IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WP(C).No. 5415 of 2009(V) ------------------------------------- PETITIONER(S): ----------------------- SARITHA.B.S., D/O.S.SATHYANANDAN, BRIGHT HOUSE, VIKAS NAGAR, SREEKARYAM P.O. THIRUVANANTHAPURAM (NOW WORKING AS CLEANER W&C S. HOSPITAL, THYCAUD.) BY ADV. MR.P.SOMACHUDAN NAIR RESPONDENT(S): -------------------------- 1. THE GOVERNMENT OF KERALA, REPRESENTED BY THE HEALTH SECRETARY, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE MANAGING DIRECTOR, KERALA HEALTH RESEARCH AND WELFARE SOCIETY, REGISTERED OFFICE GOVT. HOSPITAL CAMPUS, RED CROSS ROAD, THIRUVANANTHAPURAM 695 037. 3. REGIONAL ENGINEER, K.H.R.W.S MEDICAL COLLEGE HOSPITAL CAMPUS, THIRUVANANTHAPURAM 695 001. 4. THE SUPERINTENDENT, REGIONAL OPTHALMIC INSTITUTE, THIRUVANANTHAPURAM. *ADDL. R5 IS IMPLEADED. 5. C.SREELATHADEVI, NURSING ASSISTANT, EDAMALLOOR, PANAYIL VEEDU, KOWDIAR P.O. THIRUVANANTHAPURAM. (NOW WORKING AS PAY WARD ASSISTANT, GOVT. OPTHALMIC HOSPITAL, THIRUVANANTHAPURAM. IS IMPLEADED AS PER ORDER DTD. 30.3.09. IN IA. NO.4507/09. R1 BY GOVT. PLEADER MR.ANTONY MUKKATH R2 BY ADV. MR.M.AJAY,SC,KERALA HEALTH RESEARCH&WE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5415/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE STANDARD X CERTIFICATE OF PETITIONER. P2:- COPY OF THE REPLY NO.D5/MCP/5069/04 DTD. 18.11.04 OF DISTRICT COLLECTOR, THIRUVANANTHAPURAM. P3:- COPY OF THE NO.A3/549/02/KHRWS DTD. .2.05 OF 2ND RESPONDENT. P4:- COPY OF THE PROCEEDINGS NO. NIL DTD. NIL OF 3RD RESPONDENT. P5:- COPY OF THE OFFICE ORDER NO.RET-6/02/T & P DTD. 31.8.08 OF 3RD RESPONDENT. P6:- COPY OF THE ORDER NO.A6-1975/06/KHWRS DTD. 10.10.07 OF 2ND RESPONDENT. P7:- COPY OF THE CERTIFICATE OF STD. XII OF THE PETITIONER. P8:- COPY OF THE ORDER NO.A6-1114/08/KHRWS (i) DTD. 24.6.08 OF 2ND RESPONDENT. P9:- COPY OF THE ORDER NO.A6-147/08/KHRS DTD. 15.9.08 OF 2ND RESPONDENT. P10:- COPY OF THE ORDER NO.A6-3121/08/KHRWS DTD. 4.2.09 OF 2ND RESPONDENT. P11:- COPY OF THE REPRESENTATION DTD. 12.2.09 SENT BY PETITIONER TO 2ND RESPONDENT. P12:- COPY OF THE ORDER NO.A6/753/09/KHRWD DTD. 19.2.09. P13:- COPY OF THE ORDER NO.IA-1/2005/KHRWS DTD/ 8./3.09. P14:- COPY OF THE AFFIDAVIT OF THE PETITIONER DTD. 18.3.09. P15:- COPY OF THE ORDER IN COC 291/09 DTD. 22.6.09. P16:- COPY OF THE KHRWS ORDER NO.A6-1775/06/KHRWS(S) DTD. 20.5.06. P17:- COPY OF THE ATTENDANCE REGISTER OF THE 4TH RESPONDENT FOR THE MONTH OF FEBRUARY 2009. TRUE COPY P.A. TO JUDGE tss P.N.RAVINDRAN, J. ----------------------------- W.P(C) No.5415 of 2009-V ------------------------------ Dated this the 22nd day of July, 2009. J U D G M E N T Heard Sri.P.Somachudan Nair, the learned counsel appearing for the petitioner, Sri.Antony Mukkath, the learned Government Pleader appearing for the first respondent and Sri.M.Ajay, the learned counsel appearing for respondents 2 and 3. 2. The petitioner was appointed as Cleaner in the Kerala Health Research and Welfare Society under the dying-in-harness scheme as per Ext.P3 order dated 3.2.2005 passed by the Managing Director. She and two others were thereafter promoted to the category of Pay Ward Assistant Gr.II by Ext.P6 order dated 10.10.2007. Later, by Ext.P9 order dated 15.9.2008, Ext.P6 was cancelled and the petitioner and others were reverted as Cleaners with effect from 10.10.2007. It was also directed that the excess pay drawn by them shall be recovered in instalments. Ext.P9 is under challenge in this writ petition. 