IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WA.No. 261 of 2008 AGAINST THE JUDGEMENT IN OP.16017/2000 Dated 17/10/2007 .................... APPELLANT(S) : RESPONDENTS 4 & 5 1. T.V.SUBRAMANIYAN, U.D.CLERK, T.C.MEDICAL COUNCILS, RED CROSS ROAD, THIRUVANANTHAPURAM - 37. 2. R.PUSHPAVATHY, U.D.CLERK, T.C.MEDICAL COUNCILS, RED CROSS ROAD, THIRUVANANTHAPURAM - 37. BY ADV. SRI.P.K.SURESH KUMAR & ADV. SMT.PRIYA VIJAYAN RESPONDENT(S): PETITIONER & RESPONDENTS 1 TO 3 1. S.PRABHAKUMARI, JUNIOR SUPERINTENDENT, T.C.MEDICAL COUNCILS AND KERALA NURSES & MIDWIVES' COUNCIL, RED CROSS ROAD, THIRUVANANTHAPURAM - 37. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE TRAVANCORE COCHIN MEDICAL COUNCILS, REPRESENTED BY THE REGISTRAR, RED CROSS ROAD, THIRUVANANTHAPURAM - 37. 4. THE KERALA NURSES' & MIDWIVES' COUNCIL, REPRESENTED BY THE REGISTRAR, RED CROSS ROAD, THIRUVANANTHAPURAM - 37. ADDL. RESPONDENT NO.5: (Impleaded as per order dt.17.12.2008 in I.A.1004/08) NABEEZATHU BEEVI, U.D. CLERK, T.C. MEDICAL COUNCILS AND KERALA NURSES & MIDWIVES COUNCIL, RED CROSS ROAD, THIRUVANANTHAPURAM - 37. R1 BY ADVS. SRI.N.SUGATHAN, SMT.VARSHA BHASKAR & SRI.S.PRASANTH (AYYAPPANKAVU) R3 AND R44 BY STANDING COUNSEL SRI.N.RAGHURAJ ADDL. R5 BY ADV. SRI.ELVIN PETER P.J. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2009 ALONGWITH W.A.NO.262/08, THE COURT ON 29/07/2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------------- W.A.Nos.261 and 262 of 2008 ------------------------------------- Dated this, the 29th day of July, 2009 J U D G M E N T Balakrishnan Nair, J. W.A.No.261 of 2008: The appellants were respondents 4 and 5 in the Original Petition. The 1st respondent herein was the petitioner. 2. The brief facts of the case are the following: The appellants and respondents 2 and 3 were employees of Travancore Cochin Medical Councils and Kerala Nurses' and Midwives' Council. Under the Travancore Cochin Medical Practitioners Act, three Councils are formed, namely, (i) Council of Modern Medicine, (ii) Council of Homoeopathic Medicine, (iii) Council of Indigenous Medicine. The above three Councils are called Travancore Cochin Medical Councils. All the above Councils including the Kerala Nurses and Midwives' Council are having only one Office and one Registrar. The Registrar and staff under them have functioned as the Registrar and Staff of each of the aforementioned Councils. We are told, recently, the office of the Kerala Nurses' and Midwives' Council has been bifurcated and there is a W.A.Nos.261 & 262/2008 - 2 - separate Registrar and Office Staff for the said Council. The dispute that is to be resolved in this appeal is the seniority dispute between appellants on the one hand and the first respondent on the other. 3. The first appellant was appointed on daily wage basis as L.D.Clerk under the respondents 3 and 4 on 5.5.1986. The second appellant was appointed on daily wage basis on 1.8.1987. The first respondent was appointed through Employment Exchange as L.D.C. on 3.7.1995. According to the first respondent, in view of Ext.P1 communication issued by the Health and Labour Department on 27.7.1965, all appointments to the posts under respondents 3 and 4, have to be made from Employment Exchange. The initial order of appointment of the first respondent was Ext.P2 dated 3.7.1995 for a period of six months, issued on the basis of the advice of the Divisional Employment Exchange, Trivandrum. Later, the Registrar extended her appointment until further orders by Ext.P3 dated 1.1.1996. In the meantime, the Travancore Cochin Medical Councils by Ext.R4 (b) resolution on 19.4.1990 resolved to regularise the appointments of the appellants. It was followed by R4(c) resolution of the Nurses' and Midwives' Council to the very same effect. Pursuant to those resolutions, by Ext.P7 proceedings dated 26.11.1990, [Ext.R4(d)], the Registrar appointed the W.A.Nos.261 & 262/2008 - 3 - appellants as L.D.Clerks temporarily with effect from 1.12.1990. Later, by Ext.P8 resolution of the Travancore Cochin Medical Councils [Ext.R4(e)], it was resolved to move the Government for regularisation of the appellants. Later, the Travancore Cochin Medical Councils by Ext.R4(f) resolution dated 7.2.1997 resolved to regularise the appellants' services subject to the approval of Staff Selection Board of the Councils. Similar resolution was passed by the Kerala Nurses' and Midwives Council as per Ext.R4(g) on 1.3.1997. By R4(h) the Staff Selection Board approved the regularisation of the appellants with effect from 1.12.1995. Subsequently, the Registrar passed Ext.P10 proceedings dated 1.3.1997 [Ext.R4(i)] regularising the appellants in service with effect from 1.12.1995. Later, based on the resolutions of the aforementioned Council, the first respondent was regularised by the Registrar by Ext.P4 order dated 10.3.1998 with effect from 7.7.1995, the date on which she joined duty. Based on Ext.P5 order dated 16.3.1998, the first respondent was promoted as U.D.Clerk with effect from 22.7.1997. Soon thereafter, by Ext.R4(n) order dated 18.3.1998, the appellants were promoted as U.D.C on 18.3.1998. Soon thereafter, in August 1998, the appellants filed O.P.No.16725/1998 before this Court, challenging the date of effect of their regularisation as from 1.12.1995. While this Original Petition was pending, the Councils themselves came forward and W.A.Nos.261 & 262/2008 - 4 - passed Ext.P12 resolution, as per which, the appellants were regularised as L.D.Clerks with effect from the date they joined service. If that resolution is implemented, the grievances of the appellants would have been redressed. But, the first respondent herein filed the present O.P.No.16017/2000, challenging Ext.P12 and seeking consequential reliefs. 4. The appellants filed a detailed counter affidavit resisting the prayers in the Original Petition. The State filed a counter affidavit supporting the first respondent. According to the State, all appointments under the respondents 3 and 4 could have been made only with its approval. If at all, any relaxation has to be granted, it can be granted only by the Government. The learned Single Judge, after hearing both sides, quashed Ext.P12 and held that the appellants are entitled to get regularisation only from 1.12.1995 and the regularisation of the first respondent from 7.7.1995 was held to be valid. Feeling aggrieved by the said judgment, this Writ Appeal is filed. Since O.P.No.16725/1998 filed by them was also disposed of by the common judgment, they have also preferred W.A.No.262/2008 against the judgment in that Original Petition. 5. We heard Sri.P.K.Suresh Kumar, learned counsel for the appellants, Sri.N.Sugathan, learned counsel for the first respondent. W.A.Nos.261 & 262/2008 - 5 - We also had the benefit of hearing Sri.Reghuraj, learned counsel for the Travancore Cochin Medical Councils and Sri.Benny Gervasis, learned Senior Government Pleader. We considered the rival submissions made at the Bar and also perused the documents and relevant statutory provisions. The Travancore-Cochin Medical Councils Act governs the constitution of the Council of Modern Medicines, Council of Homoeopathic Medicine and Council of Indigenous Medicine. They are commonly called as Travancore-Cochin Medical Councils. Section 19 of the Travancore-Cochin Medical Practitioners Act, 1953, mentions about the post of Registrar. The Government is empowered to appoint the Registrar in consultation with each Council and he shall be the Secretary of such Council. The Nurses and Midwives Act, 1953, provides for the establishment of Kerala Nurses' and Midwives' Council. Section 17 thereof enables the Government to appoint a Registrar, who shall be the Secretary of the Council. The Government in consultation with all the four Councils appointed one Registrar and there is only one set of staff for all the Councils at the relevant time, when the dispute in this cases arose. Sub-section (4) of Section 19 of the Travancore-Cochin Medical Practitioners Act provides that, the method of recruitment and conditions of service of the officers and servants of the Councils shall be governed by the rules applicable to officers and servants of similar class under the W.A.Nos.261 & 262/2008 - 6 - Government. Identical provision is contained in Section 17(4) of the Nurses and Midwives Act. Those provisions are quoted for convenient reference. Section 19 (4) of the Travancore-Cochin Medical Practitioners Act reads as follows: “The method of recruitment and the conditions of service such as pay, allowances, promotions, leave, pension, gratuity and provident fund relating to the officers and servants appointed or employed under sub-section(3) shall be governed by the rules applicable to officers and servants of the Government of similar class.” Section 17(4) of the Nurses and Midwifes Act reads as follows: “The method of recruitment and conditions of service such as pay, allowances, promotions, leave, pension, gratuity and provident fund relating to the officers and servants appointed or employed under sub-section(3) shall be governed by the rules applicable to officers and servants of the Government of similar class.” 6. Going by the above provisions, the provisions of Kerala State and Subordinate Services Rules are applicable to the employees of the Councils, by virtue of the operation of the above quoted statutory provisions. The same is the stand taken by the Government, in its counter affidavit. If that be so, going by Rule 3 of the K.S. & S.S.R., all appointments to the Councils can be made only on the advice of the P.S.C. or on the basis of the select list prepared in accordance with law. W.A.Nos.261 & 262/2008 - 7 - In view of Rule 3 of K.S. & S.S.R., if the posts under the Travancore-Cochin Medical Councils come under the purview of the Kerala Public Service Commission, the appointments can be made only on the advice made by the P.S.C.. If they do not fall under the purview of the P.S.C., then appointments can be made only from a list of approved candidates prepared by the appointing authority. In the latter case, there should be invitation of applications and after completion of the selection process, a rank list of selected candidates has to be published. In this case, we notice that the appellants were appointed from the open market without any reference to the Employment Exchange or by invitation of applications. So, their initial induction in the service was made contrary to law. The same is the case of the appointment of the first respondent. The Registrar moved the Employment Exchange for provisional appointment in the post of L.D.Clerk and therefore, the name was sponsored from the local Employment Exchange. She was appointed for a period of six months. Her retention in service beyond that was contrary to the Rules. As noticed earlier, even according to the Government, the provisions of K.S. & S.S.R. will apply to the employees under the Councils. The said Rules provide for appointment through Employment Exchange only under Rule 9(a)(i) for a period of 180 days. The Rule specifically says that such appointees do not have any right for W.A.Nos.261 & 262/2008 - 8 - regularisation. Further, appointment to Public Services without public notification and only by reference to the Employment Exchange is frowned upon by the Apex Court, as the same will infringe the fundamental rights of many candidates, who are eligible to apply for appointment, but, who have not registered with the Employment Exchange or whose turn has not arisen for sponsoring by the Employment Exchange. The contention of the first respondent that, in view of Ext.P1, regular appointments can be made only through Employment Exchange is not correct. Of course, it will be competent for the Councils to frame the Rules for recruitment of candidates through the Employment Exchange. If such Special Rules are framed by the Councils, then the same may override the general provisions in Rule 3 of K.S. & S.S.R.. But, as mentioned earlier, such a provision for recruitment through Employment Exchange can be attacked as violative of the rights of eligible persons under Article 16 of the Constitution. It is true, in lower grade posts, where the qualification is literacy or other similar qualifications, there will be tens of thousands of applicants and in such cases, regular recruitment through Employment Exchanges is tolerated. 7. In view of Rule 39 of K.S. & S.S.R., the Councils could have decided to relax the Rules and resolved to absorb the appellants and the first respondent. Initially, the power was exercised in favour of W.A.Nos.261 & 262/2008 - 9 - the appellants. Later, it was exercised in favour of the first respondent. Still later, invoking the said power, the date of regularisation of the appellants was modified finally as per Ext.P12 impugned order. The dates of regularisation of the appellants were modified so as to take effect from the dates of their joining of duty Initially. If the Councils have the power to order regularisation with effect from a particular date, it should be conceded that, they have the power to modify it also. But, the same can be done only following the principles of natural justice, if such a decision affects the rights of anyone. In this case, we notice that Ext.P12 decision has the effect of affecting the seniority of the first respondent. If Ext.P12 stands, the first respondent will have to face reversion and the senior among the appellants will be accommodated in the post of Junior Superintendent and the junior among the appellants will be accommodated in the post of U.D.C. and thereby, the seniority of the first respondent in the cadre of U.D.C. will be affected and consequently it will affect her promotion prospects also. Therefore, we feel that Ext.P12 order should have been passed only after hearing the first respondent. Therefore, we uphold the quashing of Ext.P12, though on a different ground. Ext.P12 is liable to be quashed for violation of principles of natural justice. With effect from which date, the appellants should be granted regularisation, is essentially a matter which the Councils should W.A.Nos.261 & 262/2008 - 10 - decide, at the first first instance. Now, we are told that the Kerala Nurses and Midwives Council is having a separate office and separate staff. The appellants and the first respondent are working under the Travancore-Cochin Medical Councils. Accordingly, the matter is remitted to the said Councils. They shall hear the appellants and the first respondent and take a decision as to the date from which the regularisation should be granted to the appellants. This, they shall do, within three months from the date of production of a copy of this judgment. The judgment under appeal is accordingly modified and the Writ Appeal is disposed of as above. W.A. No.262 of 2009; It is ordered that the judgment in W.A.No.261 of 2008 will govern this case also. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)