IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WA.No. 470 of 2009(B) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.17383/2008 Dated 13/06/2008 .................... APPELLANTS/ THIRD PARTIES --------------------------- 1. SYAMKUMAR.P.K, SYAM NIVAS, SIDHA SAMAJAM.P.O, VADAKARA, KOZHIKODE - 673 104. 2. SREEJITH.A, ANAPRACHALIL, NEELESWARAM.P.O, KODUVALLY VIA, KOZHIKODE - 673 572. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.S.SHYAM PRASANTH SRI.A.HAROON RASHEED RESPONDENTS/PETITIONER & RESPONDENTS: --------------- 1. PUSHPADHARAN.V., WORKING AS FIELD WORKER, N.F.C.P.UNIT, KOLLAM, RESIDING AT VATTAVILAPUTHEN VEEDU, KARUVELIL P.O. EZHUKONE, KOLLAM. 2. K.SASINDRAN, WORKING AS FIELD WORKER, N.F.C.P.UNIT, KOLLAM, RESIDING AT LOTUS, NETTAYAM, NEDIYARA P.O., ANCHAL, KOLLAM. 3. JALALUDEENKUNJU.A., WORKING AS FIELD WORKER, N.F.C.P.UNIT, KOLLAM, RESIDING AT DARUSSALAM, VADAKUMTHALA P.O. KARUNAGAPPALLY. 4. M.ALIYARUKUNJU, WORKING AS FIELD WORKER N.F.C.P.UNIT, KOLLAM, RESIDING AT MULLAKKERI KIZHAKKATHIL, MULLAKKERI, PANAMANA P.O., CHAVARA, KOLLAM. 5. ANILKUMAR.K., WORKING AS FIELD WORKER, N.F.C.P. UNIT, KOLLAM, RESIDING AT BLOCK NO.41, MUTTOM P.O., THUMPAMON - 689 502. 6. A.K.JAYACHANDRAN, WORKING AS FIELD WORKER, N.F.C.P. UNIT, KOLLAM, RESIDING AT J.S.BHAVAN, VENNIYOOR, VENGANOOR, NELLIVILA P.O THIRUVANANTHAPURAM. 7. NOBIL LAL.S., WORKING AS FIELD WORKER N.F.C.P.UNIT, KOLLAM, RESIDING AT GEETHANJALI, KOTTIYAM P.O., KOLLAM. 8. RAVEENDRAN PILLAI.T.A., WORKING AS FIELD WORKER, N.F.C.P. UNIT, KOLLAM, RESIDING AT THENNIKUNNIL VEEDU, MYLOM P.O., KOTTARAKKARA, KOLLAM. 9. SREEKUMAR M., WORKING AS FIELD WORKER, N.F.C.P.UNIT, KOLLAM, RESIDING AT SREEVILASAM, NAVAIKULAM P.O., THIRUVANANTHAPURAM. 10. GOPAKUMAR.D., WORKING AS FIELD WORKER, N.F.C.P. UNIT, KOLLAM, RESIDING AT VAZHAVILAKATHU PUTHEN VEEDU, ERICHALLOOR, PLAMOOTTUKADA P.O., THIRUVANANTHAPURAM. 11. RANJIT S.R., WORKING AS FIELD WORKER, N.F.C.P. UNIT, KOLLAM, RESIDING AT INCHIPULLUVILA VEEDU, KIDARAKUZHY, KIDARAKUZHY P.O., THIRUVANANTHAPURAM. 12. SREEKUMAR.S., WORKING AS FIELD WORKER, N.F.C.P.UNIT, ALAPPUZHA, RESIDING AT ITTIYARAVILAKATHU VEEDU, ERICHALLOOR, PLAMOOTTUKADA P.O., THIRUVANANTHAPURAM. 13. B.S.SREEKUMAR, WORKING AS FIELD WORKER, N.F.C.P. UNIT, THIRUVANANTHAPURAM. RESIDING AT ACHUTHA BHAVAN, KAITHAKUZHY, UMMANNOOR P.O. KOLLAM. 14. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 15. THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 16. THE DIRECTOR OF HEALTH SERVICES, OFFICE OF THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 17. DISTRICT MEDICAL OFFICER, THIRUVANANTHAPURAM. 18. DISTRICT MEDICAL OFFICER, KOLLAM. 19. DISTRICT MEDICAL OFFICER, ALAPPUZHA. 20. SAJI.C, JUNIOR HEALTH INSPECTOR GRADE-II, VELLARADA PUBLIC HEALTH CENTRE, THIRUVANANTHAPURAM. ADLL.R21: THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM REPRESENTED BY THE SECRETARY. (ADDL.RESPONDENT IMPLEADED AS PER ORDER DT.2.3.2009 IN I.A.NO.179/2009) ADV. SRI.P.B.SURESH KUMAR FOR R4 SRI.LEO GEORGE FOR R4 GOVERNMENT PLEADER, SRI.RAVI KRISHNAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/06/2009, ALONG WITH WA NO. 471 OF 2009, WA NO. 719 OF 2009 & WA NO. 720 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.Nos. 470, 471, 719 & 720 OF 2009 ------------------------------- Dated this the 5th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. W.A.No. 470 OF 2009:- The appellants were not parties to the writ petition. After obtaining leave from this Court, this appeal was filed. The writ petitioners are respondents 1 to 13 herein. They are persons working under the Department of Health Services, as Field Workers. 2. The brief facts of the case are the following: The writ petitioners were persons claiming promotion to the post of Junior Health Inspector, Grade-II. According to them, they possess the requisite qualifications for promotion, prescribed under the Government Order dated 23.1.1989, a copy of which is produced as Annexure-C in this appeal. As per the method of appointment provided in that Government Order, vacancies arising in the cadre of Junior Health Inspector Grade–II, have to W.A.Nos.470/2009 & connected cases 2 be filled up by promotion/transfer from the qualified hands working in the Department. In the absence of qualified hands, the vacancies are to be filled up by PSC hands. 3. The Public Service Commission invited applications for appointment to the post of Junior Health Inspector Grade-II, in various districts and after completing the selection process, rank lists were also published. The appellants in this appeal are persons included in the rank list published in Kottayam District on 23.10.2007. 