IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 WA.No. 1144 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.18457/2005 Dated 13/02/2009 .................... APPELLANTS/NOT PARTIES TO THE WRIT PETITION: APPEAL FILED WITH APPLICATION FOR LEAVE ------------------------ 1. A.SISUPALAN, HEALTH INSPECGTOR GRADE-II PRIMARY HEALTHCENTRE, MADATHARA.P.O, KOLLAM DIST. 2. B.SANTHOSHKUMAR, HEALTH INSPECTOR GRADE II, PRIMARY HEALTH CENTRE, ADAYAMON, KILIMANOOR, TRIVANDRUM DIST. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL RESPONDENTS/ PETITIONERS 1 TO 8 AND RESPONDENTS 1 TO 4 IN W.P.(C) -------------------------------------------------------- 1. SIVADASAN.T. J.H.I GRADE I, PRIMARY HEALTH CENTRE, KOZHIKODE , KANNUR DIST. 2. DINESHKUMAR, J.H.I GRADE I, PRIMARY HEALTH CENTRE, PUTHUPPADI, KOZHIKODE DIST. 3. B.KUNJAN, J.H.I GRADE I, PRIMARY HEALTH CENTRE ,POOKKOTTUR, MALAPPURAM DIST. 4. V.V.SUKUMARAN, J.H.I.GRADE I, PRIMARY HEALTH CENTRE, KODIYERI, CALICUT DIST. 5. S.HARIKUTTAN, J.H.I GRADE I, PRIMARY HEALTH CENTRE, THRIKODITHANAM, KOTTAYAM DIST. W.A.NO.1144/2009 6. R.MOHANN, J.H.I GRADE I, PRIMARY HEALTH CENTRE, PAVITHRESWARAM, KOLLAM DIST. 7. M.B.MURALI,J.H.I GRADE I, PRIMARY HEALTH CENTRE, NADUVIL, KANNUR. 8. RADHAKRISHAN, J.H.I GRADE I, PRIMARY HEALTH CENTRE, DEVIKULANGARA, ALAPPUZHA DIST. 9. STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 10. THE DIRECTOR OF HEALTH SERVICES TRIVANDRUM. 11. V.M.BINCY, HEALTH INSPECTOR, PRIMARY HEALTH CENTRE, MADAMPPALLY.P.O., KOTTAYAM, PIN-686546. 12. V.K.PREMAN, JUNIOR HEALTH INSPECTOR GRADE-I, PRIMARY HEALTH CENTRE, KANNAPURAM, KANNUR. 13. N.K.SAJITH, JUNIOR HEALTH INSPECTOR GRADE-I, PRIMARY HEALTH CENTRE, THIRUVANGUR, KOZHIKODE. ADV. SMT.V.P.SEEMANDINI, SENIOR ADVOCATE FOR R1-8 SMT.S.KARTHIKA FOR R1-8 SR.GOVT.PLEADER, SRI.BENNY GERVASIS FOR R9 & R10 SRI.MURALI PURUSHOTHAMAN FOR R11 TO R13. SRI.DEEPU LAL MOHAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2009, ALONG WITH WA NO. 1461 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------------------- W.A.Nos.1144 & 1461 OF 2009 -------------------------------------------- Dated this the 4th day of August, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. W.A.No.1144 OF 2009: The appellants were not parties to the Writ Petition. They are presently working in the post of Health Inspector Grade-II. Feeling aggrieved by the directions issued by the learned Single Judge in the judgment under appeal, they obtained leave of this Court and filed this appeal. 2. The brief facts necessary for the disposal of the case are the following: The PSC invited applications for appointment to the post of Junior Health Inspector Grade-II in Trivandrum District on 5.6.1990. The rank list was published in 1995 and the appellants were advised to the post of Junior Health Inspector Grade-II on 7.6.1995. Later, they were promoted as Junior Health Inspector Grade-I and still later as Health Inspector Grade-II. W.A Nos.1144 & 1461/2009 2 3. The contesting respondents were special recruits under Rule 17A of the Kerala State and Subordinate Services Rules. The notification for the said selection was issued in 1994 and the rank list was published in 1995. All the contesting respondents, who were petitioners in the Writ Petition, were advised for appointment from July to December 1995. The Director of Health Services published the seniority list of Junior Health Inspector Grade-II as on 31.12.1996 for the purpose of promotion to the post of Junior Health Inspector Grade-I. The said rank list was challenged before this Court. The learned Single Judge dismissed the Writ Petition. But, on appeal, a Division Bench of this Court, by Ext.P1 judgment, issued certain directions regarding the preparation of seniority list. The Division Bench took the view that, as per the qualifications prescribed for appointment to the post of Junior Health Inspector Grade-II, persons with Health Inspectors Certificate should be preferred. In their absence only, the persons with Sanitary Inspectors Certificate can be considered for appointment. So, whenever PSC published a rank list, it contained two lists. The first list consisting of persons with Health Inspectors Certificate W.A Nos.1144 & 1461/2009 3 qualification and the second list of persons with Sanitary Inspectors Certificate qualification. Only after exhausting the first list, the persons from the second list could be advised. It appears in 1995, simultaneously, notifications were issued in all districts and rank lists were published also. But, there was some delay in advising candidates in certain districts. As a result, in certain districts, exhausting the first list, persons from the second list were advised, while persons in the first list in other districts were yet to be advised. So, when a combined State level seniority list of Junior Health Inspector Grade-II was published as on 31.12.1996, it was found that persons with Health Inspectors Certificate qualification were arrayed below those with Sanitary Inspectors Certificate qualification. The same led to a challenge before this Court, which ultimately was disposed of by Ext.P1. The operative portion of Ext.P1 judgment reads as follows: “It is true that under Rule 27(c) the seniority will depend upon the date of advice unless special rules shows otherwise and it is subject to special rules in view of Rule (2) and rule (2) provides that persons in List I will become senior. Therefore, seniority will have to be W.A Nos.1144 & 1461/2009 4 refixed putting candidates in List I as seniors to candidates in List II and as held by the learned Single Judge those who were not selected by the PSC but regularised subsequently will be placed thereafter and consequently promotions to Grade I post also will have to be reconsidered by the Government according to law within three months from the date of receipt of a copy of the judgment.” 