IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 WP(C).No. 14886 of 2005(V) ---------------------------------------- PETITIONER(S): ------------------------ 1. SHAJIMON.C., AGED 34 YEARS, S/O.N.CHANDRADASAN, JHI GR-II, PHC KONNATHADY, IDUKKI, RESIDING AT VAINGALIL VEEDU, THOTTINUVADAKKU, CHAVARA P.O., KOLLAM. 2. K.V. SONA, AGED 28 YEARS, W/O.P.A.JAYAKUMAR, JHI GR.II, PHC KONNATHADY, IDUKKI, RESIDING AT KODAVAYALIL HOUSE, PANTHALAYANI, KOILANDI, KOZHIKODE. 3. RAJESHKUMAR.O.K., AGED 32 YEARS, S/O.O.K.GOPALAKRISHNAN, JHI GR-II, PHC MANKULAM, IDUKKI, RESIDING AT SREEVIHAR, VATTOLI BAZAR P.O., BALUSSERY VIA, KOZHIKODE. 4. SANTHOSHKUMAR.M.S., AGED 28 YEARS, S/O.C.P.SOMAN, JHI GR-II, PHC KARINKUNNAM, IDUKKI, RESIDING AT VALIYAPARAMPIL HOUSE, KARAYAD P.O., MEPPAYUR, KOZHIKODE. 5. SHAJU.D., AGED 28 YEARS, S/O.P.DAMODARAN, JHI GR-II, PHC KODIKKULAM, IDUKKI, RESIDING AT THEKKECHEERAKOTT, KAVIL P.O., NADUVANNUR VIA, KOZHIKODE. 6. PRIYA GOPAL, AGED 28 YEARS, W/O.RAJESHKUMAR, JHI GR-II, PHC MANNAR, ALAPPUZHA, RESIDING AT SHAKTHI BHAVAN, PIRALASERI P.O., ANGADIKKAL, CHENGANNUR, ALAPPUZHA. 7. AJITHA.R., AGED 34 YEARS, W/O.ASHOKAN.K., JHI GR-II, PHC KURATHIKADU, ALAPPUZHA, RESIDING AT ASHOKAVANAM, CHOORALLUR, THEKKEKARA P.O., MAVELIKKARA, ALAPPUZHA. WP(C).No. 14886 of 2005(V) 8. JASHEENA.O., AGED 33 YEARS, D/O.BARATHAN, JHI GR-II, PHC PALLIPURAM, ALAPPUZHA, RESIDING AT CHITHIRA, AYANIKAD P.O., IRINGAL VIA, KOZHIKODE. 9. SHOGAN SHAIN BABU, AGED 27 YEARS, S/O.G.BABU, JHI GR-II, PHC CHITHIRAPURAM, IDUKKI, RESIDING AT SUMA VILLA, KAKKAMUGAL, KATTAKADA P.O., THIRUVANANTHAPURAM. 10. JAYESH.S.V., AGED 27 YEARS, S/O.C.T.SASI, JHI GR-II, PHC CHERIYANADU, ALAPPUZHA, RESIDING AT VALUPARAMBIL, ERAVANKARA P.O., ERAVANKARA, MAVELIKKARA, ALAPPUZHA. 11. ARUNKUMAR.P.S., AGED 32 YEARS, S/O.P.S.SUBRAMANIAN, JHI GR-II, PHC AVNISSERY, THRISSUR, RESIDING AT PARAKKATT HOUSE, AVNISSERY P.O., OLLUR, THRISSUR. 12. BYJU.E.S., AGED 35 YEARS, S/O.E.U.SANKARAN, JHI GR-II, PHC NENMANIKKARA, THRISSUR, RESIDING AT ERAVIMANGALATH HOUSE, NADATHARA P.O., THRISSUR. 13. SAJEEVAN.K.M., AGED 35 YEARS, S/O.VEMBIRA, JHI GR-II, PHC UDUMBANCHOLA, IDUKKI, RESIDING AT KAKKOTTU MEETHAL HOUSE, PALERI TOWN P.O., KUTTIYADI VIA, KOZHIKODE. 14. ANILA.S., AGED 31 YEARS, W/O.VIJAYAN.T., JHI GR-II, PHC KUNNATHOOR, KOLLAM, RESIDING AT THEKKEVILAYIL PADINJATTETHIL, MUDUPILAKAD P.O., KOLLAM. 15. SREENIVASAN.R., AGED 32 YEARS, S/O.DAVAKI.K., JHI GR-II, PHC MARAYUR, IDUKKI, RESIDING AT RDS VILLA, IDAVATTAM, KARUVELIL P.O., EZHUKON VIA, KOLLAM-691 505. 16. VINOD.N., AGED 31 YEARS, S/O.NARAYANAN, JHI GR-II, PHC PATHIYOOR, ALAPPUZHA, RESIDING AT VILAYATH THEKKETHIL, OLAKETIYAMBALAM P.O., MAVELIKKARA, ALAPPUZHA -690 510. 17. RAVIRAJ.R., AGED 32 YEARS, S/O.RAMAKRISHNAN, JHI GR-II, PHC VANDIPERIYAR, IDUKKI RESIDING AT HOUSE NO.3, NETHAJI NAGAR, MULLANLKUZHY, KOTTAYAM-686 002. WP(C).No. 14886 of 2005(V) 18. KALIDAS.V.K., AGED 33 YEARS, S/O.V.K.KARUPPAN, JHI GR-II, PHC ELAPPARA, IDUKKI, RESIDING AT NETHAJI NAGAR, MULLANKUZHY, COLLECTORATE P.O., KOTTAYAM-2. 19. MADASWAMY.P., AGED 30 YEARS, S/O.PARAMASIVAN, JHI GR-II, PHC VANDIPERIYAR, IDUKKI, RESIDING AT NIRMALA BAVAN, MANGANAM P.O., MANDHIRAM, KOTTAYAM-686 018. 20. K. KUMAR, AGED 32 YEARS, S/O.K.KARUPPAYYA, JHI GR-II, PHC NATTAKAM, KOTTAYAM, RESIDING AT NETHAJI NAGAR, S.V.K.K. HOUSE, HOUSE NO.24, MULLENKUZHY, COLLECTORATE P.O., KOTTAYAM-686 002. 21. ARUNKUMAR.M., AGED 28 YEARS, S/O.S.MUKUNDAN, JHI GR-II, PHC CHEPPAD, ALAPPUZHA, RESIDING AT ARUNALAYAM, CHENNITHALA P.O., MAVELIKKARA, ALAPPUZHA-690 105. 22. RAMESH.R., AGED 31 YEARS, S/O.RANGAN, JHI GR-II, PHC KRISHNAPURAM, ALAPPUZHA RESIDING AT KALIMURITHARAYIL, PUTHIYIDAM, KAYAMKULAM P.O., ALAPPUZHA-690 502. 23. MANILAL.K.C., AGED 33 YEARS, S/O.DAMODARAN, JHI GR-II, PHC SUGANDHAGIRI, VAYANAD, RESIDING AT VEL VIHAR, CHATHAMANGALAM P.O., REC, KOZHIKODE-673 601. 24. SURESHKUMAR.M.K., AGED 30 YEARS, S/O.M.K.KOCHUCHERUKKAN, JHI GR-II, PHC KARTHIKAPPALLY, ALAPPUZHA, RESIDING AT CHITHIRA, SOUTH MANKUZHY, PULLIKKANAKKU P.O., KAYAMKULAM VIA, ALAPPUZHA-690 537. 25. ABHILASH.P.K., AGED 26 YEARS, S/O.KUNJAN, JHI GR-II, PHC KUTTAMPUZHA, ERNAKULAM, RESIDING AT PANNANATTU, NEAR PARTY OFFICE JN., VADATTUPARA P.O., KOTHAMANGALAM, ERNAKULAM-686 691. 