IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 RP.No. 1176 of 2008(D) ---------------------- AGAINST THE JUDGEMENT IN WPC.22504/2008 Dated 07/08/2008 .................... REVIEW PETITIONER(S): ---------------------- 1. THE DIRECTOR OF HOMEOPATHY, THIRUVANANTHAPURAM. 2. THE DISTRICT MEDICAL OFFICER (HOMEO), PATHANAMTITTA. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.ANU SIVARAMAN RESPONDENT(S): PETITIONER IN THE WP:- ------------------------------------- SMT. SUSILY JOHN, PEON,GOVERNMENT HOMEO DISPENSARY, PANDALAM, RESIDING AT MARUTHOOR PUTHEN VEEDU, THEKKUTHODE P.O., KARIMANTHODU, PATHANAMTHITTA DISTRICT. BY ADV. SRI.THALIYAL R. GOPAKUMAR. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------- R.P.No.1176 of 2008 in W.P.(C) No.22504 of 2008 ------------------------------- Dated this the 26th November, 2008. O R D E R Heard Smt.Anu Sivaraman, the learned Government Pleader appearing for the review petitioner and Sri.Thaliyil R.Gopakumar, the learned counsel appearing for the respondent. 2. The respondent, a person with disability, was appointed as Peon in the Government Homeo Dispensary, Pandalam, for a period of 179 days or till a regular hand joins duty, whichever is earlier. The term for which she was appointed expired on 31.7.2008. She submitted Ext.P3 representation dated 17.7.2008 before the District Medical Officer (Homeo), Pathanamthitta, for permission to continue in service till a regular hand joins duty. She thereafter filed W.P.(C) No.22504 of 2008 seeking continunace in service till a regular hand joins duty. In the said writ petition, the District Medical Officer (Homeo), Pathanamthitta, filed a statement which reads as follows:- RP.No. 1176 of 2008 2 “4. It is most respectfully submitted that the post of Peon in the Government Homeo Dispensary, Pandalam, is at present vacant and the service of a Peon is highly necessary was carried out it to the day today affairs of the hospital and its proper functioning and more than 100 patients are approached this dispensary every day and the service of a Peon is highly needed. It is also submitted that there is no other person who has better claim as a physically handicapped person compared to the petitioner. So far this respondent has not made any appointment to the post held by the petitioner and this is submitted for kind consideration of this Hon'ble Court.” 3. In the light of the stand taken by the District Medical Officer (Homeo), Pathanamthitta, and as it was conceded that the service of a Peon is highly necessary for the day today functioning of the hospital, I disposed of the writ petition with a direction to the review petitioners to reinstate the petitioner in service and to permit her to continue in service till a regular hand joins duty. In this review petition, the respondents in the writ petition, seek a review of the said judgment. They contend that the direction to re-appoint the petitioner in service offends the 9th proviso to Rule 9(a)(i) of Part II of the K.S. & RP.No. 1176 of 2008 3 S.S.R. and also runs counter to the Full Bench decision of this Court in Radha v. District Medical Officer (2002 (2) KLT 711). 4. I have considered the submissions made at the Bar by the learned counsel on either side. The 9th proviso to Rule 9(a)(i) of Part II of the K.S. & S.S.R. prohibits continuance in service of provisional employees appointed under Rule 9(a)(i) beyond the term for which they were appointed. Though their re- employment is permitted, such re-employment can be made only with the prior concurrence of the Kerala Public Service Commission and that too, if candidates are not available for appointment through the local employment exchanges. In the instant case, these aspects were not noticed, when by judgment delivered on 7.8.2008, I directed the review petitioners to reinstate the petitioner in service and to permit her to continue in service till a regular hand joins duty. The review petitioners or the writ petitioner did not bring to my notice the statutory provisions contained in the 9th proviso to Rule 9(a)(i) of Part II of the K.S. & S.S.R. or the Full Bench decision of this Court in RP.No. 1176 of 2008 4 Radha v. District Medical Officer (supra), at the time when W.P. (C) No.22504 of 2008 was heard and disposed of. The directions issued in W.P.(C) No.22504 of 2008 were issued without noticing the fact that the 9th proviso to Rule 9(a)(i) of Part II of the K.S. & S.S.R. does not permit re-employment of the petitioner. There is also no material to show that the prior concurrence of the Kerala Public Service Commission had been obtained and that no one is available for appointment as Peon through the employment exchange. Further, the Full Bench of this Court has in Radha v. District Medical Officer (supra) held that persons appointed under Rule 9(a)(i) of Part II of the K.S.&S.S.R cannot continue in service beyond the term for which they were appointed or seek regularisation in service. Such being the situation, the judgment in W.P.(C) No.22504/2008, delivered on 7.8.2008, is liable to be reviewed and the writ petition dismissed. Accordingly, I allow the review petition. The judgment delivered on 7.8.2008 in W.P.(C) No.22504 of 2008 is RP.No. 1176 of 2008 5 reviewed and recalled and the writ petition is dismissed. It will be open to the respondents to terminate the service of the writ petitioner forthwith. P.N.RAVINDRAN, JUDGE nj.