IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 WP(C).No. 23168 of 2007(G) PETITIONERS: --------------- 1. V. MAHESH, PEON, PUBLIC HEALTH CENTRE, PAIPRA. 2. LAL M.T., FIELD WORKER, NFCP UNIT, ALAPPUZHA. 3. GOPAKUMAR B. FIELD WORKER, NFCP UNIT, ALAPPUZHA. 4. PRATHAP RAJ V.R., PEON, W&C HOSPITAL, ALAPPUZHA. 5. SURESH K.S., PEON PHC, VAHZAKKULAM, MARAMPILLY PO, 6. SURESH A., FIELD WORKER, FCW, CHERTHALA ALAPPUZHA. 7. P.V.VASUDEVAN, PEON, PHC MANALUR, KANDASSANKADAVU, PO, THRISSUR. 8. M.MAHESH, FIELD WORKER, PEON FCW, CHERTHALA, ALAPPUZHA. 9. ANIL K. AVITTATHU, FIELD WORKER, NFCP UNIT, KOZHIKODE. 10. M.ABDUL NAZAR, PEON, P. H. CENTRE, PUNNAYUR, PO, EDAKKAZHIYOOR. WP(C).No. 23168 of 2007 :: 2 :: 11. V. YOONUS, NURSING ASSISTANT, P.H. CENTRE, KADAPPURAM PO, KADAPPURAM. 12. SAJEEVKUMAR R., FIELD WORKER, NFCP UNIT, 13. BINDUMATHI. G., PEON, P.H. CENTRE, PERINGOTTUKURISSI, PALAKKAD. 14. SUNIL KUMAR, FIELD WORKER, NFCP UNIT, KOZHIKODE. 15. MURALEEDHARAN K.K., FIELD WORKER, NFCP UNIT, TANUR,MALAPPURAM DIST. 16. SIMON A., NURSING ASSISTANT, P.H.C, KARAVALOOR, KOLLAM DIST. 17. BINUKUMAR S., FIELD WORKER, NFCP UNIT, THRISSUR. 18. SANTHOSH, PEON, TALUK HEADQUARTERS HOSPITAL, CHIRAYINKAL, THIRUVANANTHAPURAM. 19. BINU B., FIELD WORKER, NFCP UNIT, ALAPPUZHA. 20. RAMADAS K., PEON, PHC KUMARAMPUTHUR, PAYYANADAM,MANNARKKAD, PALAKKAD DIST. 21. MANOJ N.R. FIELD WORKER, NFCP UNIT, THRISSUR. 22. P.M.VIDYASAGARAN, FIELD WORKER, NFCP UNIT, THRISSUR. 23. K.A. CHANDRAN , FIELF WORKER, NFCP UNIT CHAVAKKAD. 24. NASEEMA, K.S., PEON, P.H.C,VADANAPPILLY WP(C).No. 23168 of 2007 :: 3 :: 25. BIJU PRASAD, PEON, TALUK HOSPITAL, PULINKUNNU. 26. THOMAS V.P. ,FIELD WORKER,NFCP UNIT, THRISSUR. 27. KRISHNA KUMAR B., FIELD WORKER, NFCP UNIT, ALAPPUZHA. 28. SREEDEVI V., FIELD WORKER, NFCP UNIT, ALAPPUZHA. 29. K.K.RADHAKRISHNAN, FIELD WORKER, NFCP UNIT, THRISSUR. 30. SHERLY KURIAN K., PEON, PHC, THACHANATTUKARA,NATTUKAL PO, PALAKKAD, 31. R.SANTHOSH, PEON, FOOD INSPECTOR OFFICE, BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.R.JAYACHANDRAN RESPONDENTS: ----------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO HEALTH AND FAMILY WELFARE (C) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER SRI.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH WPC NO.2263 OF 2008 AND CONNECTED CASES ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- W.P.(C).Nos.23168 of 2007 2263, 2762, 4242, 5994 & 6408 of 2008 ------------------------- Dated this the 6th day of March, 2008. JUDGMENT Common issues arise for consideration in these cases. Therefore, they have been heard together and are being disposed of by this common judgment. The contentions of the petitioner in W.P.(C)No.23168/07 is different from the contentions of the petitioners in the other writ petitions. But, nevertheless, the issue involved is the same. W.P.(C)No.2762/08 is taken as the leading case. W.P.(C)No.2762/08 2. The petitioners are included in the rank list for the post of Junior Public Health Inspector in the Districts of Thiruvananthapuram and Alappuzha. The method of appointment to the post of Junior Public Health Inspector is prescribed in Ext.P5 Government Order dated 23.1.1989. The method of appointment is as follows: Method of appointment: (1) By promotion/transfer of technically qualified hands in the Health Services Department. W.P.(C).NO.23168/07 & Con.cases :: 2 :: (2) In the absence of technically qualified hands for appointment by promotion/transfer, by direct recruitment. 3. Apparently, therefore, direct recruitment is resorted to only when there are no technically qualified hands in the Health Services Department. The technical qualification is prescribed for a limited purpose and workers are imparted training by the State Health Services Department. In the absence of candidates with Technical qualification for appointment, candidates having the Health Inspectors Training Certificate/Sanitary Inspectors Training Certificate (Diploma) of the All India Institute of Local Self Government, Bombay or its equivalent will be appointed. In other words, it is only when there is absence of technically qualified hands in the Health Services Department that direct recruitment could be resorted to. 4. Reference will have to be made in this context to the judgment dated 5.11.2003 in O.P.No.11555/02 filed by persons who were working in the Health Services Department aspiring for promotion to the post Junior Public Health Inspector Grade II. Petitioners were working in the post of Field Workers/Peons in the Health Services Department. They approached this court when they W.P.