IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 WP(C).No. 7723 of 2011(M) ------------------------- PETITIONER(S): ----------------------- 1. BINUKUMAR.P,PEON,OFFICE OF THE DAIRY EXTENSION OFFICER,DAIRY EXTENSION SERVICE UNIT, MINI CIVIL STATION,CHERTHALA. 2. ABRAHAM.T.J,PEON,KERALA MINERAL SQUAD (CR),DEPARTMENT OF MINING AND GEOLOGY, CHEROOR.P.O,THRISSUR. 3. SUNILKUMAR.T.M,PEON,JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II,CHERTHALA. 4. P.K.PRASAD,PEON,OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETEIS(GENERAL), CHERTHALA. 5. P.MURALEEDHARAN,PEON(H.G.), DAIRY DEVELOPMENT UNIT OFFICE,HARIPPAD. 6. T.S.YATHIRAJ,PEON,KADAKKARAPPALLY GRAMA PANCHAYATH,KADAKKARAPPALY.P.O,CHERTHALA. 7. K.K.PRAMOD,PEON,CHIEF JUDICIAL MAGISTRATE'S COURT,ALAPPUZHA. 8. P.V.MADHUSOODANAN,PEON,JUDICIAL FIRST CLASS MAGISTRATE'S COURT -1.ALAPPUZHA. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND WP(C).No. 7723 of 2011(M) ------------------------------------- RESPONDENT(S): ------------------------ 1. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT,HEALTH AND FAMILY WELFARE DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM, PIN-695001. 2. THE DIRECTOR,INDIAN SYSTEMS OF MEDICINE, THIRUVANANTHAPURAM,PIN-695001. 3. THE DISTRICT MEDICAL OFFICER,INDIAN SYSTEMS OF MEDICINE,ALAPPUZHA,PIN-688 001. 4. THE DISTRICT COLLECTOR,ALAPPUZHA, PIN-688 001. R4 BY GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7723 of 2011(M) ------------------------------------ APPENDIX ----------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE G.O. (P) NO.9/93/P&ARD DATED 15.01.1993 EXT.P2. COPY OF THE LETTER NO.A4-15001/2010 DATED 07.04.2010 OF THE 4TH RESPONDENT. EXT.P3. COPY OF THE G.O. (P) NO.575/2008/H&FWD DATED 19.11.2008 EXT.P4. COPY OF THE INTERVIEW INTIMATION NO.E2.987/10 DATED 22.06.2010 OF THE 3RD RESPONDENT. EXT.P5. COPY OF THE APPLICATION SUBMITTED BY THE AFORESAID SRI.G.BABUMON. EXT.P6. COPY OF THE REPLY NO.4093/10 DATED 24.07.2010 GIVEN BY THE 3RD RESPONDENT. EXT.P7. COPY OF THE REPRESENTATION DATED 9.8.2010 SUBMITTED BY THE KERALA GOVERNMENT CLASS IV EMPLOYEES UNION BEFORE THE 4TH RESPONDENT. EXT.P8. COPY OF THE LETTER NO.A4-37358/2010 DATED 02.11.2010 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. EXT.P9. COPY OF THE LETTER NO.E2-4073/10 DATED 27.12.2010 OF THE 3RD RESPONDENT. EXT.P10. COPY OF THE G.O. (RT) NO.686/2011/H&FWD DATED 23.02.2011. EXT.P11. COPY OF THE REPRESENTATION DATED 22.12.2010 SUBMITTED BY THE KERALA GOVERMNMENT CLASS IV EMPLOYEES UNION BEFORE THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). No.7723 OF 2011 -------------------------------------------- Dated this the 1st day of September, 2011 JUDGMENT The petitioners are Last Grade servants advised and appointed from a ranked list drawn by the Kerala Public Service Commission for appointment as such, in various departments. This writ petition has been filed challenging Ext.P10 and seeking for issuance of a writ of mandamus commanding the respondents to appoint the petitioners and others included in Ext.P9 on regular basis against the existing and arising vacancies in the category of Attender Grade-II/Nursing Assistant Grade-II/ Pharmacy Attender Grade-II in Alappuzha district, in the Department of Indian Systems of Medicine. 2. Rule 3 of the Indian Systems of Medicine (Kerala) Subordinate Service Rules provides the method of appointment to the post of Attender-II/Nursing Assistant Grade-II/ Pharmacy Attender Grade-II as follows: “ Attender Gr.II/Nursing Assistant (i)Appointment by transfer Gr.II/ Pharmacy Attender Gr.II from the members of the last grade service in the Department,after completion of probation. W.P.(C).7723/11 2 (ii)In the absence of qualified persons in the Department for appointment, by transfer from members of the Last Grade Service in other Departments.” 3. Rule 5 under Ext.P3 Special Rules prescribes the qualifications for appointment to the said post as hereunder:- Attender Gr.II/ Nursing Assistant (i) Pass in Std VII or equivalent Gr.II/ Pharmacy Attender Gr.II qualification. (ii)Pass in Attenders Test conducted by the Public Service Commission. Those who have passed SSLC and have completed 3 year service in the Department need not pass Attenders' Test. 4. A perusal of Rule 3, as extracted above, would reveal that in the absence of qualified persons belonging to the Last Grade Service in the Indian Systems of Medicine Department, appointment by transfer from members of Last Grade service in other departments shall be resorted. In fact, in the absence of qualified hands in the department, appropriate steps were resorted to draw a select list for appointment to the aforesaid posts from members of the Last Grade Service in other departments. According to the petitioners, Ext.P9 is a list drawn for that purpose. In fact, a closer scrutiny of the same W.P.