IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 WP(C).No. 20968 of 2005(U) -------------------------- PETITIONER: ------------------ ANI B., CHARUVILA PUTHENVEEDU, PARAVOOR, KOLLAM. BY ADV. SRI.C.S.AJITH PRAKASH RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF MUNICIPALITIES, DIRECTORATE OF MUNICIPALITIES PUBLIC OFFICES BUILDING, THIRUVANANTHAPURAM. 3. PARAVOOR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PARAVOOR, KOLLAM. R1 BY GOVERNMENT PLEADER ADV. SMT. N. SUDHADEVI.\ R3 BY ADV. SRI.S.VIJAYAKUMAR BY SRI.R.RANJITH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO. 10023 OF 2008 IN W.P.(C) NO. 20968 OF 2005 DISMISSED. 16.02.2009 SD/- P.R. RAMACHANDRA MENON, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1: A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 27.12.2004. EXT.P2: A TRUE COPY OF THE IDENTITY CARD ISSUED BY THE EMPLOYMENT EXCHANGE. EXT.P3: A TRUE COPY OF THE REPRPESENTATION SUBMITED BY THE PETITIONER TO 2ND RESPONDENT DATED 18.05.2005. /TRUE COPY/ P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 20968 OF 2005 ......................................................................... Dated this the 16th February, 2009 J U D G M E N T The petitioner started working as casual labourer under the third respondent with effect from 10.08.2001 and even much prior to the said date, he had registered his name with the concerned Employment Exchange as revealed from Ext.P2. While so, there occurred a strike of government employees and teachers during the period from 06.02.2002 to 08.03.2002, when some casual labourers employed for sanitation work under the third respondent-Municipality also joined the same. It is stated that the petitioner however did not join the strike and was earnestly discharging his duties, which enabled the Municipality to discharge the statutory and such other incidental functions properly . 2. Later, the first respondent/Government, taking note of the earnest contribution made from the part of the W.P.(C) No. 20968 OF 2005 2 casual/temporary employees deployed for cleaning and sanitation work in the concerned Municipalities during the strike period, decided to enlist such workers as 'substitute contingent labourers' in accordance with the priority to be decided on the basis of their status/enlistment in the concerned Employment Exchange and also on the basis of their age, as borne by Ext.P1. While praying for the benefit under Ext. P1, the petitioner also relies on the resolution No.9 taken by the Municipal Council (based on the recommendation by the Municipal Health Committee ) so as to place him in the substitute contingent worker's list with priority as above. The grievance of the petitioner is that despite Ext. P1 Government Order and the resolution passed by the Municipal Council, the third respondent- Municipality has not implemented the same so far, which is stated as contrary to the duties cast upon the Secretary to implement the decisions taken by the Municipal Council as provided under section 49(1)(b) of the Kerala Municipalities Act, particularly when the Municipal Council is the appointing authority in respect of the contingent posts as provided under W.P.(C) No. 20968 OF 2005 3 section 224 of the Act. 3. The third respondent/Municipality has filed a counter affidavit stating that the first respondent/Government after issuance of Ext. P1 has clarified vide communication No.B2/2115/05 dated 21.05.2005 that only those persons who were engaged through employment exchange are entitled to get the benefits as stated in Ext. P1. It is further stated that since the petitioner was not engaged through Employment Exchange, he cannot be considered to be placed in the substitute contingent employees' list and is not entitled to get the benefit of Ext. P1. 4. In response to the contents of the counter affidavit, the petitioner has filed a reply affidavit stating that pursuant to the judgment passed by this court in W.P.(C)NO.19541 of 2003 (wrongly cited as W.P.(C)No.1954 of 2003 in paragraph No.5 and as W.P.(C)No. 1955 of 2003 in paragraph No. 6 of the reply affidavit) representations preferred by similarly situated persons working as casual labourers were considered and they were given placement in the substitute contingent workers' list by the third W.P.(C) No. 20968 OF 2005 4 respondent-Municipality. It is true that the above assertion has not been rebutted by the third respondent by filing any additional counter affidavit. But, on going through the copy of the judgment dated 07.08.2003 in W.P.(C)No. 19541 of 2003, it is seen that the direction contained therein was to consider the applications preferred by the petitioners therein for absorption as contingent workers in accordance with law and in the light of Ext. P1 Government Order, G.O.(MS)No.91/2001 dated 29.03.2001 (emphasis is supplied). The said Government Order does not refer to any “strike period” as involved in the present case which obviously is a subsequent development of the year 2004. 5. According to the third respondent/Municipality, the benefit of Ext.P1 could not be given to the petitioner in view of the subsequent clarification given by the Government vide communication No.B2-2115/05 dated 21.05.2005 making it clear that the benefit is confined only to such persons sponsored by the employment exchange during the strike period and not to anybody else. In so far as the petitioner does not have a case W.P.(C) No. 20968 OF 2005 5 that the above submission made by the Municipality as to the subsequent clarification issued by the Government is wrong and in so far as such stipulation/clarification has not been subjected to challenge, this court is not in a position to extend any relief to the petitioner on the basis of Ext. P1 and it is declared accordingly. 6. With regard to non-implementation of the resolution stated as taken by the Municipality to enlist the petitioner in the substitute contingent workers' list, it is stated that the above resolution has not been rescinded, modified or reviewed till date. But then the remedy of the petitioner is only to pursue appropriate steps as provided under the statute or else to bring his grievances to the notice of the third respondent/Municipality, explaining the sequence of events and the actual purpose and circumstances which necessitated issuance of Ext.P1. It is submitted from the part of the petitioner that even his engagement as casual labourer has been put an end to few weeks' back and the sanitation work is now being given by the Municipality on contract basis. It is for the petitioner to appraise W.P.(C) No. 20968 OF 2005 6 the Municipality as to his relative merits and the necessity to continue him in service. 7. The petitioner is free to approach the the third respondent/Municipality by filing a representation in the above regard and if he files any such representation within a period of two weeks from today, it shall be considered by the third respondent in accordance with law and also taking note of the fact whether any similarly situated persons have been given the benefit of Ext.P1 and shall pass appropriate orders thereon within a further period of three months, after giving an opportunity of hearing to the petitioner or his authorised representative. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk