IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 WP(C).No. 18516 of 2010(L) --------------------------------------- PETITIONER(S): ------------------------- 1. G. VISWAKUMAR, S/O. P. GOPALAPILLAI, PHARMACIST (HOMEO), GOVERNMENT HOMEO DISPENSARY, VITHURA.P.O, THIRUVANANTHAPURAM DISTRICT. 2. T. RAJENDRAN, S/O. THANKAPPAN, PHARMACIST (HOMEO), GOVERNMENT HOMEO DISPENSARY, AMBOORI, THIRUVANANTHAPURAM DISTRICT. 3. SATHEESAN NAIR.M, S/O.MADHAVAN PILLAI, PHARMACIST (HOMEO), GOVERNMENT HOMOEO DISPENSARY, VEMBAYA, KONHIRA.P.O, THIRUVANANTHAPURAM DISTRICT. 4. C. BALU, S/O. CHELLAPPAN), GOVERNMENT HOMEO DISPENSARY, KIZHUVILAM, MUDAPURAM.P.O, THIRUVANANTHAPURAM DISTRICT. 5. M. VIJAYAKUMAR, S/O. MATHYAS, PHARMACIST (HOMEO),HOMEO DISPENSARY, CHENKAL, AMARAVILA.P.O,THIRUVANANTHAPURAM. 6. FARID KHAN.K.M, S/O. MUHAMMED NAINAR, PHARMACIST (HOMEO),GOVERNMENT HOMEO DISPENSARY, ERUMELI, KOTTAYAM DISTRICT. 7. C. THOMAS, S/O.P.M. CHACKO, PHARMACIST (HOMEO),GOVERNMENT HOMEO DISPENSARY, THRIKKAKARA, ERNAKULAM DISTRICT. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN W.P.(C) NO.18516/2010 RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HELATH AND FAMILY WELFARE (HOMEOPATHY), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HOMEOPATHY, THIRUVANANTHAPURAM. *ADDL. R3 IMPLEADED. 3. SILPA.S., SILPA BHAVAN, KURUMTHALI, PACHA P.O., NEDUMANGAD, THIRUVANANTHAPURAM. ADDL. R3 IS IMPLEADED AS PER ORDER DTD. 2.7.2010 IN IA. NO.8767/2010. *ADDL. R4 TO R5 IMPLEADED 4. RIYA UMESH, AGED 22, W/O. UMESH, VALIYKULAM PARAMBA, THIRUVANOOR P.O., CALICUT 29. 5. ANJU E., AGED 23 YEARS, D/O. E.RAMACHANDRAN, ERANKOT HOUSE, QUILANDY, CALICUT 673318. ADDL. R4 & R5 ARE IMPLEADED AS PER ORDER DTD. 27.7.10 IN IA. NO.10120/10 ADDL. R6 TO R15 IMPLEADED 6. TINTU JOY, ARACKAL HOUSE, ENANALLOOR P.O., KALAMPOOR, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN 686 673. 7. ANU M.R., PLAVILAPUTHENVEEDU, MYLAKONAM KILLY, KOLLODE P.O., THIRUVANANTHAPURAM PIN 695 571. 8. RAFEEQUE P.M., PUTHANVEETTIL HOUSE, MUTHALAKKODOM P.O., THODUPUZHA IDUKKI PIN 685 605. 9. BINOY E.V., 'NARAYANI NILAYAM', UDAYANAPURAM P.O., VAIKOM, KOTTAYAM, PIN 686 143. W.P.(C) NO.18516/2010 10. VIPINDAS K.P., DIVYA JYOTHIS, ACHAN VEEDU PARAMBA, POOVATHU PARAMBA, CALICUT 8. 11. ABDUL JALEEL C., CHINAKKAL HOUSE, PAYYANAD P.O., MANJERI VIA, MALAPPURAM , PIN 676 122. 12. SAJEESHKUMAR P.M., IYYAMPALLIYALIL HOUSE, PUTHUKODE P.O., RAMANATTUKARA VIA, KOZHIKODE PIN 673 633. 13. C.M.UMAR, CHUNDIYANMOOCHI HOUSE, PAYYANAD P.O., MANJERI, MALAPPURAM PIN 676 122. 14. AKHIL G., MANJAKKARAYIL HOUSE, KOOTHATTUKULAM, ERNAKULAM. 15. PRINCE TSS.CHACKO, THADATHILANICKEL HOUSE, ERUMAPRAMATTOM P.O., KOTTAYAM. *ADDL. R6 TO R15 ARE IMPLEADED AS PER ORDER DT.18/10/2010 IN IA. NO.13503/2010. R1 & R2 BY GOVT. PLEADER SRI.SANDESH RAJA ADDL. R3 BY ADVS. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR R4 & R5 BY ADV. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA FOR ADDL.R SRI.S.P.ARAVINDAKSHAN PILLAY FOR ADDL.R SMT.N.SANTHA FOR ADDL.R SRI.K.A.BALAN FOR ADDL.R SRI.S.A.ANAND FOR ADDL.R SRI.PETER JOSE CHRISTO FOR ADDL.R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2010, ALONG WITH WPC NO. 35626 OF 2009 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.18516/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.12611/EA2/2000/DH, DTD. 18.12.2000 BY THE 2ND RESPONDENT. P2:- COPY OF THE G.O.(MS) 161/84/HD DTD. 21.6.1984. P3:- COPY OF THE G.O.(P) NO.135/99/H & FWD DTD. 12.4.1999. P4:- COPY OF THE ORDER NO.10654/EA2/2001/DH DTD. 9.10.2001 P5:- COPY OF THE JUDGMENT IN OP. NO.12500/2005 DTD. 18.11.2005. P6:- COPY OF THE LETTER NO.2971/06/EA5/DH DTD. 5.4.2006. P7:- COPY OF THE LETTER NO.7932/EA5/05/DH DTD. 12.4.2006. P8:- COPY OF THE DRAFT SPECIAL RULES OF 2006. P9:- COPY OF THE GO(RT) 2334/2006/H & FWD DTD. 5.8.2006. P10:- COPY OF THE JUDGMENT DT.D 10./12.2007 IN WPC. 34634/2007. P11:- COPY OF THE JUDGMENT DTD. 30.11.2009 IN WPC. 9836/08. P12:- COPY OF THE LETTER NIO.EA5/10923/09/DH DTD. 27.12.2009. P13:- COPY OF THE JUDGMENT DTD. 28.1.2010 IN WPC. NO.1282/2010. P14:- COPY OF THE G.O.(RT) NO.1729/2010/H&FWD DTD. 24.4.2010. P15:- COPY OF THE LETTER NO.EA5/11656/09/DH DTD. 21.1.2010. P16:- COPY OF THE APPLICATION DTD. 22.12.2009 BY THE 2ND PETITIONER. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE ORDER DTD. 26.7.06 IN OP. NO.27117/2002 AND CONNECTED WRIT PETITIONS. R3(b):- COPY OF THE JUDGMENT DTD. 28.3.2007 IN OP. NO.27117/2002 AND CONNECTION WRIT PETITIONS. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.18516/2010-L, 35626/2009-W, 18217/2010-B, 19021/2010-C, 19815/2010-B, 20955/2010-T, 23672/2010-H & 28350/2010-P ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 18th day of October, 2010 J U D G M E N T These writ petitions have been filed by the respective parties seeking for various reliefs with regard to appointment/promotion to the posts of Pharmacists (Homoeopathy) under the Director of Homoeopathy. 2. W.P.(C).Nos.18516/2010 and 19021/2010 are filed by persons working as Pharmacists after getting temporary promotion. The same is the case with the petitioner in W.P.(C).No.19815/2010. W.P.(C).Nos.28350/2010, 20955/2010 & 35626/2009 have been filed by persons who have been included in the ranked list published by the Kerala Public Service Commission for appointment to the post of Pharmacist Grade-II (Homoeopathy) through direct recruitment. W.P.(C).No.18217/2010 is filed by certain persons who have obtained qualification for promotion in the quota earmarked for promotees. W.P.(C).No.23672/2010 is also filed by a person who is included in the ranked list for appointment through direct recruitment. Since the fate of writ petitions W.P.(C). Nos.35626/2009, 18217/2010, 20955/2010, 23672/2010 and 28350/2010 depends upon the fate W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:2:- of other three writ petitions, W.P.(C).No.18516/2010 is heard as the main case. 3. The short facts leading to the filing of W.P.(C). No.18516/2010 are the following:- The petitioners therein were appointed as Peons in the Department and were later promoted as Attenders on various dates. Ext.P1 is the order by which provisional promotion was ordered by the second respondent way back on 18/12/2000 to the post of Pharmacist. A reading of the order shows that the promotion is ordered as a stop gap arrangement till regular hands are available through P.S.C. 4. According to the petitioners, all of them are having the qualification of S.S.L.C or above prior to their appointment as Peons. They are having more than three years of service in dispensing Homoeo medicines. As Peons and Attenders, they were doing the work of dispensing Homoeo medicines in the Government Homoeopathy Dispensaries or Hospitals. The vacancies of Pharmacists (Homoeopathy) were lying vacant for a long time in various dispensaries. They were not being filled up as the proposal to amend the Special Rules were pending. The qualification prescribed for the post of Pharmacists to be filled by direct W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:3:- recruitment shows that they require a pass in S.S.L.C or equivalent with training in Nurse-cum-Pharmacist course conducted by the Government of Kerala or three years experience in dispensing Homoeo medicines. This was prescribed as per G.O.(MS) No.161/84/HD dated 21/06/1984. As regards promotion, the following qualification was fixed:- “1. A pass in S.S.L.C examination. 2. 3 years experience as Attenders/Attendant/ Nursing Assistant/Store Attender in the Hospital/Dispensary/Medical Store of the Department. b. In the absence of the above: A pass in Standard VII with the required experience namely:- 3 years experience as Attender/Attendant/ Nursing Assistant/Store Attender in the Department, as well as pass in the proficiency test conducted by Director of Homoeopathy after 3 months intensive training in a Government Homoeo Hospital.” W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:4:- 5. Ext.P3 is the copy of the Special Rules as notified by the Government Order (P) No.135/99/H&FWD dated 12/04/1999 which shows that there is an enhancement of the qualification prescribed by the earlier notification. Apart from a pass in S.S.L.C., the persons requiring promotion will have to obtain “Certificate of training in Nurse-cum-Pharmacist Training Course (Homoeopathy) conducted by the Government of Kerala”. According to the petitioners, there were large number of existing vacancies which were yet to be filled up before the coming into force of Ext.P3 notification. There were difficulty for the persons like the petitioners to get sufficient training also as the facilities were lacking. It appears that the Department then felt the difficulty to manage the posts and, therefore, the method of temporary promotion as done now was thought of. The petitioners have got a further case that the new qualification fixed as above, did not appreciate the ground realities and as the petitioners were qualified based on the unamended qualification, various circumstances were being pointed out by the Department also to consider their cases for regularisation. Ext.P5 is the Judgment of this Court in W.P.(C).No.12500/2005 wherein the W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:5:- dispute regarding the claim for appointment through direct recruitment at that point of time was settled. Many candidates were appointed subsequently also. According to the petitioners, the lack of facilities for conduct of the course, namely, Nurse-cum-Pharmacist Training Course (Homoeopathy) is the only factor which disallowed the petitioners from acquiring the qualification, otherwise they would have been promoted well in time. Many of the petitioners have become over aged also. Out of the total seats available for training course, only six seats were made available for the in-service candidates. Therefore, none of the petitioners could apply for the course. The petitioners are relying upon Ext.P6 recommendation made by the Director of Homoeopathy, which according to them is in their favour. Therein, the Director has recommended that the persons who are working as Attender/Dispenser/Nursing Assistant/Lab Assistant may be granted the promotion as was in the terms of the method which was prevalent. Ext.P7 is the copy of the draft amendment to the Special Rules forwarded by the Director of Homoeopathy to the Government. It appears that there was a representation by the Kerala Government Homoeo Employees Association also in the matter W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:6:- and, there was a challenge before this Court of the amended Special Rules and, this Court had directed the Government to consider the matter. By Ext.P9, the Government replied that the request of the petitioners to restore the qualification as prescribed for promotion to the post of Pharmacists will be considered along with the amendment to the Government Order (P) No.135/99/H&FWD dated 12/04/1999. 6. Thereafter also various parties were approaching this Court by filing separate writ petitions. Ext.P10 is a copy of the Judgment in W.P.(C).No.34634/2007 wherein this Court directed the respondents to consider the amendment to the Special Rules. Ext.P11 is a copy of the Judgment in W.P.(C).No.9836/2008 wherein also a similar direction was given. It appears that the amendment could not be carried out as the P.S.C had not given concurrence in changing the qualification. Ultimately, the Director also recommended the Government to consider the case of the persons who had long service, as per Ext.P12. Still further, the petitioners approached this Court by filing W.P.(C). No.1282/2010 which was disposed of by Ext.P13 Judgment. Therein, the submission that the matter is being considered by the Government was recorded and a direction was given to W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:7:- consider the same. Finally, the Government passed Ext.P14 order which is under challenge in the writ petition. Evidently, in Ext.P14, after examining the matter, the Government felt that the Pharmacists who are on working arrangement were not having the specified qualification for the post of Pharmacists as prescribed in the Special Rules. They are posted against those posts only to meet the exigency on specific condition that they will be reverted as and when qualified hands are available. Since the ranked list is available and as qualified hands are available, persons like the petitioners will have to be reverted and the vacancies will have to be reported to KPSC. Ultimately, therefore, the Government directed the second respondent to report all vacancies of Pharmacist (Homoeopathy) including those posts held by the employees who are promoted on a stop gap arrangement to the KPSC forthwith. 7. The petitioners have produced Ext.P15 reply given by the Director of Homoeopathy, under the Right to Information Act, to show that sufficient vacancies are available to accommodate the PSC hands and, therefore, the petitioners can be regularised in service. One of the main W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:8:- reliefs sought for in the writ petition is to direct the respondents to regularise the petitioners in the grade of Pharmacist (Homoeopathy) from the date of their temporary appointment apart from quashing Ext.P14. 8. The respondents have filed detailed counter affidavits in the matter. 9. Shri M.V.Thamban, learned counsel for the petitioners submitted that the case of the petitioners really deserve consideration in the light of the fact that they have been continuing in the post for a number of years and the amendment to the Special Rules is in the anvil. It is further submitted that the recommendation made by the Director as per Ext.P6 will really reflect the position in the Department and, as the proposal to amend the Special Rules are pending, the Government was not right in directing the second respondent to revert the petitioners. It is pointed out that the new qualification was prescribed without ascertaining the ground realities as well as the minimum facilities available for persons like the petitioners to acquire the qualification. Further, it is pointed out that many of the petitioners have become over aged also. W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:9:- 10. The learned counsel for the petitioners, by relying upon the Judgment of the Division Bench produced as Ext.P5 contended that the views taken by the Division Bench there have been later over ruled by a Full Bench of this Court in O.P.No.27117/2002 and connected cases dated 26/07/2006, a copy of which is produced Ext.R3(a) along with the counter affidavit. It is submitted that the Full Bench has declared the legal position that once the Special Rules are amended, the vacancies which have occurred after the amendment will have to be filled up in terms of the amended qualifications. It is pointed out that based on Ext.P5 Judgment, so many persons, mainly, 37 persons have been appointed in vacancies which arose after the Full Bench Judgment was rendered but, based on the pre-existing qualification. It is therefore submitted that those matters have been left without any attention by the Department also. Apart from the same, the learned counsel for the petitioners further submitted that even after accommodating the P.S.C hands and qualified persons working and aspiring promotion in the quota for promotion, sufficient vacancies are available to accommodate the petitioners and it is not necessary to revert them to W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:10:- appoint the persons seeking appointment through PSC. 11. These contentions are opposed by the learned counsel for the respondents Shri K.P.Satheesan, Shri S.P.Aravindakshan Pillai and Shri Anil Kumar. It is contended that the petitioners are persons who are not qualified in terms of the Special Rules. The proposal to amend the Special Rules which have not been materialised so far will not enable the petitioners to stick on to the provision in question based on the orders like Ext.P1. It is further pointed out that the petitioners are bound by the terms of Ext.P1 itself whereby the promotions have been ordered only on a temporary basis till a ranked list is available by selection through P.S.C.. It is pointed out that the contingencies that are relied upon by the petitioners cannot help them to cling on to the post and the direction by the Government, as per Ext.P14, to revert them cannot be said to be wrong or unsustainable. 12. A reading of Ext.P1 shows that the said order was passed by the second respondent on certain express terms. It was found that as on that date, in terms of the Special Rules which was in force, nobody was available who has passed Nurse-cum-Pharmacist course conducted by the W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:11:- Government of Kerala. It was also found that vacancies are remaining unfilled and till a ranked list is available through P.S.C., as a stop gap arrangement, the Government has permitted to make temporary promotion. Accordingly, persons who were having S.S.L.C and 3 years experience and were working as Attender/Nursing Assistant/Dispenser were temporarily promoted. It was further provided that once candidates are advised by P.S.C, the persons who are temporarily promoted will be reverted to their respective posts. 13. It is therefore clear that the temporary promotion was strictly conditional and once the ranked list is published by P.S.C, the vacancies are liable to be reported to the P.S.C for paving way for their appointment. Therefore, the consequential reversion of petitioners is only in terms of the order Ext.P1 itself. The same is the view taken by the Government in Ext.P14. Of course, the learned counsel for the petitioners was pointing out that the proposal for amendment of the Rules are pending. But, that need not deter the authorities from implementing Ext.P14 in the light of the fact that the persons like the petitioners will have to be reverted to appoint qualified W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:12:- hands. There is no dispute that the ranked list is available and persons are awaiting appointment also. 14. There is no doubt that the vacancies will have to be filled up in the method provided by the Special Rules by the persons having qualifications. Therefore, the retention of the unqualified hands in preference to qualified hands cannot be justified also. 15. The next question is whether the petitioners are having any right for regularisation in the promoted post. Obviously, as the promotion was only by way of stop gap arrangement and as the order Ext.P1 and the condition provided therein binds the petitioners, they cannot claim that they should be regularised in the promoted posts. That will definitely deprive the right of persons (in- service candidates) who are having qualification for promotion in the quota for promotees and those who are included in the ranked list awaiting appointment in the quota for direct recruitment. In that view of the matter, the petitioners cannot justifiably contend for the position that they are entitled for regularisation. Therefore, the said contention is rejected. As far as the contention that so many persons, nearly, 37 candidates have been appointed W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:13:- in violation of the conditions provided by the Full Bench rendered in Ext.R3(a) Judgment, I am not called upon to decide the said issue in the light of the fact that none of those candidates have been arrayed as parties herein. Apart from that they were evidently appointed based on the directions in Ext.P5 Judgment rendered by the Division Bench. Therefore, the said contention also may not help the petitioners. 16. The learned counsel for the petitioners also relied upon the principles stated in Dr.K.Ramulu and Another v. Dr.S.Suryaprakash Rao and Others [(1997) 3 SCC 59]. That was a case where the Government had taken a conscious decision not to fill up vacancies till amendment of Rules are effected. Here the position is different. 17. Lastly, the learned counsel for the petitioners submitted that even after accommodating the P.S.C hands and the persons who are in the department and who are claiming promotion to the quota earmarked for them, there will be further vacancies for accommodating the petitioners so that they need not be reverted at this point of time. This contention is strongly opposed by the learned counsel for W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:14:- the respondents by pointing out that as unqualified hands the petitioners cannot seek such a relief from this Court, especially, since qualified hands are awaiting outside. I find force in the said submission also. 18. The further question is whether any proposal for amending the Special Rules could come to the help of the petitioners. Therein also the proposal has not attained finality. Even if such proposals are implemented by the Government by amending the Special Rules, the rights of persons like the petitioners will squarely depend on the amended provisions and we cannot speculate on the terms of the proposed amendments. In that view of the matter, the petitioners cannot seek continuance in the promoted posts based on the proposed amendment of the Statutory Rules. 19. In that view of the matter, the principles stated by the Apex Court in Dr.K.Ramulu and Another v. Dr.S.Suryaprakash Rao and Others [(1997) 3 SCC 59] will not be applicable to the facts of this case. Accordingly, writ petition Nos. 18516/2010, 19021/2010 & 19815/2010 are dismissed. 20. W.P.(C).No.18217/2010 is filed by qualified persons in the Department awaiting promotion. Herein, the W.P.(C). Nos.18516/2010, 35626/2009, 18217/2010, 19021/2010, 19815/2010, 20955/2010, 23672/2010, 28350/2010 -:15:- learned counsel for the petitioners in W.P.(C). No.18516/2010 Shri M.V.Thamban submitted that the probation of many of the persons have not been declared. I need only say that the persons who have obtained qualification for promotion in the quota earmarked for promotees may be considered in terms of the Special Rules and, W.P.(C). No.18217/2010 is accordingly disposed of. 21. The writ petitioners in W.P.(C). Nos.35626/2009, 20955/2010, 23672/2010 & 28350/2010 seek for a direction to report the vacancies to the P.S.C. These writ petitions are disposed of with a direction that the Director of Homoeopathy will report the vacancies to the P.S.C in terms of the Special Rules without further delay, if they have not been reported already. No costs. (T.R. Ramachandran Nair, Judge.) ms