IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 WP(C).No. 23243 of 2011(E) -------------------------- PETITIONER(S): --------------- N.C.VIJAYAKUMAR,DRIVER,AIKARANAD GRAMA PANCHAYATH,KADAYIRUPP.P.O,ERNAKULAM-682311. BY ADV. SRI.PRATHEESH.P RESPONDENT(S): --------------- 1. THE STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT,PERSONAL AND ADMINISTRATIVE REFORMS DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001 2. THE SECRETARY TO GOVERNMENT,LOCAL SELF GOVERNMENT DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 3. AIKARANAD GRAMA PANCHAYATH,REPRESENTED BY ITS SECRETARY,KADAYIRUPP.P.O,ERNAKULAM, PIN-682311. GOVERNMENT PLEADER SMT.SMITHA SUKUMAR-R1, R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 23243 OF 2011 APPENDIX PETITIONER's EXHIBITS: P1: A TRUE COPY OF THE PROCEEDINGS NO.2(1) DATED 28.1.2009 APPOINTING THE 1ST PETITIONER AS DRIVER ON DAILY WAGES IN THE PANCHAYAT ISSUED BY THE THIRD RESPONDENT. P2: A COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN W.P.(C).No. 34228 OF 2010 DATED 12.11.2010. P3: A COPY OF THE PROCEEDINGS OF THE PANCHAYAT SELECTING THE PETITIONER. P4: A COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHUMI DAILY DATED 21.8.2011. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A TO JUDGE C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO. 23243 OF 2011 -------------------------------------------- Dated this the 29th day of August, 2011 JUDGMENT The petitioner is working as a Driver on daily wage basis in Aikaranad Grama Panchayat. Earlier, the petitioner along with certain other similarly situated persons, approached this court by filing W.P. (C).No.34228 of 2010 apprehending their termination from service. In the said Writ Petition, it was contended that they were not liable to be terminated from service as there were no sanctioned posts of Drivers in the panchayat and no ranklist prepared by the Public Service Commission for appointment against the concerned post was in force. In the said circumstances, it was prayed for a direction to the concerned respondent panchayat under whom they were engaged to allow them to continue in service until regular hands join duty. The said Writ Petition was disposed of as per Ext.P2 judgment. In paragraph 3 of the said judgment, it was observed as hereunder:- “None of the petitioners have any case that they were engaged as temporary drivers on daily wages after undergoing a selection process either through the employment exchange or by issuing notification inviting applications for W.P.(C) NO.24243 of 2011 2 such appointments.” 2. Evidently, it was after considering the rival contentions that the said Writ Petition was disposed of granting liberty to the concerned panchayat to conduct selection for temporary appointments ie., for engaging drivers on daily wage basis, after inviting applications. A time limit of two months had been fixed for the said purpose as per Ext.P2. It was further observed thereunder that only persons so selected after a due selection process alone should be allowed to occupy the said post. Till such time, the petitioners were allowed to continue in service. The contention of the petitioner is that even prior to Ext.P2 judgment, he was appointed on temporary basis after a due selection process, based on a proper notification. The petitioner cannot be heard to contend so in this proceedings in the light of Ext.P2 judgment, at this stage. If the petitioner had any such contention, it should have been raised in W.P.(C).No. 34228 of 2010 itself. In view of the specific finding of this Court in Ext.P2 judgment that none of the petitioners including the petitioner herein, were engaged on temporary basis after a due selection process either W.P.(C) NO.24243 of 2011 3 through the employment exchange or by issuing a notification inviting for such appointments, the petitioner cannot be permitted, now, to raise the said contention based on the principle of constructive res judicata. Going by Ext.P2 judgment, the limited right of the petitioner is to continue till a provisional appointee, after such a selection process, joins duty and of course, besides the right to participate in the selection process which was to be held by the concerned panchayat for effecting temporary appointments by resorting to a selection process in terms of Ext.P2. Ext.P4 notification can only be construed as initiation of a selection process in terms of Ext.P2 judgment. Evidently, as per Ext.P4 notification, applications have been invited for appointment of Driver on daily wage basis in Aikaranad Grama Panchayat. The petitioner and the others have allowed Ext.P2 judgment to become final. Therefore, the petitioner cannot have a grievance against Ext.P4. In fact, in terms of Ext.P2, only such a provisional appointee based on selection initiated as per Ext.P4 alone can claim for continuance till a regular hand joins duty after sanction of the post of Driver or the panchayat requires W.P.(C) NO.24243 of 2011 4 continuous service of such an appointee. The petitioner did not have a case that after a selection process effected pursuant to Ext.P2 judgment, he was appointed on provisional appointment and therefore, by virtue of Ext.P2, he could continue in service till a regular hand is appointed for sanctioned post of driver. In the circumstances, there is no merit in the Writ Petition and accordingly, it is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.24243 of 2011 5 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.24243 of 2011 6