IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 WP(C).No. 13821 of 2010(C) -------------------------- PETITIONER(S): --------------- BINI N.S,STAFF NURSE GRADE II (PROVISIONAL), E.S.I DISPENSARY, KILIKOLLOOR,KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR RESPONDENT(S): --------------- 1. THE DIRECTOR,INSURANCE MEDICAL SERVICE, THIRUVANANTHAPURAM. 2. REGIONAL DEPUTY DIRECTOR, INSURANCE MEDICAL SERVICE, SOUTH ZONE,POLAYATHODE, KOLLAM. 3. INSURANCE MEDICAL OFFICER, E.S.I DISPENSARY,KILIKOOLLOR, KOLLAM. 4. THE DISTRICT EMPLOYMENT OFFICER, EMPLOYMENT EXCHANGE,KOLLAM. 5. TESSY MATHAI,E.S.I DISPENSARY, KERALAPURAM,KOLLAM(RESIDING AT KATTUVILA VEEDU,EDANADU P.O, KARAMKODE,CHATHANOOR, KOLLAM - 691 579) MR.ANTONY MUKKATH, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.13821/2010 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE IDENTITY CARD ISSUED TO THE PETITIONER FROM TOWN EMPLOYMENT EXCHANGE, KOTTARAKARA. P2 : COPY OF ORDER OF APPOINTMNET DATED 30/11/2009 ISSUED BY R2. P3 : COPY OF ORDER DATED 13/04/2010 OF R2. P4 : COPY OF ORDER DATED 19/04/2010 OF R2. P5 : COPY OF PETITION DATED 22/04/2010 FILED BY THE PETITIONER BEFORE R2. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.13821 of 2010 (C) --------------------------------- Dated, this the 26th day of July, 2010 J U D G M E N T Heard learned counsel for the petitioner, learned Government Pleader and also learned counsel appearing for the 5th respondent. 2. The petitioner and the 5th respondent were appointed on a provisional basis for one year or till regular hands join service, as Staff Nurse Grade-II. Ext.P2 is the order of appointment, which shows that the 5th respondent is at Serial No.1 and the petitioner is at Serial No.3. By this order the petitioner was posted at ESI Dispensary, Kilikollur and the 5th respondent at ESI Hospital, Ezhukone. A regular hand joined the post occupied by the 5th respondent and consequently, the 5th respondent was transferred to Keralapuram ESI dispensary. However, subsequently by Ext.P4, the 5th respondent was posted to ESI Dispensary, Kilikollur and therefore the petitioner's services were ordered to be terminated. It was thereupon that this writ petition has been filed. 3. The contention raised by the learned counsel for the WP(C) No.13821/2010 -2- petitioner is that both being provisional hands appointed under Rule 9(a)(iii) of the KS&SSR, even if any one of them is to be terminated, senior among them has to be terminated. It is stated that the 5th respondent is senior among them and therefore, the petitioner could not have been terminated and that for that reason, Ext.P4 is illegal. 4. It was contended by the learned counsel for the petitioner that the proviso to Rule 9(a)(iii) of the KS&SSR provides that a person appointed under Clause (i) shall be replaced in the order of seniority based on length of temporary service in the unit. It is stated that both of them were appointed by Ext.P2 order. Therefore, in view of the equal seniority both of them have, reference will have to be made to the ranking in the select list. It is stated that if so, the 5th respondent has to vacate the post, she being senior to the petitioner. 5. The proviso to Rule 9(a)(iii) of the KS&SSR, states that persons appointed under Clause (i) shall be replaced in the order of seniority based on length of temporary service in the unit. Therefore, the question to be examined is who has longer WP(C) No.13821/2010 -3- temporary service in the unit. 6. From Annexures A2 & A3 produced along with R.P.No.614/2010, it would appear that the 5th respondent joined temporary service on 14/12/2009, whereas the petitioner commenced her temporary service on 07/12/2009. If that be so, the petitioner has longer temporary service. Therefore, if length of temporary service is adopted as the yardstick for replacement, necessarily as is seen from Annexures A2 & A3, it is the petitioner who is having more length of temporary service. If that be so the petitioner will have to vacate the post. Consequently, Ext.P4 order transferring and posting the 5th respondent in the place of the petitioner cannot be faulted. Needless to say that if the review petitioner /5th respondent in the writ petition has been terminated from service, now that the review petition has been allowed, she will be entitled to be reinstated in service but however without any claim for backwages or other benefits. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg