Dismissed

Palakkuzha Grama Panchayath v. Santhini

Kerala HC1 Mar 2018WA/166/2018

Case brief

AI extract

What is this about?

Writ appeal filed by the Palakkuzha Grama Panchayath against a Single Judge order directing the Executive Director to determine the petitioner's residency status and status of the petitioner while appellant contended she was ineligible due to residency. Held that adverse appraisal was afterthought and order affirmed, appeal dismissed.

What did the court decide?

Writ appeal dismissed with no reason or justification to interfere with the judgment of the learned single Judge.

Palakkuzha Grama Panchayath Vs Santhini — Service and Employment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN &

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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THURSDAY, THE 1ST DAY OF MARCH 2018 / 10TH PHALGUNA, 1939

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WA.No. 166 of 2018 IN WPC. 3336/2017

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AGAINST THE ORDER/JUDGMENT IN WP(C) 3336/2017 of HIGH COURT OF KERALA

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APPELLANT(S)/RESPONDENTS 4 TO 6

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1 PALAKKUZHA GRAMA PANCHAYATH, KUDUMBASREE CDS, PALAKKUZHA.P.O, ERNAKULAM-686662, REP. BY MEMBER SECRETARY.

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2 MEMBER SECRETARY, PALAKKUZHA GRAMA PANCHAYATH,KUDUMBASREE CDS, PALAKKUZHA.P.O,ERNAKULAM-686662,

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REP. BY MEMBER SECRETARY.

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3 CHAIRPESON, PALAKKUZHA GRAMA PANCHAYATH,KUDUMBASREE CDS, PALAKKUZHA.P.O,ERNAKULAM-686662.

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BY ADV.SRI.GIGIMON ISSAC, SC, PALAKKUZHA GRAMA PANCHAYAT

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RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 TO 3:

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SANTHINI.G,

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AGED 31 YEARS,W/O.RAJANEESH KUMAR, PALIYAKUNNEL, KARIPANA.P.O,PALAKKUZHA, ERNAKULAM-682662.

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STATE OF KERALA,

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REPRESENTED BY SECRETARY,LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.

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THE EXECUTIVE DIRECTOR,

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KUDUMBASREE,THIRUVANANTHAPURAM-695001.

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DISTRICT MISSION CO-ORDINATOR,

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KUDUMBASREE, CIVIL STATION.P.O,KAKKANAD,ERNAKULAM.

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R1 BY SRI.T.T.MUHAMOOD

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R2 TO R4 BY GOVERNMENT PLEADER SRI SUNILKUMAR KURIAKOSE

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KAV/

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P.N.RAVINDRAN & R.NARAYANA PISHARADI, JJ.

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W.A.No.166 of 2018

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Dated this the 1^st day of March, 2018

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JUDGMENT

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P.N.Ravindran, J.

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The appellants are respondents 4 to 6 in W.P.(C)No.3336 of 2017. The first respondent is the petitioner and respondents 2 to 4 are respondents 1 to 3 therein. Though Smt.Preethimol V.P. was impleaded as the additional seventh respondent in the writ petition as per order passed on I.A.No.13885 of 2017 filed by the writ petitioner, the appellants have not joined her as a party to this writ appeal. By judgment delivered on 23.10.2017, a learned single Judge of this court disposed of W.P.(C)No.3336 of 2017 with a direction to the second respondent (Executive Director, Kudumbasree, Trivandrum) to take a decision on the claim of the writ petitioner that she is a permanent resident of Palakkuzha Grama Panchayath, after affording her as well as the Panchayath an opportunity of being heard. The learned single Judge also directed that until the second respondent takes a decision, the writ petitioner shall be allowed to continue in service subject to appraisal. The appellants have, aggrieved thereby, filed this writ appeal. The brief facts of the case are as follows:

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The writ petitioner was appointed as Accountant in the

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W.A.No.166 of 2018

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Community Development Society of Palakkuzha Grama Panchayath on contract basis initially for a period of one year as per Ext.P3 proceedings dated 27.8.2009. She was selected pursuant to a written test and interview conducted on 1.8.2009 and had also undergone training at Trivandrum for two days namely 25.8.2009 and 26.8.2009 prior to such appointment. Her contract was being renewed from time to time. While matters stood thus, she applied for maternity leave during the period from 14.10.2016 to 13.1.2017 by submitting Ext.P4 application. The leave applied for was granted and she proceeded on maternity leave. After the expiry of the maternity leave, the writ petitioner submitted Ext.P8 letter to the Chairperson of the Community Development Society, Palakkuzha Grama Panchayath for permission to rejoin duty. On that day, the Chairperson of the Community Development Society issued Ext.P9 letter dated 16.1.2017 informing the writ petitioner that as her contract has expired on 31.10.2016 and as she is not a permanent resident of Palakkuzha Grama Panchayath, the Community Development Society has taken a decision on 28.12.2016 not to permit her to rejoin duty. The instant writ petition was thereupon filed challenging Ext.P9 as also the decision taken by the Community Development Society on 28.12.2016, a copy of which is produced and marked as Ext.P10. The writ petitioner has in the writ petition prayed for the following reliefs:

