O.P(KAT) No.90 of 2021

O.P(KAT) No.90/2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943 OP(KAT) NO. 90 OF 2021** ## **AGAINST THE ORDER/JUDGMENT IN OA (EKM) 1699/2020 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** **PETITIONERS:RESPONDEENT NOS.4 & 5** 1 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695004, KERALA. 2 DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, PALAKKAD-678001, KERALA. BY ADV P.C.SASIDHARAN ## **RESPONDENTS:APPLICANT & RESPONDENT NOS.1 TO 3** |1|NAUSHADALI.P.T,<br>AGED|40<br>YEARS| |---|---|---| ||S/O.ALI.P.T,|| ||PALLIKKATTUTHODI HOUSE, ALANALLUR, PALAKKAD,|| ||KERALA-678601.|| |2|STATE<br>OF|KERALA,| ||REPRESENTED BY SECRETARY|TO GOVERNMENT,| ||DEPARTMENT OF HEALTH AND|FAMILY WELFARE,| ||SECRETARIAT, THIRUVANANTHAPURAM-695001, KERALA.|| |3|DIRECTOR<br>OF<br>HEALTH|SERVICES,| ||DIRECTORATE OF HEALTH SERVICES,|GENERAL HOSPITAL| ||JUNCTION, THIRUVANANTHAPURAM-695035, KERALA.|| O.P(KAT) No.90/2021 2 4 DISTRICT MEDICAL OFFICER(HEALTH), OFFICE OF THE DISTRICT MEDICAL OFFICER, PALAKKAD-678001, KERALA. BY ADVS. KALEESWARAM RAJ ANTONY MUKKATH, SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(KAT) No.90/2021 3 # **ALEXANDER THOMAS & A. BADHARUDEEN, JJ.** ================================ O.P(KAT) No.90 of 2021 [arising out of the final order dated 20.11.2020 in OA(EKM) No.1699/2020] ================================ Dated this the 12[th] day of July, 2021 ## **JUDGMENT** ## **ALEXANDER THOMAS, J.** The prayers in the aforecaptioned Original Petition filed under Articles 226 and 227 of the Constitution of India are as follows: (See page Nos.12-13 of the paper book of this O.P) _"(i) To set aside Exhibit-P3 order of the Hon'ble Tribunal dated 20.11.2020 in O.A(Ekm) 1699/2020. and_ _(ii) To issue such other writ, order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri P.C.Sasidharan, the learned Standing Counsel for the Kerala Public Service Commission appearing for the petitioners/respondents 4 & 5 in the O.A, the learned counsel appearing for the 1[st] respondent herein/original applicant before the Tribunal in the O.A and Sri Unnikrishna Kaimal, the learned O.P(KAT) No.90/2021 4 Government Pleader appearing for respondents 2 to 4 herein/respondents 1 to 3 in the O.A. 3. The prayers in the instant Ext.P1 O.A(Ekm) No.1699/2020 filed by the 1[st] respondent herein before the Tribunal are as follows:(see page No.24 of the paper book of this O.P): _“i) To set aside Annexures A5 and A8 as unjust, arbitrary and unsustainable;_ _ii) To declare that the name of the applicant is not liable to be removed from Annexure A4 ranked list and that he is qualified and entitled to be advised/appointed to the post of Junior Health Inspector Gr.II in one of the 3 vacancies already reported and pending as on 28.01.2020 before the 4[th] respondent;_ _iii) To direct the 5[th] respondent to issue advice memo to the applicant for appointment and Junior Health Inspector Gr.II in Palakkad district in one of the 3 vacancies, already reported and pending as on 28.01.2020 before the KPSC;_ _iv) To direct the 3[rd] respondent to appoint the applicant as Junior Heath Inspector Gr.II in Palakkad district, immediately on the 5[th] respondent advising him;_ _v) To direct the respondents 4 and 5 to refrain from initiating further proceedings based on Annexures A5 and A8; vi) To grant such other reliefs as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case. and_ _vii) To allow the application with costs.”_ 4. The learned Tribunal after hearing both sides has noted in para.5 of Ext.P3 final order in O.A(Ekm)No.1699/2020 that the original applicant has now moved the State Government by filing Annexure-A9 representation dated 18.11.2020 seeking for a declaration that the qualification possessed by the applicant is equivalent to Diploma in Health Inspectors course conducted by the Director of Health Services, Government of Kerala as prescribed for O.P(KAT) No.90/2021 5 appointment to the post of Junior Health Inspector Gr.II and seeking for a direction to the Public Service Commission to reinclude the original applicant in the rank list and for consequential directions for issuance of advice memo and appointment order, etc. The Tribunal held that the order in the last paragraph of Ext.P3 final order that the competent authority of the State Government will consider and pass orders on Annexure A9 representation within two months, after affording an opportunity of personal hearing to the applicant and that on issuance of such order, the applicant will be entitled to the consequential benefits thereof, etc. It is aggrieved by the aforesaid directions issued by the Tribunal at Ext.P3 final order that the Public Service Commission and its District Officer have approached this Court by filing the aforecaptioned Original Petition. 