W.P.(C) Nos. 8914/2021, 9479/2021 and 9482/2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943** **WP(C) NO. 8914 OF 2021** ## **PETITIONER/S:** SARITHA THANKAPPAN AGED 37 YEARS W/O.SINOJ K.G., TECHNICAL ASSISTANT, OKKAL GRAMA PANCHAYAT, OKKAL P.O., ERNAKULAM 683 550 RESIDING AT KALAMBATTUKUDI HOUSE, KOOVAPPADI P.O., PERUMBAVOOR, ERNAKULAM 683 544 BY ADVS. P.NANDAKUMAR SMT.AMRUTHA SANJEEV VIVEK VIJAYAKUMAR ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (IB) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 DEPUTY DIRECTOR OF PANCHAYATS CIVIL STATION, ERNAKULAM 682 030 3 OKKAL GRAMA PANCHAYAT OKKAL P.O., ERNAKULAM 683 550, REP.BY THE SECRETARY. 4 THE PRESIDENT OKKAL GRAMA PANCHAYAT, OKKAL P.O., ERNAKULAM 683 550 BY ADV TONY THOMAS (INCHIPARAMBIL) GP PARVATHY KOTTOL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, ALONG WITH WP(C)NO.9479/2021 & WP(C)NO.9482/2021, THE COURT ON 28.10.2021 DELIVERED THE FOLLOWING: W.P.(C) No.8914, 9479 & 9482 of 2021 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943 WP(C) NO. 9479 OF 2021** ## **PETITIONER/S:** SRI.UNNIKRISHNAN T.M AGED 32 YEARS S/O. MANI (LATE), WORKING AS TECHNICAL ASSISTANT, ERUMAPETTY GRAMA PANCHAYAT, RESIDING AT THOTTKKAVALAPPIL HOUSE, CHITTONDA P.O. WADAKANCHERRY, THRISSUR 680 585. BY ADV T.RAJASEKHARAN NAIR ## **RESPONDENT/S:** 1 ERUMAPETTY GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, MANGAD, KOTTAPURAM P.O. THRISSUR 680 584. 2 THE SECRETARY, ERUMAPETTY GRAMA PANCHAYAT, MANGAD, KOTTAPURAM P.O. THRISSUR 680 584. 3 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT (I.B), DEPARTMENT, GOVERNMENT SECRETARIAT, GOVERNMENT PRESS P.O., THIRUVANANTHAPURAM 695 001. BY ADVS. SHRI.SANTHOSH P. PODUVAL,, SC, ERUMAPPETTY GRAMA PANCHAYAT P.C.SASIDHARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, ALONG WITH WP(CNO.8914/2021 & WP(C)NO.9482/2021, THE COURT ON 28.10.2021 DELIVERED THE FOLLOWING: W.P.(C) No.8914, 9479 & 9482 of 2021 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943** ## **WP(C) NO. 9482 OF 2021** ## **PETITIONER/S:** ANJU RAMANAN AGED 29 YEARS D/O. RAMANAN, ARACKAPARAMBIL HOUSE, KADAVOOR P.O. PANAMKARA, ERNAKULAM DISTRICT. BY ADVS. K.S.ARUN KUMAR SRI.JUSTINE JACOB SMT.AMRUTHA P S SMT.AMRUTHA K P **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 DIRECTOR OF PANCHAYATHS, THIRUVANANTHAPURAM 695 001. 3 DISTRICT COLLECTOR,ERNAKULAM, CIVIL STATION, KAKKANAD, ERNAKULAM 682 030. 4 PAINGOTTOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, PAINGOTTOOR P.O. ERNAKULAM DISTRICT 686 671. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE GP PARVATHY KOTTOL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, ALONG WITH WP(C).8914/2021& WP(C)NO.9479/2021, THE COURT ON 28.10.2021 DELIVERED THE FOLLOWING: W.P.(C) No.8914, 9479 & 9482 of 2021 4 ## **SUNIL THOMAS, J.** ## ------------------------------------- **W.P.(C) No.8914, 9479 & 9482 of 2021** **---------------------------------** Dated this the 28[th] day of October 2021 ## **JUDGMENT** In all the above cases the respective petitioners were appointed as technical assistants by different Grama Panchayaths. Apprehending that the petitioners are likely to be terminated of their contractual appointments, contrary to a Government order, petitioners have approached this court. 2. In W.P.(C) No.8914/2021, the petitioner was appointed as the technical assistant by the third respondent-Grama Panchayath by order dated 22/10/2012 for a period of one year. It was extended from time to time and lastly it was extended till 31/3/2021. Ext.P2 is the copy of the relevant service book. In the meanwhile, the State Government issued Ext.P3 circular dated 1-2-2021, by which it was directed that the period of all technical assistants subject to their performance appraisal may be extended up to 31/3/2022. However, the president of the Panchayath is stated to have issued an oral direction not to permit the petitioner to continue her service. Accordingly, Ext.P4 letter was issued by the Secretary informing that the services of the petitioner stood terminated on expiry of the contractual period. This is under challenge in the above writ petition. The prayer sought was to quash Ext.P4 and to direct the W.P.(C) No.8914, 9479 & 9482 of 2021 5 petitioner to continue in service. 3. In W.P.(C)No.9479/2021,the petitioner was appointed as the technical assistant on 1/1/2015 by Ext.P1 order dated 31/12/2014. The period was extended from time to time. In the meanwhile, the Government Order was issued extending the period of employment till 31/3/2022. In spite of the above, Panchayat had orally instructed the petitioner that he need not attend the office thereafter. Apprehending termination, the petitioner has approached this court. The reliefs sought in the writ petition was for a direction to the Grama Panchayath to permit her to continue in service. 