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