P M AMEER Vs. STATE OF KERALA

JUDGEMENT

(1.) The authority of Government to issue directions to Panchayat to retain Technical Assistants is under challenge in this writ petition- WP(C) No.17891 of 2018 filed by one Mr.P.M.Ameer, who is the President of Panjal Grama Panchayat, whereas the other writ petition is filed by the Technical Assistant whose services were sought to be terminated, seeking the benefit of the order passed by the Government. Petitioner in WP(C) No.17891 of 2018 challenged Ext.P2 minutes, Ext.P3 Government Order and Ext.P4 communication, according to which the Technical Assistants who are continuing in the service of the Panchayats were directed to be retained in the respective Panchayats upto 31.03.2019. According to the petitioner the basis of Ext.P3 Government Order directing retention is a resolution passed in the meeting convened by the Minister for Local Self Government on the basis of a representation received from the Technical Assistants' Organization owing allegiance to the ruling party. As evident from Ext.P2 minutes, the participants of the meeting were the Executive Director, Information Kerala Mission; Joint Director of Panchayat; President, Secretary and Treasurer respectively of the Kerala Grama Panchayat Technical Assistants Organisation (CITU); Deputy Secretary, Under Secretary and Section Officer of Local Self Government Department. Pointing out that the Technical Assistants who have been working in the Panchayats from 27.06.2012 onwards, on extension of their contract every year, it was decided that their term of appointment would be extended till 31.03.2019. It was also decided that in order to terminate the services of the Technical Assistants a decision has to be taken after assessing their performance, for which a report has to be prepared by a panel consisting of Deputy Director of Panchayat, District Officer, Information Kerala Mission and Secretary of the Panchayat. The Director of Panchayat and Executive Director, Information Kerala Mission were directed to take the follow up action.

(2.) According to the petitioner, Government does not have any jurisdiction over the matter of appointments in a Panchayat and such a direction will be an invasion to the system of Local Self Government and independence of the Village/Panchayats. Pointing out that the very purpose of the 73rd amendment of the Constitution of India was to endow the Village Panchayats with powers and authority which are necessary to enable them to function as units of Self Government, the petitioner states that the engagement and disengagement of contingent contract employees is the prerogative of the Panchayat. Petitioner points out that the decision leading to Ext.P3 order is taken to protect the members/leaders of the Union having allegiance to the ruling party without having any consultation with the representatives of the Panchayats who have appointed them. It is pointed out that contract has been entered into, for the purpose of employment between the respective Panchayats and the respective employees. Petitioner also points out that on expiry of the contract period the Panchayat had already disengaged the Technical Assistant who was working there as her services were seen not satisfactory. The decision of the Panchayat council in its meeting held on 31.03.2018 cannot be varied. The Panchayat had discussed the request made by the Technical Assistant Smt.Soumya Antony for renewal of contract as her term was expiring on 31.03.2018. Observing that her services were not satisfactory the council decided not to renew her contract, as per Ext.P6 resolution. According to the petitioner the direction in Ext.P3 violates the constitutional mandates. It is argued that Panchayat is paying the salary and Government cannot issue any direction with respect to their retention or termination.

(3.) The 1st respondent has filed a counter affidavit objecting to the very maintainability of the writ petition pointing out that the writ petition is filed by one Mr.P.M.Ameer and it is not filed in a representative capacity on behalf of Panjal Grama Panchayat and therefore the petitioner does not have any authority to represent the Panchayat under the Kerala Panchayat Raj Act or Rules. It is also pointed out that there cannot be any public interest litigation in service matters. The 1st respondent has also pointed out that the Technical Assistant who is engaged by the Panchayat and who is the beneficiary of Ext.P3 order is not made a party in the writ petition. Further it is stated that Government had as per G.O.(Rt) No.1772/12/LSGD dated 27.06.2012 - Ext.R1(a) decided to render technical support to the Panchayats for E-governance in the Panchayats and permitted the Grama Panchayats in the State to appoint one Technical Assistant each, for a period of one year, prescribing their qualification, remuneration etc. Such a decision was taken on the basis of a proposal submitted by the Executive Chairman and Director of Information Kerala Mission, in order to equip the Panchayats with technical knowledge for facilitating the activities of E-governance. The remuneration for the Technical Assistants are to be paid from the Plan Fund. The technical supervision of the Technical Assistants would be vested in the Information Kerala Mission and the administrative control would be vested in the Grama Panchayats. The question of their continuance was to be decided at the end of the year. Therefore it is stated that the temporary appointment of the Technical Assistants in the Grama Panchayats was permitted over and above the existing staff, on the basis of a policy decision of the Government. Since it was found that the Technical Assistants were being dealt with on political and other motives, defeating the very purpose of their engagement, the Government decided not to terminate their services without assessing their performance. Such a decision cannot be termed as interference in the affairs of Local Self Government and such a decision is taken to safeguard the rights of Technical Assistants as well as public and the decision was taken in a meeting, with good intention, when this matter was brought to the notice of the Government. It is pointed out that the Secretaries of the concerned Panchayats were included in the panel for conducting performance appraisal of the Technical Assistants in order to ensure fairness to all.