IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 WP(C).No. 32925 of 2007(T) ----------------------------------- PETITIONERS: -------------------- 1. VIJAYAKUMARI.G, ANU NIVAS, THEKKUM MURI KIZHAKKU,SRPM (POST) THAZHAVA, KOLLAM. 2. BEENA.S, PULIMOOTTIL VEEDU, THEKKUM MURI KIZHAKKU,SRPM (POST) THAZHAVA, KOLLAM. 3. VAVACHI.S, VARUNALAYAM, SRPM (POST) THAZHAVA, KOLLAM. 4. ANUPAMA.R,POKKADATHUTHEKKETHARA, SRPM (POST) THAZHAVA, KOLLAM. BY ADVS. SRI.S.SUDHEESHKAR SRI.PRATHEESH.P RESPONDENT: ------------------ 1. STATE OF KERALA REPRESENTED BY SECRETARY SOCIAL WELFARE DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. 2. THE DIRECTOR, SOCIAL WELFARE DEPARTMENT, THIRUVANANTHAPURAM. CONTD.. 2 -2- WP(C).No. 32925 of 2007 3. THE DISTRICT SOCIAL WELFARE OFFICER OFFICE OF THE SOCIAL WELFARE DEPARTMENT, KOLLAM DISTRICT. 4. THE PROJECT OFFICER, ICDS OACHIRA, KOLLAM. 5. THE OACHIRA BLOCK PANCHAYATH, OACHIRA,KOLLAM DISTRICT REPRESENTED BY ITS SECRETARY. 6. THE THAZHAVA GRAMA PANCHAYATH, THAZHAVA, KOLLAM DISTRICT REPRESENTED BY ITS SECRETARY. * ADDL.R7 TO R13 IMPLEADED 7. SMITHA NAIR, D/O SANTHAMMA, RESIDING AT VANIYATH MEENATHIL, KUTHIRAPANTHI P.O, THAZHAVA, KOLLAM 8. JYOTHILAKSHMI, D/O RAJAMMA, RESIDING AT MUNDAPPALLIL (NADHANS), SRPM P.O, THAZHAVA KOLLAM 9. BINDU. S, D/O SEETHADEVI, RESIDING AT THOPPIL KIZHAKKETHIL, SRPM P.O, THAZHAVA, KOLLAM 10. PREETHA S., D/O SADODARI PILLA, RESIDING AT KUTTIYIL VEEDU PAVUMBA (N) P.O, PAVUMBA, KOLLAM 11. SREELATHA S., D/O SADODARI PILLA, RESIDING AT PIYADETH (PAVITHRAM), SRPM P.O, THAZHAVA, KOLLAM 12. RENJITHA.S., D/O SUDHARMA, RESIDING AT VALLIATH, SRPM P.O, THAZHAVA, KOLLAM 13. NISHA R. D/O REMANI, RESIDING AT KANDATHIL, SRPM P.O, THAZHAVA, KOLLAM * ADDL. R7 TO R13 IMPLEADED AS PER ORDER IN IA NO. 15758 OF 2007 R1 TO R4 BY GOVT.PLEADER NOBLE MATHEW R5 TO R6 BY ADV. SIJU.K. BY ADV. T.C. SURESH MENON BY ADV. JIBU THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2011, ALONG WITH WPC NO. 35013 OF 2007 & WPC NO. 2744 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JM CONTD..3 -3- WPC NO. 32925 OF 2007 APPENDIX PETITIONERS' EXHIBITS: P1: COPY OF NOTIFICATION OF THE 3RD RESPONDENT INVITING APPLICATKION TO THE POST OF AGANAVADI WORKER/HELPER DT. 27.01.2004 P2: COPY OF SOME OF THE INVERVIEW CARDS DT. 21.6.2005 P3: COPY OF G.O NO. 35/2006 DT. 11.10.2006 AND G.O.NO. 2/2007 DT. 6.1.2007 P4: COPY OF G.O. NO. 2/2007 DT. 6.1.2007 P5: COPY OF G.O. NO. 449/2007 DT. 22.9.2007 RESPONDENT'S EXHIBITS: R2(A): COPY OF THE COMMON JUDGEMENT IN W.P. © NO. 7378/05 R2(B): COPY OF THE CIRCULAR DT. 1.2.2002 R2(C): COPY OF G.O. NO. 549/07 SWD DT. 30.11.2007 R6(A): COPY OF RESOLUTION NO.5(2) ALONG WITH THE COVERING LETTER GIVEN TO THE GOVERNMENT DT. 26.4.2007 R7(A: COPY OF REPRESENTATION DT.12.7.2007 \\TRUE COPY\\ PA TO JUDGE JM S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos.32925, 35013/2007 & 2744/2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of December, 2011 J U D G M E N T These writ petitions are in respect of the same issue and therefore they are heard and disposed of by this common judgment. 2. The District Social Welfare Officer, Kollam issued a notification dated 27.01.2004, inviting applications for appointment to the posts of Anganvady workers and helpers in Thazhava Grama Panchayat. (Ext.P1 in W.P. (C) No.32925/2007). Pursuant to the said notification, 580 candidates applied for the post of worker and 108 persons applied for the post of helper, including the petitioners in W.P. (C) Nos.32925/2007 & 2744/2008. Interview cards were issued to the applicants. The selection process was not completed. While so, the Government issued Government Order No.35/2006 dated 11.10.2006 directing regularisation of temporary workers and helpers in Anganvadies. By Government Order No. 449/2007 dated W.P.(C)Nos.32925, 35013/2007 & 2744/2008 -2- 22.9.2007 (Ext.P5 in W.P. (C) No.2744/2008), Thazhava Grama Panchayat was exempted from the purview of Government Order No.35/2006 and in respect of Thazhava Panchayat a selection committee was constituted for selecting eligible candidates pursuant to the notification inviting applications. Subsequently by G.O. No.549/2007 dated 30.11.2007 (Ext.P7 in W.P. (C) No.2744/2008), G.O. No. 449/2007 dated 22.9.2007 was cancelled and consequently temporary employees working in the anganvadies became eligible to be considered for regularisation in Thazhava Grama Panchayat also. W.P.