5. The original applicant had applied for selection and appointment to the post of Junior Health Inspector Gr.II in the Health and Family Welfare Department in Palakkad district in response to Annexure A1 selection notification dated 31.12.2012 issued by the Kerala Public Service Commission. The sole qualification prescribed in Annexure A1 selection notification dated 31.12.2012 as well as the Special Rules concerned issued by the O.P(KAT) No.90/2021 6 Government is that the candidate to be eligible for appointment to the post of Junior Health Inspector Gr.II should have the qualification of Diploma in Health Inspector Course (DHIC) conducted by the Director of Health Services, Government of Kerala. The applicant was not having the said prescribed qualification and it is their case that he is having the qualification of Junior Health Inspectors Training Course conducted by the Health and Family Welfare Training Centre at Kozhikode, in terms of Annexure-A2 and that he has possessed the said qualification at Annexure-A2, as on the last date for submission of the application in terms of AnnexureA1 notification and that there is an alternative qualification course conducted by the Government Departmental agency and that it is qualitatively and quantitatively acceptable and sufficient for selection to the post covered by Annexure A1, etc. According to the Kerala Public Service Commission, they had initially included the applicant in the rank list at Annexure A4 dated 23.2.2017. Later, the Public Service Commission has taken the stand that the sole prescribed qualification in terms of Annexure-A1 selection notification and the rules is 2 year Diploma in Health Inspector Course (DHIC) conducted by the Director of Health Services, O.P(KAT) No.90/2021 7 Government of Kerala and that the qualification at Annexure-A2, which is conducted by the district level governmental agency, is only of one year. Further that there are no provisions either in the selection notification or in the rules which permit the Public Service Commission to accept the qualification at Annexure-A2, as equivalent or sufficient in lieu of the one prescribed at Annexure-A1 etc. Further, as mentioned herein above, the PSC also has a case that the course at Annexure-A2 is of one year duration; whereas the prescribed qualification mentioned in Annexure-A1 and the rules is a 2 year Diploma Course etc. Further that the cardinal contention raised by the PSC is that since the qualification at Annexure A2 has not been included in Annexure A1 selection notification and the rules, even if the Government accepts qualification at Annexure A2 as equivalent or sufficient in lieu of the one prescribed at Annexure A1, still such a decision if any taken by the Government can have only prospective effect and can have bearing only on future selection and it will not have any effect on the selection already settled in motion in terms of Annexure A1 issued as early as on 31.12.2012. In that regard the Public Service Commission placed reliance on the O.P(KAT) No.90/2021 8 dictum laid down by the Apex Court as in _**Bank of India v. Arya Babu**_ [2019 (3) KLT 802 (SC)]. 6. The Tribunal, after hearing both sides, has issued the above said directions whereby it has been ordered that the competent authority of the State Government may consider and take a decision on Annexure A9 representation filed by the applicant on 18.11.2020 and that the applicant should also enjoy consequential benefits of the decision to be taken by the Government. In that regard, the Public Service Commission has pointed out that the said direction of the Tribunal would amount to giving a judicial verdict as if any positive decision that may be taken by the Government to accept the qualification at Annexure A2 as equivalent to the one at Annexure A1. Then, any such decision will have retrospective effect even to the date of Annexure A1 selection notification and that the said approach of the Tribunal is illegal and improper, etc. It is in that regard that the Public Service Commission has placed its reliance on the judgment of the Apex Court as in _**Arya Babu**_ 's case ( _supra_ ). 