W.P.(C) Nos.16624/2021 & 21512/2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 23[RD] DAY OF DECEMBER 2021 / 2ND POUSHA, 1943** ## **WP(C) NO. 16624 OF 2021** ## **PETITIONER:** SIYAD.S.S., AGED 46 YEARS S/O.SALIM(LATE), SLIM MANZIL, PARAYAHUKONAM P.O., KIZHUIVILAM VILLAGE, THIRUVANANTHAPURAM DISTRICT695 104. BY ADV P.ANOOP (MULAVANA) ## **RESPONDENT/S:** - 1 DEPARTMENT OF HEALTH AND FAMILY WELFARE, STATE OF KERALA, REPRESENTED BY ITS SECRETARY, ANNEX II, SECRETARIAT, THIRUVANANTHAPURAM-695 001. - 2 DEPUTY DIRECTOR OF PANCHAYAT, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT, CIVIL STATION, KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM-695 043. - 3 THE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, KIZHUVILAM, KIZHUVILAM GRAMA PANCHAYAT, THIRUVANANTHAPURAM DISTRICT-695 104. - 4 KIZHUVILAM GRAMA PANCHAYATH, REPRESENTED BY SECRETARY, KIZHUVILAM GRAMA PANCHAYAT OFFICE, MUDAPURAM P.O., THIRUVANANTHAPURAM-695 304. 5 SECRETARY, KIZHUVILAM GRAMA PANCHAYATH,H MUDAPURAM P.O., THIRUVANANTHAPURAM-695 304. r BY ADV LATHEESH SEBASTIAN ( R4 & R5) ## **OTHER PRESENT:** GP PARVATHY KOTTOL W.P.(C)Nos.16624/2021 & another 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.11.2021, ALONG WITH WP(C).21512/2021, THE COURT ON 23/12/2021 DELIVERED THE FOLLOWING: W.P.(C)Nos.16624/2021 & another 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 23[RD] DAY OF DECEMBER 2021 / 2ND POUSHA, 1943** ## **WP(C) NO. 21512 OF 2021** ## **PETITIONER:** ANSHAD S, AGED 28 YEARS S/O. SHIHABUDEEN, PALAVILAVEEDU HOUSE, KARAKKADA P.O, KIZHUVILAM, THIRUVANANTHAPURAM DISTRICT - 695104. BY ADV ARUN MATHEW VADAKKAN ## **RESPONDENT/S:** 1 DEPARTMENT OF HEALTH AND FAMILY WELFARE REPRESENTED BY ITS SECRETARY, ANNEXE II, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. 2 DEPUTY DIRECTOR OF PANCHAYAT. OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT, CIVIL STATION, KUDAPPANAKUNNU P.O, THIRUVANANTHAPURAM - 695043. 3 THE MEDICAL OFFICER PRIMARY HEALTH CENTRE, KIZHUVILAM GRAMA PANCHAYATH, THIRUVANANTHAPURAM DISTRICT - 695104. 4 KIZHUVILAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KIZHUVILAM GRAMA PANCHAYATH OFFICE, MUDAPURAM P.O, THIRUVANANTHAPURAM DISTRICT - 695304. 5 SECRETARY KIZHUVILAM GRAMA PANCHAYATH, KIZHUVILAM GRAMA PANCHAYATH OFFICE, MUDAPURAM P.O, THIRUVANANTHAPURAM DISTRICT - 695304. BY ADV LATHEESH SEBASTIAN W.P.(C)Nos.16624/2021 & another 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.11.2021, ALONG WITH WP(C).16624/2021, THE COURT ON 23/12/2021 DELIVERED THE FOLLOWING: W.P.(C)Nos.16624/2021 & another 5 ## **SUNIL THOMAS, J.** ------------------------------------- **W.P.(C) No.16624 of 2021 & W.P.(C) No. 21512/2021 ---------------------------------** Dated this the 23[rd] day of December 2021 ## **COMMON JUDGMENT** The writ petitioner in W.P.(C) No.16624/2021 was working as an ambulance driver on temporary basis under the 3[rd] respondent -Medical Officer of the PHC of the Kizhuvilam Grama Panchayat from 5/6/2017 onwards. Ext.P1 is the identity card issued to him. While so, Ext.P2 communication dated 19/4/2021 was issued by the Deputy Director of Panchayath, directing that the applications submitted by the drivers engaged on temporary basis in connection with the palliative care duty for their regularization, shall be placed before the Panchayath committee for deliberation and to report it to the office of Deputy Director of panchayath. It was issued to all Grama Panchayath secretaries. In the meanwhile, 5[th] respondent issued a notification dated 15-6-2021 in a newspaper inviting application for the appointment of temporary ambulance driver for working under the 3[rd] respondent. The petitioner forwarded Ext.P4 representation dated 31/5/2021 to the third respondent to be placed in the agenda of the Panchayath committee, to get his service regularised as per Ext.P2 communication. Alleging that no action was taken thereon, the petitioner approached this court by filing W.P.(C)No.13018/2021, for a direction to the 3[rd] and 5[th] respondents therein to initiate further proceedings pursuant to Ext.P4 application. This court by Ext.P5 judgment dated 30.06.2021 disposed it of with a direction to place the W.P.(C)Nos.16624/2021 & another 6 representation submitted by the petitioner before the Panchayath committee and to pass appropriate orders within one month from the date of receipt of a copy of that judgment. On 16/7/2021 the 5[th] respondent held a meeting and by Ext.P6 decision, resolved not to extend the term of the petitioner. It was also stated that the petitioner was relieved from his work on 31/3/2021, on expiry of his contract and thereafter, he was engaged as an ambulance driver in domicile care centre from 10/5/2021. His performance was not satisfactory and he used to take leave occasionally. Without making an alternative arrangement, he went on leave for personal purposes from 20[th] November to 17[th] December. Hence, it was resolved not to renew the term of contract, after its expiry on 31/3/2021. 2. Pursuant to Ext.P7 decision, the petitioner approached this court seeking relief to set aside Ext.P7 and for a direction to the 3[rd] and 5th respondents to reconsider Ext.P4 application in accordance with Ext.P2 communication of the 2[nd] respondent. When the matter came up for admission, this court by order dated 12/8/2021 directed that in case the petitioner was working in the domicile care centre under the 4[th] respondent, the petitioner's service shall not be terminated till 2/9/2021. 3.The respondents appeared and detailed counter affidavit was filed by Respondents 4 and 5, traversing the various allegations. It was contended that the petitioner was working as ambulance driver on temporary basis which expired on 31/3/2021 and thereafter his term was not extended. However, he was continuing on daily wages till the completion of selection process for appointment of fresh candidates. It was contended that the Panchayath Deputy Director has W.P.(C)Nos.16624/2021 & another 7 no authority to issue Ext.P2 notice to regularize the service of the temporary hands working in the Panchayath. The Government alone could give direction and sanction to those posts. Regularization could be done only against a sanctioned post. He was permitted to continue till fresh appointment was made and his continuation was on daily wages. It was also contended that, his representation was considered and it was found that the service of the petitioner was not satisfactory and the petitioner used ambulance for private needs of the employees working in the primary health centre, Kizhuvilam. He withdrew from service from 20/11/2020 to 17/12/2020, without making alternate arrangements. It was decided by the Panchayath not to extend his services taking into consideration his irresponsible conduct and taking leave without making alternate arrangements. The resolution of the Panchayath dated 3/6/2021 not to renew the contract of the petitioner and to invite fresh applications was produced as Annexure R5 (a). It was further stated that pursuant to the notification, a new person was appointed. Petitioner voluntarily left service and key was handed over to the nodal officer on 13/8/2021 and the newly appointed candidates has already taken charge. 4. Alleging that the order of this Court dated 12/8/2021, was not complied with and that it was violated by appointing another person on 13/8/2021, the petitioner has filed Contempt Case No.1462/2021 and is pending. Since the matter is pending before the learned Judge who passed the order, I am not inclined to go into the question whether the order dated 12/8/2021 was violated or not. 8 W.P.(C)Nos.16624/2021 & another 5. . In the meanwhile, W.P.(C) No.21512/2021 is filed by one Anshad, who claims that he was appointed towards the vacancy that arose pursuant to termination of the writ petitioner in W.P.(C) No.16624/2021. He was appointed pursuant to a public notice, dated 15/6/2021 in a news paper. After interview, rank list was published and accepted by the Panchayath by Ext.P1 dated 9/8/2021. Petitioner in that writ petition was appointed as ambulance driver. He joined duty on 13/8/2021. He had been allotted duty. He claimed that, apprehending termination he approached this court. By interim order dated 8/10/2021, he was permitted to continue, if he has not been substituted by another employee. Thereafter, by order dated 5/10/2021, he was terminated from service by the Panchayath by Ext.P3 dated 5/10/2021. Ext.P3 is challenged on the ground that it was issued without hearing the petitioner. 6. Heard both the writ petitions together. 7. Arguments were advanced by both sides on the correctness of Ext.P2 in W.P.(C) No.16624/2021 and the authority of the Deputy Director of Panchayath to direct consideration of the request for regularisation, contending that the authority has no such power to issue order or to direct regularization against a non sanctioned post. However, Ext.P2 only directed that the applications received for regularization of service of the palliative care centre driver, shall be placed before the Panchayath committee to discuss it, and to intimate the outcome. There was no direction that the committee shall regularize them. The direction was only to deliberate on the request for regularization. Pursuant to Ext.P2, Panchayath Committee met and resolved to terminate the services of W.P.(C)Nos.16624/2021 & another 9 the writ petitioner on serious allegations of misconduct. It was resolved to appoint a new person by proper notification and steps were decided to be taken. Ext.P6 is the resolution. 8. The above resolution was conveyed to the writ petitioner in W.P.(C) No.16624/2021. It is pursuant to that the petitioner was terminated from service as a casual employee on certain allegations, as evident from Exts.P6 and P7. The petitioner was not given an opportunity of being heard to answer those allegations. Further, it seems that the contract of employment of the petitioner was not renewed and another temporary employee was proposed to be taken on a contract basis. This seems to be contrary to the decision reported in The _**State of Haryana And Ors v. Piara Singh And Ors (1992 (4) SCC 118).**_ 9. However, the petitioner in W.P.(C) No.16624/2021 has no grievance that he was not given any opportunity to answer the allegation. He has not specifically disputed the above allegations, except projecting his explanation on the allegation that he has unlawfully shouted himself and that he has used the ambulance for his own purpose. No ground is set up that he was terminated without giving an opportunity of being heard, nor that no enquiry was conducted preceding termination. On the other hand, Ext.P9 leave application dated 16/11/2020 was produced by the petitioner seeking leave from 16/11/2020 itself till 10/12/2020 for contesting election as a candidate. Evidently, the leave application is not seen delivered. There is no material to show that leave was sanctioned. Above all, the leave application itself is seen submitted on the date of commencement of the leave, on a ground which he must be knowing in W.P.(C)Nos.16624/2021 & another 10 advance. Hence, I find nothing wrong in Exts.P6 and P7. 10. At the time of hearing, learned counsel for the Panchayath placed before me an order passed in W.P.(C) No.21512/2021 in which, the said Anshad who was terminated from service, had challenged his termination in W.P.(C) No.21512/2021 and without noting the pendency of W.P.(C) 16624/2021, this court had ordered that the petitioner shall be permitted to continue if he has not been substituted by any person. 11. The counter affidavit of the Panchayat shows that, Ext.P3 was passed on a purported reasoning that, contempt of court case was pending and the court was of an opinion that the writ petitioner in W.P.(C) No.16624/2021 was liable to be engaged. There is nothing to show it. Further, Ext.P3 in W.P.(C) No.21512/2021 was issued without any legal basis and without hearing the petitioner. Accordingly, W.P.(C) No.21512/2021 is liable to be allowed. However, in W.P.(C) No.16624/2021 the appointment of Anshad is not challenged. There is no justifiable reason for termination of writ petitioner in W.P(C).No.21512 of 2021. The argument of the writ petitioner therein cannot be legally sustained. Accordingly, W.P.(C) No.16624/2021 is dismissed. W.P.(C) No.21512/2021 is allowed. Ext.P3 in W.P.(C) No.21512/2021 is set aside and petitioner is ordered to be reinstated in service forthwith. Sd/- ## **SUNIL THOMAS** ## **Judge** dpk W.P.(C)Nos.16624/2021 & another 11 ## **APPENDIX OF WP(C) 21512/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER NUMBERED AS A22522/21 DATED 09.08.2021 BY THE 5TH RESPONDENT. Exhibit P2 TRUE COPY OF AFFIDAVIT EXECUTED BY THE PETITIONER DATED 13.08.2021 BEFORE THE 3RD RESPONDENT. RESPONDENTS EXHIBITS: ANNEXURE R5 (A): COPY OF THE ADVERTISEMENT OF THE PANCHAYAT DATED 15/6/2021 PUBLISHED IN KERALA KOUMUDI DAILY. ANNEXURE R5 (B): COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO.13018/2021 DATED 30/6/2021 ANNEXURE R5(C): COPY OF THE DECISION OF THE PANCHAYATH COMMITTEE DATED 16/7/2021 AS PER DECISION BEARING NO.1/1/ ANNEXURE R5 (D): COPY OF THE RANKED LIST PUBLISHED BY THE 4 TH RESPNDENT ON 2/8/2021 AS PER DECISION NO. 3/1. ANNEXURE R5 (E): COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT IN W.P.(C) NO.16624/2021 DATED 12/8/2021 ANNEXURE R5 (F): COPY OF THE ORDER OF THE 5TH RESPONDENT DATED 5/10/2021 W.P.(C)Nos.16624/2021 & another 12 ## **APPENDIX OF WP(C) 16624/2021** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE IDENTITY CARD OF THE PETITIONER. - Exhibit P2 TRUE COPY OF THE COMMUNICATION NO.DDPTVM/557/2021-E2 DATED 19.04.2021. - Exhibit P3 TRUE COPY OF THE ADVERTISEMENT PUBLISHED IN NEWS PAPER DATED 15.05.2021. - Exhibit P4 TRUE COPY OF THE REPRESENTATION NO.A2 2335 DATED 31.05.2021. - Exhibit P5 TRUE COPY OF THE JUDGMENT IN WPC NO.13018 OF 2021 DATED 30.06.2021. - Exhibit P6 TRUE COPY OF THE DECISION TAKEN BY THE 5TH RESPONDENT IN THE MEETING HELD ON 16.07.2021. - Exhibit P7 TRUE COPY OF THE ORDER NO. A2/2335/21 DATED 29.07.2021. - Exhibit P8 TRUE COPY CHEQUE DATED 19.07.2021. Exhibit P9 TRUE COPY OF THE LEAVE APPLICATION DATED 16.11.2020. - Exhibit P10 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 16.11.2020. - Exhibit P11 TRUE COPY OF THE COMMUNICATION NO.A1-1933/21 DATED 30.04.2021. - Exhibit P12 TRUE COPY OF THE ORDER NO. A2/2522/21 (1) DATED 05-10-2021 ISSUED BY THE 5TH RESPONDENT. EXHIBIT.P13: COPY OF THE ATTENDANCE REGISTER ISSUED BY THE 3RD RESPONDENT