(C) Nos.32925/2007 & 2744/2008 are filed challenging the said Ext.P7 Government order and seeking a direction to the respondents to complete the selection process initiated by Ext.P1 notification inviting applications. The prayers in the said two writ petitions are: “W.P. (C) No.32925/2007: i. issue a writ in the nature of mandamus or other appropriate writ, order or direction commanding the respondents to implement Exhibit P5 G.O. and complete the selection process of the petitioners who had applied as per Exhibit P1 notification forthwith. ii. issue a writ in the nature of mandamus or other W.P.(C)Nos.32925, 35013/2007 & 2744/2008 -3- appropriate writ, order or direction commanding the respondents to initiate selection process of permanent Anganvady workers and helpers in the 8 new Anganvadies started in the Thazhava Panchayat subsequent to Exhibit P1 notification. W.P. (C) No.2744/2008: (i) to call for the entire records which lead to the passing of Exhibit P7 Govt. order and quash the same by issuance of a writ in the nature of certiorari or by any other appropriate writ, direction or order; (ii) to declare that Exhibit P7 order is arbitrary and unreasonable; (iii) to issue a writ of mandamus commanding the respondents to complete the selection process and appoint the candidates as Anganvadi workers/helpers as per Exhibit P1 notification.” 3. After postponing the selection pursuant to Ext.P1 notification, temporary Anganvadi Workers and Helpers were appointed in the anganvadies of Thazhava Panchayat. The petitioner in W.P. (C) No.35013/2007 is one such temporary Anganvadi worker. She has filed this writ petition contending that she is entitled to regularisation in service in accordance with Government order Nos.35/2006 & 549 /2007. She has claimed the following reliefs in her writ petition: “(i) call for the records leading to the issue of Ext.P7 by the first respondent and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction. (ii) issue a writ in the nature of mandamus directing the W.P.(C)Nos.32925, 35013/2007 & 2744/2008 -4- respondents to adhere to Exts.P1 and P2 in the matter of regularisation of Anganvadi Workers/Helpers in the State; (iii) issue a writ in the nature of mandamus directing the respondents to forbear from recruiting fresh hands except after regularising the existing Anganvadi Workers/Helpers; (iv) declare that the first respondent has no jurisdiction to grant exemption to the fourth respondent alone from the rigour of Exts.P1 and P2 orders concerning regularisation.” 4. The contention of the petitioners in W.P.(C) Nos.32925/2007 & 2744/2008 is that after having initiated regular selection process by inviting applications, the respondents could not have appointed temporary workers and helpers to the vacancies for which Ext.P1 notification inviting applications has been issued and such temporary workers appointed after the issue of notification for regular selection cannot be validly regularised in service. According to them, if it is permitted, it would amount to a mockery of justice. They would submit that the Government rightly issued G.O. No.449/2007 in the circumstances and the cancellation of the same by G.O. No.549/2007 is clearly arbitrary and unsustainable. 5. The petitioner in W.P. (C) No.35013/2007 would W.P.(C)Nos.32925, 35013/2007 & 2744/2008 -5- contend that she is unaware of the happenings pursuant to Ext.P1. She was validly appointed as a temporary worker and therefore she cannot be denied the benefit of G.O Nos.35/2006 & 549/2007 is her contention. 6. Counter affidavits have been filed by the Government as well as the Thazhava Panchayat. The Government would take the stand that the selection process pursuant to Ext.P1 notification could not be continued in view of certain irregularity in constitution of the selection committee and while so election to the Local Self Government Institutions have been declared by the Government, as a result of which the same could not be continued. According to them, some of the temporary employees approached this Court by filing writ petitions seeking regularisation, in which Ext.R2 (a) judgment in W.P. (C) No.35013/2007 was passed by this Court, directing consideration of the cases of existing helpers and workers for regularisation. It is pursuant to the same, G.O.Nos.35/2006 & 549/2007 were issued, is the contention raised. W.P.(C)Nos.32925, 35013/2007 & 2744/2008 -6- 7. The Panchayat would support the case of the petitioners in W.P. (C) Nos.32925/2007 & 2744/2008. They would contend that after initiating a process of regular selection by inviting applications, no temporary employees could have been appointed and even if the circumstances warranted appointment of such temporary workers, they cannot be validly regularised in service, which if done, would violate the fundamental rights of those persons who have applied pursuant to Ext.P1 notification inviting applications. 8. I have considered the rival contentions in detail. 9. In the peculiar facts of this case, I am of opinion that the petitioners in W.P. (C) Nos.32925/2007 & 2744/2008 are entitled to succeed. Facts are admitted. The District Social Welfare Officer, Kollam had invited applications from eligible candidates for appointment to the posts of Anganvadi Workers and Helpers in Anganvadies under the Thazhava Panchayat. That selection has not yet been completed. It is also not disputed that the petitioner in W.P. (C) No.35013/2007 was appointed on temporary W.P.(C)Nos.32925, 35013/2007 & 2744/2008 -7- basis in one of the Anganvadies under the Thazhava Panchayat after the notification inviting applications was published. It is also not disputed before me that she did not apply pursuant to the notification inviting applications. If that be so, it is totally against the fundamental rights of the persons who applied pursuant to the notification, to regularise temporary workers appointed after the issue of the said notification, without considering the claims of the persons who have applied pursuant to the notification, that too persons who did not apply pursuant to Ext.P1. Originally the Government also were aware of the said fact. That is why in G.O. No.449/2007, Thazhava Panchayat was excluded from the purview of G.O.No.35/2006. The contention of the Director of Social Welfare Department in his counter affidavit in W.P. (C) No.35013/2007 does not find favour with me. In Ext.R2 (a) judgment therein, there is no direction that all temporary workers working in Anganvadies shall be regularised in service. What has been directed is that the Government should consider the case of existing workers and helpers also for regularisation. W.P.(C)Nos.32925, 35013/2007 & 2744/2008 -8- Therefore, regularisation can be ordered only after taking into account the facts and circumstances obtaining in particular Anganvadies. I do not think that Ext.R2 (a) judgment would cover a situation where after inviting applications for regular selection temporary workers and helpers are engaged. It does not require a second look to conclude that if such temporary workers engaged subsequent to the notification inviting applications are regularised, that would be a travesty of justice, insofar as the persons who applied pursuant to the notification would be denied their fundamental rights under Article 14 & 16 of the Constitution of India. Therefore, G.O. No. 549/2007 dated 30.11.2007, which is Ext.P5 in W.P.(C) No.32925/2007 Ext.P7 in W.P. (C) No.2744/2008 is quashed. The respondents in those writ petitions are directed to see that the selection process initiated by Ext.P1 notification inviting applications (in W.P.(C) No.32925/2007) is completed, by considering the applicants who applied pursuant to the notification and selecting suitable candidates in accordance with their merit. The said W.P.(C)Nos.32925, 35013/2007 & 2744/2008 -9- process shall be initiated and completed, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. W.P. (C) Nos.32925/2007 & 2744/2008 are allowed as above. In view of my findings in the other two writ petitions,W.P. (C) No.35013/2007 is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/