(C).NO.23168/07 & Con.cases :: 3 :: found that notwithstanding the availability of qualified hands, according to them, steps were taken by the Government to undertake direct recruitment and report vacancies to the Public Service Commission for the said purpose. They were particularly aggrieved by an order passed by the Government, impugned in the said writ petition, Ext.P10 concerning the method of appointment prescribed in Ext.P4 Government Order. By the time the writ petitions were considered and disposed of direct recruitment had been resorted to in several of the institutions. This court, after considering the rival contentions, held that the reason put forth by the Government justifying their stand in not giving promotion to the technically qualified persons in the Health Services Department was unsustainable in law. Ext.P10 order therein was found to be arbitrary. It was accordingly quashed. It was also made clear that the appointment made by direct recruitment during the pendency of the writ petition shall be regularised only after the claim of the petitioners were considered and after hearing all the parties. 5. Apparently, the Government had initiated process for direct recruitment even thereafter. It seems that the rank list was published on various dates in August, September and October. W.P.(C).NO.23168/07 & Con.cases :: 4 :: The rank lists published earlier were operated upon. In the circumstances, it must be presumed, in the absence of a specific challenge thereto, that they were operated upon, subject to directions in O.P.No.11555/02 and connected cases. Be that as it may, though rank lists were published in the present case, the same was not being enforced. In fact, the petitioners in the present writ petition, W.P.(C)No.2762/08 had even approached the Government for fixing a ratio between direct recruits and promotees for the post of Junior Public Health Inspector Grade II. This court had directed the Government to look into the same. The same is pending. But, in the meanwhile, what has to be noted is that the method of appointment prescribed in Ext.P5 Government Order providing for appointment by transfer from qualified persons from the Health Services Department remained in tact. 6. The Government had also, by the time, issued Ext.P10 order dated 11.12.2007 purporting to issue comprehensive directions. Earlier, the Government had issued G.O.(Rt) No.2324/2007/H & FWD dated 27.6.2007 to the effect that appointment by transfer to the post of Junior Health Inspector Grade II should be made by following the date of application as the W.P.(C).NO.23168/07 & Con.cases :: 5 :: crucial date for reckoning the seniority. It seems that pending rectification of these anomalies, the Government had directed that recruitment by transfer to the post of Junior Public Health Inspector be kept pending. Apparently, there were objections to the said proposal by the technically qualified persons in the Health Services Department since the latter were awaiting appointment by transfer. The writ petitions came to be filed by some persons requesting consideration of their claim for promotion. The Government, therefore, came out with Ext.P10, the relevant portion of which reads as follows: 5. Government have examined the matter in detail and are pleased to withdraw the orders issued in para 4 of the G.O. Read as 3rd paper, on abeyance for the promotion to the cadre of Junior Public Health Inspector Grade-II. The Director of Health Services will promote the qualified hands to the cadre of Junior Public Health Inspector Grade-II as per the G.O. read as first paper and as modified from time to time. But the seniority in the feeder category should be according to the qualified seniority on the date of occurrence of vacancy as specified under Part II, Rule 28 (b)(7)(vi) and (vii) of the K.S & SSR. Application should be called for from the qualified hands as on 31.10.2007 by W.P.(C).NO.23168/07 & Con.cases :: 6 :: notifying in leading dailies and in all District Medical Office (Health) giving 15 days notice time. Draft seniority list prepared on the basis of the applications received and pending with DHS/DMO (Health) should be published in all District Medical Offices giving fifteen days notice time to submit objections, if any. After considering the objection final seniority list also should be published. 6. The Director of Health Services will promote all the qualified hands eligible as per the seniority list thus prepared subject to the availability of vacancies.” This was followed by a circular issued by the Director of Health Services. 7. The petitioners have approached this court challenging Ext.P10 and also seeking a mandamus to the Government to report all the available vacancies to the Public Service Commission and to the Public Service Commission to enforce the rank list in respect of those vacancies. Almost similar contentions have been taken up in the other writ petitions, except W.P.(C)No.23168/07. The said writ petition has been filed by Field Workers and Peons in the Health Services Department who aspire for transfer as Junior Public Health Inspector Grade II. They seek a declaration that vacancies of Junior Public Health Inspector Grade W.P.(C).NO.23168/07 & Con.cases :: 7 :: II can be filled up by promotion from among the technically qualified persons in the Health Services Department. 8. I heard learned counsel for the petitioners and the learned Senior Government Pleader and standing counsel for the Public Service Commission. 9. There are certain aspects which do not brook of any ambiguity as such. Firstly, the primary method of appointment of Junior Public Health Inspector Grade II is by promotion of technically qualified hands of the Health Services Department. Direct recruitment is resorted to only when there are no technically qualified hands in the Health Services Department. It is this factor, which was taken note of by this court while disposing of O.P.No.11555/02 to which reference is already made. If this be so, there is obviously nothing wrong n the Government deciding to resort to the method of appointment which is prescribed as the primary method of appointment. In my view, this is what is contemplated by paragraph 5 in Ext.P10, G.O.(P)NO.505/07 H & FWD dated 11.10.2007. The Director of Health Services only directed to promote all the qualified hands as per the seniority list prepared subject to availability of vacancies. W.P.(C).NO.23168/07 & Con.cases :: 8 :: 10. Insofar as the petitioners, who find a place in the rank list are concerned, they can claim a right to be considered only in the absence of technically qualified hands in the Department. 11. A statement has been filed by the Government in some of the writ petitions, where they have indicated the number of vacancies which were reported to the Public Service Commission on different dates. Many of those vacancies were reported to the Public Service Commission after the publication of the rank list and some of them were after enforcement of the rank list, which was in force earlier. It is not necessary for this court to embark upon a precise computation of number of vacancies which are currently available to be filled up by enforcement of the rank list, essentially for the reason that a fair stand has been taken by the Government to the effect that those vacancies which have been reported to the Public Service Commission as on date shall be filled up only by enforcement of the rank list. This submission is recorded. But, since direct recruitment is the method of appointment for the post in question to be resorted to, no doubt, in the absence of technically qualified hands, I also make it clear that as and when W.P.(C).NO.23168/07 & Con.cases :: 9 :: vacancies arise and there are no technically qualified hands available as per the rank list prepared in terms of paragraph 5 of Ext.P10 Government Order viz., G.O.(P)NO.505/2007/H&FWD dated 11.12.2007, then subject to the currency of the rank list published by the Public Service Commission and availability of technically qualified hands in the Department, at that point of time, the alternate method of appointment mentioned in the Special Rules will have to be resorted to; i.e. to say that the Government shall go by the method of appointment, which is prescribed in Ext.P5 Government Order dated 23.1.1989. 12. Learned counsel for the petitioners in W.P.(C) No.6408/08 submits that Ext.P3 communication from the Public Service Commission indicate the actual vacancies which had to be made available to the Ezhava, Muslim and Scheduled Caste. At least NCA vacancies should be filled up by direct recruitment, notwithstanding the availability of technically qualified hands. It is true that NCA vacancies will have to be made available to the community which did not find a place in the rank list, which was earlier in force, notwithstanding the enforcement of the same. But since the said question arises only when direct recruitment is W.P.(C).NO.23168/07 & Con.cases :: 10 :: resorted to, all that is necessary, insofar as the said issue is concerned, is to clarify that as and when direct recruitment is resorted to in the manner aforementioned, the Public Service Commission shall do so by following the roster prescribed in the Rules. 13. As mentioned above, the petitioners in W.P.(C) No.23168/07 are working in the Health Services Department and had aspired for promotion to Junior Public Health Inspector and the Government has issued Government Order dated 11.12.2007. Their grievance has been substantially redressed and hence it is not necessary to issue separate directions. The writ petitions are disposed of in the above terms. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge