Philomina A.V. and others v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 20TH DAY OF MARCH 2012/30TH PHALGUNA 1933 WP(C).No. 6880 of 2011 (H) -------------------------- PETITIONERS: ------------- 1. PHILOMINA A.V., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 2. GRACY P.L., HOSPITAL ATTENDANT GR.II MEDICAL COLLEGE CHEST HOSPITAL, MULANKUNNATHUKAVU THRISSUR-680581. 3. VARGHESE M.U., HOSPITAL ATTENDANT GR.II MEDICAL COLLEGE CHEST HOSPITAL, MULANKUNNATHUKAVU THRISSUR-680581. 4. REJITHA M.K., HOSPITAL ATTENDANT GR.II MEDICAL COLLEGE CHEST HOSPITAL, MULANKUNNATHUKAVU THRISSUR-680581. 5. JAYA C.R., HOSPITAL ATTENDANT GR.II MEDICAL COLLEGE CHEST HOSPITAL, MULANKUNNATHUKAVU THRISSUR-680581. 6. LAKSHMI C.S., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 7. RUKIYA N.M., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 8. BEENA THATTIL P., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 9. RAJI I.M., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 10. K.L.BINDU, HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. WP(C).No. 6880 of 2011 (H) 11. S.S.RAJANI, - HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 12. OMANA P.A., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 13. KARTHIYANI M.A., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 14. AJITHA K.M., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 15. LAISA K.L., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 16. K.A.UNNIKRISHNAN, HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 17. SHEEBA P.P., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 18. ANITHA P.K., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 19. SHEEBA C.V., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 20. LISSY P.J., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 21. SOBHANA M.K., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 22. SARASWATHY A.K., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 23. RAJALAKSHMY P.G., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 24. PADMINI P.G., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. W.P(C).No. 6880 of 2011 (H) 25. SINDHU P.P., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 26. SOBHANA K.V., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 27. USHA P.K., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 28. E.S.VALSALA, HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 29. N.K.RAHMATH, - HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 30. SUNITHA K.V., - HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 31. MENAKA K.C., - HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 32. JOSEPH PINHERO, HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 33. SHEEJA K.N., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 34. SAHANATH K.S., - HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 35. RAHMATH K.M., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 36. MUMTHAS K.A., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 37. VILASINI T.K., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. 38. LATHA P., HOSPITAL ATTENDANT GR.II, NEW MEDICAL COLLEGE MULANKUNNATHUKAVU, THRISSUR-680581. BY ADV. SRI.KALEESWARAM RAJ WP(C).No. 6880 of 2011 (H) RESPONDENTS: -------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT THIRUVANANTHAPURAM-695001. 2. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM-695001. 3. DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM-695001. 4. DISTRICT MEDICAL OFFICER, THRISSUR-680001. 5. THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, THRISSUR-680001. 6. THE DISTRICT EMPLOYMENT EXCHANGE, REP. BY THE DISTRICT EMPLOYMENT EXCHANGE OFFICER THRISSUR-680001. BY ADV. GOVERNMENT PLEADER SRI. jAMES MATHEW KADAVAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.1.2012, THE COURT ON 20-03-2012 DELIVERED THE FOLLOWING: WP(C).No. 6880 of 2011 (H) ## **APPENDIX** PETITIONERS'S EXHIBITS: |EXT,P1|-|TRUE COPIES OF THE EMPLOYMENT REGISTRATION CARD| |---|---|---| |||OF THE PETITIONERS.| |EXT.P2|-|TRUE COPIES OF THE MEMOS FOR INTERVIEW ISSUED| |||TO THE PETITIONERS.| |EXT.P3|-|TRUE COPIES OF THE APPOINTMENT ORDER OF THE| |||PETITIONERS.| |EXT.P4|-|TRUE COPIES OF THE POSTING ORDERS OF THE| |||PETITIONERS.| |EXT.P5|-|TRUE COPY OF THE PORTION OF THE COMMUNICATION| |||BEARING THE INITIAL DATED 4.2.2011 ISSUED ON BEHALF| |||OF THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE,| |||THRISSUR.| |EXT.P6|-|TRUE OCOPY OF THE SPECIAL RULES FOR KERALA LAST| |||GRADE SERVANTS.