Dismissed

K.Mariyakutty v. the State of Kerala

Kerala HC12 Jan 2018WA/298/2017

Case brief

AI extract

What is this about?

The appellant, a former part-time sweeper, could not obtain regularization after losing a selection competition for available vacancies. Having previously given up her regularization claim in favor of being considered in the selection process, she failed in the selection. The writ appeal challenging the dismissal of her plea for regularization was dismissed.

What did the court decide?

The writ appeal was dismissed with no regularization granted.

K.Mariyakutty Vs the State of Kerala — Pension and Retirement Benefits | 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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FRIDAY, THE 12TH DAY OF JANUARY 2018/22ND POUSHA, 1939

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WA.No.298 of 2017 IN WPC. 7070/2016

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AGAINST THE ORDER/JUDGMENT IN WP(C) 7070/2016 of HIGH COURT OF KERALA DATED 21-10-2016

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APPELLANT(S)/PETITIONER

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K.MARIYAKUTTY, AGED 45, W/O.ASHRAF, NAGALASSERY GRAMA PANCHAYATH, KOOTANAD.P.O., PALAKKAD DISTRICT, RESIDING AT KALLEKATTIL HOUSE, THEKEVAVANNUR,P.O. KOOTTANAD,PALAKKAD DISTRICT.

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BY ADV.SRI.G.SREEKUMAR (CHELUR)

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RESPONDENT(S)/RESPONDENTS:

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THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO THE GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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THE DEPUTY DIRECTOR OF PANCHAYATH, CIVIL STATION, PALAKKAD DISTRICT-678 001.

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NAGALASSERY GRAMA PANCHAYATH, REP.BY ITS SECRETARY, KOOTANAD.P.O., PALAKKAD DISTRICT-679 533.

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SINDHU K.P, PART TIME SWEEPER, KOOTANAD.P.O., PALAKKAD DISTRICT-679 533.

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KRISHNANKUTTY K.C, NAGALASSERY, KOOTANAD.P.O., PALAKKAD DISTRICT- 679 533.

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B.N NANDAKUMAR, SECRETARY, NAGALASSERY GRAMA PANCHAYATH, KOOTANAD P.O. PALAKKAD DISTRICT- 679 533.

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REJISHA PRESIDENT, NAGALASSERY GRAMA PANCHAYATH, KOOTANAD.P.O., PALAKKAD DISTRICT-679 533.

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HYDRU MASTER, PRESIDENT, NAGALASSERY GRAMA PANCHAYATH, KOOTANAD P.O., PALAKKAD DISTRICT- 679 533.

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BALAN MASTER, MEMBER, WARD NO.3, NAGALASSERY GRAMA PANCHAYATH, KOOTANAD.P.O., PALAKKAD DISTRICT- 679 533. R3,R6,R7,R8 & 9 BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.ANNAPOORNA R4&5 BY ADVS. SRI.BRIJESH MOHAN SMT.RESMI G. NAIR

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R1 & R2 BY SRI.SUNILKUMAR KURIAKOSE, GOVERNMENT PLEADER

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.N.RAVINDRAN &

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R.NARAYANA PISHARADI, JJ.

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W.A.No.298 of 2017

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Dated this the 12^th day of January, 2018

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J U D G M E N T

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P.N.Ravindran, J.

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The appellant was formerly working as Part time Sweeper on daily wage basis in Nagalassery Grama Panchayath in Palakkad District. While she was thus working as Part time Sweeper the Panchayath took steps to appoint a Part time Sweeper through the Employment Exchange. At that point of time Ext.P3 Government order dated 25.11.2005 governing regularization of Part time Sweepers in service, was in force. By Ext.P4 Government letter dated 06.05.2006 the Government clarified that Ext.P3 Government order will apply to regularization of Part time Sweepers working in Grama Panchayaths as well. Relying on Exts. P3 and P4 Government orders the petitioner filed W.P.(C).No.28826 of 2009 in this court challenging the steps taken by the Panchayath to recruit a Part time Sweeper through the Employment Exchange. Exts.P3 and P4 were produced and marked as Exts.P11 and P10 respectively therein. The petitioner had in W.P.(C).No.28826 of 2009 prayed

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W.A.No.298/2017

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for the following reliefs:

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“(i) Issue a writ of certiorari or other appropriate writ order or direction, calling for the records leading to the issue of Exhibit P.5 and quash the same;

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(ii) Direct the Respondent to consider the candidature of the petitioner along with the Employment Exchange sponsored candidates for appointment to the post of Part-time Sweeper under the respondent;

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ii(a) or in the alternative issue a writ of mandamus or other appropriate writs or orders directing the respondents to regularise the petitioner to the post of Part-time Sweeper in terms of Exhibits-P10 and P11 orders and further to grant her all the consequential benefits arising there from;

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(iii) Award costs of and incidental to this petition.”

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The said writ petition came up for final hearing along

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with W.P.(C).No.29996 of 2009 before a learned single Judge of this court on 10.04.2015. When the writ petitions were taken up for consideration, learned counsel appearing for the petitioners in the said writ petitions submitted that their candidature may also be considered along with candidates sponsored by the Employment Exchange. Consequently, the learned single Judge disposed of the writ petitions by Ext.P8 judgment delivered on

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W.A.No.298/2017

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10.04.2015 with the following directions:

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“Hence, these writ petitions are disposed of by directing the respondents to intimate the petitioners with respect to the occurring of any regular vacancy which is sought to be filled up from the list of candidates sponsored by the Employment Exchanges. The petitioners shall be afforded with an opportunity for participation in the selection process in such case, subject to fulfillment of the prescribed eligibility conditions and qualifications to hold the post. The respondent panchayath is directed to consider candidature of the petitioners in such cases for selection to the post, along with candidates who were sponsored by the Employment Exchange, notwithstanding the order if any already issued declining request of the petitioners for such consideration.”

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It is evident from a reading of the said judgment that the petitioners did not press their claim for regularization based on Exts.P3 and P4. As directed by this court in Ext.P8 judgment, the petitioner was considered for appointment along with candidates sponsored by the Employment Exchange, who are respondents 4 and 5 in the instant appeal. In the selection she secured only 58 marks. Respondents 4 and 5 obtained 68 marks and 61 marks respectively. Since there were only two

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W.A.No.298/2017

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sanctioned posts, respondents 4 and 5 were appointed based on their rank in the selection. The petitioner was not appointed. The selection and appointment of respondents 4 and 5 was in the year 2015.

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The petitioner did not challenge the selection and appointment of respondents 4 and 5. After respondents 4 and 5 were appointed, the service of the petitioner was terminated pursuant to Ext.P12 decision taken by the Grama Panchayath on 18.02.2016 and thereupon Ext.P14 communication dated 18.02.2016 was issued to the petitioner. At that stage she filed W.P.(C).No.7070 of 2016 in this court challenging Exts.P12 and P14 and seeking regularization in service with effect from 01.04.2002, relying on Exts.P3 and P4. The learned single Judge dismissed the writ petition holding that the petitioner had participated in the selection process and that in the earlier writ petition she only prayed for considering her candidature along with candidates sponsored by the Employment Exchange. The learned single Judge also held that the selection process pursuant to which respondents 4 and 5 were appointed is transparent and that the petitioner has not made out any ground warranting interference with the selection process. The said

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W.A.No.298/2017

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judgment is under challenge in this writ appeal.

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After hearing Sri.G.Sreekumar, learned counsel appearing for the appellant and Sri.S.P.Aravindakshan Pillai, learned counsel appearing for the Nagalassery Grama Panchayath, we find no reason or justification to take a different view. A reading of Ext.P8 judgment would indicate that notwithstanding the availability of Exts.P3 and P4 Government orders, which were produced and marked as Exts.P11 and P10 respectively in W.P.(C).No.28826 of 2009, the petitioner did not press her claim for regularization. She gave up that claim and instead prayed that she may also be considered along with the candidates sponsored by the Employment Exchange for appointment to the post of Part time Sweeper on a regular basis. But in the selection process she did not succeed. She cannot therefore, in our opinion seek regularization in service relying on Exts.P3 and P4. It must be deemed, having regard to the facts and circumstances, that she was not interested in claiming regularization, and that she had given up her claim for regularization in W.P.(C).No.28826 of 2009. Such being the situation, she cannot any longer rely on Exts.P3 and P4 Government orders. It is not in dispute that there are only two

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W.A.No.298/2017

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sanctioned posts of Part time Sweepers in the Nagalassery Grama Panchayath. In the selection process held pursuant to Ext.P8 judgment respondents 4 and 5 secured higher marks than the petitioner and they were selected and appointed. Thereupon the petitioner was relived from service as the available vacancies had been filled up. She has not, as rightly observed by the learned single Judge, made out any ground warranting interference with the selection process.

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We, therefore, find no grounds to entertain the challenge to the impugned judgment. The writ appeal fails and is accordingly dismissed.

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Sd/-

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P.N.RAVINDRAN (JUDGE)

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Sd/-

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R.NARAYANA PISHARADI (JUDGE)

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True copy

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P.A to Judge

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K.Mariyakutty v. the State of Kerala

Case brief

What is this about?

What did the court decide?

K.Mariyakutty v. the State of Kerala

Case brief

What is this about?

What did the court decide?

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