IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 WA.No. 2098 of 2010 --------------------- AGAINST THE JUDGEMENT IN WPC.15357/2009 DATED 01/10/2010 .................... APPELLANTS/RESPONDENTS 1 & 2: --------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,HEALTH AND FAMILY WELFARE DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. BY SENIOR GOVERNMENT PLEADER, SRI.BENNY GERVASIS RESPONDENTS/PETITIONER AND 3RD RESPONDENT: ---------------------------------------------------------- 1. S.SUNIL KUMAR,LABORATORY TECHNICIAN, STATE PUBLIC HEALTH LABORATORY, THIRUVANANTHAPURAM-37. 2. K.P.SUNIL KUMAR,PUBLICATION ASSISTANT, DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM-37. R1 BY ADV. SRI. N. SUGATHAN R2 BY ADV. SRI. JAJU BABU THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10/01/2011, ALONG WITH W.A. No. 2 of 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 2098 OF 2010 and W.A.No. 2 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of January, 2011 JUDGMENT J.Chelameswar, C.J. Aggrieved by judgment dated 01.10.2010 in W.P.(C) No.15357 of 2009, respondents 1 and 2 preferred W.A. No. 2098 of 2010 and the 3rd respondent preferred W.A. No. 2 of 2011. The first respondent herein filed the abovementioned writ petition with prayers as follows: “i) To issue a writ of certiorari or any other appropriate writ or order quashing Ext.P7 letter dated 13.3.2009; ii) To issue a writ of certiorari or any other appropriate writ or order quashing Ext.P10 promotion order dated 20.03.2009; iii) To issue a writ of mandamus or any other appropriate writ, or order directing the 2nd respondent to promote and post the petitioner to the cadre of Publication Assistant and to grant him all consequential benefits of that promotion with effect from 20.03.2009; and iv) To issue such other appropriate writ, order or directions as this Hon'ble Court may deem just and proper to issue in the circumstances of the case.” W.A. No. 2098 of 2010 and W.A. No. 2 of 2011 -:2:- 2. The facts are as follows. The 1st respondent entered the service of the State of Kerala as 'Laboratory Technician' in the year 1987. The conditions of the said employment are not governed by any statute or rules under Article 309 but governed by various executive instructions given from time to time. The Government of Kerala issued GO(MS) No.310/69/HD dated 05.11.1969 under which various posts are created and the method of recruitment to the said posts is prescribed. One of the posts under the said Government Order is the post of “Publication Assistant”. The relevant portion of the Government Order reads as follows: “III. Publication Assistant 1. Qualification:- i. Graduation; ii. Must have produced or published pamphlets, articles or booklets or books in Malayalam. 2. Maximum age limit for direct recruitment: 25 years with relaxations as per rules. 3. Method of appointment:- i) By promotion from the following categories in the Health Services Department:- 1. Family Planning Health Assistant. W.A. No. 2098 of 2010 and W.A. No. 2 of 2011 -:3:- 2. Health Assistant 3. Basic Health Worker 4. Laboratory Technician; or (in the absence of candidates under item (i) above) II) By direct recruitment.” 3. It can be seen from the extracted portion of the Government Order that the post of Publication Assistant could be filled up either by promotion of the personnel belonging to the four categories mentioned above and in the absence of the members in any one of the abovementioned categories, by direct recruitment. 4. By Circular No.ED3/6673/06/DHS dated 14.05.2008, the Director of Health Services, Government of Kerala, invited applications for filling up the post of “Publication Assistant” in the Department from eligible candidates working in the various posts specified in the Circular i.e., the four categories of posts specified in the Government Order mentioned above. 5. The first respondent applied pursuant to the said Circular along with other applicants. We are informed that in all, there were 8 applicants who were responded to the Circular. The W.A. No. 2098 of 2010 and W.A. No. 2 of 2011 -:4:- other applicants are belong to various categories of employment of the four categories mentioned earlier. 6. Complaining that the promotion process was being unduly delayed, the 1st respondent represented to the Government initially and later approached this Court by way of W.P.(C) No.33106 of 2008. By judgment dated 05.02.2009, the said writ petition was disposed of with a direction to the 2nd respondent to finalise the selection procedure within a period of two months from the date of receipt of a copy of the judgment. 7. Thereafter the 2nd respondent directed all the applicants to attend an 'eligibility assessment test' to be held on 20.03.2009. The 1st respondent protested against such prescription on the ground that such procedure was not contemplated by the relevant rules. As the protest did not bear any fruit, he approached this Court by filing another writ petition, W.P.(C) No.9083 of 2009. The said writ petition came to be dismissed as withdrawn, with liberty to the petitioner to challenge the impugned proceeding; the further details as to how it W.A. No. 2098 of 2010 and W.A. No. 2 of 2011 -:5:- happened may not be necessary for the present purpose. 