High Court Kerala High Court

Syamkumar.P.K vs Pushpadharan.V. on 5 June, 2009

Kerala High Court
Syamkumar.P.K vs Pushpadharan.V. on 5 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 470 of 2009(B)


1. SYAMKUMAR.P.K,
                      ...  Petitioner
2. SREEJITH.A,

                        Vs



1. PUSHPADHARAN.V., WORKING AS FIELD
                       ...       Respondent

2.  K.SASINDRAN, WORKING AS FIELD WORKER,

3. JALALUDEENKUNJU.A., WORKING AS FIELD

4.  M.ALIYARUKUNJU, WORKING AS FIELD WORKER

5. ANILKUMAR.K., WORKING AS FIELD WORKER,

6. A.K.JAYACHANDRAN, WORKING AS FIELD

7. NOBIL LAL.S., WORKING AS FIELD WORKER

8. RAVEENDRAN PILLAI.T.A., WORKING AS

9. SREEKUMAR M., WORKING AS FIELD WORKER,

10. GOPAKUMAR.D., WORKING AS FIELD WORKER,

11. RANJIT S.R., WORKING AS FIELD WORKER,

12. SREEKUMAR.S., WORKING AS FIELD WORKER,

13. B.S.SREEKUMAR, WORKING AS FIELD WORKER,

14. STATE OF KERALA, REPRESENTED BY THE

15. THE SECRETARY TO GOVERNMENT,

16. THE DIRECTOR OF HEALTH SERVICES,

17. DISTRICT MEDICAL OFFICER,

18. DISTRICT MEDICAL OFFICER, KOLLAM.

19. DISTRICT MEDICAL OFFICER, ALAPPUZHA.

20. SAJI.C,

                For Petitioner  :SRI.K.JAJU BABU

                For Respondent  :SRI.P.B.SURESH KUMAR

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR

 Dated :05/06/2009

 O R D E R
      K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.
                     ------------------------------
            W.A.Nos. 470, 471, 719 & 720 OF 2009
                     -------------------------------
              Dated this the 5th day of June, 2009

                         J U D G M E N T

~~~~~~~~~~~

Balakrishnan Nair, J.

W.A.No. 470 OF 2009:-

The appellants were not parties to the writ petition. After

obtaining leave from this Court, this appeal was filed. The writ

petitioners are respondents 1 to 13 herein. They are persons

working under the Department of Health Services, as Field

Workers.

2. The brief facts of the case are the following:

The writ petitioners were persons claiming promotion to the

post of Junior Health Inspector, Grade-II. According to them, they

possess the requisite qualifications for promotion, prescribed

under the Government Order dated 23.1.1989, a copy of which is

produced as Annexure-C in this appeal. As per the method of

appointment provided in that Government Order, vacancies

arising in the cadre of Junior Health Inspector Grade-II, have to

W.A.Nos.470/2009 & connected cases 2

be filled up by promotion/transfer from the qualified hands

working in the Department. In the absence of qualified hands,

the vacancies are to be filled up by PSC hands.

3. The Public Service Commission invited applications

for appointment to the post of Junior Health Inspector Grade-II,

in various districts and after completing the selection process,

rank lists were also published. The appellants in this appeal are

persons included in the rank list published in Kottayam District

on 23.10.2007.

4. The writ petitioners felt that even in the face of

availability of qualified hands like them, the vacancies were

being filled up by PSC hands. The same was contrary to

Annexure-C Government Order, prescribing qualifications and

method of appointment to the aforementioned post. Therefore,

the writ petition was filed seeking appropriate reliefs. In the

writ petition, they also raised their grievance against the

proposal of the Government to prescribe a ratio between the

transfer appointees and direct recruits. The learned Single

Judge declined to interfere with the proposal mooted by the

W.A.Nos.470/2009 & connected cases 3

Government regarding the change of method of appointment,

but, ordered that promotions should be granted to the writ

petitioners and qualified eligible hands in accordance with

Annexure-C Government Order up to 30.10.2007. The learned

Single Judge also noted that if the vacancies, which arose

before the amendment was introduced, are filled up, the same

should also be done as provided in Annexure-C. Later, the writ

petitioners moved the learned Single Judge, by filing a Contempt

Application, alleging that promotions/transfer appointments are

not being made, as directed by the learned Single Judge. The

learned Single Judge issued further directions and pursuant to

that, the Government issued Annexure-J order dated 23.1.2009.

The appellants noticed that as per Annexure-J order, all the

vacancies were being filled up by promotion/transfer. They also

found that the learned Single Judge was not appraised of

Annexure-D order issued by the Government dated 8.7.2008,

modifying the method of appointment, by introducing a ratio of

1:3 between appointment by promotion/transfer and direct

recruitment. The appellants felt that the direction of the learned

Single Judge in the judgment under appeal was causing serious

prejudice to the persons, included in the rank list, including

W.A.Nos.470/2009 & connected cases 4

them. Therefore, this appeal was filed, seeking appropriate

reliefs.

5. We heard the learned counsel on both sides. It is

common ground that all the vacancies which arose up to

31.10.2007 have to be filled up, as per the method provided

under Annexure-C dated 23.1.1989 and the vacancies which

arose from 1.11.2007 have to be filled up as per the method of

appointment prescribed in Annexure-D order dated 8.7.2008.

According to the writ petitioners, up to the date of judgment of

the learned Single Judge, vacancies which could be filled up by

qualified hands by transfer, were also reported to the PSC.

According to the appellants, after the judgment of the learned

Single Judge, all the vacancies were set apart for being filled up

by transfer/promotion.

6. Having regard to the facts of the case and going by

the principle that the claim of incumbents for a post has to be

determined with reference to the conditions obtained on the date

of occurrence of vacancy, we are issuing the following directions:

W.A.Nos.470/2009 & connected cases 5

i) The Government shall review all the appointments

made by promotion/transfer and by direct recruitment before

1.11.2007, relevant in this case. The Government shall ascertain

whether there was a qualified departmental hand available for

appointment by transfer/promotion when a vacancy arose. If

there is no qualified hand, the same shall be allotted to the PSC

hands. This exercise shall be done in relation to all the

vacancies which arose before 1.11.2007, but during the period

concerned in this case.

ii) The vacancies which arose from 1.11.2007 shall be

apportioned strictly between the departmental hands and the

PSC hands in the ratio of 1:3. The appointing authority

concerned shall review the promotions and pass appropriate

orders.

iii) If any PSC hand is found to have been appointed in

excess, such excess appointees shall be treated as

supernumerary hands and they shall be adjusted as and when

vacancies are available for them under the direct recruitment

quota. Likewise, if anybody was promoted in excess and at the

time of review if there are not sufficient vacancies to

W.A.Nos.470/2009 & connected cases 6

accommodate them in their quota, the excess hands shall be

reverted to their parent post. After reviewing the matter and

before issuing final orders, the same shall be published, for

giving an opportunity to the incumbents from both sides to file

their objections, if any. The draft proceedings shall be published

by the appointing authority within two months from the date of

production of a copy of this judgment.

iv) The review, if any, undertaken pursuant to the interim

orders passed by this Court, shall be treated as a review done

pursuant to this judgment. In such case also, the affected

persons shall be given an opportunity to represent and point out

whether the appointments were made as per the relevant orders

governing the same before 1.11.2007 and from 1.11.2007. After

considering the objections, final orders shall be passed within

two months after the date of publication of the proposal. The

review shall be done untrammelled by the judgment under

appeal and the order dated 5.1.2009, passed by the learned

Single Judge in the Contempt of Court case No.1381/2008.

W.A.Nos.470/2009 & connected cases 7

v) During the pendency of the Writ Appeal, this Court has

ordered that the promotion of 52 incumbents made under

Annexure-L order dated 28.2.2009 shall be treated as provisional

and further promotions shall be made only after completing the

review. We feel that the said interim arrangement should

continue until the appointing authority passes final orders in the

matter. It is ordered accordingly.

The Writ Appeal is disposed of as above.

W.A.Nos. 471, 719 & 720 OF 2009:

The directions issued in W.A.No.470/2009 shall be treated

as directions in these cases also. Accordingly these Writ Appeals

are also disposed of.

(K.BALAKRISHNAN NAIR, JUDGE)

(C.T.RAVIKUMAR, JUDGE)
ps