IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 WP(C).No. 30661 of 2008(A) ---------------------------------------- PETITIONER(S): ------------------------ 1. MANJUSHA T.N. NIKARTHIL HOUSE, POONTHOPPU WARD, AVALAKKUNNU P.O., ALAPPUZHA DISTRICT. 2. ARUNKUMAR R.C. KUTTIPARAMBU HOUSE, VETTIYAR SOUTH, MANKAMKUZHI P.O., MAVELIKKARA, ALAPPUZHA DISTRICT. 3. SURESH KUMAR A.P. ANJILICHIRA HOUSE, CMC 23, CHERTHALA P.O., ALAPPUZHA DISTRICT 4. ANIL KUMAR P. S/O. V.PEETHAMBARAN "ANILNIVAS", MUTHUKULAM SOUTH P.O., ALAPPUZHA DISTRICT. 5. AMUTHA V.S. D/O. VISWAMBARAN "ARADHANA" PALLANA P.O. THRIKKUNNAPUZHA, ALAPPUZHA DISTRICT. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE BY ADV. SRI.S.SUJIN RESPONDENT(S): -------------------------- 1. SECRETARY TO GOVERNMENT HEALTH FAMILY WELFARE DEPARTMENT GOVERNMENT OF KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER (HEALTH) ALAPPUZHA. 4. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, ALAPPUZHA. 5. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3, R5 BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR R4 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)NO.30661/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGMENT DATED 21/07/2004 IN WP(C)NO.16096 OF 2004 OF THIS HON'BLE COURT. P2 COPY OF THE JUDGMENT DATED 14/12/2005 IN WP(C)NO.29384 OF 2005 OF THIS HON'BLECOURT. P3 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS ON 28/04/2006 BEFORE THE 1ST RESPONDENT. P4 COPY OF THE JUDGMENT DATED 26/02/2007 IN WP(C)NO.2701 OF 2006 OF THIS HON'BLE COURT. P5 COPY OF THE GO(MS) NO.129/2006/H&FED DATED 15/07/2006. P6 COPY OF THE JUDGMENT DATED 14/06/2007 IN W.A.NO.853 OF 2007 OF THIS HON'BLE COURT. P7 COPY OF THE REPRESENTATION DATED11/07/2008 SUBMITTED BY THE PETITIONERS BEFORE THE GOVERNMENT. P8 COPY OF THE COMMUNICATION NO.22665/C2/2006/H&FWD DATED 17/08/2008 ISSUED BY THE GOVERNMENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 30661 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of April, 2011 J U D G M E N T Pursuant to notification published by the Kerala Public Service Commission inviting applications for selection to the post of Junior Health Inspectors Grade-II in the Health and Family Welfare Department of the Government of Kerala, the petitioners applied. The petitioners were included in the rank list prepared by the PSC which came into force with effect from 20.12.2001. When nobody was appointed from that rank list, some of the persons included in the rank list approached this court by filing O.P. No.13442/2003 and 16096/2004. In that writ petition a learned Single Judge of this court by Ext.P1 judgment issued the following directions: “There will be a direction to the State and the concerned appointing authorities in the Districts to take steps to fill up the posts of Junior Health Inspector Grade-II by way of promotion/transfer. This shall be done within a period of one month from today. After the said period of one month, the remaining vacancies shall be reported to the Public Service Commission within a period of two weeks thereafter. Within one month thereafter, the Public Service Commission will issue advice memos against the vacancies thus reported and the candidates thus advised will be appointed within a month thereafter.” W.P.(C)No. 30661 of 2008 -2- 2. Thereafter on 01.04.2005, 50 vacancies were reported. But at that time there were only 36 persons remaining in the rank list. Some of the rank holders filed W.P. (C) Nos. 26897/2004, 19277 & 29384 of 2005. In that writ petition the same learned Judge who passed Ext.P1 judgment, directed as follows, by Ext.P2 judgment: “The Petitioners who have pursued the mater are entitled to get justice. There will be a direction to the first respondent to consider the cases of the petitioners under Rule 39 of the General Rules for appointing them as Junior Health Inspectors Grade-II in Alappuzha District in case they would have otherwise been eligible in accordance with their position in the ranked list, had advise been issued against 50 vacancies. It is also made clear that this liberty is only to the petitioners herein since none also had pursued the matter before the expiry of the ranked list. In order to enable the first respondent to take appropriate action in that regard, the petitioners herein will produce a copy of this judgment before the first respondent and submit an appropriate representation detailing all the facts and circumstances. Action as above shall be taken within a period of three months from the date of receipt of the representation along with a copy of this Judgment.” Along with the same, C.O.C. No. 988/2005 for non- compliance with the directions in Ext.P1 judgment was closed. Thereafter, the 5th petitioner herein filed a representation before the Government seeking the very same relief granted to the petitioners in Ext.P2 judgment. The same was not considered. The 5th petitioner W.P.