3. The petitioner challenges Ext.P9 on two grounds. The first ground is that the petitioner was not heard before Ext.P9 was passed. The second ground is that the petitioner, who has passed the S.S.L.C examination was eligible to be appointed as Pay Ward Assistant Gr.II by direct recruitment, when Ext.P6 order was passed and therefore, the W.P(C) No.5415 of 2009-V 2 order reverting her, is bad in law. 4. It is not in dispute that the petitioner was appointed as Cleaner under the dying-in-harness scheme. Therefore she cannot claim appointment to any other post under the dying-in-harness scheme, as held by the Apex Court in State of Rajasthan V. Umrao Singh (1994(6) SCC 560). I shall now deal with the petitioner's claim that she was eligible to be appointed by direct recruitment as Pay Ward Assistant Gr.II even at the time when Ext.P6 order was passed and therefore the order reverting her is illegal. As per the Special Rules for the Kerala Health Research and Welfare Society Employees, no qualification other than ability to read and write Malayalam and good physique are prescribed for appointed as Cleaner. The methods of appointment as Pay Ward Assistant Gr.II is by promotion from qualified Cleaners and in their absence, by direct recruitment. For appointment by promotion as Pay Ward Assistant Gr.II, the qualification prescribed is a pass in the S.S.L.C Examination with five years experience as Cleaner. In the absence of such qualified hands, Cleaners with a pass in Standard VII and having five years experience can be promoted. For direct recruitment, the qualification prescribed is a pass in the S.S.L.C Examination. As per the Special Rules, direct recruitment can be resorted to only in the absence of qualified hands having either a pass in the S.S.L.C Examination with five years experience or having a pass in Standard VII with five years experience. The petitioner has no case that no Cleaner with a pass in W.P(C) No.5415 of 2009-V 3 Standard VII and having the requisite experience was available for promotion when she was promoted as Pay Ward Assistant Gr.II. Further, as a Cleaner with a pass in the S.S.L.C Examination, the petitioner could have been promoted as Pay Ward Assistant Gr.II only after five years of service as Cleaner. Therefore, the order promoting the petitioner as Pay Ward Assistant Gr.II was illegal. 5. The petitioner challenges Ext.P9 also on the ground that before it was issued she was not put on notice or heard. On the admitted facts, even if notice had been given to the petitioner no other conclusion would have been possible. Therefore the mere failure to give notice to the petitioner does not vitiate Ext.P9. After Ext.P9 order was passed, the petitioner had submitted Ext.P2(b) representation and that was considered and rejected. It is settled law that public authorities have the inherent power to rectify mistakes. Therefore on the facts of this case it cannot be said that Ext.P9 is in any way arbitrary or illegal. For the reasons stated above, I hold that there is no merit in this writ petition. The writ petition fails and is accordingly dismissed. It is clarified that the dismissal of this writ petition will not stand in the way of the petitioner being promoted in the regular channel in accordance with the rules, after she completes five years service in the category of Cleaner. P.N.RAVINDRAN JUDGE ab