26. VINAYACHANDRAN.V.R., AGED 27 YEARS, S/O.K.VASU, JHI GR-II, PHC KATTAKKADA NEW, THIRUVANANTHAPURAM, RESIDING AT VINAYALAYAM, PUNNARAVILA, VEERANAKAVU P.O., KATTAKADA, THIRUVANANTHAPURAM -695 572. BY ADV. SRI.P.K.IBRAHIM, SMT.K.P.AMBIKA, SMT.ASHIRA MOHAMED ASHROF, SMT.K.R.REMYA, SRI.K.K.ASHKAR. WP(C).No. 14886 of 2005(V) RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. R1 & R2 BY GOVT. PLEADER MR.A.J. VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2010,ALONG WITH WPC NO. 15535 OF 2005 AND WPC NO. 25898 OF 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14886 of 2005(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION DATED APPEARED IN THE GAZETTE DATED NIL. EXT.P2: COPY OF THE ORDER NO.A3(K.DIS) 6404/02/DMO (H) I DATED 01/10/2002 ISSUED BY THE DISTRICT MEDICAL OFFICER OF HEALTH, IDUKKI. EXT.P3: COPY OF THE GOVERNMENT ORDER NO.G.O.MS.24/09/H&FWD DATED 23/01/1989. EXT.P4: COPY OF THE ORDER NO.MC4-98529/00/DHS DATED 10/06/2002 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 30th day of June, 2010 J U D G M E N T These writ petitions raise a common issue. In W.P.(C) No.14886/2005 all the petitioners are functioning as Junior Health Inspectors Grade-II; in W.P.(C).No.15535/2005 the petitioners are working as Junior Health Inspectors Grade-I and; in W.P.(C).No.25898/2005 they are working as Junior Health Inspectors Grade-II. The issue pertains to the fixation of seniority and the petitioners challenge the proceedings fixing the seniority which are produced as Exts.P9(a), P9(b) and P9(c) in W.P.(C).No.15535/2005. 2. The short facts leading to the dispute, as narrated in W.P.(C).No.15535/2005, are the following. The petitioners entered service as Junior Health Inspectors Grade-II. At the time of appointment, they have passed S.S.L.C Examination and Sanitary Inspectors' Training of the All India Institute of Local Self Government, Bombay. Ext.P1 produced in W.P.(C).No.15535/2005 is one of the notifications. The technical qualifications required were satisfied by the petitioners. Under clause (a) of Ext.P1, the requirement is Multi-purpose Workers' Training Certificate of the course Multi-purpose Workers' Training Scheme (Main) issued by the Kerala State Health Services W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:2:- Department or its equivalent i.e. Health Inspectors Training Certificate. Under clause (b), in the absence of candidates possessing the above technical qualification, Sanitary Inspectors Training Certificate (Diploma) qualification of the All India Institute of Local Self Government, Bombay or its equivalent. The petitioners are having the above qualifications. 3. In the year 1998, 92 candidates belonging to the SC/ST were appointed by Special Recruitment. The recruitment in W.P.(C).No.15535/2005 started by notification dated 08/12/1996. The other two special recruitments are of the year 1998 for SC/ST category. The petitioners have pointed out that they were appointed in service and their services were regularised with effect from the date of joining duty. Exts.P2 and P3 are copies of the orders produced in support of the above plea, with respect to some of the petitioners. Orders have been passed showing that they have satisfactorily completed probation in the cadre of Junior Health Inspectors Grade- II. Ext.P4 is a copy of one such order. 4. The respondents have been arranging training, namely, Multi-purpose Workers' Training by deputing persons like the petitioners for one month's in-service training. W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:3:- Ext.P6 is the copy of the said proceedings which shows that the period of training will be treated as duty also. 5. When the gradation list was published for the period from 01/01/1997 to 31/03/2000 as per Ext.P7, objections were called for. On the basis of the seniority shown in Ext.P7, the petitioners were promoted and a true copy of the promotion order is produced as Ext.P8. 6. Exts.P9(a), P9(b) and P9(c) are fresh lists dated 30/11/2004 which splits the combined seniority list Ext.P7 into three categories, namely, lists of candidates possessing qualifications of Health Inspectors Course, Sanitary Inspectors Course and other Departmental candidates, as lists I, II and III. The trouble arose for the petitioners when these lists were published. The persons who were recruited in 1999 were shown as senior to them and they were placed above them. In fact, persons namely, serial Nos.254 to 271 are those recruited in the year 2000, who found their place over the petitioners who are of the year 1998. Such persons were later promoted as per Ext.P10 order. The information passed on to the petitioners is that the service rendered till they have undergone training, i.e. Multi-purpose Workers' Training has been excluded for reckoning the seniority. This is under attack in W.P.