4. In obedience to the said judgment, Ext.P4 seniority list was published. It contained two parts. the 1st part of persons having the qualification of Health Inspectors Certificate and the 2nd part of persons with Sanitary Inspectors Certificate. But, the contesting respondents herein, who were the writ petitioners, before the learned Single Judge found that all of them were included in the second list and arrayed according to their date of advice. They felt that, as persons with Health Inspectors Certificate, they should be placed in the first list. Therefore, the present Writ Petition was filed. Following the judgment of the Division Bench in Ext.P1, the learned Single Judge allowed the Writ Petition and directed to transpose all the persons with Health Inspectors Certificate, included in the second list of W.A Nos.1144 & 1461/2009 5 Ext.P4, to the first list. Feeling aggrieved by the said direction, the present Writ Appeal is filed. 5. The learned senior counsel, Mr.K.R.B.Kaimal, for the appellant pointed out that Ext.P1 decision does not lay down the correct legal position. The Division Bench proceeded on the footing that the qualifications and method of appointment for the post of Junior Health Inspector Grade-II was prescribed by the Special Rules and therefore, the provisions therein will over ride Rule 27(c) in the General Rules. The learned counsel pointed out that, in fact, the qualifications and method of appointment were prescribed only by the executive orders and therefore, the provisions therein cannot have the efficacy to over ride Rule 27 (c). Therefore, the directions issued in Ext.P1 cannot be said to be correct in the light of the relevant rules. Therefore, the said judgment can be made applicable only in relation to the beneficiaries thereof and not to others. As a precedent, the said decision cannot be followed, it is submitted. Regarding the facts of the present case, it is submitted that, the select list for the special recruitment was published as a common list without W.A Nos.1144 & 1461/2009 6 segregating persons with Health Inspectors Certificate qualification and those with Sanitary Inspectors Certificate qualification. Therefore, some of the persons with Health Inspectors Certificate happened to be advised later, based on their ranking in the advice list. So, such persons may claim seniority over the special recruits with Sanitary Inspectors qualifications. But, persons in that rank list cannot claim placement over persons, who were advised from the general list earlier. The judgment in Ext.P1 does not contain any such direction. Therefore, the learned senior counsel prayed for reversing the judgment. Sri. Kaleeswaram Raj, who appeared in the connected Writ Appeal and Sri.Benny Gervasis, learned Senior Government Pleader, who appeared for the official respondents, supported the above submission of the appellants. 6. Smt.V.P.Seemandini, learned senior counsel, who appeared for the contesting respondents, who were the writ petitioners, submitted that the special recruits are also entitled to get the benefit of Ext.P1. All the persons with Health Inspectors Certificate among the special recruits, who were W.A Nos.1144 & 1461/2009 7 more or less recruited contemporaneously, should be included in part-I of Ext.P4 list. It is also pointed out that Ext.P1 has become final as the SLP attempted against it before the Apex Court was dismissed. 7. We went through the materials on record and also the rival submissions made at the Bar. Ext.P1 judgment has become final, therefore, the parties thereto and the official respondents are bound by it. But, of course, those who are not parties may say, the directions in Ext.P1 are not strictly in accordance with the rules. But, we feel that the said point, we cannot and need not consider as the same is not relevant in deciding this case. Going by the operative portion of the judgment, which we have quoted above, we are of the view that the first and second lists mentioned therein relate to the lists published by the PSC concerning the general selection. The same, obliviously, cannot be referring to the lists in which the special recruits find a place, because, in their case there is only one list, which is a combined list prepared according to the merit ignoring the prescription in the executive order that only after considering persons with W.A Nos.1144 & 1461/2009 8 Health Inspectors Certificate, persons with the alternative qualification can be considered. So, we are of the view that the persons advised from the list prepared by the PSC for special recruitment can get seniority only from the date of their advice as per Rule 27(c). If that be so, their placement in Part II of Ext.P4 cannot be faulted. But, we are of the view that the interse seniority between the special recruits has to be rearranged. The seniority of a person recruited from a particular district under special recruitment should be rearranged and the persons with Health Inspectors Certificate should be placed above the persons with Sanitary Inspectors Certificate, advised from the particular district, even if, they were advised later. The Director of Health Services shall implement the above direction concerning the seniority of the special recruits as directed above, within three months from the date of receipt of a copy of this judgment. 8. In the result, the judgment under appeal is reversed and the Writ Appeal is disposed of as above. In view of the reversal of the judgment under appeal, the seniority lists W.A Nos.1144 & 1461/2009 9 prepared pursuant to the directions therein being dependent proceedings will no longer be enforceable. W.A.No.1461 OF 2009 : It is ordered that the judgment in W.A.No.1144/2009 will govern this Writ Appeal also. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps