LINU JOHN Vs. RESHMI REMESH AND OTHERS

JUDGEMENT

(1.) The appellant was not a party to W.P(C) No.14972 of 2017. This appeal has been preferred with leave against the judgment dated 7.3.2018 passed by the learned Single Judge in the above writ petition. The said writ petition was filed by the first respondent herein seeking the issuance of a writ of mandamus commanding respondents 1 and 2 to continue her in the post of Technical Assistant under Kodumon Grama Panchayath till 31.3.2018. Further prayer is to quash Exts.P5 and P6 and to declare that the decision of the Panchayath to replace the service of the petitioner with another temporary staff is illegal and not liable to be enforced and for such other reliefs.

(2.) The brief facts which led to the filing of the said writ petition are as follows:- The writ petitioner/the first respondent was appointed as Technical Assistant under the Panchayath initially under Ext.P1. Based on Ext.R1(a) scheme, the Government permitted the Panchayaths to appoint Technical Assistants in all Panchayaths in the State. The writ petitioner, who was a graduate in Commerce and holding Post Graduate Diploma in Computer Application (PGDCA) was given appointment after executing Ext.P1 agreement. Subsequently, based on Ext.P2 agreement, she was engaged for another one year. During the continuance of such service, the Government have issued Ext.P3. As per Ext.P3, those who were working as Technical Assistants under different Panchayaths were allowed to continue till 31.3.2018. While so, the first respondent-Panchayath resolved to conduct a fresh selection and to discontinue the service of the writ petitioner from 1.5.2017. The decision to engage her only up to 30.4.2017 and then to disengage her was intimated to the writ petitioner as per Ext.P5. Subsequently, based on the resolution, the Panchayath issued Ext.P6 calling for applications for engagement as a Technical Assistant. It is in the said circumstances that the writ petitioner approached this Court by filing W.P(C) No.14972 of 2017. When the matter came up for consideration, this Court passed an interim order on 2.5.2017. The writ petitioner was allowed to continue as Technical Assistant and the respondents were directed not to make any fresh appointment to the post on temporary basis. The Panchayath was constrained to file I.A.No.13390 of 2017 seeking permission to make appropriate alternative arrangement as the writ petitioner then applied for permission to enter on maternity leave for a period of six months. They were constrained to move such an application as the service of a Technical Assistant was then absolutely essential for completion of various projects. Evidently, an order was passed permitting them to make such alternative arrangement. In such circumstances, they issued fresh notification and obviously, the appellant had also responded to the said notification. After undergoing a process of selection, the appellant herein was engaged as Technical Assistant under the Panchayath as per Annexure I. In Annexure I dated 28.9.2017, after referring to the order passed by this Court in W.P(C) No.14972/2017 on 22.8.2017, it was made clear that the appointment of the appellant would be subject to the outcome of the above writ petition or till 31.3.2018. Though such a condition was specifically mentioned in Annexure I, the appellant has not chosen to get himself impleaded in W.P(C) No.14972/2017. On 27.2.2018, the Government had issued Annexure-2 order extending the period of service of those Technical Assistants, who were then continuing in service of different Local Self Government Institutions on the strength of Ext.P3 Govt. Order dated 18.3.2017, for one more year from 1.4.2017 till 31.3.2019. The contention of the appellant is that in the light of Annexure-2, he is having a right to continue as Technical Assistant till 31.3.2019 as he being the Technical Assistant, who was working as Technical Assistant under Kodumon Panchayath as on the date of issuance of Annexure-2. The appellant further contends that the learned Single Judge went wrong in granting reliefs not sought for and thereby allowing the writ petitioner to continue as Technical Assistant beyond 31.3.2018. It is further contended that the writ petitioner/the first respondent herein, being a person engaged on contract basis, was not entitled to get the benefit of the Maternity Act,1961. In short, according to the appellant, the writ petitioner was not having any right to rejoin duty as she was not at all entitled to get the benefit of the Maternity Act. In support of the said contention, the learned counsel appearing for the appellant relied on the provisions under Rule 101 of Part I of the Kerala Service Rules and Appendix VIII thereunder. To buttress the said contention, the learned counsel also relied on the decision of a Division Bench of this Court reported in Jisha. P. Jayan v. Sree Sankaracharya University of Sanskrit, Kalady and others [2013(3) KHC 434 (DB)] .

(3.) Per contra, the learned counsel appearing for the first respondent/the writ petitioner contended that the decision in Jisha.P.Jayan's case (supra) cannot be said to be a decision which will go against the petitioner as virtually, she had been in the service of the Panchayath on contract basis for more than one year. That apart, it is submitted that based on the interim order passed by this Court on 2.5.2017, the first respondent was entitled to continue till it is vacated. It is submitted that since the judgment in the writ petition is in his favour, the first respondent is entitled to continue till 31.3.2018 or till the period based on orders passed by the State Government regulating the tenure of Technical Assistants. In prayer 'C' therein, it reads as follows:-