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Judgment
The petitioners in these writ petitions were working as Clerk cum Store Keeper and Receptionist respectively in the District Tourism Promotion Council (for short 'DTPC'), Kannur. It is submitted that they were appointed in the year 2013 and had been in continuous service since then. It is submitted that the appointments were duly approved by the executive committee of the DTPC on 24.10.2013. The appointments were regularised from 29.4.2015. While so, a report was sought for from the Secretaries of the various DTPCs with regard to method of appointment followed by them. It is submitted that detailed replies had been given. However, after the change in the Government, vindictive steps had been taken to terminate the services of the petitioners on purely political grounds. Ext.P11 letter was issued by the Government requiring the DTPC to terminate the services of the petitioners herein. On the said basis, steps were taken to terminate their services, which are challenged before this Court on the ground that the 1st respondent cannot dictate terms to the 4th respondent in respect of service conditions of its employees and that the direction to terminate the petitioners was politically motivated. The petitioners are continuing service on the basis of interim orders of stay issued by this Court.
A counter affidavit has been placed on record by respondents 1 and 2. The learned Government Pleader submits that he has instructions to appear on behalf of the DTPC as well. It is submitted that the appointments in the DTPC, which is a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, are to be made specifically in terms of the guidelines issued by the Government. It is submitted that the entire financial support for the functioning of the DTPCs is provided by the Department of Tourism of the Government. It is submitted that Ext.R1(c) circular had been issued as early as on 21.12.1999 directing appointment on contract basis for a specified period and prescribing procedure for such appointments as well. It is submitted that the appointments of the petitioners were in total violation of the standing instructions and that a complaint had been received in that behalf as Ext.R1(d). The Government had directed the Vigilance Officer of the Department of Tourism to enquire into the complaint and to submit a report and Ext.R1(e) report was submitted on 29.7.2019. It was found that the petitioners had been appointed against a post which was not approved by the executive committee, that there was no notification for appointment and no selection procedure was conducted. It is stated that it was in the above circumstances that Ext.P11 directions had been issued.
The learned counsel appearing for the petitioners in these cases would contend that the Government has no statutory control over the DTPCs and that the functioning of the DTPCs are regulated by the bye-laws of the society as duly registered. It is contended that Rule 8 of Ext.P2 bye-laws provides for the executive committee and the functions thereof. Rule 10(iii) provides that all appointments shall be made by the Chairman in consultation with the executive committee. It is further contended that Ext.R1(c), which is produced along with the counter affidavit and is relied on, is a circular which specifically relates to the posts of Secretary, Clerk-cum-computer operator and Peon-cum-driver, which were sanctioned to the DTPCs and it was only with regard to appointment against such sanctioned posts that the procedure was prescribed in Ext.R1(c). It is further contended that the appointments of the petitioners were in respect of posts which were required to be filled up in the exigencies of service and that the appointments had been approved after due deliberations by the executive committee as is evident from Ext.P3 minutes. It is submitted that Ext.P7 would show that the appointments of the petitioners were on the basis of the need felt by the executive committee and were made by the DTPC after considering all relevant aspects and had been ratified by the executive committee of the DTPC. It is submitted by the learned counsel for the petitioner in W.P.(C) No.18063/2020 that most of the appointments made by the DTPC were following the very same procedure as has been adopted in the petitioner's case as is evident from Exts.P13 and P14 documents and that the singling out of the petitioners alone for termination of their services is clearly illegal and is vitiated by extraneous considerations.
Having considered the contentions advanced on either side, I am of the opinion that in view of the fact that the petitioners are employees of the DTPC, even on daily wages, it is for the DTPC itself to consider the necessity of their continuance in service and the irregularity, if any, in the matter of their appointment. The direction issued by the Government as per Ext.P11 for termination of services of two of the employees, who had apparently been appointed in the DTPC and whose appointments had been approved by the executive committee, is completely unwarranted in view of the fact that there is no statutory provision providing for such administrative control by the Government over the appointments made by the DTPC.
Ext.R1(d), which is produced along with the counter affidavit filed in these cases, is a complaint preferred against the appointment of the petitioners in these writ petitions alone. The said complaint is preferred before the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Kannur. However, it appears that the complaint was enquired into by the Vigilance Cell of the Tourism Department of the Government and Ext.R1(e) report was submitted on 29.7.2019. It is contended by the learned counsel appearing for the petitioners that the allegation in Ext.R1(d) and the finding in Ext.R1(e) are that the provisions of Ext.R1(c) circular are violated in the appointment of the petitioners. It is the specific contention of the petitioners that the provisions of Ext.R1(c) are totally inapplicable to the petitioners since Ext.R1(c) specifically refers to only the contract appointments to be made against the post of clerk-cum-computer operator and peon-cum-driver, which are the only sanctioned posts. It is contended that Ext.P2 specifically confers power on the Chairman to make appointments in other posts in consultation with the executive committee. Though the learned Government Pleader submits that the appointments of the petitioners were made by the Secretary and not by the Chairman, the petitioners' counsel would submit that all other appointments on daily wages, which are continuing in the DTPC, Kannur were made by identical means and that the fact that the executive committee had considered the necessity for the appointments and had approved the appointments cannot be wished away.
In any view of the matter, I am of the opinion that the Government could not have acted on its own and issued a direction in the nature of Ext.P11. In case a complaint was received and an enquiry was conducted and a report generated, it was imperative on the part of the Government to put such report to the DTPC. The DTPC, being the appointing authority, should have considered the issue and taken an appropriate decision in the matter. The direction contained in Ext.P11 to terminate the petitioners' services without as much as a show cause notice being issued to them is completely untenable.
In the above view of the matter, Ext.P11 communication is set aside. There will be a direction to the respondents to put the petitioners on notice of the allegations against them and to consider the issue on merits and pass appropriate orders in accordance with law. Since the complaint relied on as well as the enquiry report are produced in these writ petitions as Exts.R1(d) and R1(e) respectively, the petitioners need not be served with additional copies of those documents. However, a notice shall be issued to the petitioners showing the allegations against them and they shall be permitted to submit their written objections thereto. Thereupon, the matter shall be placed before the executive committee of the DTPC, who shall consider the matter on merits. In case any other material is being relied on against the petitioners, I make it clear that the petitioners will be entitled to a copy of those documents as well. The executive committee shall consider the contentions of the petitioners and shall pass a speaking order, taking note of all such contentions including the specific contention that Ext.R1(c) circular is not applicable to the petitioners, who have not been appointed against sanctioned posts. The entire procedure shall be completed within a period of six weeks from the date of receipt of a copy of this judgment. The petitioners shall be permitted to continue in service till then.
These writ petitions are ordered accordingly.