IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 WP(C).No. 28901 of 2008(N) --------------------------------------- PETITIONER(S): ---------------------- REJI V. MATHEW, DRIVER, S/O. V. MATHEW, AGED 35 YEARS, GOVERNMENT SCHOOL OF NURSING, THRISSUR. BY ADV. MR.V.A.MUHAMMED MR.M.SAJJAD RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVNDRUM. 2. THE DIRECTOR OF HEALTH SERVICES, TRIVANDRUM. 3. THE DISTRICT MEDICAL OFFICER (HEALTH), THRISSUR DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER MR.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 28901/2008-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.A2-4823/05/DMO (H)/THRISSUR OF THE 3RD RESPONDENT. EXT.P2: COPY OF THE ORDER NO.A2-4823/05/DMOH/TSR OF THE 3RD RESPONDENT. EXT.P3: COPY OF THE G.O.MS.NO.24/89/HSFWD OF THE GOVERNMENT. EXT.P4: COPY OF THE G.O.(RT)NO.2095/2006/H&FWD OF THE GOVERNMENT. EXT.P4(a): COPY OF THE CERTIFICATE OF THE PETITIONER. EXT.P5: COPY OF THE DIMPLOMA CERTIFICATE OF SANITARY INSPECTORS. EXT.P5(a): COPY OF THE MARK LIST OF THE PETITIONER. EXT.P6: COPY OF THE REQUEST OF THE PETITIONER. EXT.P7: COPY OF THE LETTER NO.A4-5/08/DMOH OF THE 3RD RESPONDENT. EXT.P8: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C). NO. 15314/2008-W. EXT.P9: COPY OF THE COVERING LETTER OF THE PETITIONER. EXT.P9(a): COPY OF THE FORWARDING LETTER OF THE 3RD RESPONDENT. EXT.P10: COPY OF THE JUDGMENT OF THIS HONOURBLE COURT IN W.P.(C). NO. 36371/2007-E. EXT.P11: COPY OF THE G.O.(RT)NO.1577/2008/H&FWD OF THE GOVERNMENT. EXT.P12: COPY OF THE G.O.(P)NO.344/2008/H&FWD OF THE GOVERNMENT. EXT.P13: COPY OF THE ORDER NO.EG3-116040/2007/DHS OF THE 2ND RESPONDENT. EXT.P14: COPY OF THE SENIORITY LIST. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ T.R.RAMACHANDRAN NAIR, J -------------------------------------------------- W.P.(C) No. 28901 of 2008 --------------------------------------------------- Dated this the 19th day of March, 2009 JUDGMENT This Writ Petition is filed claiming his appointment as Junior Health Inspector Grade II by transfer. Petitioner is working as Driver in Health Service Department. He was appointed on 29.3.2005 pursuant to the advice of the Public Service Commission. He was regularised in service as per Ext.P2. 2. As per Ext.P3 Government order dated 23.1.1989, persons having S.S.L.C. and Multi-purpose Training Certificate or in the alternate Health Inspector Training Certificate/Sanitary Inspectors Training Certificate (Diploma) are eligible for by transfer appointment as Health Inspector. Only in the absence of in-service candidates direct recruitment can be resorted to. The petitioner after getting sanction from the department joined the Sanitary Inspectors Training Certificate (Diploma) Course. Exts.P4, P4(a), P5, P5(a) are produced in support of the above plea. After completing the course, he submitted Ext.P6 application before the third respondent for such appointment which was forwarded by the wpc:28901 of 2008 2 third respondent to the second respondent for further action (Ext.P7). 3. The 2nd respondent prepared a preliminary list of qualified candidates for promotion to the post of Health Inspector. But the petitioner's name was excluded. This was challenged in WPC No.15314 of 2008. This Court by Ext.P8 judgment directed the respondents to consider the same. Persons opposing the promotion approached this Court by filing WPC No.36371 of 2007 alleging that qualification acquired by some candidates was without getting leave and permission from the department. The Government was directed to consider it by Ext.P10 judgment. By Ext.P12 method of appointment to the post of Junior Health Inspector Grade II was modified by the Government. In it is stated that the employees working in the post of L.D.Clerk, Pharmacists, Typists, Driver, Dhoby, Barber, Cook and Tailor are excluded from the list of feeder categories for appointment as Junior Health Inspector Grade II. It is pointed out that based on the above amendment petitioners are not included in the seniority list of candidates for promotion to the cadre of Junior Health Inspector Grade II (Ext.P14). 4. The learned counsel appearing for the petitioner submits wpc:28901 of 2008 3 that petitioner has got a right to get such appointment under the then existing systems prior to the amendment, as Ext.P12 is not retrospective. He is relying upon the dictum laid down in Mohanan v. Director of Homeopathy [2006 (3) KLT 641 (F.B)]. It was held therein that vacancies which arose prior to the amendment should be filled up by persons who are entitled as per the special rules which was existing as on a date, prior to the coming into force of the amendment. 5. In this case Ext.P12 does not show that amendment is retrospective. In that view of the matter, the competent authority will have to assess the number of vacancies which existed prior to the same and consider his claim in accordance with seniority and eligibility and other conditions. Therefore, there will be a direction to the second respondent to consider Ext.P6 in accordance with the relevant unamended orders and rules in the matter and see whether the petitioner was eligible in accordance with the seniority position as on the date prior to Ext.P12 amendment and appropriate orders will be passed within a period of three months from the wpc:28901 of 2008 4 date of receipt of a copy of this judgment. The claim will be considered in respect of vacancies which were existing before the date of coming into force of Ext.P12. T.R.RAMACHANDRAN NAIR, JUDGE bps