(C).No.15535/2005. W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:4:- 7. In W.P.(C).No.14886/2005 similar pleas have been made and the petitioners are seeking for a direction to the respondents to treat the date of entry in service as the relevant date for fixing the seniority of the candidates possessing Sanitary Inspectors Training Sanitary Inspectors Training Certificate (Diploma) and Health Inspectors Training Certificate. In W.P.(C).No.25898/2005 also the same prayers have been made. 8. In W.P.(C).No.15535/2005 even though notice has been taken by paper publication, the respondents have not filed any counter affidavit disputing the claims raised by the petitioners. 9. The main points that arise for consideration are the following:- The petitioners were appointed pursuant to the Special Recruitment and going by Ext.P2 order of appointment in W.P.(C). No.15535/2005, there is no obligation to undergo training prior to the appointment. They satisfy all the qualifications as per the notification and the Multi-purpose Workers' Training Certificate is not an essential qualification. The recruitment rules also do not provide for acquisition of a such qualification which should precede the appointment whereas going by Ext.P5 prescribing the qualification, the said training has to be undergone after appointment. Therefore, their W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:5:- seniority has to be reckoned in the light of the principles under Rule 27 Part II of the Kerala State & Subordinate Services Rules. Herein, all the petitioners have been appointed and have undergone the period of probation and they have been regularised in service and the declaration regarding completion of probation has also been made in terms of the Rules. Since the requirement for undergoing the Multi-purpose Workers' Training is not one that is prescribed as a pre-condition by the recruitment rules or by the appointment order, it is submitted that the entire service upto the date of completion of the said training in respect of such candidates has to be treated as duty for all purposes including seniority and promotion. Reliance is placed on the dictum laid down in Haridasan & Others v. State of Kerala & Others [1987 (2) KLT 466], Lakshmanan v. State of Kerala [1995 (1) KLT 115], Ammini v. State of Kerala [2000 KHC 442], State of Kerala & Others v. Premavalsalan & Others [2008 (3) KHC 168]. 10. The learned counsel for the petitioners, Shri P.K.Ibrahim submitted that the entire legal issues raised in the writ petition are covered by the principles stated in the above Judgments. It is pointed out that it is not a case where the requirement for the training is part of the conditions of appointment or under the recruitment Rules. W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:6:- Therefore, training only follows the appointment and the completion of the training or the passing of the said course is not a condition for regularisation, for declaration of probation etc.. It is therefore, submitted that the completion of said training, namely, for a period of one month cannot determine the inter se seniority between the persons concerned. It is also submitted that the Government was deputing various persons for training without following a proper procedure or in accordance with the seniority etc.. Some of the petitioners in other writ petitions have not been sent also. It is therefore submitted that completion of the training cannot be a crucial aspect as far as the question of determining the seniority is concerned. It is submitted that going by Rule 27(c) of Part II K.S.& S.S.R, the petitioners are entitled for seniority based on the date of effective advice. 11. A similar question was considered by this Court in Haridasan's case [1987 (2) KLT 466]. The case arose out of a dispute between persons appointed as Instructor Grade-II on 08/08/1966 and, persons who were selected as Instructor Trainees and joined for training on July 1966 and were subsequently appointed as Instructor Grade-II in August, 1968. The persons selected as Trainees were given seniority. The whole aspects were considered by the W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:7:- Division Bench in the light of Rule 27 of the K.S.