(C).7723/11 3 would reveal that it is only a document carrying the details of candidates of other departments attended the Attenders interview. Evidently, the names of the petitioners figure in Ext.P9 which would reveal that they did attend the interview. Admittedly, after the institution of this writ petition, the petitioners except 1, 3 and 4 were given appointment by transfer to the Department of Indian Systems of Medicine, based on the said interview. In the case of petitioners 1, 3 and 4, they were denied the same on the ground that they have not passed the 'Attenders' test conducted by the P.S.C. The learned counsel for the petitioners submitted that in view of the rule position, the respondents are not at all justified in insisting pass in Attenders test conducted by the P.S.C for appointment by transfer to the aforesaid post. 5. A counter affidavit has been filed by the 3rd respondent in this writ petition. In paragraph 5 of the counter affidavit, it is stated that the petitioners 1, 3 and 4 were not given promotion as they have not passed Attenders Test conducted by the P.S.C. It is further stated therein that relaxation from possessing the qualifications prescribed for appointment to the aforesaid post under Indian Systems of W.P.(C).7723/11 4 Medicine provided under Ext.P3 Special Rules is available only to those in the Department of Indian Systems of Medicine. Evidently, the contention is based on the provisions under Rule 5 in Ext.P3. In view of the rival contentions, the question to be considered is whether denial of appointment by transfer to petitioners 1, 3 and 4 on the sole ground of non-possession of Attenders Test qualification is justifiable and sustainable. 6. I have heard the learned counsel for the petitioner and also the learned Government Pleader. The learned counsel for the petitioner drew my attention to Ext.P1 and contended that, by virtue of the same, non-passing of Attenders Test by petitioners 1, 3 and 4 cannot be a reason to attribute disqualification on them for appointment from Ext.P9 list. The relevant amendment that was brought in as per Ext.P1 reads thus:- “After the entries in column (2) under the heading 'Qualifications' relating to the category 'Attenders (Non-technical)' the following Note shall be inserted, namely:- “Note--Last Grade Servants who are in possession of S.S.L.C or equivalent qualification and have put in a minimum service of three years in Government Department as Last Grade Servant need not pass the 'Attenders' Test”. W.P.(C).7723/11 5 7. Obviously, as per Ext.P1, amendments were brought into the notification prescribing qualifications and methods of appointment for the post of Attender (Non-technical) on Rs.200-285 and clerical Attender on Rs.215-370 issued under G.O.(P) No.249/73/PD dated the 14th September, 1973 and published as S.R.O.No.682/73 in Part I of the Kerala Gazette No.44 dated the 6th November, 1973. There is no case for the respondents that the petitioners are not governed by Ext.P1. In fact, in ground B, the petitioners have assertively stated that they are governed by Ext.P1. In ground C, it is further stated that they satisfy all the requirements of Ext.P3 Special Rules on a combined reading with Ext.P1. Despite such specific grounds raised by the petitioner, there is conspicuous absence of any denial of or reply to such contentions in the counter affidavit filed by the third respondent. As per the Note in Ext.P1, extracted above, Last Grade Servants who are in possession of SSLC or equivalent qualification and have put in a maximum service of three years in Government Department as Last Grade Servants need not pass the Attenders Test. The explanatory Note in Ext.P1 indicates its general purport. It would reveal that while considering the proposal of the Government for W.P.