IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 WP(C).No. 29995 of 2008(U) --------------------------------------- PETITIONER: ------------------- ANIL KUMAR B.S., AGED 42 YEARS, S/O.BHASKARAN NAIR, NOW WORKING AS HEALTH INSPECTOR, PHC, KOTTUKKAL, RESIDING AT GEETHANJALI MUTTAKKAD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPINATH MENON. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE (C)DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI, R3 BY SRI.ALEXANDER THOMAS,S.C, K.P.S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.29995/2008-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O.(MS).NO.435/94/H&FWD DTD. 14/12/1994. EXT.P.2: COPY OF THE B.SC., DEGREE EXAMINATION CERTIFICATE (PROVISIONAL) ISSUED TO THE PETITIONER. EXT.P.3: COPY OF THE CERTIFICATE ISSUED BY THE KERALA HEALTH SERVICES, BOARD OF EXAMINATIONS FOR HEALTH INSPECTOR COURSE ON 15/04/1988. EXT.P.4: COPY OF THE NOTIFICATION ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION IN THE GAZETTE DTD. 10/04/2008. EXT.P.5: COPY OF THE VIDE ORDER NO. EG4-110369/2004/DES DTD. 31/12/2004. EXT.P.6: COPY OF THE LETTER DTD. 20/10/2008 FROM THE INFORMATION OFFICER, OFFICE OF THE DMO (HEALTH), ERNAKULAM. RESPONDENTS' EXHIBIT: EXT.R3.A: COPY OF THE PROFORMA OF REPORTING VACANCIES. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 29995 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st day of January, 2011. J U D G M E N T The petitioner is working as a Health Inspector in the Department of Health Services of the Government of Kerala. According to him, he is eligible for promotion to the post of District Malaria Officer in the Health Services Department. The Government has laid down the qualifications and method of appointment to that post by Ext. P1 order, as per which the first method of appointment is by promotion from Assistant Entomologist/Health Supervisor/Malaria Inspector Grade I/Filaria Inspector Grade I and in their absence from Health Inspector/Malaria Inspector Grade II/Filaria Inspector Grade II. Although the method of appointment included direct recruitment also, no quota is prescribed as between direct recruitment and promotion. According to the petitioner, in such circumstances, only if there are no qualified persons available in the Department for promotion, the Department can resort to direct recruitment. The petitioner's contention is that 2 vacancies arose on 8.4.2004, which were reported in 2007 to the Public Service Commission for direct recruitment, which, according to the petitioner, is against Ext. P1 recruitment rules insofar as the petitioner was duly qualified for promotion to that post, he having been assigned the date of promotion as Health Inspector with effect from 26.6.2006 as is evident from Ext. P5 proceedings of the Director of Health Services, Thiruvananthapuram. In the above circumstances, the petitioner seeks the following reliefs: “i) Call for the records relating to Ext. P4 notification and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. ii) declare that the petitioner is entitled to be considered for promotion to the post of District Malaria Officer in terms of Ext. P1. iii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 and 2 to consider the case of the petitioner for promotion to the post of District Malaria Officer in accordance with Ext. P1.” 2. The learned Government Pleader takes the contention that as on the date of occurrence of vacancy, the petitioner was not eligible for promotion insofar as he actually started holding the post of Health Inspector only on 3.12.2003 and on 8.4.2004, when the vacancy arose he did not have one year experience as Health Inspector, which is a minimum requirement prescribed for promotion. The learned Government Pleader would also argue that the probation of the petitioner in the post of Health Inspector has not yet been declared, without which also the petitioner cannot be given promotion. 3. Learned counsel for the petitioner points out that from Ext. R3(a) proforma forwarded by the Director of Health Services to the Public Service Commission reporting the vacancies the date of occurrence of vacancy is shown as 10.8.2006, in which case the petitioner would have the required experience as on 10.8.2006, since, admittedly, the petitioner started holding the post of Health Inspector on 3.12.2003. 4. The learned standing for the Public Service Commission would take a contention that the petitioner cannot now be considered for promotion to the post insofar as to the 2 vacancies reported, the Public Service Commission has already advised candidates, and the advised candidates have not been impleaded in this writ petition. He points out that although this Court has passed an order making the advice and appointment subject to the result of the writ petition, in view of a decision of this Court in State of Kerala & Another v. Rafia Rahim, 1978 KLT 369(FB), even if there is such an interim order, the affected persons should also be made parties to the writ petition. 5. I am spared of the task of considering all these contentions on merits since the learned counsel for the petitioner submits that another vacancy has arisen on 15.8.2010 on the death of one Biju Baburajan and the petitioner would be satisfied if he is considered for promotion to that vacancy. In the above circumstances, I direct respondents 1 and 2 to consider the claim of the petitioner for promotion to the said vacancy, which has arisen on 15.8.2010 and pass orders as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. I make it clear that the question of declaration of probation, if not yet made, shall not stand in the way of such consideration and if necessary, orders shall be passed on the question of declaration of probation of the petitioner also within the stipulated time, for consideration of the case of the petitioner for the said post as directed above. I further make it clear that the vacancy shall not be reported to the Public Service Commission and even if it is reported, the Public Service Commission shall not make advice to that vacancy, in view of this judgment. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/