Kerala High Court
K.Mariyakutty vs State Of Kerala on 7 June, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938
WP(C).No. 7070 of 2016 (G)
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PETITIONER(S):
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K.MARIYAKUTTY, AGED 45 YEARS
W/O.ASHARAF, PART TIME SWEEPER, NAGALASSERI GRAMA
PANCHAYATH, KOOTTANAD PO, PALAKKAD DISTRICT, RESIDING AT
KALLEKKATTIL HOUSE, THEKKEVAVANNUR PO,
KOOTTANAD, PALAKKAD DISTRICT
BY ADVS.SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
SMT.D.S.THUSHARA
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
SECRETARIAT, THIRUVANANTHAPURAM 695001
2. DEPUTY DIRECTOR OF PANCHAYATH
CIVIL STATION, PALAKKAD DISTRICT 678001
3. NAGALASSERI GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY, KOOTTANAD PO,
PALAKKAD DISTRICT 679533
4. SINDHU KP
PART TIME SWEEPER, NAGALASSERI GRAMA PANCHAYATH,
KOOTTANAD PO, PALAKKAD DISTICT 679533
5. KRISHNAN KUTTY KC
NAGALASSERI, KOOTTANAD PO, PALAKKAD DISTRICT, 679533
Addl. 6. SRI. B.N. NANDAKUMAR,
SECRETARY, NAGALASSERI GRAMA PANCHAYATH, KOOTTANAD P.O.,
PALAKKAD-679533.
Addl. 7. REJISHA,
PRESIDENT, NAGALASSERI GRAMA PANCHAYATH, KOOTTANAD P.O.,
PALAKKAD-679533.
Addl. 8. HYDRU MASTER,
VICE PRESIDENT,NAGALASSERI GRAMA PANCHAYATH, KOOTTANAD
P.O., PALAKKAD-679533.
Addl. 9. BALAN MASTER,
MEMBER, WARD NO.3, NAGALASSERI GRAMA PANCHAYATH,
KOOTTANAD P.O., PALAKKAD-679533.
R4&5 BY ADV. SRI.BRIJESH MOHAN
R4&5 BY ADV. SMT.RESMI G. NAIR
R3,R6-R9 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY
R3,R6-R9 BY ADV. SMT.N.SANTHA
R3,R6-R9 BY ADV. SRI.K.A.BALAN
R3,R6-R9 BY ADV. SRI.V.VARGHESE
R3,R6-R9 BY ADV. SRI.PETER JOSE CHRISTO
R3,R6-R9 BY ADV. SRI.S.A.ANAND
R3,R6-R9 BY ADV. SMT.L.ANNAPOORNA
R BY GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-
10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 7070 of 2016 (G)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1:TRUE COPY OF THE RELEVANT PAGE OF THE MINUTES BOOK OF THE
NAGALASSERI GRAMA PANCHAYATH DATED 07.06.2002
P2:TRUE COPY OF THE CERTIFICATE ISSUED BY THE PANCHAYATH ON 06.03.2009
P3:TRUE COPY OF THE GO(P) NO.501/FIN DATED 25.11.2005
P4:TRUE COPY OF THE GOVERNMENT LETTER NO. 6438/H2/06/LSGD DATED
06.05.2006
P5:TRUE COPY OF THE DECISION OF THE 3RD RESPONDENT DATED 13.05.2010
P6:TRUE COPY OF THE MINUTES OF THE MEETING OF THE 3RD RESPONDENT DATED
31.10.2012
P7:TRUE COPY OF THE DECISION TAKEN BY THE 3RD RESPONDENT ON 28.11.2012
P8:TRUE COPY OF THE JUDGMENT IN WRIT PETITION CIVIL 28826/2009 DATED
10.04.2015
P9:TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER,
NAGALASSERI DATED 14.10.2015
P10:TRUE COPY OF THE DEATH CERTIFICATE OF THE PETITIONER'S HUSBAND
DATED 21.11.2014
P11:TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER ON 30.12.2015
P12:TRUE COPY OF THE COPY OF THE MINUTES OF THE MEETING HELD ON
18.02.2016
P13:TRUE COPY OF THE LETTER OF THE DIRECTOR OF PANCHAYATH DATED
08.07.2015
P14:TRUE COPY OF THE NOTICE DATED 18.02.2016 OF THE 3RD RESPONDENT
P15: TRUE COPY OF THE DISSATISFACTION IN WRITING BY THE WARD MEMBER
INDIRA NAGALASSERI GRAMA PANCHAYATH DATED 18.02.2016
P16: TRUE COPY OF THE DISSATISFACTION IN WRITING BY THE WARD MEMBER
DHARMARAJAN NAGALASSEREI GRAMA PANCHAYATH DATED 18.02.2016.
P17: TRUE COPY OF THE APPLICATION SUBMITTED UNDER THE RIGHT TO
INFORMATION ACT DATED 16.03.2016
P18: TRUE COPY OF THE INFORMATION UNDER THE RIGHT TO INFORMATION ACT
DATED 12.04.2016
P19: TRUE COPY OF THE COMMUNICATION SENT BY THE EMPLOYMENT OFFICER TO
THE PETITIONER DATED 11.07.2016.
P20: TRUE COPY OF THE COMMUNICATION SENT FROM THE EMPLOYMENT EXCHANGE
TO THE PANCHAYATH DATED 16.12.2015
P21: TRUE COPY OF THE COMMUNICATION SENT BY THE ASSISTANT. DIRECTOR OF
PANCHAYAT TO THE PETITIONER DATED 09.05.2016.
RESPONDENT(S)' EXHIBITS
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EXT.R3(a): TRUE COPY OF THE ORDER NO.A4-7/16 DATED 18.02.2016
EXT.R3(b): TRUE COPY OF THE ORDER NO.A4-8/16 DATED 18.02.2016
EXT.R3(c): TRUE COPY OF THE MARK LIST OF THE INTERVIEW
EXT.R3(d): TRUE COPY OF THE LETTER NO.C1/PT80/15 & PT 81/15 DATED
16.12.2015
EXT.R4(a): COPY OF THE CALL LETTER ISSUED BY THE 3RD RESPONDENT TO THE
5TH RESPONDENT.
EXT.R4(b): COPY OF THE DISABILITY CERTIFICATE DATED 11.12.2013 ISSUED
TO THE 5TH RESPONDENT.
//TRUE COPY//
P.A.TO JUDGE
sm
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C) No.7070 of 2016
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Dated this the 21st day of October, 2016
JUDGMENT
The petitioner, who was appointed as a Part-time Sweeper on daily wage basis under the 3rd respondent Panchayath, with effect from 01.04.2002, states that she has all along been working on daily wage basis against one of the two sanctioned posts of Part- time Sweepers, that exist in the respondent Panchayath. In the writ petition, it is her contention that the 4th respondent was appointed only in 2008, and therefore, vis-a-vis the petitioner and the 4th respondent, the petitioner was senior in the services under the respondent Panchayath. Reference is made to Exts.P3 and P4 Government Orders for the purposes of indicating that the Government had contemplated the regularisation of Part-time Sweepers, working under various Panchayaths in the State, and to indicate that pursuant to the said Government Orders, the 3rd respondent Panchayath had, by Ext.P5 order, dated 13.05.2010, decided to regularise the services of the petitioner, and towards that end, reported the matter to the 2nd respondent. Thereafter, by Ext.P6 communication, dated 31.10.2012, the committee of the 3rd respondent Panchayath decided to include the petitioner's name in W.P.(c).No.7070 of 2016 : 2 : list of Part-time Sweepers, that was forwarded to the Employment Exchange. This indicated that the petitioner was not being contemplated for regularisation any longer. By Ext.P7 communication, dated 28.11.2012, however, the petitioner was informed that she would be permitted to continue in the service of the 3rd respondent, from 01.03.2007 onwards. Through Ext.P7 letter, the services of the petitioner from 01.03.2007, on daily wage basis, came to be recognised. In the meanwhile, W.P.(C).No.28826/2009, preferred by the petitioner, was decided by Ext.P8 judgment, dated 10.04.2015, wherein, a direction was given to the respondent Panchayat, to consider the candidature of the petitioner as well as the 4th respondent (who had also filed a writ petition before this Court and which was disposed by the same judgment) along with other candidates sponsored through the Employment Exchange. Pursuant to Ext.P8 judgment, the petitioner was called for an interview on 19.01.2016, and it would appear that, the petitioner was not successful in securing an appointment to the two regularly sanctioned posts of Part-time Sweeper. Ext.P12 communication, dated 18.02.2016 would indicate that the 4th and 5th respondents were appointed as Part-time Sweepers against the two sanctioned posts in the respondent Panchayath. Consequently, by Ext.P14 communication, dated 18.02.2016, the petitioner was disengaged W.P.(c).No.7070 of 2016 : 3 : from service, under the 3rd respondent. In the writ petition, Exts.P12 and P14 are impugned, primarily relying on Ext.P13 communication, dated 08.07.2015 of the Director of Panchayat, which calls for a list of Part-time Sweepers under the 3rd respondent Panchayath for the purposes of forwarding the names to the Government, for regularisation. The case of the petitioner in the writ petition is two fold. On the one hand, she would contend that she was a person, whose candidature was being considered for the purposes of regularisation in service, and therefore, it was not open to the respondent Panchayath to resort to any other method of appointment, while the proposal for regularisation was under consideration before the Government. Secondly, she would contend that the selection process that culminated in the appointment of the 4th and 5th respondents, was itself seriously flawed, in that the petitioner was not awarded the appropriate marks against various parameters, on the basis of which the selection was done.
2. Counter affidavits have been filed on behalf of the respondent Panchayath as also the contesting respondents, and reply affidavits have also been field by the petitioner to the said counter affidavits.
W.P.(c).No.7070 of 2016 : 4 :
3. I have heard Sri.K.Mohanakannan, the learned counsel for the petitioner, Sri.Aravindakshan, the learned standing counsel for the 3rd respondent Panchayath and respondents 6 to 9, and Sri.Brijesh Mohan, the learned counsel for the 4th and 5th respondents.
4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I am of the view that, the challenge in the writ petition against Exts.P12 and P14, must necessarily fail. While it may be a fact that the petitioner had continued on daily wage basis as a Part-time Sweeper, under the respondent Panchayath with effect from 01.04.2002, and that, her claim for regularisation in service was under active consideration before the Government, in Ext.P8 judgment, rendered in the W.P.(C). No.28826/2009 filed by the petitioner, this Court had directed the respondent Panchayath to consider the candidature of the petitioner along with the 4th respondent and other Employment Exchange hands in the selection procedure, that was contemplated by the 3rd respondent Panchayath for filling up the two sanctioned posts of Part- time Sweepers, under the respondent Panchayath. In my view, through the directions in the said judgment, the claim of the petitioner for regularisation in service against the sanctioned posts under the respondent Panchayath was denied, and the petitioner was W.P.(c).No.7070 of 2016 : 5 : given the liberty to participate in the selection process along with the other candidates from the employment Exchange, for the two sanctioned posts that existed in the respondent Panchayath. The issue then arises as to whether in the selection process that ensued the petitioner was prejudiced in any manner either through an erroneous selection procedure adopted or through any patent illegality occasioned by the respondents in the course of selection. While it is the case of the petitioner that the marks awarded under various criteria to the petitioner on the one hand, and the 4th and 5th respondents on the other, would clearly indicate that there was a leaning, by the respondents, in favour of the 4th and 5th respondents, I find from a perusal of Ext.R3(c) score sheet produced by the respondent Panchayath that, all the candidates, who participated in the selection process, were graded against different criteria and by four different members of the respondent Panchayath, namely, the President, Secretary, Vice President and Member, who are arrayed as respondents 6 to 9 in the writ petition. It was taking the average of the marks given by the said respondents, on each of the different criteria, that the merit list was drawn up, which showed the 4th respondent as having obtained 68 marks, the 5th respondent as having obtained 61 marks, and the petitioner as having obtained only 58 marks. Since there were only two sanctioned posts, the posts were W.P.(c).No.7070 of 2016 : 6 : offered to the 4th and 5th respondents, based on the marks secured by them in the selection process. The documents produced by the 3rd respondent clearly indicate that there was absolute transparency in the selection process, and the petitioner has not been able to demonstrate any patent case of discrimination against the petitioner, in the matter of awarding marks. In the result, I am of the view that Exts.P12 and P14 cannot be legally assailed in these proceedings under Article 226 of the constitution of India.