4. In W.P.(C) No.9482/2021 the petitioner was appointed as a technical assistant on contract basis in 2017. The period was renewed from time to time. Ext.P1 was the copy of the agreement executed for the period 2020 – 21. According to the petitioner, after the new panchayath committee took office, they were not interested in continuing her services. In the meanwhile, the Government Order was issued extending the period till 31/3/2022. Ext.P4 was the performance appraisal report which recommended her continuance. According to the petitioner, she was orally instructed not to come to the office from 1-4-2021. She submitted Ext.P5 representation which was pending consideration. Apprehending termination, the petitioner has approached this court. 5. In all the writ petitions,ex parte interim orders were granted permitting the petitioners to continue in service subject to the result of the W.P.(C) No.8914, 9479 & 9482 of 2021 6 writ petitions. 6. In W.P.(C) No.8914/2021, the Panchayath filed a detailed counter affidavit contending that the Government had no authority to extend the period of contract of employees engaged by them. The act of the Government amounted to colourable exercise of the power and it affected the autonomy and independence of Local Self Government Institutions. It was stated that, the technical assistants were appointed as part of e-Governance initiatives by the panchayaths, which had the authority to appoint employees as well as to remove them. Their rights cannot be circumscribed by the Government. It was stated that the petitioner was only a contract employee and he had no right to seek continuance in service. The Government had no power to interfere in the right of the panchayath to take decision. It was also alleged that the conduct of the petitioner was in total disregard to her duties. 7. In W.P.(C)No.9479/2021, Panchayath contended that the respondent was appointed on a contract basis. His engagement was not based on any proper selection and hence, he cannot seek any relief for his continuance. Pursuant to the decision of the panchayath committee to terminate him and to appoint a new person, notification dated 16/3/2021 was issued . That notification was issued to give equal opportunity to all competent persons. The petitioner was also free to participate in that. The Government order will not confer any right on her. 8. In W.P.(C) No.9482/2021, a counter affidavit was filed by the W.P.(C) No.8914, 9479 & 9482 of 2021 7 Panchayath contending that the dispute will come under section 28 of the Administrative Tribunals Act, 1985 and Kerala Administrative Tribunal Rules and hence, this court has no jurisdiction to entertain such disputes. The post was one coming under the Kerala Panchayath Service Rules. The petitioner was engaged by the Panchayath and the salary was paid by the Panchayath. The Government had no role in such engagement. Further, all the staff had gained technical knowledge and hence the service of the petitioner was no longer required. Being a contract employee appointed as a part of the E governence, she cannot claim continuance in service. The Government Order cannot restrict the power of the panchayath. It was further stated that performance appraisal report was only recommendatory in nature and it was ultimately for the managing committee of the panchayath to take appropriate decision on it. 9. Heard the learned counsel for the respective petitioners and the respective counsel for the contesting respondents. In all the above cases, petitioners were appointed on contract basis, which was renewable at the end of the respective panchayath. In all the cases, the respective petitioners placed reliance on the Government Order No. 265 /2021/LSGD dated 1-2-2021, by which, relying on a request made by certain organization of technical assistants to extend their period, the period of contract was extended from 1-4-2021 to 31-3-2022, subject to the performance appraisal. 10. Disputing the claim of the petitioners, the panchayaths took up W.P.(C) No.8914, 9479 & 9482 of 2021 8 the stand that the Government had no authority to issue such order and interdict or restrict the powers of the panchayaths in appointing and removing of its employees. It was also contended by them that the respective petitioners are not entitled to seek continuance in service being contract employees for a fixed period. In one case, it was specifically contended that her conduct was beyond acceptance and she was liable to be terminated. In W.P.(C) No.9482/2021, the Panchayath had taken up a case that in spite of the performance appraisal report, they were not interested in continuing the technical assistants, since their services were not required as all the employees had attained proficiency in IT Governance. 11. The learned counsel for the respondents relied on the decisions reported in Y _**ogesh Mahajan v. Professor R.C.Deka, Director, All India Institute of Medical Sciences(2018)3 SCC 218), Vidyavardhaka Sangha and Another v. Y.D.Deshpande And**_ **Others(2006) 12 SCC 482)** , in _**V.V.Mohanan v. State of Kerala and Ors (MANU/KE/3315/2020)**_ , in _**Rajasthan State Roadways Transport Corporation v. Paramjeet Singh ( 2019 KHC 6584)**_ and the judgment of this Court in _**W.P.(C) No.15098/2019,**_ to contend that in the case of contractual appointments, they have no right to insist for continuance in service. It was held in those decisions that termination of service in the case of contractual service, was a purely contractual appointment and services could be dispensed with notice at any stage. W.P.(C) No.8914, 9479 & 9482 of 2021 9 12. There is no dispute that contractual appointees have no right to insist for continuance of service and their services were terminable by efflux of time or by notice. However, in the case at hand, all the petitioners are placing reliance on the Government Order, which directed the continuance. It was contended by the learned counsel for the petitioners that the Government has no authority to issue such an order. However, the learned Government Pleader invited my attention to Section 189 of the Kerala Panchayath Raj Act , which conferred a general power on the Government to issue guidelines. Section 189 provides that notwithstanding anything contained in the Act, the Government shall have the power to issue general guidelines to the Panchayath in accordance with the National and State Policies in matters such as finance, maintenance of accounts, office management formulation of schemes, selection of sites and beneficiaries, proper functioning of Grama Sabha etc. The appointment of technical assistant is undertaken as a part of E- Governence scheme introduced by the Government. In the light of the above, the question whether the Government has got the power cannot be agitated in a proceeding initiated by the petitioners herein. It seems that the panchayath has not challenged the above notification. As long as it stands, petitioners will be entitled to claim protection under the Act. Further, the Government order makes it clear that it will be subject to the performance appraisal. 13. Having considered the above facts, I feel that the each of the W.P.(C) No.8914, 9479 & 9482 of 2021 10 petitioner is entitled to continue subject to the performance appraisal in the light of the G.O No.265/2021/LSGD dated 1-2-2021. Accordingly, Ext.P4 in W.P.(C) No.8914/2021 stands quashed. All the writ petitions are allowed directing the respective panchayaths to permit the petitioners to continue till 31/3/2022. subject to the performance appraisal report. Sd/- **SUNIL THOMAS Judge** dpk W.P.(C) No.8914, 9479 & 9482 of 2021 11 ## **APPENDIX OF WP(C) 8914/2021** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF GO(RT) NO.1772/2012/LSGD DATED 27.6.2012 - EXHIBIT P2 TRUE COPY OF RELEVANT EXTRACT OF THE SERVICE BOOK OF THE PETITIONER. - EXHIBIT P3 TRUE COPY OF GO(RT) NO.265/2021/LSGD DATED 1.2.2021 ISSUED BY THE 1ST RESPONDENT. - EXHIBIT P4 TRUE COPY OF LETTER DATED 3.4.2021 ISSUED BY THE SECRETARY OF 3RD RESPONDENT. - EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 14.11.2018 IN W.P.(C) NO.17891 OF 2018 AND CONNECTED CASE. RESPONDENT EXHIBITS Exhibit R4(A) TRUE COPY OF THE AGREEMENT FOR CONTRACT STAFF OF PETITIONER DATED 01/04/2020 Exhibit R4(B) TRUE COPY OF THE PERFORMANCE APPRAISAL REPORT DATED ON 26/05/2021 Exhibit R4(C) TRUE COPY OF THE MINUTES OF THE PANCHAYATH COMMITTEE DATED 07/06/2021 W.P.(C) No.8914, 9479 & 9482 of 2021 12 ## **APPENDIX OF WP(C) 9479/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 31.12.20214 ISEUD BY THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE GO (RT) NO. 265/2021 LSGD DATED 1.2.2021. W.P.(C) No.8914, 9479 & 9482 of 2021 13 ## **APPENDIX OF WP(C) 9482/2021** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE AGREEMENT FOR THE LAST YEAR I.E., 2020-21 BETWEEN THE PETITIONER AND GRAMA PANCHAYAT. EXHIBIT P2 A TRUE COPY OF THE REPRESENTATION DATED 08/02/2021 SUBMITTED BEFORE 4TH RESPONDENT. EXHIBIT P3 A TRUE COPY OF THE G.O. NO. 265/2021/LSGD DATED 01/02/2021. EXHIBIT P4 A TRUE COPY OF THE PERFORMANCE APPRAISAL REPORT DATED 25.02.2021 OF THE PANEL. EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DATED 07.04.2021 SUBMITTED BY THE PETITIONER BEFORE 4TH RESPONDENT.