IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 3RD OCTOBER 2007 / 11TH ASWINA 1929 WP(C).No. 15834 of 2005(I) -------------------------------------- PETITIONERS: ------------------- 1. BINDU.V., VILAKATHARA HOUSE, MADAKKATHARA P.O., MANNUTHY VIA, THRISSUR DIST. 2. K.C.JAYAN, T.C.53/735, K.C.BHAVAN, PONNUMANGALAM, NEMOM P.O., THIRUVANANTHAPURAM-20. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC GOVERNMENT PLEADER SRI. P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/10/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 15834/2005 I APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE RANKED LIST PUBLIHSED BY THE R3. EXT.P2. COPY OF THE NEWS ITEM IN MALAYALA MANORAMA DAILY DT. 25/7/2004. EXT.P3. COPY OF THE NEWS ITEM IN MADHYAMAM DAILY DT. 18/1/2005. EXT.P4. COPY OF THE NEWS ITEM IN KERALA KAUMUDI DAILY DT. 20/3/2005. EXT.P5. COPY OF THE REPRESENTATION DT. 15/3/2004 BY THE P2 BEFORE THE MINISTER FOR HEALTH AND FAMILY WELFARE EXT.P6. COPY OF THE REPRESENTATION DT. 17/7/04 BY THE P2 BEFORE THE MINISTER FOR HEALTH AND FAMILY WELFARE. EXT.P7. COPY OF THE JUDGMENT OF THIS COURT IN WPC NO. 23216/04 DT. 5/08/04. EXT.P8. COPY OF THE LETTER NO. EF2/78967/2004/DHS DT. 19/10/2004 OF THE R2. EXT.P9. COPY OF THE LETTER NO. 36779/P3/2004/H&FWD DT. 20/12/2004 OF THE R1. EXT.P10. COPY OF THE GO RT NO. 512/2005/H&FWD DT. 22/2/2005. EXT.P11. COPY OF THE LETTER NO. 30/09/2005 OF THE PRINCIPAL, MEDICAL COLLEGE, THRISSUR. EXT.P12. COPY OF THE GO MS NO. 124/2007/H7FWD DT. 1/6/07. 2ND RESPONDENT'S ANNEXURES ANNEXURE A: COPY OF THE PERFORMA DT. 26/11/05. ANNEXURE B: COPY OF THE PERFORMA DT. 7/12/2005. True copy tga V.GIRI, J. ------------------------- W.P.(C).No.15834 of 2005 I ------------------------- Dated this the 3rd day of October, 2007. JUDGMENT The complaint, which originally raised in this writ petition, was the alleged inaction on the part of the Health Service Department in reporting the available vacancies in the post of Anesthesia Technician. 2. Ext.P1 rank list was published on 10.12.2002 and therefore, it was to expire on 9.12.2005. Admittedly, the rank list has expired. During the pendency of the rank list, vacancies in the post of Anesthesia Technician were reported to the Directorate of Health Services. The contention of the petitioners is that all the vacancies have not been reported to the Directorate of Health Services. 3. On 9.9.2005, a counter affidavit was filed by the 2nd respondent contending that in the Health Services Department, there are only 10 sanctioned posts of Anesthesia Technician Grade II and those posts are filled up. No vacancy was found available in the post Anesthesia Technician Grade II. It was further contended that the details of Anesthesia Technicians working under the control of the W.P.(C).No.15834 of 2005 :: 2 :: Director of Medical Education is not available in the Health Services Department. 4. Taking note of the averments made in the writ petition as well as in the counter affidavit, this court passed an order on 25.11.2005 to the following effect: “Having regard to the fact that the ranked list expires on 09/12/2005, interim order as prayed for is granted. It is however made clear that candidates from the ranked list need not be advised against the vacancies reported in terms of this order until further orders. Vacancies shall be reported, so as to, reach the report before the 3rd respondent on or before 08/12/2005.” 5. Subsequently, pursuant to a direction issued by this court, a statement was filed on behalf of the 2nd respondent on 6.11.2006. As a matter of fact, on 26.11.2005 the Director of Health Services had reported two vacancies as evidenced by Annexure A letter dated 26.11.2005. Later on 7.12.2005, another 3 vacancies of Anesthesia Technicians were reported to the Public Service Commission. W.P.(C).No.15834 of 2005 :: 3 :: 6. Subsequently, a counter affidavit was filed by the 2nd respondent on 8.8.2007 contending that though 3 vacancies were reported to the Public Service Commission on 7.12.2005, the same was only to secure compliance with the interim order dated 25.11.2005. Thus, there was actually only 2 vacancies, which were reported on 26.11.2005 and the 3 vacancies which were reported on 7.12.2005 was not in existence. 7. It is to be noted that Ext.P1 rank list is prepared for the post of Anesthesia Technicians in the Health Services Department. Separate selection has been made by the Public Service Commission for filling up the posts of Anesthesia Technicians Grade II in the Health Services Department and Directorate of Medical Education. Hence vacancies in both the department cannot be filled from Ext.P1 list, contends the Government Pleader. 8. As noted above, Ext.P1 rank list relating to Anesthesia Technicians Grade II actually expired on 9.12.2005. The only question is whether there were actually 3 vacancies in existence in the post of Anesthesia W.P.(C).No.15834 of 2005 :: 4 :: Technicians Grade II in the Health Services Department, so that they could be said to have been actually reported to the Public Service Commission on 7.12.2005. 9. I have heard learned counsel for the petitioner Sri.Pirappancode Sudheer as also Senior Government Pleader Sri.Nandakumar. 10. It cannot be denied that the Health Services Department and the Medical Education Department are separate. The post of Anesthesia Technicians Grade II should be found in both the departments. Ext.P1 rank list is expressly in relation to Anesthesia Technicians Grade II in the Health Services Department. Thus, only vacancies which arise in the said department is liable to be reported to the Director of Health Services. The Director of Medical Education is another Head of Department. The post of Anesthesia Technicians Grade II, which arises in the Directorate of Medical Education, cannot be taken note of by the Director of Health Services and reported by the Director of Health Services. Mr.Sudheer has produced Ext.P12 order along with the reply affidavit to contend that the system of W.P.(C).No.15834 of 2005 :: 5 :: dual control being exercised over several categories of staff by the Director of Health Services and Director of Medical Education has been abolished with effect from 1.6.2007. In my opinion, it re-enforces the fact that there were staff of the same category in the two departments, controlled by the two heads of departments and therefore, it obviously was not possible for the Health Services Department to take into account the post of Anesthesia Technicians Grade II in the Medical Education Department, so as to report the same to the Public Service Commission to be included in Ext.P1 list. In other words, the vacancies of Anesthesia Technicians Grade II in the department of Medical Education, obviously, cannot be taken into account for the purpose of enforcement of Ext.P1 rank list. 11. For all these reasons, I do not find any reason to interfere with Ext.P1. Writ petition is accordingly dismissed. It is made clear that Public Service Commission will be required to advise candidates in relation to vacancies of Anesthesia Technicians Grade II, which were reported on W.P.(C).No.15834 of 2005 :: 6 :: 26.11.2005 and they shall not advise candidates for the posts which were reported on 7.12.2005. Sd/- (V.GIRI) JUDGE sk/ //true copy//