8. All the applicants appeared for the eligibility test and the appellant in W.A. No.2 of 2011 was declared to be the successful candidate in the said test. Challenging the procedure by which the eligibility test was prescribed and the order by which the appellant in WA No.2 of 2011 was promoted, the 1st respondent herein filed the writ petition from out of which the present appeals arise. 9. By the judgment under appeal, a learned Judge of this Court held that the prescription of a test for making assessment of suitability of the candidates for promotion to the post in question is without any authority of law and therefore, the impugned proceedings were set aside. The learned Judge further directed that the writ petitioner, the seniormost among the applicants and also holding the post that carried highest scale of pay among the applicants, should have been promoted and therefore directed that the writ petitioner be promoted with all consequential benefits with effect from 20.03.2009. It was also W.A. No. 2098 of 2010 and W.A. No. 2 of 2011 -:6:- directed by the learned Judge as follows: “Since the provisional appointment of the third respondent was made in blatant violation of the specific directions in Ext.P6 judgment, it will be open to the Government to recover the loss if any, caused on account of such appointment either from the third respondent or from the person concerned who caused such an appointment ignoring the specific directions in Ext.P6 after identifying the person and affording him/her a proper opportunity of being heard.” Hence these two appeals by the State and the promoted candidate respectively. 10. We heard the learned Senior Government Pleader, Sri.Benny Gervasis and Sri.Jaju Babu appearing for the appellants in both the appeals and Sri.N.Sugathan appearing for the writ petitioner. By the judgment under appeal the learned Judge gave elaborate and cogent reasons for the conclusions that the procedure adopted by the State for promotions to the post of 'Publication Assistant'; i.e., the prescription of a test for making the assessment of suitability of the applicants is not authorised by law. We do not see any reason to interfere with that conclusion nor anything is brought to our notice as to how such a W.A. No. 2098 of 2010 and W.A. No. 2 of 2011 -:7:- conclusion by the learned Judge warrants interference. We may also mention that one of the reasons given by the learned Judge is that the prescription of the test for making the assessment of the merits of the competing candidates is subsequent to the commencement of the selection process and hence such a procedure is impermissible in view of the law declared by the Supreme Court in K. Manjusree v. State of Andhra Pradesh [(2008) 3 SCC 512]. We therefore decline to interfere with the judgment under appeal in that regard. 11. Coming to the question whether the learned Judge was right in giving a positive direction to promote the writ petitioner with all consequential benefits with effect from 20.03.2009, we are also of the opinion that though such a direction is not normally granted, in the facts and circumstances of the case, the writ petitioner who is undoubtedly the senior most among the applicants and nothing is brought to our notice which disentitles him from seeking promotion. He is entitled for promotion as per the rules applicable to the situation in W.A. No. 2098 of 2010 and W.A. No. 2 of 2011 -:8:- preference to all other competing candidates who are similar to him. The State is without any option under the relevant rules in making the choice on account of its failure to legally sustain the procedure adopted in prescribing the test. We therefore decline to interfere with that part of the direction also. 12. Coming to the grievance of the appellant in W.A. No.2 of 2011, in so far as the judgment under appeal directed “the State Government to recover the loss if any, caused on account of such appointment either from the third respondent or from the person concerned who caused such an appointment”; we are of the opinion that there is no positive direction. The learned Judge only observed that it is open to the Government to make such a recovery. We leave it to the wisdom of the State whether to effect such a recovery from the officer who is responsible for such a promotion, but we make it clear that the said amount cannot be recovered from the appellant in W.A. No.2 of 2011, as he is not demonstrated to have had any role in the adoption of the illegal procedure in making the promotions. W.A. No. 2098 of 2010 and W.A. No. 2 of 2011 -:9:- We may also clarify that the finding of the learned Judge that the erroneous or illegal procedure adopted in denying the promotion to the writ petitioner was inconsistent with a specific direction issued in the earlier writ petition, W.P.(C) No. 33106 of 2008, a copy of which is filed as an exhibit in the writ petition. We have perused the judgment and we record that there was no specific direction in the said judgment which can be said to have been violated by any of the appellants herein. The Writ Appeals are disposed of as above. J.Chelameswar, Chief Justice. P.R.Ramachandra Menon, Judge. ttb W.A. No. 2098 of 2010 and W.A. No. 2 of 2011 -:10:-