| |EXT.P7|-|TRUE COPY OF THE SENIORITY LIST.| |EXT.P8|-|TRUE COPY OF THE REPESENTATION DT.30.9.2011 SUBMITTED| |||BY 1ST PETITIONER.| |EXT.P9|-|TRUE COPY OF THE NEWS REPORT WHICH APPEARED IN| |||MATHRUBHUMI DAILY DT.9.12.2011.| RESPONDENTS' EXHIBITS: ANNEXURE R5(A) - TRUE COPY OOF THE LETTER NO.A4/2011/10675/8 DT.23.3.2011 /TRUE COPY/ RKA P.S. TO JUDGE. A.M.SHAFFIQUE, J. ---------------------------------------------------- W.P.(C) No. 6880 of 2011 ---------------------------------------------------Dated this the 20[th] March, 2012 **J U D G M E N T** This writ petition is filed for a declaration that the appointment of the petitioners as Hospital Attendant Grade - II is regular and therefore their service is not liable to be terminated, and inter alia praying for a direction to respondents not to terminate the service of the petitioners. 2. The petitioners were appointed as Hospital Attendant Gr.II in various Government Medical Colleges by recruitment through Employment Exchange. It is contended that the post of Hospital Attendant Gr.II is included in the Special Rules of the Kerala Last Grade Servants. It is item No. (n) under category No.4. 50% of the said post in the Department of Health Services etc., including Medical Colleges are to be filled up by promotion of Part-time Contingent Employees in the Departments concerned on the basis of seniority by the respective appointing authorities and the remaining 50% of the posts in the Department specified under item (i) of the respective appointing authority by promotion from the 2 ## W.P.(C) No.6880/2011 candidates advised by the District Collectors from the common seniority list of Part-time Contingent Employees prepared on Revenue District-wise basis and in the absence of suitable hands under items (i) and (ii) by direct recruitment through Employment Exchange. It is the contention of the petitioners that they were all issued memos for regular appointment as per Ext.P2 by the Administrative Officer of Government Medical College, Thrissur. 3. But, while issuing the appointment order as evident from Ext.P3, appointments were made only on temporary basis, for a specified period of 179 days or when a regular person is promoted to the said post whichever is earlier. The petitioners complain that after their appointments were made, about 150 vacancies were intimated by the Principal of the new Medical College, Mulankunnathukavu to the Employment Exchange and attempts are made to make regular appointments against the said 150 vacancies. It is the contention of the petitioners that they are entitled to be appointed against the sanctioned post. 3 W.P.(C) No.6880/2011 4. The Government, on the other hand, filed an affidavit to vacate the interim order passed in the case. But no counter affidavit is filed. In the affidavit filed in support of I.A. No.19115/2011, the stand of the 5[th] respondent is clear. According to them, the Employment Exchange was called upon to fill up the vacancies of about 50 Hospital Attendant Gr.II on temporary basis as there was shortage of cleaning staff and it was by considering the said urgency that a decision was taken to fill up these vacancies through Employment Exchange. It is further submitted that the District Collector had given a list of Part-time Contingent Employees who are eligible to be promoted as Hospital Attendant Gr.II as per letter dated 23.03..2011 which is produced as Ext.R5(a) which indicated that there were more than 120 qualified persons eligible for promotion to the post of Hospital Attendant Gr.II. It is therefore submitted that the petitioners were not entitled to be appointed on a regular basis and their appointments were possible only in the absence of candidates falling under Clause (i) and (ii). According to them, since there are Part-time Contingent Employees coming under Clause (ii) of Category 4, 4 ## W.P.(C) No.6880/2011 the appointments of the petitioners cannot be regularised. It is the complaint of the petitioners that, when this Court passed an interim order dated 11.3.2011, it was specified that the service of the petitioners shall not be terminated unless it becomes necessary to do so to accommodate the persons eligible for appointment under category 4 (i) and (ii) of Ext.P6. It is submitted that in pursuance of this interim order, and by virtue of Ext.R5(a) list coming into operation, the petitioners were not regularised and were asked to leave the service of the hospital. The petitioners have also filed a reply affidavit contending that about 95 Hospital Attendants, who opted for deputation to the offices under the Director of Health Services are treated as part of the cadre strength without examining the origin of their induction. It is also stated that majority of the said 95 persons are included to category No.4 (a) (ii) of the Special Rules. 