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W.A.No.166 of 2018

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“ i) to call for the records leading to the issuance of Ext.P9 and P10 quash the same by writ of certiorari;

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ii) A writ of mandamus or any other appropriate writ, order or direction directing the respondents to permit the petitioner to rejoin duty as Accountant under 4^th respondent and allow her to continue till the cessation of the project.

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iii) A writ of mandamus or any other appropriate writ, order or direction, directing the 3^rd respondent to consider and pass orders on Exhibit:P14 representation within the time stipulated by this Hon'ble Court.

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iv) Such other writ, order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case. ”

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The writ petitioner had in the writ petition disputed the correctness of the statement in Ext.P9 that she is not a permanent resident of Palakkuzha Grama Panchayath. Relying on Ext.P11 identity card issued by the Election Commission of India, Ext.P12 Aadhaar card and Ext.P13 ration card, she contended that she is a permanent resident of Palakkuzha Grama Panchayath.

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W.P.(C)No.3336 of 2017 was admitted and notice ordered to the respondents on 9.2.2017. On that day, this court passed an interim order staying the operation and implementation of Exts.P9 and P10 and permitted the writ petitioner to rejoin duty as Accountant pending disposal of the writ petition. Upon receipt of notice, the appellants herein entered appearance and filed a counter affidavit dated 10.3.2017. Along with the counter affidavit they produced as Ext.R6(a) the performance appraisal in respect of the writ petitioner.

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W.A.No.166 of 2018

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They also contended that the writ petitioner is not a permanent resident of Palakkuzha Grama Panchayath and that after marriage she is residing along with her husband beyond the limits of the Grama Panchayath. They contended that one of the criteria for selection of persons for appointment as Accountant is that he/she should be a permanent resident of the Grama Panchayath concerned and therefore, the writ petitioner who has shifted her residence to another Grama Panchayath is ineligible to seek relief.

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After the appellants entered appearance and filed their counter affidavit, steps were taken to fill up the post of Accountant in the Community Development Society of Palakkuzha Grama Panchayath. The respondents did not also permit the writ petitioner to rejoin duty. She thereupon filed I.A.No.5495 of 2017 to receive a copy of the notification inviting applications which was produced and marked as Ext.P16 as also I.A.No.5542 of 2017 to stay further proceedings pursuant to Ext.P16. On that application this court passed an interim order permitting the writ petitioner also to apply without prejudice to her contentions. The writ petitioner thereafter filed I.A.No.13885 of 2017 to implead the candidate selected pursuant to Ext.P16 notification as the additional seventh respondent and I.A.No.13886 of 2017 to stay further proceedings pursuant to Exts.P17 and P18.

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The appellants thereafter filed I.A.No.14263 of 2017 with a

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W.A.No.166 of 2018

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prayer that the interim order passed by this court on 9.2.2017 may be vacated. When the said application came up for consideration before the learned single Judge on 28.9.2017, on noticing that the interim order passed by this court on 9.2.2017 has not been complied with, the learned single Judge directed the appellants to move the application to vacate the stay after complying with the interim order passed by this court on 9.2.2017. Pursuant thereto, the writ petitioner was readmitted to duty.

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W.P.(C)No.3336 of 2017 thereafter came up for final hearing before the learned single Judge on 23.10.2017. On that day, after considering the rival contentions, the learned single Judge held that the respondents have acted in defiance of the interim order and that they could not have proceeded to make appointments pursuant to Ext.P16 notification merely for the reason that this court did not stay the selection process pursuant to Ext.P16 notification. The learned single Judge thereafter proceeded to enter a finding that the pleadings on record show that there was no appraisal of the writ petitioner's performance before a decision was taken not to renew her contract. However, taking note of the fact that the appellants have a case that by reason of her residence the writ petitioner is ineligible, the learned single Judge directed the second respondent in the writ petition to take a decision on the claim of the writ petitioner that she is a permanent

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W.A.No.166 of 2018

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resident of Palakkuzha Grama Panchayath and permitted the writ petitioner to continue in service till a decision is taken by the second respondent and subject to appraisal of her performance. Respondents 3 to 6 in the writ petition have, aggrieved thereby, filed this appeal.

