WA Nos. 826 of 2023 and 794 of 2023 (Changanassery Municipality & Municipal Council v. Aneesh Rawthar; and Changanassery Municipality & Municipal Council v. Ashraf K.A. & Others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945** **WA NO. 826 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 17621/2021 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS:** 1 CHANGANASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY CHANGANASSERY MUNICIPALITY, MAIN ROAD, CHANGANASSERY P.O, KOTTAYAM., PIN - 686101 2 THE MUNICIPAL COUNCIL REPRESENTED BY ITS CHAIRMAN CHANGANASSERY MUNICIPALITY MAIN ROAD, CHANGANASSERY P.O, KOTTAYAM., PIN - 686101 BY ADV PAUL JACOB (P) ## **RESPONDENT/PETITIONER:** ANEESH RAWTHAR. A, AGED 40 YEARS, S/O MOIDEEN RAWTHAR PIDI VEETTIL, PUNNAVELY P.O, ANICAD, PATHANAMTHITTA., PIN - 689589 BY ADV C.A.RAJEEV THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 12.12.2023, ALONG WITH WA.794/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WA NO. 826 OF 2023 and conctd. Case** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945** **WA NO. 794 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 28063/2021 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS:** 1 CHANGANASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MAIN ROAD, CHANGANASSERY P.O., KOTTAYAM, PIN - 686101 2 THE MUNICIPAL COUNCIL THE MUNICIPAL COUNCIL, REPRESENTED BY ITS CHAIRMAN CHANGANASSERY MUNICIPALITY MAIN ROAD, CHANGANASSERY P.O, KOTTAYAM, PIN - 686101 BY ADV PAUL JACOB (P) ## **RESPONDENTS/WRIT PETITIONERS:** 1 ASHRAF. K.A., AGED 46 YEARS S/O. ABDUL KHADER, PAREELVADAKETHIL HOUSE, CHAMAMPATHAL, CHANGANASSERY P.O, KOTTAYAM, PIN - 686517 2 SANTHOSH P.K., S/O. KUTTAPPAN, PALAKKALUM HOUSE,AMARA P.O., CHANGANASSERY, KOTTAYAM., PIN - 686546 3 BINDU P.T., D/O. SANTHAPPAN, PARACHERA PUTHUPARAMBIL, CHEERAMCHIRA P.O., CHANGANASSERY, KOTTAYAM., PIN - 686106 4 SATHIAMMA K.R. W/O. SAJAN V.K., KONDAPPANA HOUSE, AMARA P.O., CHANGANASSERY, KOTTAYAM, PIN - 686546 BY ADV C.A.RAJEEV THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 12.12.2023, ALONG WITH WA.826/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WA NO. 826 OF 2023 and conctd. Case** **3** ## JUDGMENT ## Amit Rawal, J. Two intra court appeals bearing No.826 of 2023 and 794 of 2023 have been preferred against the judgment of the Single Bench dated 23.1.2022 in WP(C) No.17621 of 2021 and 28063 of 2021. 2. The prayers in the WP(C) No.28063 of 2021 and in WP(C) No.17621 of 2021 on behalf of the petitioners ie., respondents herein were as follows: WP(C) No.28063 of 2021: “To issue a writ of mandamus or such other writ, order or direction commanding the respondent municipality to fill up the vacant posts of contingent employee in the contingent establishment of Changanassery Municipality to which the petitioners were called for interview, forthwith' WP(C) No.17621 of 2021: “Issue a writ of mandamus or such other writ, order or direction commanding the respondents to make appointment from the selected candidates to the post of substitute workers in it s contingent establishments as evidenced by Ext.P1 interview notice.” 3. Succinctly, the facts in brief are that the Changanassery Municipality, appellant, respondent before the writ court for the purpose of appointing contingent employees in Municipality, Corporation is required to undertake the task as per the provisions of Section 224 (1) of the Municipalities Act. In the year 2020, ie., during COVID 19 period, the then Chairman of the Municipality had taken a unilateral decision to employ additional thirteen (13) contingent workers. On 6.8.2020 employment exchange has sent a **WA NO. 826 OF 2023 and conctd. Case** **4** list of 88 candidates. Interview for the selection of 10 candidates was scheduled for 27.10.2020 and 28.10.2020 and for 3 candidates on 4.11.2020 and subsequently were rescheduled due to the spread of COVID and due to the implementation of Section 144 of the Code of Criminal procedure to 9.11.2020 and 10.11.2020 but even on that date also, the interview was not conducted owing to the promulgation of Panchayath election on 6.11.2020. As far as the interview scheduled for 4.11.2020 for the selection of 3 candidates was duly conducted in accordance with the COVID protocol. The aspirants had approached this Court vide WP(C) No.23589 of 2020 and this Court vide order dated 3.11.2020 closed the writ petition by granting liberty to the petitioners to appear in the interview scheduled for 4.11.2020 in respect of three candidates. In the meantime, State declared the election of Panchayath and in lieu thereof rank list of the candidates who attended the interview because of the code of conduct was not published. 4. It was further contended that respondent had implemented a decentralised waste management system for the financial year 2021-22. An amount of Rs.3,55,73,120/- was allocated in the year for decentralised waste management system. As of now, ie., at the time of counter, 30 labourers (Harithakarmasena) are working under the Municipality with **WA NO. 826 OF 2023 and conctd. Case** **5** respect to the waste management and as per the Rural employment scheme, there are 277 labourers who are working under the Municipality. 5. Noticing the rival contentions, learned Single Bench vide impugned judgment dated 23.11.2022 rejected the contentions of the Municipality on the ground that the Municipality which initiated the proceedings for empanelment of substitute workers by making a requisition before the employment exchange cannot turn around and say that the proceedings which were initiated in the year 2019 or 2020 shall not be taken to their logical conclusion. The writ petition was disposed of with the following directions: In the above view of the matter, I am of the opinion that the prayers as sought for in the writ petition are liable to be allowed. There will be a direction to the respondent, Municipality, to complete the procedure and to prepare the list of substitute contingent workers and to take appropriate steps to see that the successful candidates are empanelled in the said list. Appropriate steps shall be taken for finalizing of the list of substitute contingent workers within a period of one month from the date of receipt of a copy of the judgment. 6. Learned counsel appearing on behalf of the appellant submitted that the learned Single Bench has not taken to consideration the settled proposition of law for issuing directions that the employees who have been called for interview only have a right for consideration but not appointment. In support of the **WA NO. 826 OF 2023 and conctd. Case** **6** contentions relied upon the judgment of the Supreme Court in Mohd. Rashid v. The Director, Local Bodies, New Secretariat and Ors. (CIVIL APPEAL NO. 136 OF 2020) wherein in an identical situation considering the case of right of appointment, it was reiterated that participation in selection process would not accrue any right for appointment, even being placed in the merit list. It is always open to the Municipal body to fill up the vacant post by way of direct recruitment after the post either by way of promotion or deputation quota are not filled up, either on the basis of recruitment process already initiated or to be initiated afresh. Section 224 of the Kerala Municipalities Act authorises the specified authorities under the Act to undertake the task of appointment. The power and the right to appoint eligible and qualified persons against contingent posts in the Municipal Service especially conferred upon a Municipal Council under Section 6 of the Act. Chairman could not unilaterally take a call and ask for the list from employment exchange. The process of appointment for contingent worker was on account of the fact that during the COVID time certain employees had either contracted COVID or were under quarantine. The work of the Municipality was purely affected and over a period of time said the contingency which arose did not exist. It is settled law that employers are not bound to **WA NO. 826 OF 2023 and conctd. Case** **7** appoint any persons sponsored by employment exchange. 7. On the other hand, learned counsel appearing on behalf of the respondent supported the impugned judgment and submitted that a valuable right had accrued in favour of the candidates/aspirants who are in dire need of the employment. Municipality is estopped as per the principles enshrined under Section 115 of the Indian Evidence Act to volte face and interdict the process of the employment once started. The ratio culled out in the judgment is as per the facts and would thus be in personam and not in rem and prayed for dismissal of the appeals. 8. We have heard the learned counsel for the parties and appraised the paper book. Section 224 of the Kerala Municipalities Act reads thus: 224. APPOINTING AUTHORITIES.— (1) The Council shall be the appointing authority in respect of the contingent posts in the Municipal Service and appointment orders in respect of them shall be issued by the Secretary, with the approval of the Council. (2) The Government or the officer authorised by them in this behalf shall be the appointing authority in respect of all other posts whether they are included in the Municipal Common Service or not]. 