IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 OP.No. 35653 of 2002(T) -------------------------------- PETITIONER(S): ------------------------ 1. T.P. MOIDEEN KOYA, AGED 48 YEARS, S/O. CHEEKKUTTY, THALIYACHAPARAMBIL HOUSE, P.O. NANMUNDA, CALICUT-673 613. 2. N. RAJENDRAN, AGED 50 YEARS, S/O. KUNHIRAMAN, NEDUMPALA HOUSE, P.O. NANMUNDA, CALICUT-673 613. 3. V. ABOOBACKER, AGED 50 YEARS, VADEKARA HOUSE, P.O. VATTOLLY BAZAR, BALUSSERY, CALICUT. BY ADVS. SRI.R.K.MURALEEDHARAN SUDHI VASUDEVAN BINDU K. NAIR RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 2. DISTRICT MEDICAL OFFICER, KOZHIKODE. 3. THE DISTRICT EMPLOYMENT OFFICER, KOZHIKODE. 4. SRI.N.K. VIJAYAN, NARIKKUNNUMMEL HOUSE, P.O. KARUVANNOOR, KOYILANDI, KOZHIKODE - 673 305. BY GOVERNMENT PLEADER SRI. MOHAMMED ANZAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/01/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 35653 of 2002(T) APPENDIX PETITIONERS' EXHIBITS: EXT.P1 - TRUE COPY OF THE INTERVIEW LETTER DATED 30.7.2002 ISSUED TO THE 1ST PETITIONER BY THE 2ND RESPONDENT. EXT.P2 - TRUE COPY OF THE INTERVIEW LETTER DATED 30.7.2002 ISSUEDTO THE 2ND PETITIONER BY THE 2ND RESPONDENT. EXT.P3 - TRUE COPY OF THE INTERVIEW LETTER DATED 30.7.2002 ISSUED TO THE 3RD PETITIONER BY THE 2ND RESPONDENT. EXT.P4 - TRUE COPY OF THE ORDER BEARING NO. A3/2001/01 DATED 30.9.2002 ISSUED BY THE 2ND RESPONDENT. EXT.P5 - TRUE COPY OF THE G.O.MS0295/95 H&FWD DATED 7.6.1995 OF THE HEALTH AND FAMILY WELFARE (M) DEPARTMENT, TRIVANDRUM WITH ANNEXURE - II. EXT.P6 - TRUE COPY OF THE G.O.MS 436/95/H&FWD DATED 24.8.95 OF THE UNDER SECRETARY, HEALTH & FAMILY WELFARE (M) DEPARTMENT. EXT.P7 - TRUE COPY OF THE JUDGMENT DATED 11.7.97 OF THIS HON'BLE COURT IN WRIT APPEAL NO. 120/97. // TRUE COPY // PA TO JUDGE rhs S.SIRI JAGAN, J - - - - - - - - - - - - - - - - - - - - - - - O.P.No.35653 of 2002 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of January, 2009 J U D G M E N T Petitioners are aspirants for appointment to the post of part-time sweepers in the Health Department of the Government of Kerala. Ext.P4 is list of selected candidates prepared in the order of merit pursuant to a selection process, in which the petitioners also participated. But the petitioners did not find a place in Ext.P4 list. The contention of the petitioners is that by virtue of Exts.P5 and P6 when marks are equal, preference shall be given to persons senior in age. According to the petitioners, in Ext.P4 list some persons are included having the same marks as the petitioners but who are junior in age to the petitioners. Petitioners therefore seek the following reliefs: “(i) Call for the records relating to the appointment of part- time sweepers under the 2nd respondent as per Ext.P4 order; (ii) Issue a writ of certiorari or such other writ quashing Ext.P4; (iii) Issue a writ of mandamus to the 2nd respondent to make appointments afresh to the post of part-time sweeper under the Health Department. (iv) Issue a writ of mandamus directing the 2nd respondent to give preference to petitioners while making appointment afresh to the post of part-time sweeper under the Health Department on the basis of seniority in age and seniority as regards the registration with the Employment Exchange;” O.P.No.35653 of 2002 - 2 - 2. A counter affidavit has been filed along with which Ext.R2(a) Government Order dated 13.11.2001 is produced. According to the 2nd respondent who has filed counter affidavit producing Ext.R2(a), Ext.R2 (a) is the selection norms prevailing. In Ext.R2(a) order which does not contain a clause wherein preference on the basis of age when marks are equal. 3. The petitioners would contend that by Ext.R2(a), only Ext.P5 order has been cancelled and Ext.P6 order still stands wherein preference is prescribed for persons senior in age when qualification/marks are equal. According to petitioners, petitioners are entitled to be prefered to persons included in the list having the same marks who are junior in age to the petitioners. 4. I have considered the rival contentions in detail. 5. I am not inclined to accept the contentions of the petitioners. Of course it is true that in Ext.R2(a), only Ext.P5 has been cancelled. But Ext.R2(a) specifically states that the norms for selection of part-time sweepers fixed as per earlier Government Order dated 7.6.1995 and 14.8.1996 are modified and revised norms appended to Ext.R2(a) are issued. Therefore from 13.11.2001, namely date of Ext.R2(a), the norms for selection of part-time sweepers is as per Annexure II of O.P.No.35653 of 2002 - 3 - Ext.R2(a) which does not contain a provision to the effect that when marks are equal the senior in age shall be preferred. Further Ext.P6 has been issued on the basis of Ext.P5. Therefore, once Ext.P5 goes, Ext.P6 relying on Ext.P5 would also go. Apart from that from Ext.R2(a) it is seen that subsequent to Ext.P6 dated 24.8.1995, the Government have issued G.O.(MS) No. 302/1996 dated 14.8.1996 which has also been cancelled by Ext.R2(a). Therefore, I am satisfied that selection norms applicable to the particular selection evidenced by Ext.P4 is only the Annexure II to Ext.R2(a), which does not contain a clause for preference to seniors in age when marks are equal. In that view, I do not find any merit in the original petition and accordingly, the same is dismissed. S.SIRI JAGAN, JUDGE rhs