& S.S.R. It was held in paragraph (6) thus:- “The seniority in any service, class, category or grade is therefore primarily fixed with reference to the date of first appointment to service, class, category or grade. ..........The purpose of rule 27(c) is thus to equate the date of advice for appointment made by the Public Service Commission to the actual date of appointment prescribed in rule 27(a). When, therefore, seniority has to be fixed in any service, class or grade and there are persons appointed on the advice of the Public Service Commission and also persons not so advised, seniority has to be fixed with reference to the date of advice of the former and the date of appointment of the latter. The date of advice is treated as the date of appointment for purposes of seniority. This in substance is the effect of rule 27(a) and (c). Finally, in paragraph (10) Their Lordships held thus:- “Training as an eligibility for appointment, as a qualification to be W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:8:- acquired before appointment is not the same thing as training for equipment after appointment. Training undergone after appointment alone is taken care of under Rule 2(6) of the K.S. & S.S.R and not training which is a pre-requisite for appointment, a training which precedes the appointment. This distinction is clearly borne out by the several Special Rules.” 12. Admittedly, the appointment order here does not specify any training which precedes the appointment. Ext.P2 clearly shows that they were appointed in service under Rule 9(a) of Part II K.S.& S.S.R, and going by Clause (5) of the appointment order, the appointment ordered are purely provisional and the candidates are eligible for appointment in regular service only if their character and antecedents are found satisfactory on subsequent verification. Thereafter, they were regularised in service and the probation was declared also and the regularisation is with effect from the date of joining duty in respect of various candidates. 13. In a later decision in Lakshmanan's case [1995 (1) KLT 115] also a similar question was considered where after appointment certain personnel in the category of Sub Inspector of Police were deputed for training, it was held that the training was not a condition or qualification and W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:9:- the said period has also to be treated as duty for the post in question. The head note reads thus:- “A person is said to be on duty when he is performing the duties on the post or he is undergoing the probation, instruction or training prescribed for such service. Factually it is clear that the petitioner is appointed as a Sub Inspector of Police, after his recruitment on the advice of the Public Service Commission as Sub Inspector on the stated scale. A person is said to be appointed to the service when in accordance with the rules or in accordance with the rules applicable at the time, as the case may be, he discharges for the first time the duties of a post borne on such cadre or commences the probation, instruction or training prescribed for the members thereof. In certain situations training could be a condition precedent, in other words, a qualification for appointment, whereas other situations could also be under consideration that it is the appointment that precedes first in point of time and thereafter an employee is referred to a period of training with the purpose of shaping the selected employee to make him more suitable for the services required of him. In such situations, the training is not considered as a part of a qualification for appointment, but is considered necessary and essential for the requirements of the W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:10:- services to which he is appointed. In this situation, the training is not a condition or qualification, but a further situation thought necessary by the appointing authorities to make the candidates more suitable to the services to which he is appointed. If after training no advice is called for under the relevant rules and none is given under any provision, the person who is appointed subsequently can only rest his claim for seniority with reference to the date of appointment under Rule 27(a) of the said Rules, 1958. What is required to be considered is whether it is an advice for training when it cannot be considered as advice for appointment. It has to be considered as to whether training is an eligibility for appointment, as a qualification to be acquired before appointment and is not the same as