IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 15484 of 2007(R) -------------------------- PETITIONER(S): ------------------ NIRMALA, W/O.STEPHAN, SUBSTITUTE CONTINGENT WORKER (SANITATION WORKER), MAVELIKKARA MUNICIPALITY, MAVELIKKARA. BY ADV. SRI.SIBY MATHEW SRI.A.A.MOHAMMED NAZIR RESPONDENT(S): ------------------- 1. THE DIRECTOR OF URBAN AFFAIRS, THIRUVANANTHAPURAM. 2. THE MAVELIKKARA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, MAVELIKKARA. *ADDL.R3. THE CHAIRMAN, MAVELIKKARA MUNICIPALITY, MAVELIKKARA *(IS IMPLEADED AS ADDL.R3 VIDE ORDER DT.27.7.2007 IN IA 10181/07) ADV. SRI.V.V.RAJA FOR R2 SRI.R.RENJITH FOR R2 SRI.K.HARILAL,SC,MAVELIKARA MUNICIPALIT FOR R2 GOVT.PLEADER SRI.ANTONY MUKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.15484/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF GO NO.2591/ML/A4/82/LA & SWD DT 27.1.1982. EXT.P2: TRUE COPY OF APPOINTMENT ORDER DT 20.2.2004 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P3: TRUE COPY OF THE REPRESENTATION DT 10.4.2006 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4: TRUE COPY OF REPLY LETTER DT 25.4.2006 ISSUED BY THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF JUDGMENT DT 1.8.06 IN WPC NO.17184/2006 OF THIS HON'BLE COURT. EXT.P6: TRUE COPY OF REPRESENTATION DT 28.8.2006 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P7: TRUE COPY OF LETTER NO.B2-11/600/06 DT 30.1.2007 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXT.P8: TRUE COPY OF COMPLAINT DT 27.3.2007 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P9: TRUE COPY OF THE DECISION DT 5.5.2007 TAKEN BY THE 2ND RESPONDENT MUNICIPALITY. EXT.P10: TRUE COPY OF RELEVANT PORTION OF DETAILS FURNISHED BY THE INFORMATION OFFICER OF THE MAVELIKKARA MUNICIPALITY REGARDING NUMBER OF CONTINGENT WORKERS AND DAILY WAGED WORKERS APPOINTED BY THE MUNICIPALITY DURING THE PERIOD JUNE 2003 TO FEBRUARY 2007. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 15484 OF 2007 (R) ===================== Dated this the 20th day of November, 2009 J U D G M E N T By Ext.P2 dated 20/2/2004, along with others, the petitioner was appointed as a substitute contingent sanitary worker under the 2nd respondent Municipality. Subsequently, pointing out that there are regular vacancies available for her regularisation in service, she made representations, to which she was given Ext.P4 reply stating that in view of the financial constraints which the Municipality was facing, it has been decided not to fill up the vacancies on a regular basis. She challenged Ext.P4 before this Court by filing WP(C) No.17184/06. That writ petition was disposed of by Ext.P5 judgment in which the Municipality was the 2nd respondent. Paragraph 4 of the judgment containing the directions issued by this Court reads as under: “The writ petition is disposed of with a direction that the case of the petitioner for regularization shall be considered as and when representation in that behalf is filed before the Director of Urban Affairs with sufficient particulars in support of the claim. It will be open to the Director of Urban Affairs to call for necessary details regarding the sanctioned strength of Sanitation Workers, the actual strength and the financial condition of the Municipality coupled with its duty to perform the sanitation work in accordance with law. If representation is filed by the petitioner before the Director of Urban Affairs within one WPC 15484/07 :2 : month from today, the same shall be considered and orders passed within three months thereafter.” 2. Accordingly, petitioner submitted Ext.P6 representation to the 1st respondent where the petitioner pointed out the existence of three regular vacancies against which she could be considered. After examining the claims put forth by the petitioner and also after considering the views of the Municipality, the 1st respondent issued Ext.P7 order directing that the petitioner shall be regularized in service. Ext.P7 order was considered by the Council of the Municipality in the meeting held on 5/3/2007 and Ext.P9 resolution was passed resolving interalia to file an appeal against Ext.P7 and to consider the case of the petitioner for regularisation as and when the financial condition improves. Since Ext.P7 was not implemented, petitioner submitted Ext.P8 representation to the 1st respondent. Even thereafter nothing has been done and therefore the writ petition is filed. 3. Petitioner also refers to Ext.P10, the information obtained by her from the Municipality, indicating the details of the persons engaged by the Municipality as Casual employees for sanitation works. This also shows the amount spent by the WPC 15484/07 :3 : Municipality for this purpose. This, according to the petitioner, shows that Municipality is engaging outsiders for sanitation work and it is argued that the petitioner ought to be regularised. 4. The contention of the counsel for the respondent Municipality is that the Municipality is undergoing acute financial crisis. It is stated that there are several liabilities to be discharged by the Municipality and in view of the financial constraints, the Municipality has taken a conscious decision not to fill up vacancies on a regular basis in order to reduce its financial commitments. It is stated that as and when financial condition improves, the petitioner's case for regularisation can be considered. 5. Yet another contention that is raised by the counsel for the Municipality is that under the Kerala Municipality Act, 1994, appointment of contingent workers is entirely a matter within the domain of the Municipality and that the 1st respondent or the Government have no say in the matter. Counsel for the Municipality relied on the judgment in Bhaskaran v. Kozhikode Corporation (2007(1) KLT 882) in support of its contention that Municipality is the exclusive authority to make appointments. WPC 15484/07 :4 : 6. I have considered the submissions made. 7. It may be true as contended by the counsel that the Municipality is facing financial constraints and that the power to make appointments is exclusively vested with the Municipality only. However, Ext.P5 judgment rendered by this Court, to which the Municipality is also a party, directed the petitioner to make a representation urging her claim for regularization before the 1st respondent and the 1st respondent was directed to assess the situation and pass appropriate orders. This judgment has become final and it is binding on the Municipality as well. It is carrying out the directions of this Court as contained in Ext.P5 judgment that after ascertaining the views of the Municipality also, the 1st respondent passed Ext.P7 order. Even at this belated stage, Municipality has no case that it has taken recourse to the statutory remedies that are open to it against Ext.P7. Therefore, both Exts.P5 and P7 have become final. If so, the Municipality is bound to implement Ext.P7 and this Court cannot now hold that the Municipality can avoid Ext.P5 or Ext.P7 on the ground of its financial constraints or taking refuge under its exclusive right to make appointments. Ext.P5 judgment also had directed that the WPC 15484/07 :5 : 1st respondent shall while taking a decision, consider the financial condition of the Municipality. Therefore, I have no reason to think that this fact has been ignored by the 1st respondent while issuing Ext.P7. Further, the judgment relied on by the counsel for the Municipality cannot dilute the binding nature of Ext.P5, an interparty judgment. 8. In the above circumstances, the contentions of the Municipality are only to be rejected and the writ petition will stand disposed of directing the Municipality to implement Ext.P7 order. This shall be done, as expeditiously as possible, at any rate within 4 weeks of receipt of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp