IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 WP(C).No. 6624 of 2011(C) ------------------------- PETITIONER(S): --------------- SHELIN JOSE, PART TIME ATTENDER, KERALA NURSES AND MIDWIVES COUNCIL, THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE SMT.MINI GOPINATH RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, HEALTH AND FAMILY WELFARE (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA NURSES & MIDWIVES COUNCIL, REP. BY ITS PRESIDENT, RED CROSS ROAD, THIRUVANANTHAPURAM. 3. THE REGISTRAR, THE KERALA NURSES & MIDWIVES COUNCIL, RED CROSS ROAD, THIRUVANANTHAPURAM. ADV. SRI.N.RAGHURAJ, SC, TCMC & KNMC FOR R2 & 3 GOVT. PLEADER SHRI.SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P.(C).No. 6624 of 2011 ================== Dated this the 11th day of March, 2011 J U D G M E N T The petitioner is now working as a Full Time Attender in the Kerala Nurses & Midwives Council, Thiruvananthapuram. The petitioner was initially appointed as a Full Time Gardener in 1999 and he completed 10 years of service. According to the petitioner, the petitioner is fully qualified to hold the post of Attender and he was appointed initially through a regular process of selection. According to the petitioner, in exercise of powers under Section 17(3) of the Kerala Nurses & Midwives Act, 1953, which is produced as Ext.P3, the 2nd respondent employer of the petitioner, has powers to appoint its employees and the petitioner has to be appointed in exercise of those powers. The 2nd respondent decided to regularise the service of the petitioner as an Attender. But, by Ext.P6 order, the Government directed the Council to fill up the vacancy through open recruitment. Pursuant to Ext.P6, P7 advertisement was issued inviting applications to the post created as per Ext.P4, by the 2nd respondent. The petitioner is challenging Exts.P6 and P7. 2. According to the petitioner, the Government has no powers to interfere with the functions of the 2nd respondent in the matter of appointing its own employees. Therefore, the direction by the w.p.c.6624/11 2 Government, by Ext.P6, to fill up the post through public advertisement and Ext.P7 advertisement issued pursuant thereto, are without jurisdiction and illegal. 3. I have heard the learned Government Pleader as well as the learned Standing Counsel appearing for the 2nd respondent Council also. 4. Since the petitioner has specifically stated in the writ petition that the petitioner was originally appointed after undergoing a valid selection process, by order dated 3.3.2011, I passed the following order: “When it was pointed out to the learned counsel for the petitioner that the petitioner has not produced any documents to show prima facie that the petitioner's appointment was after undergoing a valid selection process for enabling the petitioner to get regularisation, the counsel seeks time. Post after a week.” 5. Today, the petitioner has produced Ext.P10 communication from the 2nd respondent to the 1st respondent. That does not in any way show that the petitioner was engaged originally after undergoing a selection process. As such, I am of opinion that the averment in the writ petition that the petitioner was originally engaged after undergoing a selection process is clearly incorrect. The employment under the 2nd respondent is a public employment. Every person qualified for employment under the 2nd respondent is entitled to be considered for such appointment. Therefore, such appointments can be w.p.c.6624/11 3 affected only after giving opportunity to all eligible persons to compete for that post, failing which, the appointment would be violative of the fundamental rights of those unemployed persons under Articles 14 and 16 of the Constitution of India. Here the petitioner could not prove that the petitioner had undergone a selection process before being engaged by the 2nd respondent. Therefore, I am of opinion that the petitioner is not entitled to continue either as a temporary or as a permanent employee of the 2nd respondent. In the above circumstances, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner. Accordingly, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge