High Court of KeralaDivision Bench2020-11-23OP(KAT).No.240 OF 2020 disposed of; Government ...

S. Tharakumari v. State of Kerala & Others (OP(KAT).No.240 of 2020)

Case / Petition Number:OP(KAT).No.240 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Shaffique, J
Gopinath P., J.
Judgment Date: 2020-11-23
Court Decision / Holding: OP(KAT).No.240 of 2020 disposed of; the Government is directed to take appropriate steps to appoint a qualified State Nutrition Officer by direct recruitment if none are available under the feeder category, and to finalize these steps within three months from receipt of the judgment.
Final Disposition: OP(KAT).No.240 OF 2020 disposed of; Government directed to take steps to appoint a qualified candidate by direct recruitment if none available under feeder category, and to pass final orders within three months.

Parties to the Case

Appellants / Petitioners

S. Tharakumari

Respondents

State of Kerala represented by its Secretary, Health and Family Welfare Department, Government Secretariat, Thiruvananthapuram, Kerala
Directorate of Health Service, General Hospital Junction, Thiruvananthapuram, Kerala
K. T. Sreelathakumari, State Nutrition Officer, State Nutrition Bureau, Directorate of Health Service, General Hospital Junction, Thiruvananthapuram, Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri V.C. Sarath

Counsels for Respondents

• Adv. Sri V.A. Muhammed
• Sri V. Rajasekharan Nair, Sr.GP

Case Synopsis & Summary

This petition challenges the Kerala Administrative Tribunal’s OA 2455/2017 order dated 23 March 2020. The Tribunal held that the petitioner, S. Tharakumari, a Senior Grade Dietician in the State Nutrition Bureau, was not qualified for promotion to State Nutrition Officer because she was not in the feeder category, and it observed that the 3rd respondent’s temporary appointment as State Nutrition Officer in 2009 was also not properly substantiated in terms of qualifications. The Tribunal did not scrutinize the 3rd respondent’s appointment beyond noting it existed, since there was no challenge to that appointment. The High Court, while not finding fault with the Tribunal’s core conclusion, noted that an unqualified person had continued in the State Nutrition Officer post for a lengthy period and directed the Government to ensure a qualified person is appointed through direct recruitment if no feeder-eligible candidate is available, with interim directives previously issued being considered. The judgment traces the 3rd respondent’s career: temporary promotion in 2009, reversion in 2011, and subsequent continuation through interim orders before DPC-directed regularisation. It cites Gelus Ram Sahu v. Surendra Kumar Singh to illustrate that erroneous appointments can be annulled, but the court’s disposal ultimately directs steps to rectify the situation within three months.

Provisions of Law Cited

Rule 28(b)(i)(12) of Part II of KS&SSR

Legal Doctrines & Maxims

Erroneous appointment without fulfilment of minimum qualifications can be annulled; appointment is not indefeasible and may be corrected

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that she possessed the necessary qualifications and feeder-category eligibility for promotion to the post of State Nutrition Officer. She argues that the 3rd respondent’s temporary appointment in 2009 was illegal and that the Tribunal should have erred in not adjudicating the validity of that appointment more rigorously. She seeks a direct recruitment if no eligible feeder candidate exists and asks for consistency with the established feeder norms and KS&SSR provisions.

Contentions of Respondents

The respondents contend that the 3rd respondent’s 2009 appointment was temporary and later regularised through departmental processes; they emphasize that the Directorate’s actions, including the DPC direction and the eventual regularisation (subject to KPSC/DPC procedures), comply with rule-based rules and court directions. They argue that the Government’s approach, including possible rectification via direct recruitment in case no eligible feeder candidate exists, adheres to due process and the rules governing appointments.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Gelus Ram Sahu v. Surendra Kumar Singh and others	(202) 4 Supreme Court Cases 484	Mentioned Only	Cited to illustrate that an erroneous appointment can be annulled, but the judgment does not apply or distinguish this principle as a binding ruling for the present case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942** ## **OP(KAT).No.240 OF 2020** **AGAINST THE ORDER IN OA 2455/2017 DATED 23-03-2020 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **S. THARAKUMARI, AGED 55 YEARS W/O. DILEEP ANAND, WORKING AS SENIOR GRADE DIETICIAN, STATE NUTRITION BUREAU,(TECHNICAL OFFICER, IODINE DEFICIENCY DISORDER CONTROL CELL), STATE NUTRITION BUREAU, DIRECTORATE OF HEALTH SERVICE, GENERAL HOSPITAL JN., THIRUVANANTHAPURAM - 695 035, RESIDING AT T. C. 1/1502, LATHA HOUSE, PAZHAYA ROAD, MEDICAL COLLEGE, THIRUVANANTHAPURAM, KERALA - 695 011.** **BY ADV. SRI.V.C.SARATH** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001. 2 THE DIRECTOR, DIRECTORATE OF HEALTH SERVICE, GENERAL HOSPITAL JN., THIRUVANANTHAPURAM, KERALA - 695 035. 3 K. T. SREELATHAKUMARI, STATE NUTRITION OFFICER, STATE NUTRITION BUREAU, DIRECTORATE OF HEALTH SERVICE, GENERAL HOSPITAL JN., THIRUVANANTHAPURAM, KERALA - 695 035.** **R3 BY ADV. SRI.V.A.MUHAMMED R3 BY ADV. SRI.V.RAJASEKHARAN NAIR, SR.GP** ## **OTHER PRESENT:** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 23.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT).No.240 OF 2020 2 ## JUDGMENT ## Shaffique, J The original petition has been filed challenging an order passed by the Kerala Administrative Tribunal in O.A.No.2455/2017 dated 23.03.2020. The petitioner was the applicant before the Tribunal. While the petitioner/applicant was working as Senior Grade Dietician in the State Nutrition Bureau under the Directorate of Health Services, she claimed promotion to the post of State Nutrition Officer in the same department. According to the petitioner/applicant, she was qualified to be appointed as State Nutrition Officer. She also raised contention that the appointment of the 3[rd] respondent as State Nutrition Officer as per Annexure-A4 order dated 24.10.2009 on temporary basis was illegal. She contended that the 3[rd] respondent was not qualified to be appointed as State Nutrition Officer. 2. The Tribunal found that the applicant is not qualified to be promoted to the post of State Nutrition Officer as she was not in the feeder category. With reference to the appointment of - 3[rd] respondent also, the Tribunal observed that she was also not in the feeder category as provided under Annexure-A4. OP(KAT).No.240 OF 2020 3 However, since there was no challenge regarding her appointment, the Tribunal did not mention anything about the appointment of the 3[rd] respondent. 3. When the matter came up before this Court, we did not find any error being committed by the Tribunal in rejecting the claim of the applicant as she was not in the feeder category. However, we found that an unqualified person was continuing as the State Nutrition Officer for a considerably long period, as held by the Tribunal. By an interim order dated 27.07.2020, this Court had directed the Government to take steps to appoint a qualified person by way of direct recruitment, if none were available under the feeder category. Since nothing was done in the matter, by yet another order dated 03.11.2020, we extended the time for the Government Pleader to get instructions. Again nothing turned out in the matter, and finally by order dated 12.11.2020, we directed the officer concerned namely the Additional Secretary, Health and Family Welfare Department, Government Secretariat, Thiruvananthapuram to appear before this Court on 23.11.2020. 4. The learned Government Pleader submits that an affidavit has been filed on 20.11.2020 narrating the circumstances under which the 3[rd] respondent happended to be appointed as State OP(KAT).No.240 OF 2020 4 Nutrition Officer. It is also pointed out that the officer concerned could not appear before this Court on account of some physical disability to travel and a petition has been filed to condone his absence before this Court. 5. In the affidavit filed by the 1[st] respondent, it is inter alia, stated that the 3[rd] respondent was temporarily promoted to the post of State Nutrition Officer as per G.O. dated 24.10.2009. However the same was cancelled on 03.10.2011 reverting her to the post of Scientific Officer in her parent department. The said order came to be challenged before this Court by filing W.P.(C) No.31422/2011. The learned Government Pleader submits that there was a stay of order dated 03.10.2011 (Annexure-R1b) and the same was extended from time to time and ultimately it was extended until further orders. The matter was referred to the Tribunal and the Tribunal as per order dated 10.08.2017 in T.A.No.2491/2017 directed DPC to be convened and to issue appropriate orders regularising the service of the applicant as expeditiously as possible. It was, inter alia, observed that the applicant was continuing in service, as State Nutrition Officer for more than 8 years and as the Government did not challenge the aforesaid order, it became final. She still continues in the said post. OP(KAT).No.240 OF 2020 5 6. Apparently, this is a case in which the 3[rd] respondent was not qualified to be appointed as State Nutrition Officer, at the relevant time when she was given appointment on a temporary basis, and the Government had reverted her as per order dated 03.10.2011. However, she continued in the said post by way of interim orders passed by this Court. Thereafter, by way of an order passed by the Tribunal, DPC was convened and she was regularised. 7. The learned counsel appearing for the petitioner placed reliance on the judgment of the Apex Court in Gelus Ram Sahu and others v. Surendra Kumar Singh and others [(202) 4 Supreme Court Cases 484] wherein it has held that a candidate who has erroneously secured public employment without fulfilment of minimum qualifications can always be annulled upon discovery of the error. It is further held that an appointment which was erroneous or illegal from the very inception does not clothe the appointee with any indefeasible right and such appointment is always subject to correctional decision. 8. The learned Government Pleader by placing reliance on Annexure-R1(d) GO dated 17.11.2020 submits that Kerala Public Service Commission has to be consulted for reviewing the select list prepared by the DPC in respect of the 3[rd] OP(KAT).No.240 OF 2020 6 respondent. Accordingly, steps have already been initiated to verify whether an unqualified person had been appointed as State Nutrition Officer. It is further stated that since regularisation of her temporary appointment was on the basis of the advice of the DPC, cancellation of the order of her regularisation also requires approval of DPC/KPSC as per Rule 28(b)(i)(12) of Part II of KS&SSR. 9. An affidavit has been filed by the Additional Secretary, Health and Family Welfare Department, in which, at paragraph No.13, it is stated as under : 13.As a matter of fact, the Government properly acted in accordance with rule and also in compliance with the directions issued by this Hon'ble Court. There is no purposeful negligence or laches on the part of this respondent in complying with the directions of this Hon'ble Court. All possible steps have been taken by the Government for complying the directions of this Hon'ble Court. Therefore, in the interest of justice this Hon'ble Court may be pleased to dispense with the personal appearance of Additional Secretary to Government, Health and Family Welfare Department, in future and the above O.P.(KAT) may be dismissed since it lacks any merit for consideration. The Government will take immediate steps to report the vacancy to the OP(KAT).No.240 OF 2020 7 Kerala Public Service Commission on receipt of the advice of the DPC for Direct Recruitment if none of the persons either the petitioner herein or the 3[rd] respondent is seen qualified to get appointment as State Nutrition Officer. 8. Having regard to the aforesaid factual situation, and as the Government has taken a decision in the matter and has offered to take appropriate steps, as early as possible, there is no reason to keep the matter pending. However, we direct the Government to take appropriate steps in this regard and pass final orders within a period of three months from the date of receipt of a copy of this judgment. - O.P(KAT) is disposed of as above. Sd/- A.M.SHAFFIQUE, JUDGE sd/- GOPINATH P., JUDGE AMV/23/11/2020 OP(KAT).No.240 OF 2020 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE ORIGINAL APPLICATION**| |---|---| ||**IN OA NO.2455 OF 2017 ON THE FILE OF**| ||**THE KERALA ADMINISTRATIVE TRIBUNAL,**| ||**THIRUVANANTHAPURAM** **ALONG** **WITH**| ||**ANNEXURES.**| |**ANNEXURE A1**|**TRUE COPY OF THE ORDER NO.EEI-**| ||**12357(A)/2012/DHS DATED 30.09.2014**| ||**PROMOTING THE PETITIONER AS SENIOR**| ||**GRADE DIETICIAN.**| |**ANNEXURE A2**|**TRUE COPY OF THE MSC. CERTIFICATE IN**| ||**FOOD AND NUTRITION ISSUED BY THE**| ||**BHARATHIYAR** **UNIVERSITY** **DATED**| ||**29.04.1990.**| |**ANNEXURE A3**|**TRUE COPY OF THE GOVERNMENT ORDER**| ||**NO.200/87/H** **AND** **FWD,**| ||**THIRUVANANTHAPURAM DATED 29.09.1987.**| |**ANNEXURE A4**|**TRUE COPY OF THE GOVERNMENT ORDER**| ||**NO.3062/09/H** **AND** **FWD,**| ||**THIRUVANANTHAPURAM DATED 24.10.2009**| ||**APPOINTING THE 3RD RESPONDENT AS STATE**| ||**NUTRITION OFFICER.**| |**ANNEXURE A5**|**TRUE COPY OF THE ORDER NO.ED3-**| ||**84890/DHS DATED 22.11.2011 REVERTING**| ||**THE 3RD RESPONDENT AS SCIENTIFIC**| ||**OFFICER.**| |**ANNEXURE A6**|**TRUE COPY OF THE LETTER WITH**| ||**NO.R3/CDCN/SNB/8/2016 ISSUED BY CHIEF**| ||**SCIENTIFIC OFFICER TO PRINCIPAL**| ||**SECRETARY H AND FWD.**| |**ANNEXURE A7**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**15.02.2017.**| |**EXHIBIT P2**|**TRUE COPY OF THE REPLY STATEMENT DATED**| ||**03.10.2018 FILED BY THE 1ST RESPONDENT**| ||**IN OA NO.2455 OF 2017.**| |**EXHIBIT P3**|**THE REPLY STATEMENT FILED BY THE 3RD**| ||**RESPONDENT DATED 22.01.2018.**| OP(KAT).No.240 OF 2020 9 |**ANNEXURE R3(a)**|**TRUE COPY OF THE GAZETTE NOTIFICATION**| |---|---| ||**DATED 10.10.2017.**| |**ANNEXURE R3(b)**|**TRUE COPY OF THE GOVERNMENT ORDER**| ||**NO.3/2018/H AND FWD DATED 01.01.2018.**| |**EXHIBIT P4**|**THE REJOINDER DATED 04.11.2019 FILED**| ||**BY THE PETITIONER.**| |**ANNEXURE A8**|**TRUE COPY OF THE ORDER PASSED BY THE**| ||**KERALA ADMINISTRATIVE TRIBUNAL IN**| ||**T.A.NO.2491/2012 DATED 10.08.2017.**| |**EXHIBIT P5**|**TRUE COPY OF THE ORDER DATED**| ||**23.03.2020 AND MADE IN OA NO.2455 OF**| ||**2017 ON THE FILE OF THE KERALA**| ||**ADMINISTRATIVE** **TRIBUNAL,**| ||**THIRUVANANTHAPURAM.**| |**RESPONDENTS ANNEXURES**|| |**ANNEXURE R1A**|**COPY** **OF** **THE** **ORDER** **G.O(Rt)**| ||**NO.3062/2009/H&FWD DATED 24.10.2009**| |**ANNEXURE R1B**|**COPY** **OF** **THE** **ORDER** **G.O(Rt)**| ||**NO.3474/2011/H&FWD DATED 03.10.2011**| |**ANNEXURE R1C**|**COPY OF THE ORDER DATED 10.08.2017 IN**| ||**T.A.NO.2491/2012**| |**ANNEXURE R1D**|**COPY OF THE D.O LETTER DATED**| ||**17.11.2020 ISSUED BY THE GOVERNMENT TO**| ||**DPC**| ||**TRUE COPY P.A.TO JUDGE**|