IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(C).No. 9333 of 2008(J) ------------------------- PETITIONERS: ------------ 1. SANKAR MONI K,S/O.KRISHNA MONI,AGED 25, T.C 20/2832,KARAMANA P.O,TRIVANDRUM. 2. M.P.REKHA,D/O.A.P.MONI,GOKULAM, NR.EXCISE OFFICE,KATTAKKADA,TRIVANDRUM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: ------------- 1. STATE OF KERALA REP.BY SECRETARY, DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERCIVES, OFFICE OF THE DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM,REPRESENTED BY ITS SECRETARY. BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC GOVERNMENT PLEADER SRI.BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No.9333 of 2008 -------------------------- Dated this the 25th March, 2008 J U D G M E N T Petitioners are included in the rank list published by the Public Service Commission for the post of Junior Health Inspector Gr.II in Trivandrum and Malappuram district respectively. Petitioners submit that when they were awaiting advice for appointment as Junior Health Inspector, a direction was issued by the Director of Health Services to the District Medical Officers of various Districts not to report the vacancies of Junior Health Inspector Gr.II to the Public Service Commission. This is on this basis of Exhibit P4 G.O (Ms) 24/89/H&FWD dated 23.1.1989. The said Government Order provides for method of appointment to the post of Health Inspector Gr.II. It also lays down the qualifications required for the post. The method of appointment laid down in the said order is as follows: “Method of appointment: i. By promotion/transfer of technically qualified hands in the Health Services Department W.P ( C) No.9333 of 2008 2 ii. In the absence of technically qualified hands for appointment by promotion/transfer, by direct recruitment. Note: In the absence of candidates with technical qualification for appointment of by i & ii via. Promotion/transfer and direct recruitment, Department hands with the general educational qualification will be considered subject to the condition that they should undergo Multipurpose Workers Training before appointment” 2. Petitioners contend that no doubt the Government may be entitled to lay down the method of appointment to any post. In the present case, the Government has laid down two separate sources of recruitment . One by promotion/transfer of technically qualified hands in the Health Services Department and second in the absence of such technically qualified hands, by direct recruitment. It is contended that the prescription in para 2 relating to the method of appointment that direct recruitment will be resorted to only in the absence of technically qualified hands, available for appointment by promotion/transfer is invalid and liable to be declared as unconstitutional and therefore the method of appointment as laid down in Exhibit P4 must be enforced deleting the following words from paragraph 2 “in the absence of technically qualified hands for appointment by promotion/transfer”. W.P ( C) No.9333 of 2008 3 3. I heard learned counsel for the petitioner Sri.Bechu Kurian Thomas and learned Government Pleader Sri.Bejoy Chandran. Learned counsel for the petitioner relies heavily on the decision of the Supreme Court in Govind Dattatray Vs. Ch. Controller of Imports and Exports {AIR 1967 SC 839}. He contends that going by Article 16 of the Constitution which provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, it was necessary that the State should provide the reasons why those persons who are otherwise eligible to be considered for the post of Junior Health Inspector by direct recruitment will be considered only in the absence of technically qualified persons in the Department. No doubt that there can be reasonable classification of the employees for the purpose of appointment or promotion. If there is a preferential treatment of one source in relation to another and it is stated to be based on the differences between the said two sources, differences should have a reasonable nexus with the nature of the office or offices to which recruitment is made. Where there is no basis for classification or there is no nexus between the W.P ( C) No.9333 of 2008 4 classification and nature of office to which recruitment is made, the Court would declare the classification as unconstitutional and unreasonable. It is contended that having decided to adopt direct recruitment also as one of the sources of recruitment, it was necessary for the Government to either prescribe a ratio or give an opportunity for the direct recruits to be considered for appointment to the said post on a par with those persons aspiring for promotion/appointment by transfer. Non- prescription of a ratio or the prescription that direct recruitment will be resorted to only in the absence of technically qualified hands in the Department is indulging in a classification that has no nexus with nature of the office. 4. Reference is also made to the observation made by the Supreme Court in paragraph 16 of the aforementioned decision which indicates that if a ratio prescribed by the Government between two or more sources of recruitment is found to be unreasonable it may be perfectly open to the Court to strike it down or suggest a different ratio. 5. I am unable to accept the submission made by the learned counsel for the petitioner W.P ( C) No.9333 of 2008 5 6. The observations made by the Supreme Court in the case of Govind Dattatray Vs. Ch. Controller of Imports and Exports {AIR 1967 SC 839}, wherein the context of prescription of a ratio as regards two different sources of recruitment both from among the employees of the department. Classification was not sought to be justified on the basis of the qualification as such. In fact, ratio was also prescribed as a matter of general principle. The court held that when two different sources of recruitment are provided for in relation to one post then there must be a basis for classification amongst employees who are equally qualified and who even according to the rule making authority are eligible for being promoted to the said post. What takes place in the present case is different. There is no necessity to refer any other factor to classify the existing employees in the Department of Health Services differently from those persons who aspire for appointment to a post in the Health Services Department from outside, like the petitioners, by direct recruitment. Obviously it would not be possible to classify the two as one. The power of the Government to lay down the method of appointment cannot be W.P ( C) No.9333 of 2008 6 gain said. It was always open to the Government to prescribe a method of appointment and in doing so, it is open to the Government to confine the method of appointment to either promotion or appointment by transfer or to direct recruitment. This is well within the power of the rule making authority. Therefore, where it is competent for the Government to lay down the source of recruitment and then confine it to eligible persons in the Health Services Department, then can be it said the Government has acted unreasonably in providing for direct recruitment as an alternate method. In my view, the answer is in the negative. 7. A reading of Exhibit P4 itself will indicate why the Government prescribed direct recruitment also as a method of appointment. The post in question is that of Junior Health Inspector Gr.II. A technical qualification is prescribed for the post. The decision taken by the Government to make available the said post to the existing employees in the Health Services Department possessed with the requisite technical qualification cannot be impugned. It does not generate any un reasonableness. Having therefore decided that the post in the W.P ( C) No.9333 of 2008 7 Health Services Department should primarily be filled up by the existing employees in the Health Services Department, Government thought it necessary that an alternate method of appointment be also provided for in Exhibit P4 order. Prescription that direct recruitment will be resorted to only in the absence of technically qualified hands available for appointment by promotion/transfer is only a facet of the power of the Government. In my view there is no infraction of the principles laid down in Govind Dattatray Vs. Ch. Controller of Imports and Exports {AIR 1967 SC 839} in this regard. I do not find my way to uphold the challenge against Exhibit P4. I do not find any grounds to declare the said order in part as sought for by the petitioner, as unconstitutional or otherwise unreasonable. For all the reasons stated above, the writ petition is dismissed. (V.GIRI, JUDGE) ma W.P ( C) No.9333 of 2008 8 W.P ( C) No.9333 of 2008 9 K.THANKAPPAN,J CRL.A. NO.92 OF 1999 W.P ( C) No.9333 of 2008 10 ORDER 25th May, 2007 W.P ( C) No.9333 of 2008 11 Common issues are raised for consideration in all these writ petitions. Reference is made to the facts in Writ Petition No.4562/2008 for the sake of convenience.