O.P.(KAT) Nos. 31, 32 & 135 of 2015

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939 **OP(KAT).No. 31 of 2015** AGAINST THE ORDER IN TA 4025/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 30-07-2014 ## **PETITIONER** /1ST APPLICANT THOMAS MATHEW KUNNATHETTU HOUSE, MEENMUTTY PO, KODENCHERRY (VIA), KOZHIKODE 673580. BY ADV.SRI.P.C.SASIDHARAN ## **RESPONDENTS** /RESPONDENTS: 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH& FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERLA-695 001. 2. THE DIRECTOR OF HEALTH SERVICES, HEALTH SERVICES DIRECTORATE, THIRUVANANTHAPURAM 695 307, KERALA. 3. RAJAN T.M,KULAMULLA KANDY HOUSE, AVALA POST, KOZHIKODE (JHI GRADE - 1, PHC KOTTUR, KOZHIKODE) KERALA-6+73 524. 4. SOLYMON S, JHI GRADE I, PHC KUMPALANGI, ERNAKULAM 6820 007. - Addl.5. VINOD KUMAR.S., J.H.I GRADE I, COMMUNITY HEALTH CENTRE, PANDANADU, ALEPPY DISTRICT, RESIDING AT - GEETHANJALI, ERAVAN KARA P.O., MAVELIKKARA, ALAPPUZHA PIN - 690 108. - (ADDL.R5 IMPLEADED AS PER ORDER DATED 27.5.2015 IN - I.A.NO.4998/2015 IN O.P.(KAT)NO.31/2015) Addl.6. HARILAL.R,S/O.V.K.RAGHAVAN, AGED 42, JUNIOR HEALTH INSPECTOR GRADE-I, PHC, KIZHAKOTH, VATTOLY PO.,KOZHIKODE, RESIDING AT CHIRAYIL HOUSE, PATHIRAPPILLY P.O., ALAPPUZHA - 688 521, KERALA. - Addl.7. D SANTHOSH, AGED 43,S/O.DIVAKARAN, JUNIOR HEALTH INSPECTOR GRADE-I, PHC, EZHUKONE, PAVITHRESWARAM, KARUVELIL PO., KOLLAM, **OP(KAT).No. 31 of 2015** **2** RESIDING AT PALAVALAVEEDU, NORTH MYNAGAPPALLY PO., KOLLAM DISTRICT - 690 519, KERALA. (ADDL.R6 & R7 ARE IMPLEADED AS PER ORDER DATED 27.5.2015 IN I.A.NO.5111/2015) Addl.8. SASIDHARAN D.K., AGED 45, S/O.P.DAMODARAN, JUNIOR HEALTH INSPECTOR GRADE I (HIGHER GRADE), COMMUNITY HEALTH CENTRE, VELLANADU, THIRUVANANTHAPURAM. RESIDING AT MANU VILAS,KAKKAMOOLA, KALLIYOOR PO., THIRUVANANTHAPURAM, PIN - 695 042. (ADDL.R8 IMPLEADED AS PER ORDER DATED 13.8.2015 IN I.A.NO.8083 OF 2015) Addl.9. V.S.RAMESH, JUNIOR HEALTH INSPECTOR GRADE -I, COMMUNITY HEALTH CENTRE, VADANAPPALLY, THRISSUR DISTRICT, PIN - 680 619. Addl.10. UNNIKRISHNAN C.V., JUNIOR HEALTH INSPECTOR GRADE -I, PRIMARY HEALTH CENTRE, VATTAMKULAM, MALAPPURAM DISTRICT, PIN - 679 578. Addl.11. SADEESH C.P., JUNIOR HEALTH INSPECTOR GRADE -I, COMMUNITY HEALTH CENTRE, KARUVARAKUNDU, MALAPPURAM DISTRICT, PIN - 676 523. (ADDL.R9 TO R11 ARE IMPLEADED AS PER ORDER DATED 3.9.2015 IN I.A.NO.12063/2015) ADDL.12. SHIBU.M., AGED 46 YEARS, S/O.MANI, JUNIOR HEALTH INSPECTOR GRADE-I, COMMUNITY HEALTH CENTRE, CHAVARA, KOLLAM, RESIDING AT KAITHAVANATHARA, THAZHAVA P.O., KARUNAGAPPALLY, KOLLAM-690- 523. ADDL.13. PRAVEEN.A, 44 YEARS, JUNIOR HEALTH INSPECTOR GRADE-I, PRIMARY HEALTH CENTRE, THURAVOOR, ALAPPUZHA, RESIDING AT PULEECKAL, VALIYAKULANGARA OCHIRA.P.O., KOLLAM-690 526. (ADDLR12 & R13 ARE IMPLEADED AS PER ORDER DATED 2.3.2018 IN I.A.NO.14210/2015) R1 & R2 BY GOVERNMENT PLEADER SRI.K.M.HASHIR R4 BY ADV. SRI.KALEESWARAM RAJ ADDL.R5 TO R8 BY ADV. SRI.P.K.IBRAHIM ADDL.R5 TO R8 BY ADV. SMT.K.P.AMBIKA ADDL.R5 TO R8 BY ADV. SMT.A.A.SHIBI ADDL.R9 TO R11 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY ADDL.R9 TO R11 BY ADV. SMT.N.SANTHA ADDL.R9 TO R11 BY ADV. SRI.K.A.BALAN ADDL.R9 TO R11 BY ADV. SRI.V.VARGHESE ADDL.R9 TO R11 BY ADV. SRI.PETER JOSE CHRISTO ADDL.R9 TO R11 BY ADV. SRI.S.A.ANAND ADDL.R9 TO R11 BY ADV. SMT.L.ANNAPOORNA **OP(KAT).No. 31 of 2015 3** ADDL.R12 & R13 BY ADV. SRI.K.RAMAKUMAR (SR.) ADDL.R12 & R13 BY ADV. SRI.S.M.PRASANTH ADDL.R12 & R13 BY ADV. SMT.ASHA BABU ADDL.R12 & R13 BY ADV. SRI.G.RENJITH THIS O.P.(KAT)HAVING BEEN FINALLY HEARD ON 02-03-2018, ALONG WITH O.P.(KAT)NOS.32 & 135 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 31 of 2015 (Z) APPENDIX PETITIONER(S)' EXHIBITS - ANNEX-I: TRUE COPY OF AMENDED TRANSFER APPLICATION W.P.(C)NO.19142/2011 ALONG WITH ITS EXHIBITS), NUMBERED AS T.A.4025/2012, DATED 8.12.2012. EXT.P1: TRUE COPY OF G.O.(MS) 24/89 H& FWD DATED 23.01.1989 EXT.P2: TRUE COPY OF THE JUDGMENT DATED 24.11.2003 IN W.A. NO.2848/2000 EXT.P3: TRUE COPY OF JUDGMENT DATED 25.3.2004 IN W.P.(C) NO. 10496/2004` EXT.P4: TRUE COPY OF THE ORDER DATED 27.8.2004 IN SLP 6930-6931 /2004 EXT.P5: TRUE COPY OF ORDER DARED 5.1.2008 ISSUED BY THE DIRECTOR OF HEALTH SERVICES, TRIVANDRUM. EXT.P6: TRUE COPY OF EXTRACT OF FINAL SENIORITY LIST OF JUNIOR HEALTH INSPECTOR GRADE II POSSESSING HEALTH INSPECTORS COURSE (MULTIPURPOSE COURSE) - EXT.P7: TRUE COPY OF EXTRACT OF FINAL SENIORITY LIST OF JUNIOR HEALTH INSPECTOR GRADE II POSSESSING HEALTH INSPECTORS COURSE (MULTIPURPOSE COURSE) - EXT.P8: TRUE COPY OF COMMON JUDGMENT DATED 30.6.2010 IN WP(C) NO. 14886/2005, WP(C) 15535/2005 AND WP(C) 25898/2005 C EXT.P9: TRUE COPY THE ORDER G.O.(RT) NO.893/2010/H&FWD, DATED 4.3.2011 - EXT.P10:TRUE COPY OF THE NOTICE DATED 16.6.2011 ISSUED BY THE DIRECTOR OF HEALTH SERVICES. - ANNEXURE-A5: TRUE COPY OF THE FINAL SENIORITY LIST OF JUNIOR HEALTH INSPECTOR GRADE-II ALONG WITH PROCEEDINGS OF THE DIRECTOR OF HEALTH SERVICES, DATED 22.11.2012. ANNEXURE-II TRUE COPY OF THE REPLY STATEMENT DATED 30.4.2013, FILED IN T.A.NO.4025/2012 BY THE 2ND RESPONDENT. - ANNEXURE-III: TRUE COPY OF THE REJOINDER FILED IN T.A.4025/2012 BY THE PETITIONER, DATED NIL. ANNEXURE-A6: TRUE COPY OF JUDGMENT DATED 4.8.2009 IN W.A.NO.1144/2009 ANNEXURE-IV: TRUE COPY OF G.O.