9. On perusal of the aforementioned provisions, it is evident that the Council shall be the appointing authority and not the Chairman. In the instant case, it is not the case of the respondentspetitioners that the Chairman was duly authorised by the Government as per the provisions of Sub Section 2 of Section 224. **WA NO. 826 OF 2023 and conctd. Case** **8** The process of selection actuated on account of the fact that owing to the spate of COVID in entire world, many employees working in the departments providing essential services had undergone quarantine or been under the virus. In order to fill up the gap and discharge the duties to the maximum and to prevent further spread, owing to the shortage of employees the process according to the chairman was initiated without the approval of the Council but was shelved, keeping in view the financial conditions as stated in the statement and the additional affidavits filed in response to the directions of this Court. 10. The additional affidavits categorically portray that every contingent worker employed by the Municipality is paid an average of Rs.28,000/- per month whereas the Municipality presently has 13 contingent workers constituting an expense of Rs.43,68,000/- per year. Owing to the adoption of a new system where the labour is obtained on a day to day basis ie. Under Direct Labour (DLR), the cost accrued to the Municipality under the DLR system is considerably reduced and there is a saving of almost of Rs.17,35,500/- approximately. The categoric assertion in the paragraph 5 of the affidavit filed in the writ appeal No.826 of 2023 has not been controverted by any rejoinder. For the sake of brevity, paragraph 5 of the affidavit dated 16.8.2023 reads thus: **WA NO. 826 OF 2023 and conctd. Case** **9** It is further submitted in the year 2020, during the COVID -19 period, the then Chairman of the Municipality took a unilateral decision to employ additional contingent workers. The said Chairman without taking any prior sanction from the Municipal Council decided to employ additional workers. Health standing committee decided to form a selection committee; but thereafter, the said Municipal Chairman on his own without the approval of the Municipal Council formed another selection committee. As already mentioned, the above selection committee was never approved or brought to the knowledge of the Municipal Council. 11. After the judgment of the Single Bench, the issue was taken up by the Council and by that time, Municipal Council had decided to stop engagement of contingent worker in order to save the cost. It is also settled law that aspirants have no right to demand the finalization of the merit list or seek directions. Reliance has been laid to the judgment of the Constitutional Bench of the Supreme Court in NandaganjSihori Sugar Co.Ltd, Raebareli and Another v. Badrinath dixitand Others (1991 (3) SCC 54) . All these factors in our considered view have not been noticed in the impugned judgment, particularly, the right of appointment would not mean the right of selection, it is only a consideration which over a period of time as noticed above evaporated as per the circumstances. For the sake of brevity relevant portion of the judgment in Mohd. Rashid (supra) of the Muhd rashi is extracted hereunder: 12. The appellants who are aspirants for direct **WA NO. 826 OF 2023 and conctd. Case** **10** recruitment have no right for appointment merely because at one point of time the vacancies were advertised. The candidates such as the appellants 6 cannot claim any right of appointment merely for the reason that they responded to an advertisement published on 12th September, 2013. Even after completion of the selection process, the candidates even on the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash v. Union of India 6, a Constitution Bench of this Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. This Court held as under:- “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] ; Neelima Shangla (Miss) v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jitender Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899] .” 13. Since the selection process has not been completed and keeping in view the mandate of the Statutory Rules, we find that the appellants have no right to dispute the action of the Municipal Bodies to fill up the posts either by way of promotion or by deputation as such posts are being filled up in terms of mandate of the Rules. It is always open to the **WA NO. 826 OF 2023 and conctd. Case** **11** Municipal Bodies to fill up the vacant posts by way of direct recruitment after the posts by way of promotion and/or deputation quota are not filled up either on the basis of recruitment process already initiated or to be initiated afresh. 14. Consequently, we do not find any merit in the present appeals. Accordingly, the same are dismissed. As an upshot of our findings, we are of the view that the judgment of the Single Bench is not liable to be sustained. The same is set aside, resultantly, the writ appeals are allowed. Sd/- AMIT RAWAL JUDGE sab Sd/C.S. SUDHA JUDGE