The writ petition therefore fails, and is accordingly, dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE sm/ IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 28TH DAYOF OCTOBER 2016/6TH KARTHIKA, 1938 WP(C).No. 9041 of 2016 (E)
--------------------------- PETITIONER(S):
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KURUVILLA ABRAHAM, AGED 51 YEARS, S/O.AMPATTU THOMAS ABRAHAM, AMPATTU HOUSE, THIRUVALLA P.O., PATHANAMTHITTA DISTRICT, PIN: 689 101. BY ADVS.SRI.P.HARIDAS, SMT.S.SIKKY, SMT.DIVYA K.NAIR, SRI.P.C.SHIJIN, SRI.RENJINI GEROGE CHERIAN.
RESPONDENT(S):
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1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI, PIN- 110 001.
2. PASSPORT OFFICER, PASSPORT SEVA KENDRA, GROUND FLOOR, CARMEL TOWERS, OPP.COTTON HILL GIRLS HIGH SCHOOL, VAZHUTHACAUD, TRIVANDRUM, PIN: 695 001.
BY ADV. SRI.N.NAGARESH, ASSIST.S.G. OF INDIA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
WP(C).No. 9041 of 2016 (E)
APPENDIX PETITIONER'S EXHIBITS:-
P1: TRUE COPY OF THE BIRTH CERTIFICATE DATED 28/06/2003. P2: TRUE COPY OF THE CERTIFICATE ISSUED BY VICAR OF THE CHURCH DATED 05/05/2005.
P3: THE TRUE COPY OF THE CERTIFICATE OF MARRIAGE OF PETITIONER DATED 16/07/2011.
P4: TRUE COPY OF THE RELEVANT PAGE OF PETITIONER'S RENEWED PASSPORT DATED 10/12/2012.
P5: TRUE COPY OF THE WELCOME LETTER ISSUED BY UNITED STATES DEPARTMENT OF STATES, DATED 04/08/2015. P6: TRUE COPY OF THE APPLICATION DATED 29/02/2016. P7: TRUE COPY OF THE AFFIDAVIT DATED 27/02/2016.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
SHAJI P. CHALY, J.
----------------------------------------------- W.P.(C). No.9041 of 2016
----------------------------------------------- Dated this the 28th day of October, 2016 JUDGMENT Petitioner was born on 31.5.1965. According to the petitioner, the date of birth is correctly entered in the Register of Births, Birth Certificate, Baptism Register and Marriage Certificate. However, the travel agent while applying for passport erroneously entered the date of birth in the passport as 15.05.1965. The same has come to the notice of the petitioner while processing the application for migration to U.S. recently. Accordingly, petitioner submitted an application before the 1st respondent seeking the said relief. Same was forwarded to the 2nd respondent. However, the 2nd respondent, according to the petitioner, refused to correct the date of birth. It is in this background, this writ petition is filed seeking appropriate direction.
2. A statement is filed by respondents 1 and 2 admitting that the petitioner is an Indian passport holder, whose date of birth is shown in the passport as 15.05.1965. However, it is stated that, petitioner has not approached the 2nd respondent W.P.(C). No.9041 of 2016 2 for correction of date of birth within time. It was after using the passport for 14 years, petitioner has now filed the application seeking to correct the date of birth. Since the issue in respect of correction of date of birth is before the clarification issued in the year, 2016, the same can be done if an explanation is offered by the petitioner explaining the circumstances under which the delay has occurred in submitting the application.
3. Therefore, there will be a direction to the petitioner to offer proper explanation within two weeks from the date of receipt of a copy of this judgment, which shall be considered by the 2nd respondent in accordance with law and take a decision at the earliest and at any rate within one month thereafter.
Writ petition is allowed accordingly.
Sd/-
SHAJI P. CHALY JUDGE smv 28.10.2016