a requirement of training for equipment after appointment. Much depends on the factual position as to whether the selection was to a course of training rather than to an office or post.” It is evident from the principles stated therein that the person appointed to a service will be entitled to count for the purpose of seniority the service rendered after he has been admitted to duty. Herein, it is not a case where the training precedes the appointment as an eligibility W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:11:- condition for appointment. Actually, they were appointed and the training, if at all, is only after appointment, but that does not mean that the same was obligatory for conferring them various incidence in service like seniority. The appointment granted was not as trainees. These principles have been reiterated in later decisions in Ammini v. State of Kerala [2000 KHC 442], State of Kerala & Others v. Premavalsalan & Others [2008 (3) KHC 168]. In fact in State of Kerala & Others' case [2008 (3) KHC 168] it was held that “in-service training cannot be termed as pre-appointment training and therefore in-service training should be counted in service”. Hence Rule 27(c) of K.S. & S.S.R will squarely apply for fixing seniority. The same is extracted below:- “Notwithstanding anything contained in clauses (a) and (b) above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:12:- advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list.” 14. It is therefore clear that the deletion of the period of service rendered by the petitioners upto the date of completion of the training, namely, Multi-purpose Workers' Training from the total length of service of the petitioners cannot be justified. The said period of service is liable to be included for the purpose of reckoning seniority and other rights of the petitioners for promotion etc.. The petitioners are entitled to claim seniority in the light of the provisions of Rule 27(c) of K.S.& S.S.R. Even going by Ext.P5, namely, the note under clause (iii), the candidates possessing item (iii) of the qualification should undergo in-service Multi-purpose Workers' Training after appointment. Therefore, it is clearly a case where they are sent for training after appointment alone. Significantly, there is no fresh appointment after the training is over and in that view of the matter, Rule 27(c) of K.S. & S.S.R alone will govern the fixation of seniority as noted already. 15. In the light of the above legal position, Ext.P7 in W.P.(C).No.15535/2005 will have to be declared as valid and the modification made as per Exts.P9(a), P9(b) and P9 W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:13:- (c) cannot be sustained. W.P.(C).No.15535/2005 is allowed. It is declared that the petitioners are entitled to count seniority on the basis of the various appointment orders and without considering the date of completion of the Multi-purpose Workers' Training since the same is not essential for the purpose of appointment and it is only a training after appointment. The consequential orders will be passed by the respondents fixing the seniority, within a period of three months. The petitioners will also be entitled for consequential service benefits. 16. In W.P.(C). Nos.14886/2005 & 25898/2005, the petitioners have not been sponsored for training. It is contended that the trainings were being arranged by the respondents without following the principles of seniority and the date of appointment. In that view of the matter, if the appointments are for various years like 1998-99, 1999-00 and 2000-01 and they are not being sent for training in terms of the seniority, it is evident that the absence of training cannot affect the initial seniority. Therefore, the in-service training can only be treated as one for equipment after the persons enter into service. The period of training has also to be treated as part of service. In the light of the above, W.P.(C). Nos.14886/2005 & 25898/2005 are also allowed and the period of service, W.P.(C). Nos.14886/2005-V, 15535/2005-Y & 25898/2005-G -:14:- namely, based on the order of appointment and by applying Rule 27(c) of K.S. & S.S.R will be counted for the benefit of seniority, promotion and other benefits. The consequential orders will be passed by the respondents fixing the seniority, within a period of three months. The petitioners will be entitled for consequential benefits also. No costs. (T.R. Ramachandran Nair, Judge.) ms