IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 WP(C).No. 5976 of 2006(J) ------------------------- PETITIONER(S): ---------------------- 1. R. BIJOY, S/O. SRI. P. P. RAJAPPAN, AGED 36 YEARS, JUNIOR HEALTH INSPECTOR GRADE- I, P. H. CENTRE, EZHUPUNNA, RESIDING AT ASWATHY NILAYAM KUTHIYATHODU P. O., CHERTHALA, ALAPPUZHA. 2. SHIJI MON. J., S/O. THE LATE T. K. JANARDHANAN, AGED 35 YEARS, JUNIOR HEALTH INSPECTOR GRADE-I, MEDICAL COLLEGE HEALTH UNIT, AMBALAPUZHA, RESIDING AT SHAJI BHAVAN, NEERKUNNAM, VANDANAM P.O., ALAPPUZHA. 3. RAJEEV THOMAS, S/O. THE LATE V. C. THOMAS, AGED 34 YEARS, JUNIOR HEALTH INSPECTOR GRADE - I, P. H. CENTRE, THAMARAKULAM, RESIDING AT VENATU HOUSE, KUDASSANAD P.O., ALAPPUZHA DISTRICT. 4. ANTONY JOSE P. J., S/O. SRI. P. A. JOSEPH, AGED 35 YEARS, JUNIOR HEALTH INSPECTOR GRADE - I, PRIMARY HEALTH CENTRE, ARYAD, RESIDING AT POONTHRASSERIL HOUSE, VADAKKAL, ALAPPUZHA DISTRICT BY ADVS. SRI. O .V. RADHAKRISHNAN, SENIOR ADVOCATE SMT. K. RADHAMANI AMMA SRI. ANTONY MUKKATH RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH SERVICES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM. WP(C).No. 5976 of 2006(J) 3. K.RAJAN, JUNIOR HEALTH INSPECTOR GRADE I, PRIMARY HEALTH CENTRE, CHAPPARAPPADAVU, KANNUR DISTRICT. R1 & R2 BY GOVT. PLEADER SRI. NOBLE MATHEW R3 BY ADVS. SRI. MURALI PURUSHOTHAMAN SRI. P. M. BENZIR SRI. DEEPU LAL MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON 07/12/2011 DELIVERED THE FOLLOWING: PN WP(C).No. 5976 of 2006(J) APPENDIX PETITIONER'S EXHIBITS EXT. P1 PHOTOCOPY OF THE ORDER NO. A3-7028/92/DMOH.1 DATED 30.06.1992 OF THE DISTRICT MEDICAL OFFICER (H), IDUKKI EXT. P2 PHOTOCOPY OF THE ORDER NO. A4/11004/92 DATED 26.06.1992 OF THE DISTRICT MEDICAL OFFICER (HEALTH), PALAKKAD. EXT. P3 PHOTOCOPY OF THE T.P. MESSAGE NO. 123175/91/DHS DATED 12.05.93 FROM THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM – 10. EXT. P4 PHOTOCOPY OF THE G.O.(MS) NO. 78/95/H & FWD DATED 31.03.1995 OF THE 1ST RESPONDENT. EXT. P5 PHOTOCOPY OF THE ORDER NO. A4-8117/95 DATED 29.03.1995 OF THE DISTRICT MEDICAL OFFICER OF HEALTH, ALAPPUZHA. EXT. P6 PHOTOCOPY OF THE NOTIFICATION NO. R&A1(3) 9025/96/GI DATED 11.04.1996 ISSUED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, GAZETTE DATED 02.04.96. EXT. P7 PHOTOCOPY OF the CIRCULAR NO. 9516/ADV C1/92 P&ARD DATED 18.09.1995 OF THE 1ST RESPONDENT. EXT. P8 PHOTOCOPY OF THE ORDER NO. A4.13206/99/DMOHA DATED 04.08.1999 OF THE DMO, ALAPPUZHA. EXT. P9 PHOTOCOPY OF THE JUDGMENT DATED 26.11.2003 IN O.P. NO. 17640 OF 1995 OF THIS HONOURABLE COURT. EXT. P10 PHOTOCOPY OF REPRESENTATION DATED 13.09.2004 OF THE 1ST PETITONER. EXT. P10(a) PHOTOCOPY OF REPRESENTATION DATED 25.08.2004 OF THE 2ND PETITIONER. EXT. P10(b) PHOTOCOPY OF REPRESENTATION DATED 25.08.2004 OF THE 3RD PETITIONER. EXT. P10(c) PHOTOCOPY OF REPRESENTATION DATED 25.08.2004 OF THE 4TH PETITIONER. EXT. P11 PHOTOCOPY OF THE LETTER NO. A4.19785/04/DMOHA DATED 28.10.2004 OF THE DMO, ALAPPUZHA. EXT. P12 PHOTOCOPY OF THE SENIORITY LIST ALONG WITH THE ORDER NO. ES2- 47321/00/DHS DATED 30.11.2004 OF THE 2ND RESPONDENT. EXT. P13 PHOTOCOPY OF THE REVISED SENIORITY LIST OF JUNIOR HEALTH INSPECTORS GRADE II ALONG WITH THE ORDER NO. EG3- 110370/2004/DHS DATED 30.12.2004 OF THE 2ND RESPONDENT. EXT. P14 PHOTOCOPY OF THE REPRESENTATION DATED 07.03.2005 OF THE 1ST PETITIONER. EXT. P14(a) PHOTOCOPY OF THE REPRESENTATION DATED 07.03.2005 OF THE 2ND PETITIONER. EXT. P14(b) PHOTOCOPY OF THE REPRESENTATION DATED 07.03.2005 OF THE 3RD PETITIONER. EXT. P14(c) PHOTOCOPY OF THE REPRESENTATION DATED 07.03.2005 OF THE 4TH PETITIONER. EXT. P15 PHOTOCOPY OF THE LETTER NO. A4/7003/05/DMO(H)A DATED 16.05.2005 OF THE DMO, ALAPPUZHA. EXT. P16 PHOTOCOPY OF THE JUDGMENT DATED 24.11.2003 IN W.A. NO. 2284 OF 2000 OF THIS HONOURABLE COURT. RESPONDENT'S EXHIBITS : NIL /TRUE COPY/ P. A. TO JUDGE PN S.SIRI JAGAN - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)NO. 5976 and 23536 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of December 2011 --------------------------------------------------- JUDGMENT In both these writ petitions, the issue involved is the same. The petitioners were appointed provisionally