(C).7723/11 6 doing away with the prescription of pass in Account Test conducted by the PSC for appointment as Attender in the Kerala Judicial Ministerial subordinate service in respect of Last Grade Servants in the said Department PSC advised the Government, after taking into account the purpose as revealed by the Government, not to deny such benefit of exemption to the similarly placed Last Grade Servants of other departments as well, by issuing necessary orders. It is further stated in the explanatory note as hereunder:- “After examining the advice of the Commission, Government consider that Last Grade Servants who are in possession of S.S.L.C or equivalent qualification and have put in a minimum service of three years in the Government Departments as Last Grade Servants need not pass the Attenders Test for appointment as Attenders(Non-Technical) in the various Departments.” It is thus evident from Ext.P1 that the Government, after considering the advice by the PSC, gone a step further and considered it proper to extend the benefit of such exemption from passing the Attenders Test to all Last Grade Servants who are in possession of SSLC or equivalent qualification and have put in a minimum of three years in the Government Departments as Last Grade Servants for appointment as Attenders (Non-technical) in the various departments. It is those circumstances that culminated in Ext.P1. W.P.(C).7723/11 7 8. As already stated, the respondents have not assigned any reason to hold Ext.P1 as inapplicable to the petitioners. The petitioners 1,3 and 4 are, indisputably working as Last Grade Servants in Government Departments and each of them has more than three years service as Last Grade Servants in Government Departments besides pass in S.S.L.C. Thus they satisfy the twin conditions to earn eligibility for exemption passing Attenders Test for appointment as Attenders in various Departments. When once it is found that the petitioners are entitled to get the benefit of Ext.P1 the inevitable conclusion is that they need not have to pass the Attenders Test for promotion as Attenders in various other departments. When an exemption is granted from passing attenders test for promotion as Attenders in various other departments an exemptee thereunder cannot be held as unqualified for promotion only because of the non- possession rather, non-passing of the exempted test viz., Attenders Test. Obviously, the petitioners 1, 3 and 4 have been denied appointment by transfer only because they have not passed the Attenders Test. Petitioners 2, 5 to 8 were given promotion, in fact, appointment by transfer as they possessed the said test qualification. W.P.(C).7723/11 8 In paragraph 5 of the counter affidavit, the third respondent made it clear that it is the non-possession of the Attenders Test qualification that resulted in their denial of promotion. From the facts thus obtained from the rival pleadings, it is evident that in the absence of qualified persons in the Department of Indian Systems of Medicine Last Grade Servants in other departments subject to the satisfaction of the qualifications would be entitled to get appointed by transfer, as Attenders. It is the requirement to pass Attenders Test for the purpose of promotion that is exempted as per Ext.P1. When once it is found that the petitioners are governed by Ext.P1, there is no reason to deny them appointment by transfer as Attenders in the Department of Indian Systems of Medicine solely for the non-possession of Attenders Test qualification. In the light of Ext.P1, there is no justification in denying appointment by transfer to the petitioners 1,3 and 4 assigning the said reason. Evidently, the petitioners have been included in the list of candidates eligible to be appointed by transfer pursuant to the interview, going by the communication from the District Collector. Admittedly they possess pass in S.S.L.C and have more than 3 years service in Government Departments. The long and W.P.(C).7723/11 9 short of the discussions is that the petitioners are entitled to get appointment by transfer to the post of Attender-II/Nursing Assistant Grade-II/ Pharmacy Attender Grade-II. In the said circumstances, this Writ Petition is disposed of with a direction to the 3rd respondent to effect appointment by transfer of petitioners 1, 3,and 4, based on their interview already conducted, as is obvious from Ext.P9, on regular basis, against any existing or arising vacancies in the said category. In view of my findings with respect to the entitlement and eligibility of the petitioners, Ext.P10 shall not be worked out against the petitioners. In other words, despite the existence of Ext.P10, the petitioners shall be appointed by transfer on regular basis against the available vacancies as on the date of Ext.P10. This shall be done expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. C.T. RAVIKUMAR (Judge) spc W.P.(C).7723/11 10 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C).7723/11 11