Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM MONDAY, THE27H DAY OF JANUARY20147TH MAGHA, 1935 WP(C).No. 9909 of 2013 (K) --------------------------- PETITIONER(S): -------------- BIJI.R, AGED26YEARS, NURSERY SCHOOL TEACHER, SISUVIHAR, ANCHAL GRAMA PANCHAYATH, ANCHAL.P.O. KOLLAM DIST. W/O. SURESHKUMAR, POORAM(HO PANAYANCHERRY, ANCHAL.P.O., KOLLAM DIST. BY ADV. SMT.G.VIDYA RESPONDENT(S): -------------- 1. THE STATE OF KERALA REPRESENTED BY THE DEPUTY SECRETARY, SECRETARIAT THIRUVANANTHAPURAM-695001.
2. THE DIRECTOR PANCHAYATH, THIRUVANANTHAPURAM-695001.
3. THE DEPUTY DIRECTOR PANCHAYATH, KOLLAM DIST. PIN-691306.
4. ANCHAL GRAMA PANCHAYATH REPRESENTED BY THE SECRETARY, ANCHAL.P.O. KOLLAM DIST. PIN-691306.
5. SHYLAJA.K.PILLA, ARUN NIVAS, PANAYANCHERRY, ANCHAL.P.O. KOLLAM DIST. PIN-691306. R1 BY GOVERNMENT PLEADER SRI.SOJAN JAMES R5 BY ADV. SRI.P.N.MOHANAN R4 BY ADV. SRI.RASHEED C.NOORANAD, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2701-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9909 of 2013 (K) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXT.P1 TRUE COPY OF THE ORDER
PASSED BY THE1T RESPONDENT DATED143-13 EXT.P2 COPY OF ORDER
PASSED BY THE1T RESPONDENT DATED1403.2013 RESPONDENT(S)' EXHIBITS ----------------------- EXT.R1(A) COPY OF GO(MS)NO.170/10/LSGD DATED0608.2010 EXT.R1(B) COPY OF THE COMMUNICATION ISSUED TO THE2D RESPONDENT DATED2607.2012 EXT.R1(C) COPY OF THE REPORT OF THE2D RESPONDENT DATED0409.12 EXT.R1(D) COPY OF THE GO(RT)NO.651/2013/LSGD DATED1403.2013 EXT.R4(A) COPY OF THE RESOLUTION NO.II DTD.22.07.2006 EXT.R4(B) COPY OF THE RESOLUTION NO.V DTD. 19.06.2006 EXT.R5(A) COPY OF THE ATTENDANCE REGISTER AVAILABLE20002001 AND20032004 EXT.R5(B) COPY OF THE LEAVE APPLICATION DATED284.2006 SUBMITTED BEFORE THE SECRETARY. EXT.R5(C) COPY OF THE LEAVE APPLICATION DATED294.2006 BEFORE THE COMMITTEE EXT.R5(D) COPY OF THE LETTER DATED16.2006 SUBMITTED BEFORE THE4H RESPONDENT. EXT.R5(E) SERIES COPY OF THE PETITIONS DATED36.2006, 12.6.2006, 5.3.2007, 4.8.2008, 5.7.2010, 7.1.2012 AND310.2012 SUBMITED BY THE5H RESPONDENT. EXT.R5(F) COPY OF THE LETTER DATED33.2011 SUBMITTED BEFORE THE4H RESPONDENT. EXT.R5(G) COPY OF THE REPLY DATED14.2011 ALONG WITH RESOLUTION DATED196.2006. /TRUE COPY/ P. A. TO JUDGE Pn C.K. ABDUL REHIM, J.
-------------------------------------------------- W.P.(C). No. 9909 of 2013 --------------------------------------------------- Dated this the 27th day of January, 2014 JUDGMENT
The petitioner is working as a Nursery Teacher in the 4th respondent Panchayat on a temporary basis, since the year 2006 onwards. She is aggrieved by Ext.P1 order issued by the Government through which the 5th respondent was regularised as a Part Time Contingent employee in the post of Nursery Teacher in which the petitioner is now working.
2. While the 5th respondent was working as Nursery Teacher under the 4th respondent Panchayat, she was removed from service by virtue of a resolution adopted by the Panchayat on 19.06.2006, as per Ext.R4(b). As per Ext.R1(a) resolution dated 22.7.2006 appointment of the petitioner on temporary basis as Nursery Teacher was approved by the 4th respondent. The 5th respondent has not challenged the resolution adopted by the Panchayat in the year 2006 removing her from service. But after the lapse of 6 years she had approached the Government and W.P.(C). No. 9909 of 2013 -2- obtained Ext.P1 order, allegedly due to political influence. The petitioner challenges Ext.P1 as illegal, arbitrary and unreasonable. Inter alia, the petitioner claims that she is entitled to continue and to get regularised in the post of Nursery Teacher 3. It is evident that, the Government as part of its "11 point programme" had taken a decision in the year 2010 to regularise Librarians, Nursery Teachers and Ayahs working under the Grama Panchayats on honorarium basis. Initially G.O.(MS) No.88/2010/LSGD was issued regularising 418 Librarians, 160 Nursery Teachers and 160 Ayahs, as part time contingent employees. Subsequently the Government reviewed the decision by virtue of Ext.R1 (a) and limited the benefit of regularisation with respect to 299 Librarians, 146 Nursery Teachers and 134 Ayahs. In Ext.R1(a) it is mentioned that the Government after scrutinizing the list of eligible candidates submitted by the Director of Panchayat have decided to regularise persons who were working on honorarium basis before 31.12.2000 and continuing in service. It is relying on Ext.R1(a) that the Government have issued Ext.P1 order regularising the W.P.(C). No. 9909 of 2013 -3- 5th respondent as part time contingent employee. It is mentioned in Ext.P1 that, if the 5th respondent would have continued, but for her removal from service, she should have got the benefit of the Ext.R1(a) order because she was working on honorarium basis before 31.12.2000. In Ext.P1 it is further stated that the resolution adopted by the Grama Panchayat (Ext.R4(b)) on 19.06.2006 was irregular since no notice was issued to the 5th respondent and she was not given an opportunity of personal hearing before ordering the removal from service. It is evident from Ext.R1(d) order passed by the Government that, on the date of passing of Ext.P1 itself, the Government have also stayed Ext.R4(b) resolution, exercising powers vested under Section 191 of the Kerala Panchayat Raj Act, 1994 and referred the matter for opinion of the Ombudsman for Local Self Government Institutions, under Section 191(2).
4. It is pertinent to note that the benefit of regularisation was extended by virtue of Ext.R1(a) Government order to those temporary workers who are continuing in service on honorarium basis and those who were in service as on 31.12.2000. In the case at hand it is W.P.(C). No. 9909 of 2013 -4- evident that, the 5th respondent was removed from service as early as on 19.06.2006, she was not continuing in service as on the date of Ext.R1(a), or on the date of the earlier Government Order (03.05.2010). Hence, prima facie it is evident that the 5th respondent was not eligible for regularisation as a part time contingent employee on the basis of Ext.R1(a) Government Order.
5. Further, it is evident from Ext.R1(d) that the Government have initiated steps to resent the resolution passed by the 4th respondent Panchayat on 19.06.2006, on the basis of a request received from the 5th respondent on 15.01.2012. The Government have only stayed operation of the resolution in exercise of power vested under Section 191 and the matter was already referred for the opinion of the Ombudsman. Whether the resolution can be resented is a matter which need to be considered by the Ombudsman. Even assuming (without admitting) that the Government can resent the resolution in question, whether the 5th respondent is eligible to be regularised as part time contingent employee in view of Ext.R1(a), remains doubtful. Under such circumstances W.P.(C). No. 9909 of 2013 -5- Ext.R1(a) order issued by the Government regularising the 5th respondent cannot be sustained.
6. Learned counsel for the 5th respondent raised a contention that the petitioner being a temporary employee has no locus standi to challenge the order of regularisation issued in favour of the 5th respondent. It is true that the petitioner is working only on temporary basis. But it is not disputed that the petitioner is working in the post of Nursery Teacher in the 4th respondent since 22.07.2006 onwards by virtue of Ext.R4(a) resolution of the 4th respondent Panchayat. It is also evident that if the 5th respondent is regularised in the post in question, the petitioner will be removed from service. The petitioner is a person aggrieved by Ext.P1 order and she is entitled to challenge the same on the basis of the illegalities and irregularities.
7. Under the above mentioned circumstances, this court is of the considered opinion that Ext.P1 order of the Government is unsustainable and it is liable to be quashed. However, relief sought for by the petitioner with respect to regularisation of her service cannot be granted, W.P.(C). No. 9909 of 2013 -6- because the petitioner cannot point out any right accrued on her for such regularisation based on the temporary employment.
8. In the result this writ petition is allowed and Ext.P1 is hereby quashed.
9. It is made clear that the Government will be free to take any fresh decision considering the merits of the claim of the 5th respondent, if Ext.R1(b) resolution is ultimately resented based on any opinion given by the Ombudsman for Local Self Government Institutions. It is further clarified that none of the observations in this judgment will stand in the way of the Ombudsman for Local Self Government Institutions taking an independent decision. Sd/- C.K. ABDUL REHIM, JUDGE /True copy/ P. A. to Judge Pn