IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 22031 of 2009(Y) -------------------------- PETITIONER(S): --------------- STEPHEN L., AGED 43, S/O.THOMAS LAZAR, ATTENDER, GOVERNMENT AYURVEDA DISPENSARY, MAVELIKKARA, THEKKEKARA, ALAPPUZHA DISTRICT. BY ADV. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SMT.RABIA BEEGAM T.K. SRI.JOBI.A.THAMPI SMT.BOBY M.SEKHAR SMT.M.P.SEETHA SMT.K.C.MANJU RESPONDENT(S): --------------- 1. DISTRICT MEDICAL OFFICER, INDIAN SYSTEM OF MEDICINE, ALLEPPEY DISTRICT. 2. DIRECTOR, INDIAN SYSTEM OF MEDICINE, TRIVANDRUM. 3. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, SOCIAL WELFARE DEPARTMENT SECRETARIAT, TRIVANDRUM. 4. MEDICAL OFFICER, GOVERNMENT AYURVEDA DISPENSARY, MAVELIKKARA, THEKKEKARA, ALAPPUZHA DISTRICT. GOVERNMENT PLEADER SRI.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2009 ALONG WITH WPC.22143/09, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. --------------------------- W.P.(C) Nos. 22031 & 22143 OF 2009 -------------------------- Dated this the 5th day of August, 2009 J U D G M E N T Heard Smt.Molly Jacob, the learned counsel appearing for the petitioners and Sri. P.Nandakumar, the learned Senior Government Pleader appearing for the respondents. 2. The petitioners are Attenders working in various Government Ayurveda Dispensaries in Alappuzha District. The petitioner in W.P.(C) No.22031 of 2009 was initially appointed for a period of 179 days by Ext.P5 order dated 5.8.2008 passed by the District Medical Officer (ISM) Alappuzha. Ext.P5 specifically states that the appointment is for a period of 179 days or till a regular hand joins duty, whichever is earlier. It appears that the petitioner in W.P. (C) No.22031of 2009 was reappointed by Ext.P6 proceedings dated 15.1.2009 along with the other persons named in Ext.P5 for a further period of 179 days or till a regular hand joins duty, whichever is earlier. In Ext.P6 proceedings dated 15.1.2009 it is also stated that the term of appointment can be extended on the terms and WPC Nos.22031& 22143/09 2 conditions set out in Ext.P5. 3. The petitioners in W.P.(C) No.22143/09 were initially appointed as Attenders by Ext.P1 proceedings dated 5.8.2008 for a period of 179 days or till a regular hand joins duty, whichever is earlier. They were reappointed without break by Ext.P2 order dated 15.1.2009 for a period of 179 days or till a regular hand joins duty whichever is earlier. Ext.P2 also states that the term for which they have been appointed can be extended subject to the conditions laid down in Ext.P1. 4. In these writ petitions the petitioners seek a direction to the respondents to allow them to continue in service beyond the period for which they have been appointed. The petitioners challenge the direction issued by the respective Medical Officer to relieve the petitioners from service on the date on which they complete 358 days of service. 5. The claim made by the petitioners is in essence one for continuance in service beyond the term for which they were appointed. As per the special rules, appointment to the post of Attender Grade II/Nursing Assistant Grade II/Pharmacy Attender WPC Nos.22031& 22143/09 3 Grade II can be made only by transfer of members of the Last Grade Service employed in the Indian Systems of Medical Department. In their absence, qualified last grade servants in other departments can also be appointed by transfer. The appointment of petitioners through the employment exchange was only a provisional appointment under Rule 9(a)(i) of Part II of the Kerala State & Subordinate Services Rules. Therefore it cannot be said that the petitioners were appointed after following the prescribed procedure. Further, the 9th proviso to Rule 9(a)(i) of Part II of the KS&SSR stipulates that a person appointed under Rule 9(a)(i) and discharged from service after the admissible period shall not be reappointed to the same post by the same appointing authority except when fresh candidates are not available for appointment through employment exchange. It is also stated that such reappointment shall be made only with the prior concurrence of the Kerala Public Service Commission. The reappointment of the petitioners without discharging them after the initial period of 179 days cannot in my opinion confer on them the right to continue in service. Further, a Full Bench of this Court has in Radha v. District Medical Officer WPC Nos.22031& 22143/09 4 (2002 (2) KLT 711 (FB)) held that persons appointed on a provisional basis under Rule 9(a)(i) of Part II of the KS&SSR have no right to continue in service beyond the term for which they were appointed. Therefore, the petitioners have no legal right to remain in service beyond the term for which they were appointed, namely 358 days. The relief prayed for by the petitioners cannot therefore be granted. The claim of the petitioner in W.P.(C) No.22031 for regularisation on the ground that he is a person with disability, does not therefore arise for consideration. The writ petitions fail and are accordingly dismissed. If the petitioners have any grievance regarding the emoluments paid to them, they may move the District Medical Officer, Indian Systems of Medicine, by submitting individual representations. P.N.RAVINDRAN, JUDGE vps WPC Nos.22031& 22143/09 5