IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 WP(C).No. 28877 of 2009(D) -------------------------- PETITIONER(S): --------------- LISTER SANTHAM, AGED 30,S/O.SYRUS SANTHAM, SANTHALAYAM,VIRALI,KANJIRAMKULAM P.O. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): --------------- 1. THE SECRETARY, KANJIRAMKULAM PANCHAYATH. 2. AGRICULTURAL OFFICER, KRISHI BHAVAN,KANJIRAMKULAM. 3. A.YESUDAS, CONVENOR,AGRICULTURE BOREWELL PROJECT CHAMI, KANJIRAMKULAM P.O.,PIN 695524. 4. WATSON SANTHAM, S.W.BHAVAN,CHAMI,KANJIRAMKULAM P.O. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 SRI.R.MANOJ FOR R3 MS.ANU SIVARAMAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.28877 of 2009 (D) --------------------------------- Dated, this the 16th day of December, 2009 J U D G M E N T The prayer sought in this writ petition is to quash Ext.P4 and direct respondents 1 to 3 to allow the petitioner to discharge his duties as Pump Operator. 2. According to the petitioner, under the Peoples Planning Programme, four bore well projects were implemented by the 1st respondent Panchayat and one is the Chani Bore Well Project. It is stated that pursuant to the Scheme announced by the Panchayat, property having an extent of 2 cents, which stood in the name of the 4th respondent, was surrendered to the Panchayat for constructing a pump house on condition that the petitioner will be appointed as Pump Operator. It is stated that by Exts.P1 & P2 applications were made and the 1st respondent Panchayat appointed the petitioner as Pump Operator. Ext.P3 is stated to be the agreement executed by the petitioner with the beneficiary committee, the 3rd respondent herein. The petitioner states that this WP(C) No.28877/2009 -2- agreement was executed as directed by the Panchayat. 3. The petitioner has made reference to Exts.P5, P6, P7 & P9 to canvass for the position that it was the Panchayat which appointed him, and that the role of the 3rd respondent is only to assist the Panchayat for the distribution of drinking water in the area. According to the petitioner, since 2000 the petitioner was thus working as Pump Operator and while so, the 3rd respondent issued Ext.P4 inviting applications for making appointment of Pump Operator. It is challenging Ext.P4 and for consequential reliefs this writ petition is filed. 4. Thus, essentially the case of the petitioner is that he is a Pump Operator appointed by the 1st respondent Panchayat and that the role of the 3rd respondent beneficiary committee is to assist the Panchayat in the distribution of drinking water. 5. The Panchayat has fled a counter affidavit. In paragraph 2 of its counter affidavit, the Panchayat has stated that once the bore well was constructed and is handed over to the beneficiary committee, the Committee is vested with the right to appoint any person as Pump Operator and that the Panchayat has no role at all WP(C) No.28877/2009 -3- for the same. Therefore, it is for the petitioner to seek his remedies against the 3rd respondent and not against the Panchayat. The learned counsel also contends that if the Panchayat has to make appointment, it can only be to sanctioned posts and that such appointment can be made only through the Public Service Commission. 6. The learned counsel for the Panchayat also submits that in Ext.P3 agreement, the petitioner had agreed to abide by the instructions of the beneficiary committee, that the petitioner had not produced any order issued by the Panchayat appointing him as Pump Operator and that it is the beneficiary committee which has invited applications by issuing Ext.P4. 7. The learned counsel appearing for the beneficiary committee, the 3rd respondent, made reference to Clause 7 of Ext.P9, the bye laws of the beneficiary committee, where it is stated that the pumping and distribution of water is the responsibility of the beneficiary committee. According to the 3rd respondent, once the bore well was constructed and pump house was set up, they engaged the petitioner, who worked as Pump Operator till WP(C) No.28877/2009 -4- December, 2006. Reference is made to Ext.R3(b), copy of the acquittance register, which shows that payment has been received by the petitioner from June 2000 to December, 2006. It is stated that from 1st to 15th January, 2007, the petitioner unauthorisedly absented from duty and in order to avoid further disturbance in the distribution of water to the beneficiaries, they engaged one Mr.M.Sam Raj. It is stated that while Mr.Sam Raj was working, the petitioner threatened him to the effect that if he does not leave the place, he will kill him, and as a result thereof Mr.Sam Raj submitted his resignation and was relieved from 05/10/2009. Thereafter, the 3rd respondent issued Ext.P4 inviting applications for appointment of a Pump Operator and that in pursuance thereto, on 11/10/2009, one Mr.E.Selvaraj has been appointed. It is also stated that during pendency of the writ petition, the 3rd respondent had to obtain orders of police protection from this Court to continue the operation of the pump house. 8. The facts being as above, what requires to be mainly considered is whether the petitioner has succeeded in establishing that he has been appointed as Pump Operator by the 1st respondent WP(C) No.28877/2009 -5- Panchayat. Through out it has been the case of the petitioner that he was appointed as Pump Operator by the Panchayat. In fact, reference was made to Exts.P6 & P7 to substantiate its contention. But however, the Panchayat, being a statutory body, can make appointment only in accordance with the Rules and against sanctioned posts. The petitioner has no case that there is any sanctioned post of Pump Operator or that he has been appointed through the PSC. The petitioner has not even produced any appointment order. In the light of these facts and coupled with the positive case of the Panchayat as reflected in paragraph 2 of its counter affidavit, I cannot accept the plea of the petitioner that he has been appointed as Pump Operator by the 1st respondent Panchayat. 9. It is true that in Ext.P6, it is revealed that an application was made by the petitioner and in Ext.P7 reference has been made to the appointment of certain valve operators. These do not, in my view, substantiate the case of the petitioner that he has in fact been appointed by the Panchayat. I cannot expect that the Panchayat will make appointment without even issuing an appointment order. In WP(C) No.28877/2009 -6- such circumstances, the claim of the petitioner that he has been appointed by the Panchayat is only to be negatived. 10. As already noticed, the 3rd respondent has accepted that it had appointed the petitioner and that he had worked as Pump Operator. First of all, the 3rd respondent is a committee constituted with the involvement of the Panchayat and its activities are governed by Ext.P9 bye laws. The 3rd respondent submits that from 2000 June to 2006 December the petitioner had worked as Pump Operator and received wages. According to the 3rd respondent subsequent to December, 2006, the petitioner abandoned the job and that necessitated appointment of another person. While the petitioner denies these averments, it is a fact that another person has been appointed to look after the duties of the Pump Operator. 11. The 3rd respondent being purely a non-statutory committee, in my view the petitioner cannot seek any relief against the 3rd respondent in a proceedings under Article 226 of the Constitution of India. Further while the petitioner asserts that he has been denied employment, the 3rd respondent asserts that the petitioner had abandoned the employment. These disputed WP(C) No.28877/2009 -7- questions of facts cannot be resolved in a writ petition. Therefore, leaving it open to the petitioner to pursue his claims against the 3rd respondent, this writ petition is dismissed. (ANTONY DOMINIC, JUDGE) jg