IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 WA.No. 1292 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.13821/2010 Dated 26/07/2010 .................... APPELLANT(S): PETITIONER ------------------------ BINI N.S., STAFF NURSE GRADE-II, (PROVISIONAL), ESI DISPENSARY, KILIKOLLOOR, KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR SMT.LISSY JOSE.P RESPONDENT(S): --------------- 1. THE DIRECTOR, INSURANCE MEDICAL SERVICE, THIRUVANANTHAPURAM-695 001. 2. REGIONAL DEPUTY DIRECTOR, INSURANCE MEDICAL SERVICE, SOUTH ZONE, POLAYATHODE, KOLLAM-673 307. 3. INSURANCE MEDICAL OFFICER, E.S.I.DISPENSARY, KILIKOOLLOR, KOLLAM-691 004. 4. THE DISTRICT EMPLOYMENT OFFICER, EMPLOYMENT EXCHANGE, KOLLAM-673 307. 5. TESSY MATHAI, E.S.I.DISPENSARY, KERALAPURAM, KOLLAM (RESIDING AT KATTUVILA VEEDU, EDANADU P.O., KARAMKODE, CHATHANOOR, KOLLAM-691 579). BY GOVERNMENT PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ----------------------------------------- W.A.No.1292 of 2010 ----------------------------------------- Dated this the 29th day of July, 2010 JUDGMENT Ravindran, J. The unsuccessful petitioner in W.P(C)No.13821 of 2010 is the appellant in this writ appeal. 2. The appellant and the 5th respondent were appointed as Staff Nurse Grade II on a provisional basis by Ext.P2 order dated 30.11.2009 issued by the Regional Deputy Director, Insurance Medical Service, South Zone, Kollam. By the said order besides the appellant and the 5th respondent two others were likewise appointed. The appointment was for a period of one year from the date of joining duty or till a regular hand joins duty, whichever is earlier. It appears when the said contingency arose the official respondents took steps to retain the 5th respondent in service and to terminate the service of the appellant. The instant writ petition was thereupon filed. The learned single Judge held that as the appellant had admittedly joined service earlier than the 5th respondent pursuant to Ext.P2 order of appointment the appellant is liable to be thrown out first. Reliance was placed on the proviso to Rule 9(a)(iii) of Part II of the KS & SSR. Aggrieved thereby the appellant has preferred this appeal. W.A.No.1292 of 2010 -:2:- 3. We heard the learned counsel appearing for the appellant. We have also gone through the pleadings and the materials on record. It is not in dispute that pursuant to Ext.P2 order of appointment the appellant joined duty on 7.12.2009 and the 5th respondent joined duty only on 14.12.2009. Thus the appellant has longer service than the 5th respondent. Rule 9(a)(iii) of Part II of the KS & SSR reads as follows:- “9(a)(iii) A person appointed under clause (i) shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the said rules. Provided that persons appointed under clause (i) shall be replaced in the order of seniority based on length of temporary service in the unit. Note:- For the purpose of this proviso, posts within the jurisdiction of an appointing authority shall be treated as a unit.” Going by the proviso to Rule 9(a)(iii) persons appointed under clause (i) have to be replaced in the order of seniority based on the length of temporary service in the unit. A learned single Judge of this Court has in Suresh Kumar v. Director of Health Services, 1999 (1) KLT 223, interpreting the proviso held that if a temporary appointee appointed under Rule 9(a)(i) has to be terminated the senior among them shall be sent out. The learned single Judge has in the judgment under challenge only applied the proviso to Rule 9(a)(iii) as interpreted by W.A.No.1292 of 2010 -:3:- this Court in Suresh Kumar's case (supra) and held that the appellant who joined duty earlier than the 5th respondent is senior based on the length of temporary service and therefore, she has to vacate the post earlier than the 5th respondent. In our opinion the stand taken by the respondents and upheld by the learned single Judge cannot be faulted. We accordingly hold that no grounds have been made out warranting interference with the decision of the learned single Judge. The writ appeal fails and is dismissed in limine. J.CHELAMESWAR, Chief Justice P.N.RAVINDRAN, Judge. ahg. J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. --------------------------- W.A.No.1292 of 2010 ---------------------------- JUDGMENT 29th July, 2010