7. Sri P.C.Sasidharan, the learned Standing Counsel for the Kerala Public Service Commission appearing for the petitioners O.P(KAT) No.90/2021 9 points out that Annexure A4 rank list was brought into force on 23.2.2017 and has expired on 22.2.2020, which is even before the date on which the Tribunal has given the verdict as per Ext.P3 on 20.11. 2020. 8. After hearing both sides, it is seen that as of now the Government has not taken any decision on the said issue as made out in Annexure A9 representation. In a matter like this, the Tribunal should have directed that the considered views of the Public Service Commission should also have been taken into account by the State Government while taking a decision on the matters raised in Annexure A9 representation. Ordinarily by the conventional process of consultation, the considered views of the Public Service Commission should have been elicited by the State Government. But to avoid any further delay, it is ordered that the Public Service Commission will immediately furnish its considered views in the matter to the competent authority of the 2[nd] respondent State Government in the Health and Family Welfare Department on the matters raised in Annexure-A9 representation without any further delay, at any rate, within three weeks from the date of receipt of a certified copy of this judgment. Since the rank list has already O.P(KAT) No.90/2021 10 expired and the time limit stipulated by the Tribunal has also expired and to obviate any further delay, it is ordered that the Kerala Public Service Commission may furnish its well considered views in the matter to the competent authority of the State Government of the Health and Family Welfare Department. Thereafter, the competent authority of the State Government may afford reasonable opportunity of being heard to the original applicant and then pass orders on the matters in Annexure A9 representation. While doing so, the competent authority of the State Government should bestow its attention not only to the aspect as to whether the qualification at Ext.A2 is equivalent and sufficient in lieu of the qualification prescribed as per Ext.A1 and the Rules, but the Government should specifically consider the submission of the Public Service Commission that any such decision can have only prospective effect and cannot regulate the selection already notified as per Annexure A1 and also the impact of the decision of the Apex Court in _**Arya Babu**_ 's case ( _supra_ ). Decision in that regard may be rendered by the competent authority of the State Government in Health and Welfare Department within a period of two months from the date of receipt of the communication that may be issued by the Public O.P(KAT) No.90/2021 11 Service Commission to the State Government as above. The directions and orders of the Tribunal at Ext.P3 will stand modified as above. With these observations and directions, the above Original Petition will stand finally disposed of. _Sd/-_ **ALEXANDER THOMAS, JUDGE** rtr/ _Sd/-_ **A. BADHARUDEEN, JUDGE** O.P(KAT) No.90/2021 12 ## **A P P E N D I X** ## PETITIONER'S EXHIBITS **EXT.P1** : TRUE COPY OF THE O.A.(EKM) NO.1699 OF 2020 WITH ITS ANNEXURES. ANNEXURES: **ANNEXURE-A1** : TRUE COPY OF THE GAZETTE NOTIFICATION DATED 31.12.2012, NOTIFYING THE POST OF JUNIOR HEALTH INSPECTOR GR.II AS CATEGORY NO.665/2012 ISSUED BY THE KPSC. **ANNEXURE-A2** : TRUE COPY OF THE CERTIFICATE BEARING NO.183/2000 DATED 1.4.2000 ISSUED BY THE 2ND RESPONDENT. **ANNEXURE-A3** : TRUE COPY OF THE ORDER NO.A7/7684/2000 DATED 3.6.2000 ISSUED BY THE DISTRICT MEDICAL OFFICER (HEALTH), PALAKKAD. **ANNEXURE-A4** : TRUE COPY OF THE RANKED LIST NO.265/2017/SSV (CATEGORY NO.665/2012) FOR THE POST OF JUNIOR HEALTH INSPECTOR GR.II IN PALAKKAD DISTRICT. **ANNEXURE-A5** : TRUE COPY OF THE SHOW CAUSE NOTICE BEARING NO.P.N.(2) 1778/2013 DATED 11.05.2020 ISSUED BY THE 5TH RESPONDENT. O.P(KAT) No.90/2021 13 **ANNEXURE-A6** : TRUE COPY OF THE EXPLANATION DATED 18.05.2020 SUBMITTED BY THE APPLICANT BEFORE THE 5TH RESPONDENT. **ANNEXURE-A7** : TRUE COPY OF THE ORDER DATED 20.05.2020 IN O.A.(EKM) NO.588/2020 PASSED BY THIS HON'BLE TRIBUNAL. **ANNEXURE-A8** : TRUE COPY OF THE LETTER NO.PIV(2) 1778/13/1 DATED 4.11.2020 ISSUED BY THE 5TH RESPONDENT. **EXHIBIT-P2** : TRUE COPY OF THE M.A.NO.1668 OF 2020 WITH ANNEXURES. **ANNEXURE-A9** : TRUE COPY OF THE REPRESENTATION DATED 1811.2020. **EXHIBIT-P3** : TRUE COPY OF THE ORDER IN OA(EKM) 1699 OF 2020 DATED 20.11.2020.