IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WA.No. 1090 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.29327/2008 Dated 10/02/2009 .................... APPELLANT(S): APPELLANTS ------------------------ 1. PRADEEP.N. MEENATHUPUTHENPURAYIL, NADUVILAKARA, WEST KALLADA, KOLLAM. 2. ANILKUMAR.N, THEKKEVILAYIL PADINJATTATHIL, MUTHUPILAKADU.P.O., KOLLAM DIST. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): PETITIONERS AND RESPONDENTS IN THE WP ---------------------------------------------------- 1. ANI.G. MATTATHIL, EDAKKARA, MALAPPURAM-679331, NOW WORKING AS PEON, C.H.C., CHUNGATHARA. 2. YAMUNA.P., MARIGEETH, P.O.NADUVATH, VIA, WANDOOR-679328, NOW WORKING AS PEON, P.H.C.PORUR, MALAPPURAM DIST. 3. STATE OF KERALA, REP. BY THE SECRETARY, HEALTH AND FAMILY WELFARE (C) GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. BY ADV.SRI.P.GOPINATHA MENON FOR R1 & R2 BY GOVERNMENT PLEADER SMT.R.BINDU R3 & R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No.1090 of 2009 ---------------------------------------- Dated 23rd March, 2010 JUDGMENT Balakrishnan Nair, J. The appellants were not parties to the judgment. They obtained leave of this Court and filed this appeal feeling aggrieved by the directions issued by the learned Single Judge. The brief facts of the case are the following. The appellants are the persons included in the rank list published by the Kerala Public Service Commission for appointment to the post of Junior Health Inspector Grade II in Idukki and Malappuram Districts respectively. Annexures A1 and A2 are the lists in which they are included. The qualification and method of appointment to the said post were prescribed by the Government as per Ext.P1 order. The relevant portion of Ext.P1 dealing with the qualification and method of appointment reads as follows: “Qualifications: i) General : Pass in SSLC examination or its equivalent. ii) Technical: Multipurpose workers Training Certificate imparted by the Kerala State Health Services Department or its equivalent. In the absence of candidates possessing the above Technical qualification. Iii) Health Inspector's Training Certificate/Sanitary Inspector's Training Certificate (Diploma) of the W.A.No.1090/2009 2 All India Institute of Local Self Government, Bombay or its equivalent. Note: Candidates possessing item (iii) of the qualification should undergo inservice Multipurpose Workers Training after appointment. Method of Appointment : i) By promotion/transfer of technically qualified hands in the Health Services Department. ii) In the absence of technically qualified hands for appointment by promotion/transfer, by direct recruitment.” Later, the Government issued Ext.P2 Government order on 8.7.2008 modifying the qualification and also the method of appointment. The relevant portion of the said Government order reads as follows: “Government have examined the case with reference to the advice of the Kerala Public Service Commission and are pleaded to issue the following as the qualification and method of appointment to the post of Junior Health Inspector Grade-II in modification to the G.Os. read as 1st and 2nd paper. i) The employees working in the post of L.D.Clerk, Pharmacist, Typist, Driver, Dhoby, Barber, Cook and Tailor are excluded from the list of feeder categories for appointment as Junior Health Inspector Grade-II. ii) The ratio between by promotion/transfer and direct recruitment is fixed as 1:3. iii) All vacancies in the cadre of Junior Health Inspector Grade-II arose on or after 01.11.2007 will be filled up in the above ratio of 1:3. W.A.No.1090/2009 3 iv) A ratio of 2:2:1 is fixed for promotion among the Last Grade Employees. Field Workers and categories in the feeder category other than Field Workers and Last Grade Employees respectively. v) The above ratio will also be applicable with effect from 01.11.2007. vi) Diploma in Health Inspector Course (DHIC) will be the qualification for appointment to the post of Junior Health Inspector Grade-II from the date of effect of this order or from the date of expiry of the existing PSC rank list, whichever is later. If rank list is not existing in any district at present, the same will be prepared only with the amended qualification of DHIC. The existing employees, who are qualified as per the prevailing rules will be exempted from acquiring a pass in DHIC.” (emphasis supplied) The Government further issued G.O.(P)No.486/2008/H&FWD. dated 5.9.2008 clarifying the name of the diploma mentioned in Ext.P2. The relevant portion of the said Government order reads as follows: “The term “DHIC (Diploma in Health Inspector Course)” occurred in sub-para No.(vi) of para 2 of the G.O. read as I paper above will be corrected and read as “DHIC (Diploma in Health Inspector Course) conducted by the Director of Health Services.” 2. Respondents 1 and 2 who were the petitioners in the Writ Petition claim that they acquired Diploma in Health and Sanitary Inspector Course from the Vinayaka Mission Deemed University, Tamil Nadu which is a deemed University recognized under the University Grants Commission Act. W.A.No.1090/2009 4 3. The competent authority published Ext.P4 draft list of persons eligible in the department for appointment to the post of Junior Health Inspector Grade II by promotion/transfer. The writ petitioners, considering their representations, were included in it. Later, when the final list was published as per Ext.P5 dated 22.7.2008, their names were deleted apparently for the reason that they did not possess the prescribed qualification. In the above background, the Writ Petition was filed by them, challenging Ext.P5 to the extent they are not included in it and also seeking a declaration that they are qualified for promotion/transfer to the post of Junior Health Inspector Grade II. The Government took up the contention that since the writ petitioners obtained qualification by distant education, the same cannot be recognized. They obtained the diploma without taking leave from service. The contention whether that diploma could be treated as the diploma prescribed as per Ext.P2 or equivalent thereto was not raised by the respondents in that Writ petition. The learned Single Judge overruled the contention of the official respondents and allowed the Writ Petition by making the following directions: “In the result, the writ petition is allowed. It is declared that the petitioners are eligible and entitled to be considered for appointment by transfer to the post of Junior Health Inspector Gr.II in terms of Exts.P1 and P2 Government Orders. There will be a direction to include their names in the appropriate W.A.No.1090/2009 5 place in Ext.P5 and they will be entitled for consequential benefits in accordance with their rank.” Feeling aggrieved by the above directions, the Writ Appeal is preferred. The learned counsel for the appellants pointed out that the qualification possessed by the writ petitioners was not the qualification prescribed for the post. There is no declaration by the Government that the qualification possessed by them is equivalent to the prescribed qualification. Therefore, the learned Single Judge could not have issued the directions impugned in this appeal. We heard the learned Government Pleader who appeared for the official respondents. We also heard the learned counsel for respondents 1 and 2/writ petitioners. The learned counsel supported the directions issued by the learned Single Judge. 4. Going by Ext.P2, as modified by G.O.(P) No.486/2008/H&FWD. Dated 5.9.2008, the diploma prescribed as qualification is DHIC (Diploma in Health Inspector Course) conducted by the Director of Health Services. Apparently, the qualification possessed by respondents 1 and 2 is a different qualification. But, it will be sufficient, if it is treated as an equivalent qualification by the Government under rule 13(b)(ii) of the Kerala State & Subordinate Services Rules. In view of the above position, we think, the directions issued by the learned Single Judge should be appropriately modified. W.A.No.1090/2009 6 In modification of them, the following directions are issued: 5. The third respondent shall consider whether the qualification possessed by respondents 1 and 2 is the qualification prescribed for the post of Junior Health Inspector Grade II as per Ext.P2 and modified as per G.O.(P)No.486/2008/H&FWD. dated 5.9.2008. If the diploma possessed by respondents 1 and 2 is different from the one prescribed, the Government shall further consider whether the said diploma can be treated as equivalent to the diploma prescribed by the aforementioned orders. Needless to say, if their qualification is found to be prescribed qualification or equivalent thereto, they shall be included in Ext.P5 without any further delay. The above exercise shall be undertaken and completed by the Government within three months from the date of receipt/production of a copy of this judgment. The Writ Appeal is disposed of as above. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS