IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 WP(C).No. 14564 of 2010(U) ------------------------------------- PETITIONER(S): ------------------------- 1. SURESH,MAMOOLAYIL, KOTTAMURI, THRIKKUNNAPUZHA P.O.,ALAPPUZHA - 690515. 2. ANILKUMAR B., VANDIKKARAN CHIRAYIL,VALIYAPARAMBU, KARTHIGAPPALY,ALAPPUZHA DISTRICT-690566 BY ADVS. SRI.N.NAGARESH SRI.T.V.VINU SRI.K.K.MURUKESAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT,THIRUVANANTHAPURAM. 2. KAYAMKULAM MUNICIPAL COUNCIL, REPRESENTED BY ITS CHAIRMAN, KAYAMKULAM MUNICIPALITY,KAYAMKULAM. 3. MUNICIPAL SECRETARY, KAYAMKULAM MUNICIPALITY,KAYAMKULAM. 4. OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS.THIRUVANANTHAPURAM. * ADDITIONAL R5 & R6 IMPLEADED R5. P. GANAKUMAR, MUNICIPAL COUNCILOR KAYAMKULAM MUNICIPALITY, KAYAMKULAM R6. A. AJIKUMAR, MUNICIPAL COUNCILOR KAYAMKULAM MUNICIPALITY, KAYAMKULAM (VIDE ORDER DATED 25.05.2010 IN I.A. NO. 6457/2010) BY GOVERNMENT PLEADER SRI. SANDESH RAJA ADVS. SRI.RAYA SHENOI,SC,KAYAMKULAM MUNICIPAL FOR R2-3 SRI.P.SREEKUMAR FOR R5-6 SRI.K.S.MANU (PUNUKKONNOOR) FOR R5-6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14564 of 2010(U) --------------------------------------- APPENDIX PETITIONER'S EXHIBITS:- EXT.P1 : COPY OF THE GO(P) NO. 57/2002/GAD DATED 18.03.2002 ISSUED BY THE 1ST RESPONDENT EXT.P2 : COPY OF THE LETTER NO. 52369/A3/04 DT. 10.12.2004 OF THE 1ST RESPONDENT EXT.P3 : COPY OF THE LETTER NO. 14779/A3/05/LSG DT. 03.06.05 PF the DEPUTY SECRETARY TO THE 1ST RESPONDENT EXT.P4 : COPY OF THE JUDGMENT IN W.P.(C) NO. 10051 & 11534 OF 2006 DT. 15.12.2006 OF THIS HON'BLE COURT EXT.P5 : COPY OF THE ORDER PH 1-9918/2001 DATED 17.2.2007 OF THE 2ND RESPONDENT EXT.P6 : COPY OF COMPLAINT DT. 17.02.10 SIGNED BY OPPOSITION COUNCILLORS BEFORE THE MINISTER EXT.P7 : COPY OF THE MINUTES DT. 22.02.10 OF THE MEETING OF THE 2ND RESPONDENT EXT.P8 : COPY OF THE COUNCIL DECISION NO.3 DT. 04.03.10 OF THE 2ND RESPONDENT EXT.P9 : COPY OF THE JUDGMENT IN WP(C)NO. 33353/2009 DT. 31.03.2010 OF THIS HON'BLE COURT EXT.P10 : COPY OF GO(ORD)NO. 1059/2010/LSGD DT. 26.03.10 OF THE 1ST RESPONDENT EXT.P11 : COPY OF THE LETTER NO. 13476/EU/3/10/LSGD DT. 26.03.10 OF THE 1ST RESP0NDENT RESPONDENT'S EXHIBITS:- EXT.R6a : COPY OF THE LETTER DT.10.12.04 OF THE 1ST RESPONDENT EXT.R6b : COPY OF THE PETITION DT. 11.08.05 SUBMITTED BEFORE THE 2ND RESPONDENT EXT.R6c : COPY OF THE PETITION DT. 163.08.07 SUBMITTED BEFORE THE DIRECTOR OF MUNICIPALITIES EXT.R6d : COPY OF THE COMMUNICATION DT. 15.11.05 EXT.R6e : COPY OF THE ORDER DT. 17.04.07 ISSUED BY THE 1ST RESPONDENT EXT.R6f : COPY OF THE LOGBOOK RELATING TO THE 2ND RESPONDENT'S VEHICLE TRUE COPY PA TO JUDGE SMT S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P(C) No.14564 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of March, 2011 J U D G M E N T The petitioners were engaged as sanitation workers by the Kayamkulam Municipality in 2002, when the government employees went on indefinite strike. Ever since then they have been working as such. While so, the Government decided to give preferential right to such employees in future appointments to contingent service. Accordingly, in 2007, the second respondent Municipality included the petitioners and 13 similarly situated sanitation workers in the list of contingent workers. The second respondent Municipality by majority decision in its council meeting on 16.02.2010, decided to appoint the petitioners as contingent employees against the two existing vacancies based on the seniority of the petitioners. Two of the minority opposition Councillors filed a complaint against the same before the Minister for Local Self Government Department. Apparently, based on the same, the Government has, by Exhibit P10 order referred the matter for decision of the Ombudsman for Local Self Government Institutions under Section 57(1) of the Kerala Municipality Act. Based on Exhibit P11 order the Municipality was directed to keep further proceedings for regularization W.P.(C) No.14564 of 2010 -2- of service of the petitioners, in abeyance. It is challenging Exhibits P10 and P11 orders, this writ petition has been filed. 2. According to the petitioners, in view of the earlier proceedings before this Court, as well as the legal right of the petitioners, it was improper on the part of the Government to refer the matter to the Ombudsman. 3. I have considered the arguments of the parties. I am of opinion that there is nothing wrong in the Government referring the matter to the Ombudsman under Section 57(1), insofar as it was to be considered whether the regularization of service of the petitioners is, in accordance with law. I do not also find anything improper in the Government staying further proceedings for regularization of the petitioners, while the Ombudsman considers the matter. But in Exhibit P10, the direction is to place the matter before the Ombudsman for taking further proceedings for cancelling the appointments of the petitioners. I do not think that the same is proper. That means the Government has already decided that the appointments of the petitioners are invalid and the Ombudsman is to take further proceedings cancelling the same. All what the Government could have done is to direct the Ombudsman to consider the matter, in accordance with law. To that W.P.(C) No.14564 of 2010 -3- extent, Exhibit P10 is not correct. Accordingly this writ petition is disposed of with the following directions:- 1. The Ombudsman shall consider Exhibit P10 as a reference for deciding the question as to whether the regularisation of the service of the petitioners is, in accordance with law. The Ombudsman shall consider the question of validity of the appointment of the petitioners, in accordance with law, and pass appropriate orders after hearing the petitioners and the Municipality, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. During the said period Exhibit P11 would continue to be in force, unless the Ombudsman deems if fit to pass interim orders contrary to the same. 2. It would be open to the respondents 5 and 6 to seek impleadment in the proceedings before the Ombudsman and the Ombudsman shall decide the right of the respondents 5 and 6 to be impleaded, in accordance with law. Sd/- S. SIRI JAGAN, JUDGE //TRUE COPY// P.A. TO JUDGE KRK