4. The writ petitioners felt that even in the face of availability of qualified hands like them, the vacancies were being filled up by PSC hands. The same was contrary to Annexure-C Government Order, prescribing qualifications and method of appointment to the aforementioned post. Therefore, the writ petition was filed seeking appropriate reliefs. In the writ petition, they also raised their grievance against the proposal of the Government to prescribe a ratio between the transfer appointees and direct recruits. The learned Single Judge declined to interfere with the proposal mooted by the W.A.Nos.470/2009 & connected cases 3 Government regarding the change of method of appointment, but, ordered that promotions should be granted to the writ petitioners and qualified eligible hands in accordance with Annexure-C Government Order up to 30.10.2007. The learned Single Judge also noted that if the vacancies, which arose before the amendment was introduced, are filled up, the same should also be done as provided in Annexure-C. Later, the writ petitioners moved the learned Single Judge, by filing a Contempt Application, alleging that promotions/transfer appointments are not being made, as directed by the learned Single Judge. The learned Single Judge issued further directions and pursuant to that, the Government issued Annexure-J order dated 23.1.2009. The appellants noticed that as per Annexure-J order, all the vacancies were being filled up by promotion/transfer. They also found that the learned Single Judge was not appraised of Annexure-D order issued by the Government dated 8.7.2008, modifying the method of appointment, by introducing a ratio of 1:3 between appointment by promotion/transfer and direct recruitment. The appellants felt that the direction of the learned Single Judge in the judgment under appeal was causing serious prejudice to the persons, included in the rank list, including W.A.Nos.470/2009 & connected cases 4 them. Therefore, this appeal was filed, seeking appropriate reliefs. 5. We heard the learned counsel on both sides. It is common ground that all the vacancies which arose up to 31.10.2007 have to be filled up, as per the method provided under Annexure-C dated 23.1.1989 and the vacancies which arose from 1.11.2007 have to be filled up as per the method of appointment prescribed in Annexure-D order dated 8.7.2008. According to the writ petitioners, up to the date of judgment of the learned Single Judge, vacancies which could be filled up by qualified hands by transfer, were also reported to the PSC. According to the appellants, after the judgment of the learned Single Judge, all the vacancies were set apart for being filled up by transfer/promotion. 6. Having regard to the facts of the case and going by the principle that the claim of incumbents for a post has to be determined with reference to the conditions obtained on the date of occurrence of vacancy, we are issuing the following directions: W.A.Nos.470/2009 & connected cases 5 i) The Government shall review all the appointments made by promotion/transfer and by direct recruitment before 1.11.2007, relevant in this case. The Government shall ascertain whether there was a qualified departmental hand available for appointment by transfer/promotion when a vacancy arose. If there is no qualified hand, the same shall be allotted to the PSC hands. This exercise shall be done in relation to all the vacancies which arose before 1.11.2007, but during the period concerned in this case. ii) The vacancies which arose from 1.11.2007 shall be apportioned strictly between the departmental hands and the PSC hands in the ratio of 1:3. The appointing authority concerned shall review the promotions and pass appropriate orders. iii) If any PSC hand is found to have been appointed in excess, such excess appointees shall be treated as supernumerary hands and they shall be adjusted as and when vacancies are available for them under the direct recruitment quota. Likewise, if anybody was promoted in excess and at the time of review if there are not sufficient vacancies to W.A.Nos.470/2009 & connected cases 6 accommodate them in their quota, the excess hands shall be reverted to their parent post. After reviewing the matter and before issuing final orders, the same shall be published, for giving an opportunity to the incumbents from both sides to file their objections, if any. The draft proceedings shall be published by the appointing authority within two months from the date of production of a copy of this judgment. iv) The review, if any, undertaken pursuant to the interim orders passed by this Court, shall be treated as a review done pursuant to this judgment. In such case also, the affected persons shall be given an opportunity to represent and point out whether the appointments were made as per the relevant orders governing the same before 1.11.2007 and from 1.11.2007. After considering the objections, final orders shall be passed within two months after the date of publication of the proposal. The review shall be done untrammelled by the judgment under appeal and the order dated 5.1.2009, passed by the learned Single Judge in the Contempt of Court case No.1381/2008. W.A.Nos.470/2009 & connected cases 7 v) During the pendency of the Writ Appeal, this Court has ordered that the promotion of 52 incumbents made under Annexure-L order dated 28.2.2009 shall be treated as provisional and further promotions shall be made only after completing the review. We feel that the said interim arrangement should continue until the appointing authority passes final orders in the matter. It is ordered accordingly. The Writ Appeal is disposed of as above. W.A.Nos. 471, 719 & 720 OF 2009: The directions issued in W.A.No.470/2009 shall be treated as directions in these cases also. Accordingly these Writ Appeals are also disposed of. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps