IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 WP(C).No. 16607 of 2008(B) -------------------------- PETITIONER: ---------------------- K.N,SABU., ELECTRICAL LASCAR, MEDICAL COLLEGE HOSPITAL, KOTTAYAM, KOCHUPARAMBIL THAZHE, S.H MOUNT.P.O, KOTTAYAM. BY ADV. SRI.K.P.RAJEEVAN RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY, HEALTH DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF MEDICAL EUDCATION, THIRUVANANTHAPURAM. 3. DISTRICT MEDICAL OFFICER, KOTTAYAM. 5. SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, KOTTAYAM. BY GOVERNMENT PLEADER SRI.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- W.P.(C).No.16607 of 2008 B ------------------------- Dated this the 11th day of June, 2008. JUDGMENT The petitioner was appointed as Electrical Lascar in the 4th respondent Medical College Hospital, on a provisional basis as per Ext.P1 order. The order of appointment shows that it was made under Rule 9(a)(i) of Part I Kerala State and Subordinate Services Rules, and the appointment is purely on provisional basis only for a period of six months from the date of joining duty or till a regular PSC hand joins duty, whichever is earlier. The period mentioned in Ext.P1 is over. The petitioner has approached this court challenging Ext.P1 to the extent to which it states that the appointment is purely on provisional basis only for a period of six months from the date of joining duty or till a regular PSC hand joins duty and for a declaration that the petitioner is entitled to continue in service on regular basis. The petitioner relies on Exts.P2 and P3 judgments. 2. According to the petitioner, the post of Electrical Lascar is included in Category No.3 of the W.P.(C).NO.16607/08 :: 2 :: Kerala Last Grade Service. The method of appointment is from the lower post or category within the jurisdiction of the appointing authority concerned and if suitable hands are not available, from the lower post or category within the jurisdiction of another appointing authority in the concerned Department and if not, by direct recruitment. The petitioner submits that candidates were not available from categories 1 and 2. Therefore, the department resorted to the method of direct recruitment. Names were forwarded by the Employment Exchange. It included the name of the petitioner also. Candidates were interviewed and the petitioner was selected. Ext.P1 is the order of appointment. 3. Learned counsel for the petitioner submits that similar situation is considered by the Division Bench of this court in the case of Hospital Attendants Grade II, as evidenced by Ext.P2. It is pointed out that the orders of appointment which stipulated that the appointment of the concerned persons were on a provisional basis were construed 'as appointment effected pursuant to a regular recruitment'. Ext.P2 judgment was considered by a later W.P.(C).NO.16607/08 :: 3 :: Division Bench in Sreekala v. Superintendent Old Age Home {2008(2) KLT 13). Ext.P2 judgment was also referred to in Sreekala's case. The Division Bench specifically considered the amendment to the Kerala Last Grade Service Special Rules. The Bench also took note of the fact that the appointment order in the said case was not issued by the Head of the Department but is only the Head of the Institution concerned. The Bench held that by the amendment of the Special Rules for the Kerala Last Grade Service, Rule 9(a)(i) of the Kerala State and Subordinate Services Rules was made applicable to the Last Grade Service as well and by Rule 7 of the Special Rules for the Last Grade Service, Rules of reservation contained in Rules 14 and 17 of the Kerala State and Subordinate Services Rules were made applicable to the appointment of Last Grade Service. 4. In the present case, the order of appointment specifically stated that it is on a provisional basis. The order is issued not by the Head of the department but by the Superintendent of Hospital, who is only the Head of the Institution. The dictum laid W.P.(C).NO.16607/08 :: 4 :: down in Sreekala's case is clearly applocable, in my view. I cannot direct the respondent to treat the appointment made under Ext.P1 as a regular appointment. 5. Learned counsel for the petitioner submits that the petitioner's specific case is that there were no suitable hands available in the department to be considered for promotion to the post in question or by direct recruitment. Assuming this is so, the order of appointment specifically says that it is a provisional appointment. There is no statutory provision to treat it as a regular appointment. Even for provisional appointment, the concerned Head of the Institution can call for the unemployed from the Employment Exchange. This is what has been done in this case. To direct respondents to treat every appointment which is specifically described as provisional as a regular one, in my view, is to do injustice to several persons, who are also aspirants for the post borne in public service. No such procedure is contemplated or otherwise provided for in the Special Rules. Provisional appointment is W.P.(C).NO.16607/08 :: 5 :: permissible under the Special Rules and it is so because Rule 9(a)(i) is applicable to Special Rules for the Kerala Last Grade Service. Then there is no reason why the appointment on a provisional basis should not be treated as what it purports to. In the result, the writ petition is bereft of merit and it is accordingly dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge