High Court of KeralaDivision Bench2023-12-06Disposed of

WA No. 1861/2023 (Sudhir K.N v. Bineesh M.N & Ors)

Case / Petition Number:WA No. 1861/2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
C.S. Sudha
Judgment Date: 2023-12-06
Court Decision / Holding: The High Court disposed of the intra-court appeal, affirming the Single Judge’s direction to complete the selection for two driver posts within three months and allowing respondents 6 and 7 to continue on existing terms until permanent appointments are made. It held that the appellant was overage at the relevant time and that the observations of the Single Judge do not adversely affect the petitioners’/respondents’ service prospects. The judgment clarifies that both the petitioners and incumbents may participate in the selection process, subject to qualification, and that the principle of last come, first go applies only when regular incumbents become surplus. The appellant may seek regularisation if permissible under Rules or Government Guidelines.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

Sudhir K.N

Respondents

Bineesh M.N
Sreenath M.S
State of Kerala (Department of Local Self Government)
Director of Panchayat
Deputy Director of Panchayat
Udayamperoor Grama Panchayat
President, Udayamperoor Grama Panchayat

Legal Representation & Advocates

Counsels for Petitioners

• Adv S. Aneesh

Counsels for Respondents

• Sri. Justin Jacob
• N. Raghuraj
• Akhil S. Vishnu

Case Synopsis & Summary

This intra-court appeal, WA No.1861 of 2023, arises from the writ petition WP(C) No.15090/2023 filed in the Kerala High Court by Bineesh M.N. and colleagues challenging the regularisation process for two driver vacancies at Udayamperoor Grama Panchayat. The single judge had allowed the petitioners and the respondents (6th and 7th in the writ petition) who were daily/contractual workers, to continue in their posts and participate in the selection for regular appointments, while directing the Panchayat to complete the selection process expeditiously and not later than three months. The appellant, Sudhir K.N., the 7th respondent in the writ petition, contended that the Panchayat had introduced a new age-guideline (30.03.2023) fixing an upper age limit, rendering him overage and unable to participate in the selection, thereby prejudicing his rights. He argued that the new guidelines should not bar his eligibility and sought to strike down or modify the lower court order. The High Court, noting that the appellant was overage at the relevant time, held that the observation of the learned Single Judge did not adversely affect the appellants’ position and disposed of the appeal by upholding the need to complete regularisation within three months, while allowing ongoing incumbents to continue until replacement. The judgment clarifies that the “last come, first go” principle would apply only when regular incumbents are appointed surplus, and that the appellant may seek regularisation if permitted by rules or guidelines.

Provisions of Law Cited

Article 16 of the Constitution of India

Legal Doctrines & Maxims

Last come, first served (last come first go)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant (Sudhir K.N) submits that the Panchayat’s 30.03.2023 age guidelines render him overage and ineligible to participate in the regularisation process. He contends that the direction to complete the regularisation within three months must consider his eligibility, and seeks to participate in the selection process. He argues that the new age threshold was not applicable at the time the writ petition was filed and that the order should not bar his chance to compete for the posts.

Contentions of Respondents

The respondents contend that the appellant was already overage when the directions were issued or when the writ petition was filed. They argue that the daily/contractual incumbents (respondents 6 and 7) were to be continued and that the selection should proceed with due process. The age guidelines introduced by the government on 30.03.2023 fix the eligibility, which the petitioners and the 7th respondent cannot bypass. They assert adherence to the rule that regular appointments should be made through a transparent process and that the ongoing incumbents should be allowed to participate subject to qualification.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY,THE 6[TH] DAY OF DECEMBER 2023/15TH AGRAHAYANA, 1945** **WA NO. 1861 OF 2023** **AGAINST THE JUDGMENT DATED 18.08.2023 IN WP(C) 15090/2023** ## **OF HIGH COURT OF KERALA** ## **APPELLANT/7th RESPONDENT IN W.P.(C.):** **SUDHIR K.N AGED 50 YEARS S/O T.K NARAYANAN, KOOTTETHU KULANGARA, UDAYAMPEROOR P.O, UDAYAMPEROOR, ERNAKULAM, PIN – 682307** **BY ADV S.ANEESH** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 6 IN W.P.(C.):** **1 BINEESH M.N AGED 35 YEARS S/O NANDAKUMAR V.K, MADATHIL PARAMBIL (HOUSE), UDAYAMPEROOR P.O, PUTHIYAKAVU, PIN – 682307** **2 SREENATH M.S S/O M.V.SUBRAHMANIAN, MADATHIL PARAMBIL (HOUSE), UDAYAMPEROOR P.O., UDAYAMPEROOR, PIN – 682307** **3 STATE OF KERALA THE DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS SECRETARIAT, ANNEX-I, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN – 695001** **4 THE DIRECTOR OF PANCHAYAT SWARAJ BHAVAN, GROUND FLOOR, NANTHANCODU,** W.A No. 1861/2023 2 ## **KOWDIAR.P.O, THIRUVANANTHAPURAM, PIN – 695003** - **5 THE DEPUTY DIRECTOR OF PANCHAYAT CIVIL STATION, KAKKANADU ERNAKULAM, PIN – 682030** - **6 UDAYAMPEROOR GRAMA PANCHAYAT THE UDAYAMPEROOR GRAMA PANCHAYAT, NADAKKAVU JUNCTION, UDAYAMPEROOR, THRIPUNITHURA REPRESENTED BY ITS SECRETARY, PIN – 682307** - **7 THE PRESIDENT UDAYAMPEROOR GRAMA PANCHAYAT, NADAKKAVU JUNCTION, UDAYAMPEROOR, THRIPPUNITHURA, PIN – 682307** - **8 WILSON K.J KARUKAPPILLY HOUSE, SOUTH PARAVUR P.O., UDAYAMPEROOR, ERNAKULAM, PIN – 682307** **R3, R4 & R5 BY SRI. JUSTIN JACOB, SENIOR GOVERNMENT PLEADER BY ADVS.N. RAGHURAJ AKHIL S.VISHNU(K/699/2015)** ## **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No. 1861/2023 3 ## JUDGMENT ## AMIT RAWAL, J. Present intra court appeal is at the instance of respondent No.7 in W.P.(C.) No.15090/2013, filed by one Bineesh and another aspiring to be appointed as Driver on regular basis in the 4[th] respondent i.e., the Udayamperoor Grama Panchayat. Both the petitioners and respondents 6 and 7 in the writ petition (7th respondent-appellant) continued to discharge the duties on daily wages after having undergone the process of selection. 2. The respondent Grama Panchayat intended to fill up the regular vacancies of two drivers. Aggrieved of the same, respondents 1 and 2 sought the indulgence of this Court in W.P. ## (C.) No. 15090/2023 with the following prayers:- _“i. Issue a Writ of Mandamus or any other appropriate Writ, Order or direction directing Respondent No. 4 to forthwith notify the posts of driver and ambulance for selection and complete the selection process to these posts within such time as this Hon'ble Court may deem fit._ W.A No. 1861/2023 4 _ii. Issue a Writ of Mandamus or any other appropriate Writ, Order or direction directing Respondent No. 4 to disengage Respondents No. 6 & 7 from services forthwith._ _iii. Issue a Writ, Order or direction declaring that Respondent No. 4 in continuing with services of Respondents 6 and 7 violates Article 16 of the Constitution of India._ _iv. Issue a Writ Mandamus or any other appropriate Writ, Order or direction directing Respondent No. 4 to permit the Petitioners also to take part in the selection process to be notified under prayer (I) above._ _v. Dispense with the need of producing English translated copies of documents in vernacular.”_ 3. Learned Single Judge noticing the fact that the daily/contractual employees cannot be replaced with another set of contractual employees, permitted the petitioners and respondents 6 and 7 to continue to man the posts with liberty to participate in the selection process. Learned counsel appearing on behalf of the appellant submitted that the respondent Grama Panchayat by way of additional document dated 30.03.2023 has come out with the guidelines fixing the age limit for participating W.A No. 1861/2023 5 in the selection process. The appellant has become overage and therefore, would not be in a position to participate in the selection process. 4. We afraid that the said request cannot be entertained for the reason that appellant, at the time when the directions were issued or when the writ petition was filed had already become overaged. The appellant was aware that as and when the process for regular selection is initiated owing to the overage, he would not be able to participate. In our view, the observation of the learned Single Bench extracted herein below, do not seriously affect the service career of the appellant and petitioners as they have been permitted to discharge their duties until and unless they are being replaced by regular incumbents. The operative portion of the judgment of the learned Single Bench dated 18.08.2023 in W.P.(C.) No. 15090/2023 reads as under:- _“In the afore circumstances, I order this Writ Petition, recording the submissions of Sri.Akhil S.Vishnu; and consequently direct the Grama Panchayat to complete the_ W.A No. 1861/2023 6 _process of filling up two vacancies of drivers in their services substantively, following due procedure, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment._ _I clarify that until such time as the afore exercise is completed and permanent appointment effected, respondents 6 and 7 will be entitled to continue on the same terms as they are now engaged._ _Needless to say, respondents 6 and 7, as also the petitioners, will be at full liberty to participate in the process of selection to be notified by the Panchayat in terms of the afore directions, subject to them being fully qualified and obtaining necessary credentials as are mandatory.”_ 5. However, as and when the regular incumbents are appointed the principle of 'last come first go' would be applicable in case the incumbents become surplus. That is not the case of either of the parties at this stage and will be examined at a later stage. The appellant is at liberty to seek regularisation of service if the Rules or the Guidelines of the Department or the State Government permits. W.A No. 1861/2023 7 With the above observation, this intra court appeal stands disposed of. Sd/- AMIT RAWAL JUDGE Sd/C.S. SUDHA JUDGE DCS/11.12.2023 W.A No. 1861/2023 8 ## **APPENDIX** ## **PETITIONER EXHIBITS** **ANNEXURE A1 TRUE COPY OF G.O (RT) NO. 769/2023/LSGD DATED 30.03.2023 ISSUED BY THE GOVERNMENT ANNEXURE A2 TRUE COPY OF DISABILITY CERTIFICATE DATED 31.10.2023 ISSUED BY THE TALUK HEADQUARTERS HOSPITAL TRIPUNITHURA, ERNAKULAM. ANNEXURE A3 TRUE COPY OF NOTIFICATION DATED 21.10.2023 ISSUED BY UDAYAMPEROOR GRAMA PANCHAYAT.**