituted by another contract employee and this was found to be deleterious and contrary to fair play. 10. However, in the instant case, this principle may not apply because, the petitioner worked under the contract knowing well that he has been appointed for a period of only two years and he was admittedly aware that this was being done on the basis of certain valid Government Orders, which have not been challenged by him even in these proceedings. The applicable Government Orders initially fixed the term of the contract as one year, which was subsequently increased to two years; but with a specific rider that cancellation of the contract during its period will alone require prior consent of the 3rd WPC 3064/21 10 respondent-Development Commissioner. 11. Therefore, Government Orders have incorporated built-in mechanisms to ensure that there is no arbitrariness or capriciousness in giving contracts by the Panchayats; and I cannot see how the petitioner can now stake a claim that every contract under the MGNREGS should be deemed to be co-terminus with the scheme. In the absence of any challenge to the Government Orders or to the provisions of the Scheme – the Scheme also having not been placed on record – I fail to see how the petitioner can now turn around and say that his contract, granted through Ext.P2, should be reckoned to be co-terminus to the Scheme itself and that he cannot be terminated, even though Ext.P2 makes it unequivocally clear that it is only for a period of two years. In the afore circumstances, being guided WPC 3064/21 11 by the judgment of a learned Division Bench of this Court in **Noorjihan A.** (supra), I dismiss this Writ Petition; however, making it clear that petitioner will be at liberty to participate in the process to be initiated by the Panchayat for selection of a fresh candidate and that until the same is over and a new incumbent appointed, he will be allowed to continue under the earlier interim orders of this Court. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 3064/21 12 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER NO.40184/NREGA/07/LAD DATED 30.01.2010 ISSUED BY THE SECRETARY OF THE PANCHAYAT. EXHIBIT P1 A TRUE COPY OF THE RESOLUTION NO.01/2010/BLDGAG OF THE MAHESWARA BLOCK D.A.G. COMMITTEE DATED 25.03.2010. EXHIBIT P2 TRUE COPY OF THE AGREEMENT FOR CONTRACT STAFF DATED 01.02.2019. - EXHIBIT P3 TRUE COPY OF THE RESOLUTION NO.1/1 DATED 28.01.2021. EXHIBIT P4 TRUE COPY OF THE LETTER S.C.1-70/21 DATED 29.01.2021 ISSUED BY THE SECRETARY OF THE PANCHAYT TO THE PETITIONER. EXHIBIT P5 TRUE COPY OF THE LETTER DATED 11.01.2021 ISSUED BY THE MISSION DIRECTOR TO THE PANCHAYAT DIRECTOR. EXHIBIT P6 TRUE COPY OF THE LETTER DATED 12.01.2021. EXHIBIT P7 TRUE COPY OF GO NO.47/16/LSGD DATED 03.03.3016. EXHIBIT P8 TRUE COPY OF GO NO.952/12/LSGD DATED 29.03.2012 ISSUED BY THE LSGD. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 19.01.2021 IN WPC NO.1321/2021. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 20.03.2020 ISSUED BY THE MINISTRY OF LABOUR AND EMPLOYMENT, GOVERNMENT OF INDIA.