(C)No. 30661 of 2008 -3- approached this court by filing W.P. (C) No.13319/06. By Ext.P4 judgment another learned Single Judge of this court held as follows: “5. In my opinion the case of the petitioners has become weak by lapse of time. If it was only a question of resolving the dispute relating to vacancy position, I would have embarked on such an enquiry and determined the rights asserted by the petitioners. But, I find from the very judgment which has been relied on by the petitioners, that is Ext.P3, that the learned Judge had cautiously incorporated the rider that the liberty or concession granted to the petitioners in Ext.P3 judgment shall be confined to them only and that none who would pursue their claims after the expiry of the ranked list will be given similar benefits. 6. I think, for the above reason the Petitioners do not appear to be correct in their contention that they are entitled to a similar verdict, merely on the ground that their names also found a place in the very same rank list. The petitioners have knocked at the doors of this Court very late, and on that ground alone, reliefs will have to be declined to them. Accordingly, these writ petitions are dismissed.” 3. In the meanwhile by Ext.P5 order, the Government directed appointment of the petitioners in Ext.P2 judgment. The petitioners and others tried Writ Appeal Nos. 851, 852 & 853/2007 before the Hon'ble Division Bench in which the following order was passed by Ext.P6 judgment: “Learned senior counsel appearing for the appellants submitted that they are intending to approach the Government for a request to invoke Rule 39 of KS & SSR since persons included lower in the rank list have got the benefit of Ext.P5 W.P.(C)No. 30661 of 2008 -4- Government Order dated 15-07-2006. Senior counsel submitted that the appellants are legally entitled to get the same treatment as was given to the persons who have been included lower in the rank list. Writ appeals are disposed of as prayed for, without expressing any opinion on the merits of the case.” 4. Thereafter, the petitioners filed Ext.P7 representation before the Government which was rejected by Ext.P8 order of the Government. It is under the above circumstances the petitioners have filed this writ petition seeking the following reliefs: “(i) To issue a Writ of Certiorari or any other writ order or direction to call for the records leading to Ext.P8 and quash the same; (ii) To issue a Writ of Mandamus or any other appropriate Writ, Order or direction, commanding the respondents to advice and appoint the petitioners to the 50 vacancies already reported on 01-04-2005;” 5. I have considered the rival contentions in detail. 6. The petitioners certainly deserves sympathy. But I am of opinion that they are victims of their own lethargy or inaction. They should have either pursued Ext.P1 judgment vigorously or they should have taken up Ext.P2 judgment either by review or in appeal seeking the very same relief granted to others by Ext.P2 judgment, pointing W.P.(C)No. 30661 of 2008 -5- out that when there are higher rank holders available, the persons lower in rank in the rank list could not have been given benefit of appointment without first giving benefit of appointment to higher rank holders. They did not do the same. Instead the 5th petitioner filed another writ petition and suffered Ext.P4 judgment of dismissal. They again tried a Writ Appeal and suffered Ext.P6 judgment. Having suffered Exts.P4 & P6 judgments, I do not think that the petitioners can now file another writ petition seeking the very same benefit given to others in the rank list by Ext.P2 judgment. In the above circumstances, I do not find any merit in this writ petition and accordingly the same is dismissed. S. SIRI JAGAN JUDGE shg/