IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 1176 of 2008(D)
1. THE DIRECTOR OF HOMEOPATHY,
... Petitioner
2. THE DISTRICT MEDICAL OFFICER (HOMEO),
3. STATE OF KERALA, REPRESENTED BY THE
Vs
1. SMT. SUSILY JOHN, PEON,GOVERNMENT
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :26/11/2008
O R D E R
P.N.RAVINDRAN, J.
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R.P.No.1176 of 2008 in W.P.(C) No.22504 of 2008
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Dated this the 26th November, 2008.
O R D E R
Heard Smt.Anu Sivaraman, the learned
Government Pleader appearing for the review petitioner and
Sri.Thaliyil R.Gopakumar, the learned counsel appearing for the
respondent.
2. The respondent, a person with disability, was
appointed as Peon in the Government Homeo Dispensary,
Pandalam, for a period of 179 days or till a regular hand joins
duty, whichever is earlier. The term for which she was appointed
expired on 31.7.2008. She submitted Ext.P3 representation
dated 17.7.2008 before the District Medical Officer (Homeo),
Pathanamthitta, for permission to continue in service till a regular
hand joins duty. She thereafter filed W.P.(C) No.22504 of 2008
seeking continunace in service till a regular hand joins duty. In
the said writ petition, the District Medical Officer (Homeo),
Pathanamthitta, filed a statement which reads as follows:-
RP.No. 1176 of 2008
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“4. It is most respectfully submitted that the
post of Peon in the Government Homeo Dispensary,
Pandalam, is at present vacant and the service of a
Peon is highly necessary was carried out it to the
day today affairs of the hospital and its proper
functioning and more than 100 patients are
approached this dispensary every day and the
service of a Peon is highly needed. It is also
submitted that there is no other person who has
better claim as a physically handicapped person
compared to the petitioner. So far this respondent
has not made any appointment to the post held by
the petitioner and this is submitted for kind
consideration of this Hon’ble Court.”
3. In the light of the stand taken by the District
Medical Officer (Homeo), Pathanamthitta, and as it was
conceded that the service of a Peon is highly necessary for the
day today functioning of the hospital, I disposed of the writ
petition with a direction to the review petitioners to reinstate the
petitioner in service and to permit her to continue in service till a
regular hand joins duty. In this review petition, the respondents
in the writ petition, seek a review of the said judgment. They
contend that the direction to re-appoint the petitioner in service
offends the 9th proviso to Rule 9(a)(i) of Part II of the K.S. &
RP.No. 1176 of 2008
3
S.S.R. and also runs counter to the Full Bench decision of this
Court in Radha v. District Medical Officer (2002 (2) KLT 711).
4. I have considered the submissions made at the
Bar by the learned counsel on either side. The 9th proviso to Rule
9(a)(i) of Part II of the K.S. & S.S.R. prohibits continuance in
service of provisional employees appointed under Rule 9(a)(i)
beyond the term for which they were appointed. Though their re-
employment is permitted, such re-employment can be made only
with the prior concurrence of the Kerala Public Service
Commission and that too, if candidates are not available for
appointment through the local employment exchanges. In the
instant case, these aspects were not noticed, when by judgment
delivered on 7.8.2008, I directed the review petitioners to
reinstate the petitioner in service and to permit her to continue in
service till a regular hand joins duty. The review petitioners or
the writ petitioner did not bring to my notice the statutory
provisions contained in the 9th proviso to Rule 9(a)(i) of Part II
of the K.S. & S.S.R. or the Full Bench decision of this Court in
RP.No. 1176 of 2008
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Radha v. District Medical Officer (supra), at the time when W.P.
(C) No.22504 of 2008 was heard and disposed of. The
directions issued in W.P.(C) No.22504 of 2008 were issued
without noticing the fact that the 9th proviso to Rule 9(a)(i) of
Part II of the K.S. & S.S.R. does not permit re-employment of the
petitioner. There is also no material to show that the prior
concurrence of the Kerala Public Service Commission had been
obtained and that no one is available for appointment as Peon
through the employment exchange. Further, the Full Bench of
this Court has in Radha v. District Medical Officer (supra) held
that persons appointed under Rule 9(a)(i) of Part II of the
K.S.&S.S.R cannot continue in service beyond the term for which
they were appointed or seek regularisation in service. Such
being the situation, the judgment in W.P.(C) No.22504/2008,
delivered on 7.8.2008, is liable to be reviewed and the writ
petition dismissed.
Accordingly, I allow the review petition. The
judgment delivered on 7.8.2008 in W.P.(C) No.22504 of 2008 is
RP.No. 1176 of 2008
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reviewed and recalled and the writ petition is dismissed. It will
be open to the respondents to terminate the service of the writ
petitioner forthwith.
P.N.RAVINDRAN,
JUDGE
nj.