IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 WP(C).No. 17833 of 2009(Y) --------------------------------- PETITIONER(S): ------------------- EUBI BINU, W/O.BINU PULLATTU HOUSE, CHEMMANTHOOR, PUNALOOR POST, NOW WORKING AS DATA ENTRY OPERATOR IN THE ANCHAL BLOCK PANCHAYATH UNDER THE N.R.E.G .SCHEME. BY ADVS. SRI.MATHEW JOHN (K) SRI. AJEESH K. SASI RESPONDENT(S): -------------------- 1. THE BLCOK DEVELOPMENT OFFICER, ANCHAL POST, ANCHAL. 2. THE PROJECT DIRECTOR & JOINT PROGRAMME CO-ORDINATOR,P.A.U.,KOLLAM 3. THE DISTRICT COLLECTOR,KOLLAM. 4. THE PRESIDENT, ANCHAL BLOCK PANCHAYATH, ANCHAL POST, ANCHAL. 5. THE VILLAGE DEVELOPMENT COMMISSIONER, VILLAGE DEVELOPMENT COMMISSIONERATE, L.M.S. COMPOUND, TRIVANDRUM. * ADDL. R6 IMPLEADED 6. ANCHAL BLOCK PANCHAYATH REP. BY ITS SECRETARY, ANCHAL POST. * ADDL. R6 IMPLEADED AS PER ORDER DATED 14/07/2009 IN I.A. 8600/2009. R1,R2,R3,R5 BY GOVT.PLEADER SRI.SANDESH RAJA R4 BY ADV. SRI.M.K.CHANDRA MOHANDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ WP(C).No. 17833/2009(Y) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPOINTMENT ORDER DATED 26/04/2008 ISSUED TO THE PETITIONER. P2: COPY OF THE AGREEMENT DATED 26/04/2008. P3: COPY OF THE CONTRACT STATEMENT. P4: COPY OF THE RESOLUTION DATED 02/04/2009. P5: COPY OF THE REPRESENTATION DATED 19/06/2009. P6: COPY OF THE REPRESENTATION DATED 23/06/2009. P7: COPY OF THE NEWS ITEM IN THE MATHRUBHUMI DAILY DATED 24/06/2009. R8: COPY OF THE MINUTES BOOK DATED 25/05/2009. P9: COPY OF THE REAL DECISION DATED 18/06/2009. P10: COPY OF THE RESOLUTION DATED 18/06/2009. P11: COPY OF THE DETAILS OF THE DATA ENTRY OPERATORS WORKING IN THE PANCHAYATH. P12: COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER DATED 23/02/2007. P13: COPY OF THE LETTER DATED 15/10/2009 ISSUED FROM THE BLOCK DEVELOPMENT OFFICER, CHAVARA. P13(a): DO. DO. DATED 06/10/2009 FROM DO. SASTHAMCOTTA. P13(b): DO. DO. DATED 16/10/2009 FROM DO. AMCHALUMMOODU. P13(c): DO. DO. DATED 21/10/2009 FROM DO. ITHIKKARA. P13(d): DO. DO. DATED 05/09/2009 FROM DO. PATHANAPURAM. P13(e): DO. DO. DATED 13/10/2009 FROM OACHIRA. P13(f): DO. DO. DATED 08/10/2009 FROM VETTIKKAVALA. P13(g): DO. DO. DATED 09/10/2009 FROM KOTTARAKKARA. .....2/-... ...2... P13(h): DO. DO. DATED 14/10/2009 FROM CHADAYAMANGALAM. P13(i): DO. DO. DATED 09/10/2009 FROM MUKHATHALA. P13(j): DO. DO. DATED 12/10/2009 FROM SASTHAMCOTTA. P14: COPY OF THE ORDER DATED 05/06/2010 ISSUED RURAL DEVELOPMENT COMMISSIONER. RESPONDENT'S EXHIBITS: R1(a): COPY OF THE CERTIFICATE OF THE PGDCA. R1(b): COPY OF THE MARK LIST OF THE INTERVIEW CONDUCTED ON 16/07/2009. R1(c): COPY OF THE RANKLIST. R1(d): COPY OF THE CIRCULAR DATED 27/03/2003. R1(e): COPY OF THE WORKING SHEET OF THE INTERVEIW. /TRUE COPY/ P.A. TO JUDGE svs/ T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 17833 of 2009-Y - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of November, 2010. JUDGMENT In this writ petition, the petitioner seeks to quash the notification issued by the Panchayat inviting applications for appointment to the post of Data Entry Operator and Accredited Engineer. 2. The petitioner is having the qualification of B.Com with P.G.D.C.A. The National Rural Employment Guarantee Scheme of the Central Government has been implemented in the State and the second respondent who is the Project Director, issued a direction to all the Block Panchayats to appoint persons having qualification of B.Com and P.G.D.C.A. as Data Entry Operators on contract basis on payment of a consolidated emolument of Rs.5000/- per month. Applications were invited by the Block Panchayat on 4.4.2008 and interview was conducted on 22.4.2008 consequent on which, the petitioner was found suitable and was thus appointed. Ext.P1 is the copy of the proceedings appointing the petitioner. Ext.P2 is the copy of the agreement executed by the petitioner. The period of initial appointment was for one year. 3. Ext.P4 is the further circular issued by the fifth respondent with wpc 17833/2009 2 regard to the continuance of the persons appointed as Data Entry Operators by the Scheme for a further period of one year. The petitioner approached this Court when the Panchayat, ignoring Ext.P4, issued a notification as per Ext.P7 inviting fresh applications. 4. When the writ petition was admitted, this Court passed an interim order directing the Anchal Grama Panchayat not to fill up the post of Data Entry Operator otherwise than in the manner directed in Ext.P4. 5. Pending the writ petition, even though the Panchayat had conducted an interview of the candidates, no appointment could be made based on the notification. But, to perform the duties of the Data Entry Operator, they have made a daily waged appointment which is still continuing. 6. Heard learned counsel for the petitioner, learned Govt. Pleader and learned counsel appearing for the Panchayat. 7. Certain subsequent developments are also worth mentioning. It is the case of the petitioner, in I.A. No.9835/2009 that to take the petitioner out of the purview of Ext.P4 circular, the Block Panchayat has created minutes in the form of Ext.P10, contrary to Ext.P9 which is the actual resolution taken by the Panchayat. It is the case of the petitioner that attempts have been made purposefully to defeat the rights of the petitioner wpc 17833/2009 3 under Ext.P4 to get an extension. It is further pointed out that as per Ext.P14 dated 5.6.2010, the fifth respondent has allowed the Block Panchayat to extend the period of contract appointment for one more year which is in force now. 8. In the counter affidavit filed by the Panchayat, it is pointed out that the Panchayat took a resolution not to grant extension to the petitioner for different reasons. One of the reasons pointed out is that the qualification of the petitioner, viz. PGDCA is only from a private institution in Anchal, which according to the Panchayat, is not sufficient and a qualification recognised by a University alone will satisfy the requirements. It is also submitted that the Block Panchayat committee was of the view that the functioning of the petitioner was not very much satisfactory, which fact was recorded in the minutes of the meeting, Ext.P10. It is pointed out that in these circumstances the resolution was taken to make a fresh appointment. It is maintained by the learned counsel for the Panchayat that Ext.P10 is the copy of minutes recording the resolution actually taken by the Panchayat. 9. With regard to the disputes raised between the petitioner and the Panchayat, the second respondent, in the counter affidavit has stated that neither the Block Panchayat President nor the Secretary of the Block Panchayat has reported any lapse on the part of the Data Entry Operator. wpc 17833/2009 4 The Project Director & Joint Programme Co-ordinator is regularly conducting monthly review meetings of Data Entry Operators to review the performance of NREGS in the District. The progress regarding NREGS was satisfactory during the period. The Project Director/Joint Programme Co-ordinator has never made any adverse remarks regarding the performance of the petitioner, resulting in her termination. 10. The essential question to be decided is whether the petitioner is entitled for the benefit of Ext.P4 circular which enables her for continuance in the post of Data Entry Operator. The question will have to be addressed in the light of the contentions raised by the petitioner that the minutes recorded in Ext.P10 do not reflect the actual state of affairs and the true and correct resolution taken is Ext.P9, which will show that nobody had raised any complaints against her functioning. 11. This Court, by an interim order dated 27.8.2009 directed the Assistant Development Commissioner of the Rural Development Department, Kollam to conduct an enquiry as to whether the Block Panchayat is maintaining minutes book regularly and properly. Learned Govt. Pleader made available a copy of the report submitted by the said officer on 28.10.2009 after conducting due enquiry. In the enquiry report it is mentioned that the minutes book of the Block Panchayat is not as per the wpc 17833/2009 5 procedure laid down in Kerala Panchayat Raj Act. But the minutes book from 22.5.2008 onwards could not be verified as it is in the possession of the Registrar (Judicial) of this Court. Therefore, the report is not conclusive as to the minutes recorded as per Ext.P10. 12. In the light of the disputed questions emerging between the parties, it is only proper that the fifth respondent who is the Commissioner of Village Development consider all matters and take an appropriate decision. Ext.P6 is the copy of the representation filed by the petitioner before the said respondent and in the light of the pendency of the writ petition, it is clear that the fifth respondent has not conducted any enquiry. 13. Therefore, there will be a direction to the fifth respondent to conduct due enquiry with regard to the demands raised by the petitioner in Ext.P6, wherein she has claimed continuance in the job. A decision will be taken after conducting due enquiry into the various aspects including the veracity of the decision taken in Ext.P10 minutes and the contents thereof. The minutes book will be verified to find out the correct picture. The same will be done with due notice to the petitioner and the Panchayat, viz. additional 6th respondent. Since the fifth respondent is co-ordinating the Scheme itself, it is upto him to take an appropriate decision. 14. Learned counsel for the petitioner prayed that during the conduct wpc 17833/2009 6 of the enquiry, the petitioner may be allowed to continue as Data Entry Operator. The said prayer is opposed by the learned counsel for the Panchayat. The said request also will be considered by the fifth respondent. An appropriate final decision will be taken within a period of two months from the date of receipt of a copy of this judgment. 15. In the light of the direction to conduct an enquiry by the fifth respondent, the records kept with the Registrar (Judicial) will be returned to the fifth respondent through the learned Govt. Pleader. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/