(Rt)NO.893/2010/H&FWD, DATED 4.3.2011. ANNEXURE-V: TRUE COPY OF ORDER DATED 30.7.2014 IN T.A.4025/2012. ## **RESPONDENTS' EXHIBITS** : ANNEXURE R5(a): TRUE COPY OF THE ORDER IN I.A.259/2014 IN UNNUMBERED WRIT APPEAL OF 2014 DATED 20.6.2014. ANNEXURE R5(b) TRUE COPY OF THE NOTIFICATION APPEARED IN MADHYAMAM DAILY DATED 4.3.2009. OP(KAT).No. 31 of 2015 (Z) ANNEXURE R6(a): TRUE COPY OF THE ORDER IN I.A.259/2014 IN UNNUMBERED WRIT APPEAL OF 2014 DATED 20.6.2014. ANNEXURE R6(b) TRUE COPY OF THE NOTIFICATION APPEARED IN MADHYAMAM DAILY DATED 4.3.2009. ANNEXURE R8(a): TRUE COPY OF THE ORDER IN I.A.259/2014 IN UNNUMBERED WRIT APPEAL OF 2014 DATED 20.6.2014. EXT.R7(a): TRUE COPY OF THE ORDER DATED 20.6.2014 IN I.A.259/2014 SEEKING LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT IN ONE OF THE WRIT PETITION NAMELY W.P.NO.15535/20015. EXT.R7(b):TRUE COPY OF THE PAPER PUBLICATION APPEARED IN MADHYAMAM DAILY ON 4.3.2009. // TRUE COPY // TKS Sd/P.S. TO JUDGE ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** ---------------------------------------- O.P.(KAT)Nos.31, 32 & 135 of 2015 ---------------------------------------Dated 2[nd] March, 2018 ## **JUDGMENT** ## **Ravikumar, J.** The petitioners are Junior Health Inspector Grade-I (JHI Gr.I) under the Health and Family Welfare Department. They entered into its service as Junior Health Inspector Grade-II (JHI Gr.II), on different dates. O.P.(KAT) Nos.31 & 135 of 2015 are directed against the order in T.A.No.4025 of 2012 passed by the Kerala Administrative Tribunal. In fact, the former amongst them, has been filed by the first applicant in the said transferred application and the latter amongst them has been filed by the second applicant therein. It is the writ petition jointly filed by them viz., W.P.(C)No.19142 of 2011 before this Court that was transferred to the Tribunal and was numbered as T.A.No.4025 of 2012. The petitioner in O.P.(KAT)No.32 of 2015 filed W.P.(C)No.14966 of 2011 before this Court and it is the same that was transferred and numbered as T.A.No.5876 of 2012. The Tribunal as per the order dated 30.7.2014 dismissed T.A.No.4025 of 2012 and subsequently, relying on the said order, dismissed T.A.No.5876 of 2012 as per order dated 11.12.2014. It is challenging the aforesaid orders O.P.(KAT)Nos.31, 32 & 135 of 2015 2 that the captioned original petitions have been filed, as mentioned hereinbefore. In view of the commonness of the issues involved and taking note of the fact that T.A.No.5876 of 2012 was dismissed relying on the order in T.A.No.4025 of 2012 these original petitions were heard jointly and they are being disposed of by this common judgment. 2. A succinct narration of the common factual matrix is necessary for a proper disposal of the captioned original petitions. As stated hereinbefore, the petitioners in the above original petitions entered into service of the Health and family Welfare Department as JHI Gr.II on different dates. The dates of entry of the petitioners in the captioned original petitions are 19.8.1999, 29.9.1999 and 19.8.1999 respectively. It is the proposal to review their seniority in JHI Gr.II, pursuant to G.O.(Rt)No.893/2010/H&FWD, dated 4.3.2011 as per proceedings No.(Spl.Cell)ES2-69286/2010/DHS dated 16.6.2011, based on the common judgment dated 30.6.2010 in W.P.(C)Nos.14886, 15535 and 25898 of 2005 of a learned Single Judge of this Court that constrained the petitioners herein to file the writ petitions mentioned hereinbefore which were transferred and numbered as T.A.Nos.4025 and 5876 of 2012. Their grievance is against the assignment of seniority in JHI Gr.II taking into account their dates of advise and ignoring the first preferential qualification possessed by them. They O.P.(KAT)Nos.31, 32 & 135 of 2015 3 unsuccessfully contended before the Tribunal that when an integrated State level list of JHI Gr.II is published, all those who are having the first preferential qualification for appointment to that post should be placed above those with the second preferential qualification. In fact, pending the said transferred applications, revised seniority list in the said grade was published and appropriate amendment was made to bring in challenge against the same. Obviously, all their contentions were repelled and consequently, the said Transferred Applications were dismissed. For the sake of convenience the documents are referred to hereafter, in the order they are set out in O.P.(KAT)No.31 of 2015 unless otherwise specifically mentioned. 3. Qualifications for appointment to the post of JHI Gr.II in the Department has been prescribed as per G.O.MS24/89/H&PWD dated 23.1.1989 and the same has been produced in all the captioned original petitions as Ext.P1 of Annexure-1. Going by the same, the following qualifications are prescribed:- “i. General : Pass in SSLC Examination or its equivalent. ii.Technical:Multipurpose workers Training Certificate imparted by the Kerala State Health Services Department or its equivalent. In the absence of candidates possessing the above technical qualification. O.P.(KAT)Nos.31, 32 & 135 of 2015 4 - iii. Health Inspector's Training Certificate/Sanitary Inspector's Training Certificate (Diploma) of the All India Institute of Local Self Government, Bombay or its equivalent. - Note: Candidates possessing item (iii) of the qualification should undergo in service Multipurpose Workers Training after appointment.” The method of appointment has been prescribed thereunder as follows: - “i. By promotion/transfer of technically qualified hands in the Health Services Department. - ii. In the absence of technically qualified hands for appointment by promotion/transfer, by direct recruitment. - Note: In the absence of candidates with technical qualification for appointment by i & ii via. promotion/transfer and direct recruitment, Department hands with the general educational qualification will be considered subject to the condition that they should undergo Multipurpose Worker's Training before appointment.” 4. Admittedly, the Public Service Commission while effecting appointment followed Rule 12A(ii) of the Kerala Public Service Commission Rules of Procedure. Accordingly, two lists were prepared. Going by the same, persons possessing the first preferential qualification viz., Multipurpose Workers Training Certificate issued by the Kerala State Health Services Department were advised firstly from the first list and in the absence of candidates possessing the said technical qualification persons possessing Health Inspector's Training O.P.(KAT)Nos.31, 32 & 135 of 2015 5 Certificate/Sanitary Inspector's Training Certificate from the second list, were advised. The position of rule under Ext.P1 and the fact that the PSC adhered to it by following Rule 12A(ii) of its Rules of Procedure are not in dispute and obviously, persons possessing first preferential qualification were advised first and only in the absence of persons possessing the said technical qualification that persons possessing the second preferential qualification mentioned in item No.(iii) in Ext.P1 Government order, were advised and appointed. As noticed hereinbefore, candidates possessing qualification in item No.(iii) of Ext.P1 were to undergo in-service Multipurpose Workers Training after appointment. Earlier, in certain districts vacancies in the post of JHI Gr.II were promptly reported and in some other districts there occurred some delay in reporting such vacancies. In respect of such districts where delay in reporting vacancies had occurred, persons with first preferential qualification happened to be advised and appointed later, in the sense that earlier to their advice and appointment in their respective districts, persons possessing qualification under item No.(iii) of Ext.P1 got advice and appointment in those districts where vacancies were promptly reported. Under normal circumstances, the said situation would not have assumed any relevance or adverse impact. However, the proposal to bring in a State level integrated seniority list of GHI O.P.(KAT)Nos.31, 32 & 135 of 2015 6 Gr.II created the cause of action for a lis. As a result and by virtue of the operation of Rule 27 of Part II of the Kerala State & Subordinate Services Rules (KS & SSR) those persons who possess only the qualification prescribed under item No.(iii) of Ext.P1 Government Order, but got appointment earlier to those persons possessing the qualification prescribed in item No.(ii) of Ext.P1, of course, in other districts, obtained chance to get seniority over the latter category appointees with first preferential qualification. Consequent to the said proposal to integrate the seniority lists drawn district-wise into one State list persons who got grievance against the impact of integration on the aforesaid ground viz., such appointees with first preferential qualification, approached this Court by filing O.P.No.14825 of 1997 and connected cases. Feeling aggrieved by the common judgment passed by the learned Single Judge in those original petitions, relating assignment of the seniority of JHI Gr.II, W.A.Nos.2284, 2750 & 2848 of 2000 were filed. They were disposed of by a Division Bench of this Court as per common judgment dated 24.11.2003. The same has been produced in O.P.(KAT)No.31 of 2015 as Ext.P2 and hereinafter in this judgment, it is referred to as `Ext.P2 judgment'. Obviously, pursuant to Ext.P2 judgment a revised/ combined gradation list of JHI Gr.II, for the period from 1.1.1997 to 31.3.2000 was prepared and it was O.P.(KAT)Nos.31, 32 & 135 of 2015 7 published as per Ext.P5 proceedings. Evidently, two separate seniority lists were prepared thereunder and the first among the same was the final seniority list of JHI Gr.II possessing Health Inspector's Training certificate (Multipurpose Workers Training certificate) and the other seniority list contained names of appointees possessing qualification prescribed as item No.(iii) in Ext.P1. It is also to be noted that from the said final seniority lists prepared separately, promotions were effected. While so, certain special recruits under Rule 17A, Part II of KS & SSR, on getting aggrieved by non-reckoning of their training period, approached this Court by filing W.P.(C)No.15535 of 2005. The said writ petition was disposed of along with W.P.(C)Nos.14886 & 25898 of 2005 as per judgment dated 30.6.2010. The said judgment has been produced in the captioned original petitions as Ext.P8. Essentially, the question that was considered in the said writ petitions, was whether the service rendered by such appointees who possessed only the qualification under item No.(iii) of Ext.P1 at the time of their appointment, prior to and during the in-service Multipurpose Workers Training, could be excluded while reckoning seniority in JHI Gr.II. Obviously, as per Ext.P8 judgment it was held that since the training provided under the Special Rules is not a training prescribed as an eligibility for appointment or as a qualification to be acquired before O.P.(KAT)Nos.31, 32 & 135 of 2015 8 appointment and since it is only a training that precedes the appointment, there was no justification for non-reckoning of such periods of service rendered by such persons for the purpose of seniority, as well. It was held that the fact that such persons were appointed and training was given to them only after appointment itself would go to show that such training was not obligatory for confirming various incidents of service like seniority. Shortly stated, it was held that they were not given appointment as trainees. In such circumstances, relying on the decisions in **Ammini** v. **State of Kerala (2000 KHC 442)** , **State of Kerala & others** v. **Premavalsalan & Others (2008 (3) KHC 168)** it was held that in-service training could not be termed as pre-appointment training and therefore the in-service training period and the period of service prior to such training should also be reckoned for seniority. Evidently, as per Ext.P8, the learned Single Judge held that in-service training could only be treated as one for equipment after persons entered into service. Based on such findings, as per Ext.P8, the respondents were directed to fix seniority within the time stipulated thereunder. Evidently, as per Ext.P8 judgment, it was held that Rule 27, Part II of KS & SSR alone should govern fixation of seniority and therefore, the incumbents were entitled to get seniority with effect from the date of their respective advice. In O.P.(KAT)Nos.31, 32 & 135 of 2015 9 its implementation Government have issued Ext.P9 proceedings viz., G.O.(Rt)No.893/2010/H&FWD dated 4.3.2011 carrying a direction to the Director of Health Services to revise seniority list by publishing a draft seniority list and then to finalise it after considering appeals, if any, received against the draft list. It was also directed to review promotions to the cadre of JHI Gr.II based on the revised seniority list. Pursuant to Ext.P9 the Director issued Ext.P10 viz., Proceeding No. (Spl.Cell)ES2-69286/2010/DHS dated 16.6.2011 directing DMOs of all districts to collect the details in the proforma attached therewith. It is in the said circumstances that the writ petition which was later transferred and numbered as T.A.No.4025 of 2012 has been filed. Needless to say that the writ petition which was transferred and numbered as T.A.No.5876 of 2012 was also filed in similar circumstances. Pending the transferred applications Annexure-A5 order No.ES2(Spl.Cell)-69286/2010/DHS dated 22.11.2012 was issued by the Director of Health Services wherewithal the revised final seniority list of JHI Gr.II for the period from 1.1.1997 to 31.3.2000 was appended. The applicants/petitioners had made amendments to bring in challenge against the said list. As noticed hereinbefore, the core contention of the petitioners/applicants before the Tribunal was that the respondent authorities ought to have followed Ext.P2 judgment. In that context, it O.P.(KAT)Nos.31, 32 & 135 of 2015 10 is submitted that in fact, Ext.P5 would reveal that in compliance with Ext.P2 judgment the respondents have revised the seniority list and published two separate lists wherein the first list contained only the name of persons having technical qualification of Multipurpose Workers Training Certificate and the other carrying the name of persons with Health Inspector's Training Certificate/Sanitary Inspector's Training Certificate. The sum and substance of the contentions is that after issuing such lists there was no reason to revise the same based on Ext.P8 judgment especially when those lists were prepared taking into account the possession of preferential qualifications and without reference to the date of advice, pursuant to Ext.P2 judgment. The Tribunal repelled such contentions and held, relying on the principles laid down in Wade's Administrative Law, 10[th] Edition at page No.256, that the contention of the petitioners/applicants that the respondents should have followed Ext.P2 judgment of the Division Bench instead of Ext.P8 judgment of the learned Single Judge, has to be ignored. That apart, it was held by the Tribunal that the Division Bench in Ext.P2 judgment ordered to go against Rule 27(c), Part II of KS & SSR on the special facts of that case and that the said decision did not lay down any general principle of law which binds the Government and compels it to assign seniority without reference to the date of advice but only with O.P.(KAT)Nos.31, 32 & 135 of 2015 11 reference to preferential qualification, whenever district wise seniority lists are integrated. It is such findings that culminated in dismissal of T.A.No.4025 of 2012. As noticed hereinbefore, T.A.No.5876 of 2012 was dismissed subsequently relying on the order in T.A.No.4025 of 2012. 5. Virtually, the contentions unsuccessfully raised before the Tribunal were reiterated before us. It is contended that the Tribunal went wrong in holding that the contentions of the applicants/petitioners that the respondents should have followed Ext.P2 judgment instead of Ext.P8 judgment, is only to be ignored for the reason that Ext.P2 did not lay down any general principle of law binding the Government and compelling it to assign seniority without reference to the date of advice, but with reference to preferential qualification, whenever district wise seniority lists are integrated. It is the contention of the learned counsel appearing for the petitioners in the captioned original petitions that the Division Bench as per Ext.P2 judgment had categorically held that in so far as persons recruited as JHI Gr.II are concerned, in terms of qualifications prescribed under the special rules, those with preferential qualification should en-block rank above those recruited only with the second preferential qualifications, in the seniority list. It is submitted that a perusal of Ext.P8 judgment would reveal that this aspect was not O.P.(KAT)Nos.31, 32 & 135 of 2015 12 at all discussed therein and in fact, Ext.P2 judgment was not at all referred to, by the learned Single Judge, while rendering the same. Therefore, it is submitted that by passing Annexure-A5 and the revised seniority list based on Ext.P8 judgment the State and the Director of Health Services had virtually attempted to overreach the directions issued by the Division Bench, under the guise of implementing Ext.P8 judgment rendered by the learned Single Judge. It is also submitted by the learned counsel for the petitioners that Ext.P2 judgment was sought to be challenged before the Hon'ble Apex Court by filing Special Leave to Appeal (Civil) Nos.C.C. 6930-6931/2004. The order passed by the Apex Court thereon, which is produced in O.P.(KAT)No.31 of 2015 as Ext.P4 itself would reveal that permission to file SLP was granted and at the same time, the Special Leave Petitions were dismissed, it is further submitted. The order reads thus:- “Permission to file SLP is granted. The petitioners' grievance is that they were not heard before the impugned order of the Division Bench was passed. Such grievance is one which can only be ventilated before the High Court. The Special Leave Petitions are, accordingly, dismissed.” (emphasis added) 6. It is submitted by the learned counsel for the petitioners that the Apex Court had observed that the grievance of the petitioners therein that they were not heard before passing the impugned order by O.P.(KAT)Nos.31, 32 & 135 of 2015 13 the Division Bench in the said writ appeals, is a grievance which could only be ventilated before the High Court and it is after making such observation and on that ground that the Special Leave Petitions were dismissed. Nevertheless, none allegedly affected by Ext.P2 judgment raised any such grievances before this Court and sought for review of Ext.P2 judgment, it is further submitted. In such circumstances, there was absolutely no reason for not following Ext.P2 judgment and in fact, as can be seen from Ext.P5, it was followed and seniority lists were prepared in compliance with Ext.P2 judgment, it is submitted by the petitioners. Having done so, the respondent authorities were not justified in nullifying its effect by preparing a revised seniority list under the guise of implementing Ext.P8 judgment. 7. The learned counsel appearing for the party respondents as also the official respondents countered the contentions and submitted that no illegality or error had crept in the orders passed by the Tribunal in T.A.Nos.4025 and 5876 of 2012. The further contention of the party respondents is to the effect that the challenge against the non-reckoning of service prior to the in-service Multipurpose Worker's Training and the period of in-service Multipurpose Workers Training by appointees with the qualification mentioned in item No.(iii) of Ext.P1 who were special recruits, in W.P.(C)No.15535 of 2005 and connected O.P.(KAT)Nos.31, 32 & 135 of 2015 14 cases was upheld by this Court, as can be seen from Ext.P8 judgment. It is further contended as follows:- Ext.P8 would reveal that this Court held that the said training is not at all a qualification for appointment to the post of JHI Gr.II and it could be treated only as one for equipping the appointees after their entry into the service. This Court also took note of the fact that the admitted case is that such persons were appointed first and sent for training only after such appointment and thereupon found that absence of training could not affect their seniority and it has to be fixed based on the order of appointment and by applying Rule 27(c), Part II of KS & SSR and further that such periods have to be counted for the benefit of seniority, promotion and other benefits. A specific direction was also given thereunder to fix seniority in accordance with the said judgment within the time stipulated thereunder. Exts.P9 and P10 were issued under such circumstances and finally the directions were complied in tune with Ext.P8 judgment, under Annexure-A5. In such circumstances, the finding of the Tribunal that seniority has to be fixed only in tune with the provisions under Rule 27(c), Part II of KS & SSR and further that no general law was laid down under Ext.P2 to go against Rule 27(c), and to assign seniority with reference to preferential qualification by the Division Bench, cannot be said to be an error or O.P.(KAT)Nos.31, 32 & 135 of 2015 15 illegality warranting any interference by this Court. 8. The rival contentions as expatiated above, would reveal that the petitioners who possess the qualification of Multipurpose Workers Training Certificate would contend that it is the first preferential qualification going by Ext.P1 Government order and as per the same only in the absence of candidates possessing the said qualification candidates with the second preferential qualification namely, Health Inspector's Training Certificate/Sanitary Inspector's Training Certificate (Diploma) of All India Institute of Local Self Government, Bombay or its equivalent, could be appointed. According to them, it is recognizing the said aspect and also the delay occurred in the matter of reporting of vacancies in JHI Gr.II category that resulted delayed appointment of persons possessing the first preferential qualification in some districts and the advice and appointment of persons with the second preferential qualification in some other districts earlier in point of time, owing to the prompt reporting of such vacancies, that Ext.P2 judgment was passed. According to them, taking into account the aforesaid circumstances and also the position of law in the special rules the Division Bench as per Ext.P2 held that seniority has to be re-fixed by putting appointees during the period mentioned therein, possessing the first preferential qualification, above as seniors O.P.(KAT)Nos.31, 32 & 135 of 2015 16 to those appointees having only the second preferential qualification. When such a direction was issued for re-fixing seniority in the category of JHI Gr.II and when the directions in Ext.P2 judgment were complied with by issuing Ext.P5 and by publishing two separate lists, a further revision of seniority in that grade should not have been effected as long as Ext.P2 judgment was not varied in a manner affecting the seniority settled in terms of Ext.P2. In short, the petitioners rely on Ext.P2 judgment to contend that the revision of seniority list of JHI Grade.II for the period from 1.1.1997 to 31.3.2000 based on the date of advice in terms of Rule 27(c), Part II of KS & SSR is against Ext.P2 judgment and therefore, it is liable to be interfered with and since the Tribunal had failed to consider those aspects the impugned orders are liable to be set aside. At the same time, the nub of the contentions of the party respondents, which were endorsed by the official respondents, is to the effect that in the light of Ext.P8 judgment carrying a specific direction to fix seniority based on the date of advice in tune with Rule 27(c), Part II of KS & SSR there was no option but to revise seniority and therefore, the Tribunal had rightly declined interference. 9. Firstly it is to be considered whether there is any conflict in the directions in Exts.P2 and P8 judgments capable of persuading the official respondents to revise the lists published along with Ext.P5. As O.P.(KAT)Nos.31, 32 & 135 of 2015 17 noticed hereinbefore, earlier, appointees similarly situated to the petitioners approached this Court under the circumstances mentioned bereinbefore and it culminated in Ext.P2 judgment by a Division Bench. There is no challenge against the position as obtained from Ext.P1 that only in the absence of candidates possessing the first preferential qualification namely, Multipurpose Workers Training Certificate that candidates possessing the second preferential qualifications could be appointed. Going by the same, persons with the second preferential qualifications namely, Health Inspector's Training Certificate/Sanitary Inspector's Training Certificate were given advice and appointments only in the absence of candidates possessing the first preferential qualification. Rule 12A(ii) of the PSC Rules of Procedure was adhered to for the purpose of effecting advice by the PSC and going by the same, persons with the first preferential qualification were advised first and the persons with the second preferential qualification were advised for appointment as JHI Gr.II from the district wise lists prepared for appointment. But, certain incumbents in JHI Gr.II possessing the first preferential qualification were constrained to move this Court by filing original petitions which ultimately culminated in Ext.P2 judgment, on being faced with the threat of being pushed down in an integrated seniority list of JHI Gr.II. In certain districts persons with second O.P.(KAT)Nos.31, 32 & 135 of 2015 18 preferential qualification obtained appointment as JHI Gr.II before appointment of persons with first preferential qualification in some other districts where delay had occurred in reporting vacancies in the said category. Hence, on the proposal for preparation of integrated seniority list on State level, certain incumbents with second preferential qualifications were likely to be placed above such appointees who possessed the first preferential qualification. Evidently, the Division Bench considered such contentions and found substance in them and ordered as per Ext.P2 judgment that in view of the position of law in the special rules and in such circumstances explained, seniority have to be re-fixed placing persons in the first list viz., persons possessing the qualification of Multipurpose Workers Training Certificate above the persons included in the second list viz., persons possessing the qualification of Health Inspector's Training Certificate/Sanitary Inspector's Training Certificate. Evidently, the Division Bench had also taken note of the fact that going by Rule 27(c), Part II of KS & SSR seniority would depend upon the date of advice unless special rules provided otherwise. It is after taking into account the said aspect and the fact that going by the special rules the question of appointment of persons possessing second preferential qualifications would arise only in the absence of candidates with first preferential qualification and also O.P.(KAT)Nos.31, 32 & 135 of 2015 19 the delay in the matter of advice and appointment of persons with first preferential qualification ranked in PSC lists published for certain districts and consequences thereof likely to arise while preferring an integrated seniority list of JHI Gr.II, that such a direction was issued. It is not in dispute that going by Ext.P2 judgment what is to be followed for fixing seniority is not Rule 27(c), Part II of KS & SSR but, it has to be effected with reference to the possession of preferential qualification in view of the circumstances explained therein. It is not in dispute that the directions in Ext.P2 judgment were taken into account and the official respondents had issued Ext.P5 and separate lists were published for persons possessing the first preferential qualification as list I and for persons possessing the second preferential qualifications as list II. The situation that resulted in revision of such settled seniority of JHI Gr.II had occurred only due to Ext.P8 judgment. We have already taken note of the fact that it is the grievance of non-reckoning of the period of duty rendered prior to the in-service training and the period spent during such training, for seniority that constrained certain persons possessing the second preferential qualifications to approach this Court seeking appropriate reliefs. The question whether in-service training is a qualification for appointment or whether it is only a training to equip incumbents after appointment, was pointedly considered by a learned O.P.(KAT)Nos.31, 32 & 135 of 2015 20 Single Judge of this Court as per Ext.P8 judgment. It is true that the said judgment has also become final. 10. Evidently, Annexure-R5(a) would reveal that a Division Bench of this Court, as per order dated 20.6.2014 in I.A.No.259 of 2014 in an unnumbered W.A. of 2014 declined leave to file appeal against the judgment in W.P.(C)No.15535 of 2005 viz., one of the writ petitions disposed of as per Ext.P8 judgment. At the same time, it is to be noted that earlier a Division Bench of this Court as per judgment dated 4.8.2009 in W.A.No.1144 of 2009 in which one among us (Justice C.T.Ravikumar) was a party held that Ext.P2 judgment herein, had become final. That judgment was rendered in a writ appeal filed on getting special leave. Ext.P2 judgment herein was referred to therein, as Ext.P1. The fact that the list referred to as Ext.P4 seniority list therein viz., the list published pursuant to Ext.P2 judgment, containing two parts, was published in obedience to Ext.P2 judgment, was also noted therein. The challenge was made by certain special recruits who were not parties to the writ petition. Even while holding that Ext.P1 judgment had become final and therefore, the parties thereto and the official respondents are bound by it, taking into account the fact that in the case of special recruits there was only one list, which was a combined list prepared according to merit their placement in Part II of O.P.(KAT)Nos.31, 32 & 135 of 2015 21 Ext.P4 list therein, was found to be in order. It was held that those special recruits being persons advised from the list prepared by PSC for special recruitment, could get seniority only from the date of their advice as per Rule 27(c). Still, seniority of persons recruited from a particular district under special recruitment was ordered to be rearranged and persons with Health Inspector's Certificate were directed to be placed above the persons with Sanitary Inspector's Certificate, advised from that particular district, even if, they were advised later. We have also noted the fact that the special leave petitions filed against Ext.P2 judgment were dismissed by the Hon'ble Apex Court with a specific observation, as mentioned above, as early as on 27.8.2004 and thereafter, none allegedly aggrieved by Ext.P2 judgment sought to get it re-opened. In short, Ext.P2 judgment had become final as observed in the judgment in W.A.No.1144 of 2009. At the outset, we may state that a perusal of Ext.P8 judgment would not reveal that Ext.P2 judgment was brought to the notice of the learned Single Judge and at any rate, the fact is that there is no consideration of Ext.P2 judgment, therein. Be that as it may, what was decided under Ext.P8 judgment was whether the in-service training given for candidates possessing item No.(iii) of Ext.P1 viz., the second preferential qualifications, after their appointment as JHI Gr.II could be O.P.(KAT)Nos.31, 32 & 135 of 2015 22 regarded as a qualification for appointment as JHI Gr.II. Obviously, it was found under Ext.P8 that in-service training given after appointment as JHI Gr.II could not be treated as a qualification for appointment against that category and it could only be treated as a training imparted only to equip incumbents possessing the second preferential qualifications, after their entry in service. Evidently, it is such a finding that constrained the learned Single Judge to hold that the period of service rendered prior to such training and during such training, should be reckoned for the purpose of seniority as well and to issue a direction to fix seniority based on the date of advice by virtue of Rule 27(c) of Part II of KS & SSR. True that Ext.P8 judgment also contained a direction to issue consequential orders fixing seniority within the time stipulated therein. The question is how in such circumstances it could be taken that it would enable the official respondents to unsettle a settled seniority prepared based on preferential qualifications and revise it in toto, solely based on the date of advice in tune with Rule 27(c), Part II of KS & SSR by ignoring Ext.P2 judgment. 11. At the risk of repetition, we may state that earlier, Ext.P2 judgment was sought to be challenged by preferring Special Leave Petitions. It can be seen from Ext.P4 in O.P.(KAT)No.31 of 2015 that those Special Leave Petitions were dismissed by the Apex Court O.P.(KAT)Nos.31, 32 & 135 of 2015 23 after observing that the grievance of passing of the said judgment without hearing the petitioners therein, would be a matter that could be ventilated only before the High Court. Though the Special Leave Petitions were dismissed with such observations nothing is on record which would indicate that any such attempt was made by anyone to get re-opened Ext.P2 judgment. There is no such contention raised by any party before us. On the contrary, the materials on record would reveal that in compliance with Ext.P2 judgment Ext.P5 order was passed and final seniority list of JHI Gr.II appointed as on 31.3.2000 was published. The relevant recital in Ext.P5 in Annexure-I of O.P.(KAT)No.31 of 2015, dated 5.1.2008, made after referring to Ext.P2 judgment, reads thus:- “In compliance of the judgment in W.P.(C)No.10496/04 filed by Tom Varghese & others and orders of the Hon'ble High Court, the Revised/Combined gradation list of Junior Health Inspector Grade II/Field Asst./Insect Collector for the period from 01.01.1997 to 31.03.2000 published as per order dt. 22.11.03 is separated vide order read as 7[th] paper above as done in the previous Seniority list published vide order No.ES249196/04/DHS Dt.23.08.04 to comply with the directions in the judgment in W.A.Nos.2284, 2750 and 2848 of 2000.” A revision of such a settled seniority list was made as per Annexure-A5 dated 22.11.2012, subsequent to Exts.P9 and P10 solely based on Ext.P8 judgment whereby and whereunder in-service training was held as not a qualification for appointment as JHI Gr.II and held as only a training being given after appointment only to equip the appointees. It O.P.(KAT)Nos.31, 32 & 135 of 2015 24 is worthwhile to note that even paragraph 4 in Ext.P9 would reveal that in terms of the combined judgment read as 1[st] paper therein viz., Ext.P2 judgment herein, a seniority list of JHI Gr.II for the period from 1.1.1997 to 31.3.2000 was prepared in accordance with the directions in Ext.P2. More importantly, paragraph 6 in Ext.P9 would revea that, taking note of such aspects, Government had observed thus:- “Therefore, Government order that preparation of two different lists as per the directions in the combined judgment in the Writ Appeals, (reference was to Ext.P2 judgment) for calculating district wise seniority in the cadre of Junior Health Inspector Grade II, already arrived need not be altered.” But then, it was further ordered thereunder to revise state wise seniority list of JHI Gr.II, for the purpose of promotion to the cadre of JHI Gr.I, according to the provisions under Rule 27, Part II of KS & SSR. As noticed hereinbefore, Annexure-A5 and the list appended therewith came to be issued only in pursuance thereof. True that, there is a finding in Ext.P8 judgment to the effect that seniority will have to be fixed based on the date of advice in tune with Rule 27(c), Part II of KS & SSR. We have already taken note of the fact that there is nothing in Ext.P8 judgment which would indicate that the decision in Ext.P2 judgment and the consequential revision of seniority in terms of Ext.P2 judgment, were brought to the notice of the learned Single Judge. At O.P.(KAT)Nos.31, 32 & 135 of 2015 25 any rate, there is no consideration in Ext.P8 with reference to Ext.P2 judgment. How can the benefits granted to the beneficiaries under Ext.P2 judgment could be taken away, in such circumstances ? As per Annexure-A6 judgment an earlier Division Bench had already held that the official respondents are bound by Ext.P2 judgment. Hence, the official respondents ought to have adopted a harmonious construction of Exts.P2 and P8 judgments or else, they ought to have sought for clarification from the forum concerned as to how inter se seniority of the aforesaid groups, has to be fixed. At any rate, the official respondents ought not to have understood that Ext.P8 is a judgment rendered to nullify the effect and impact of Ext.P2 judgment. As noticed hereinbefore, Ext.P2 judgment was sought to be challenged by filing Special Leave Petitions and even after their dismissal with the observation that grievance regarding passing of Ext.P2 judgment without being heard, is a matter which could be ventilated only before the High Court, none attempted to resort to such a course of action to get reopened Ext.P2. Hence, the consequences of Ext.P2 judgment which were given effect to, as can be seen from Ext.P5 as also Ext.P9 could not have been nullified by the official respondents while giving effect to Ext.P2 judgment after issuing Exts.P9, P10 and Annexure-A5. In the said circumstances, we have no hesitation to hold that the O.P.(KAT)Nos.31, 32 & 135 of 2015 26 Tribunal was not correct in virtually, holding that the respondents were justified in not following Ext.P2 judgment and virtually in following Ext.P8 judgment for the purpose of revising the settled seniority list. The finding that the course open to the beneficiaries of Ext.P2 judgment was to take appropriate action against non-implementation of Ext.P2 judgment appropriately is also not a reason which could be sustained taking into account the fact that the official respondents had not only decided to implement Ext.P2 judgment but, had actually complied with it by issuing Ext.P5 and consequential lists. In such circumstances, any action following Ext.P8 judgment could have been made only without unsettling the seniority settled in between persons possessing first and second preferential qualifications whose inter se seniority were already settled in obedience to Ext.P2 judgment, covering the period involved therein. At the same time, without such interference the official respondents ought to have taken steps for implementing the directions in Ext.P8 judgment in respect of persons not falling under the aforesaid category, but entitled to get the benefits flowing from it, including the one pertaining to assignment of seniority. 12. In short, the respondents were under an obligation to revise the seniority list in tune with the aforesaid conclusion and so long as it was not done and what was done was only an unsettling of the O.P.(KAT)Nos.31, 32 & 135 of 2015 27 seniority settled in tune with Ext.P2 judgment, Annexure-A5 and Exts.P9 and P10 requiring revision of seniority dehoring the directions in Ext.P2 judgment are liable to be interfered with. Consequently, to that extent, they are set aside and the orders of the Tribunal in T.A.Nos.4205 & 5876 of 2012 passed by the Tribunal are set aside leaving liberty to the official respondents to fix the seniority of persons belonging to the category of petitioners in Ext.P8 judgment taking into account the directions thereunder but without doing anything to nullify the seniority of beneficiaries of Ext.P2 judgment granted already in obedience of the order thereunder. Subject to the above, the original petitions are allowed and disposed of. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANIL K.NARENDRAN Judge** TKS