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We heard Sri.Gigimon Issac, learned counsel appearing for the appellants, Sri.T.T.Muhamood, learned counsel appearing for the first respondent/writ petitioner and Sri.Sunil Kumar Kuriakose, learned Government Pleader appearing for respondents 2 to 4. We have also gone through the pleadings and the materials on record. In Ext.P9, whereby the petitioner was informed that she cannot be readmitted to duty, the reasons stated are that she is not a permanent resident of Palakkuzha Grama Panchayath and the period of contract has expired on 31.10.2016. It is also stated that the said decision is based on Ext.P10 decision taken by the Community Development Society at its meeting held on 28.12.2016. There is no reference to the performance appraisal of the writ petitioner either in Ext.P10 minutes or in Ext.P9 letter. The performance appraisal came only a week later on 21.3.2017 and in the performance appraisal it is stated that her behaviour to the members of the executive committee of the Community Development Society was bad and she was discharging her duties only on the compulsion of the Chairperson of the Community Development Society. The statement in that regard contained in

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W.A.No.166 of 2018

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Ext.R6(a) is extracted below:

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“C.D.S. ഭരണസമ�ത� അ�ഗങള��ടള പ�രമ�റ� വ�പര ളമ�ശമ�യ�രനത�ന�ല�, C.D.S. പ�യർള�ഴപ" ന�രനര സമർദത�ല�ണ( ഓഫ+സ( ള,�ല�കൾ പ�യ�രനത�, യഥ�സമയ� പർത+കര�ച�രനത�. കട�പത ട�യ�പ" ന�യമന ക�ല�വധ� പർത+കര�ച�ടളത�ന�ല�, ��ലകഴ ഗ�മ�ഞ�യത�ൽ സ�രമ�യ� ത�മസക�ര�യ�യ�ടളവപര അക@ണ"�യ� ന�യമ�കണപമന� 28.12.16-പല 2-)0 നമർ ത+രമ�നപക�ര� C.D.S. കമ�റ� ത+രമ�നപമടത�ടളത�ണ(.”

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The words “C.D.S. പ�യർള�ഴപ" ന�രനര സമർദത�ല�ണ( ഓഫ+സ( ള,�ല�കൾ പ�യ�രനത�” can also be interpreted to mean that the CDS Chairperson was constantly compelling the petitioner to do her work. It need not necessarily reflect the attitude of the petitioner in discharging her duties. The appellants have no case that this was the appraisal during the earlier years. It is relevant in this context to note that the contract was being periodically renewed and the appellants did not have any objection to the continuance of the petitioner in service. As regards her behaviour to the members of the executive committee there is no material to substantiate the statement in Ext.R6(a). No instance of improper behaviour or lack of discipline has been placed on record. The executive committee does not also refer to any such conduct. Such being the situation, we are of the opinion that an adverse performance appraisal has been deliberately made against the petitioner to justify Ext.P9. Ext.P9 cannot in our opinion be sustained

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W.A.No.166 of 2018

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relying on the performance appraisal in Ext.R6(a) which in our opinion is evidently an afterthought. Such being the situation, we find no reason or justification to interfere with the judgment of the learned single Judge. The learned single Judge has only directed the Executive Director of Kudumbasree to consider whether the petitioner is a permanent resident of Palakkuzha Grama Panchayath.

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That apart, in the norms all that is stipulated is that the applicant should be a person residing within the local limits of the Grama Panchayath. The norms also permit the appointment of persons residing outside the local limits of the Grama Panchayat to be appointed if suitable hands are not available from among the residents of the Grama Panchayath. The appellants have no case that at the time of the writ petitioner's entry in service she was not a resident of the Palakkuzha Grama Panchayath. Their case is that after her marriage she is residing elsewhere. The writ petitioner has however produced documents to prove that she is a permanent resident of Palakkuzha Grama Panchayath. It was having regard to the aforesaid dispute that the learned single Judge directed the Executive Director of Kudumbasree to consider that aspect of the matter and permitted the writ petitioner to continue in service till the Executive Director takes a decision as regards her eligibility.

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Having regard to the facts stated above, we are of the

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opinion that the view taken by the learned single Judge cannot be said to be a perverse view warranting interference in an intra court appeal. The learned single Judge has not in our opinion entered a finding on

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the merits of the rival contentions and has left it to the Executive Director of Kudumbasree to take a decision in the matter. The fact also remains that the writ petitioner has been working as an Accountant ever since 28.8.2009. The appellants have no case that she is guilty of any misconduct.

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Such being the situation, we find no reason or justification to interfere with the impugned judgment. The writ appeal fails and is accordingly dismissed.

Sd/-

P.N.RAVINDRAN

JUDGE

Sd/-

R.NARAYANA PISHARADI JUDGE

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vpv

Palakkuzha Grama Panchayath v. Santhini

Case brief

What is this about?

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Palakkuzha Grama Panchayath v. Santhini

Case brief

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