as Junior Health Inspectors, Grade II in the Health Services Department of the Government of Kerala in Alappuzha District. While they were so continuing, by Ext.P5, 10 candidates advised by the Public Service Commission to the post of Junior Health Inspector, Grade II, were appointed on regular basis. Even after accommodating the 10 persons advised by the Public Service Commission, there were several vacancies. At that time, 13 provisionally appointed Junior Health Inspectors, Grade II were in service. The Government took a decision to absorb these 13 persons also as Junior Health Inspectors, Grade II in regular service. Although, the Public Service Commission did not give concurrence to the same, overruling the objection of the Public Service Commission, by Ext.P4 order, Government directed regularization of their service. But no formal orders of regularization were issued by the Government. While so, 27 vacancies of Junior Health Inspector, Grade II were reported to the Public Service Commission challenging Ext. P4 Government Order directing regularization of the Junior Health Inspectors, Gr.II continuing provisionally, Public Service Commission recruits filed OP 2 No.20042 of 1998, which was dismissed by this Court by judgment reported in Renjeev v. State of Kerala, 2000(3) KLT 871. In the meanwhile, by way of abundant caution, the petitioners applied for recruitment to the 27 vacancies notified by Public Service Commission by Ext.P6. The petitioners were selected by the Public Service Commission and they were regularly appointed pursuant to such selection. Subsequently, the petitioners filed representations before the Director of Health Services seeking seniority in service taking into account their provisional service also. But this was not granted and a seniority list was published, fixing the petitioners' seniority on the basis of their date of entry in regular service on appointment through Public Service Commission, without counting their prior provisional service. 2. Against the seniority list, the petitioners filed further representations, which have not yet been disposed of. The petitioners would content that by virtue of Ext.P4, the petitioners have acquired a right for regularization in service in accordance with their seniority of entering provisional service. Therefore, they are entitled to count the provisional service also for the purpose of fixation of their seniority is their contention. The petitioners now seek a direction to the Government to consider the issue and pass appropriate orders thereon. 3. The learned Government Pleader would contend that in view of the very same decision relied upon by the petitioners particularly para 13 thereof, the petitioners are not entitled to count seniority taking into account their provisional service as well. 4. I am not inclined to go into the merits of the rival contentions 3 in these writ petitions. Petitioners have filed representations in this matter before the Director of Health Services. It is only appropriate that the Government takes a final decision in the matter, taking into account all the aspects of the matter. But I am of the opinion that the persons who may be affected by the claim of the petitioners should also be heard in the matter. Accordingly, these writ petitions are disposed with the following directions: The Director of Health Services shall forward the representations received from the petitioners to the Government within two weeks from the date of receipt of a copy of the judgment. If those representations are not now traceable, the representations produced as exhibits in these two writ petitions shall be forwarded to the Government. The Government shall consider and pass orders on these representations, after affording an opportunity of being heard to the petitioners as well as the persons in the seniority list who are likely to be affected by the claim of the petitioners, as expeditiously as possible, at any rate, within 3 months from the date of receipt of copy of judgment. It would be open to the petitioners to produce additional pleadings and documents in support of their contentions. S.SIRI JAGAN, JUDGE STU 4 5