5. Petitioners have also filed I.A.No.20258/2011 by producing Exts.P8 and P9. Ext.P8 is a representation filed by the 1[st] petitioner before the District Employment Exchange for regularising their services. Ext.P9 is a newspaper report 5 W.P.(C) No.6880/2011 indicating that about 96 Hospital Attendants Gr.II are going to be promoted. It is the contention of the petitioners that their promotions were withheld only to terminate the services of the petitioners. 6. Heard the learned counsel appearing for petitioner and the learned Government Pleader. 7. It is the contention of the petitioners that an appointment is made under Clause (iii) of Category 4 of the Special Rules, only when it is found that there are no suitable hands under Category 4 (i) and (ii) and therefore when a direct recruitment through Employment Exchange is advised it cannot be a temporary appointment. Counsel also relies upon the judgment of this Court in **Vasanthi** v. **State of Kerala** (2006 (1) KLT 288) to contend for the above position. The point to be considered therefore is whether the appointments can be made by the respective appointing authorities from among the candidates who had enrolled in the Employment Exchange on a temporary basis, when persons under category 4 (i) and (ii) were not available at that point of time. This Court had held that even when appointments are made under category 4 (iii), provisional 6 W.P.(C) No.6880/2011 appointments are possible. Under what contingencies such provisional appointments are possible can only be, if there is some delay on the part of the authorities to finalise the list in respect of categories (i) and (ii). But here, in this case we do not find that there was a proposal for preparing a list of candidates under Clause (i) or (ii) of Category 4. In such cases when appointments are made under Clause (iii) it necessarily follows that the list was not available. There is no case that there was any delay in preparing the list. From Ext.R5(a) it is clear that the list was made available only on 2.3.2011 when apparently petitioners were all in employment. 8. The counsel for petitioner also relied upon a division bench judgment of this court in **Writ Appeal 96/2000** and connected cases wherein this court had approved the provisional appointments of Hospital Attendants Grade II as regular. That was also a case where the list of candidates falling under Category 4(i) and (ii) were not available when the appointments were made. 9. In **Sreekala vs State of Kerala (2008 (2) KLT 13)** a division bench of this Court held that the mention in the 7 W.P.(C) No.6880/2011 appointment order that the appointment is provisional or temporary may not be conclusive. The point would be whether the procedure for regular appointment is followed or is the procedure for provisional appointment alone is followed. 10. In the case on hand according to me, the only point to be verified is whether the procedure for regular appointment had been followed. If so petitioners appointment can be only regular appointments especially when there was no list available under Category 4 (i) and (ii) at the time when the petitioners were selected. It is seen from Ext.P2 series that the petitioners were called for an interview and were called upon to produce all necessary certificates as required for regular appointments. In fact it is for the respondents to prove that they have not followed the procedure for regular appointment. No counter affidavit is filed to that effect. Hence it could only be assumed that necessary interview for regular appointment had been made before issuing appointment orders. 8 W.P.(C) No.6880/2011 Under these circumstances the writ petition is allowed as follows: - (i) It is hereby declared that the appointment of - petitioners as Hospital Attendant Gr.II is regular. (ii) If the services of the petitioners are terminated during the pendency of the writ petition they may be reinstated in service with immediate effect with all benefits from the date of appointment except salary for the period they were out of employment. ## **A.M.SHAFFIQUE, JUDGE.** rka