Saran G. and Jyothi Sabu G v State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** **OP(KAT).No.342 of 2018** **AGAINST THE ORDER DATED 25.7.2018 IN T.A.NO.3933/2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/APPLICANTS IN T.A.:** **1 SARAN G., EVALUATION ASSISTANT (JUNIOR HEALTH INSPECTOR, GRADE I) HEALTH INFORMATION CELL, DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM – 695035. 2 JYOTHI SABU G, JUNIOR HEALTH INSPECTOR GRADE I, CHC EZHUMATTOOR, PATHANAMTHITTA-689586. BY ADVS. NANDAKUMAR P. SMT.AMRUTHA SANJEEV SRI.S.ANEESH** ## **RESPONDENTS/RESPONDENTS IN T.A.:** **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695001. 2 SECRETARY TO GOVERNMENT OF KERALA HEALTH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 DIRECTOR OF HEALTH SERVICES OFFICE OF THE DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM-695035.** OP(KAT)Nos.342,390 & 423 of 2018 2 - **4 FOOD SAFETY COMMISSIONER FOOD SAFETY COMMISSIONERATE, THYCAUD, THIRUVANANTHAPURAM-695014.** - **5 ARUNKUMAR.V.S, THADATHARIKATH VEEDU, DEVANANDANAM, NETTA, NEGUMANGAD P.O., THIRUVANANTHAPURAM, PIN-695 541.** - **6 INDU BALA, GEETHA SADANAM, EDAMALI, PARAKKARA P.O., THATTAYIL, PATHANAMTHITTA DISTRICT, PIN-691 525.** - **7 KRUPA JOSEPH MUTHUCHIPPY HOUSE, VENNALA P.O., KOCHI, PIN - 682 028.** **(RESPONDENTS 5 TO 7 ARE IMPLEADED AS PER ORDER DATED 30.05.2019 IN I.A.NO.1 OF 2019 IN OP(KAT). 342 OF 2018.)** **8 SHEENA I.NAIR, LEELA MANDIRAM, PUNNAKKULAM, KARUNAGAPALLY, K.S.PURAM, KOLLAM, PIN-690544.** **(8TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 12.06.2019 IN I.A.2/19 IN OP(KAT)342/2018)** **BY ADVS. R1 TO R4 BY SRI.ANTONY MUKKATH,GOVERNMENT PLEADER R5 TO R7 BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY R8 BY ADVS.SRI.VISHNU BHUVANENDRAN SMT.B.ANUSREE** **THIS OP(KAT)HAVING BEEN FINALLY HEARD ON 04.07.2019, ALONG WITH OP(KAT).390/2018 & OP(KAT).423/2018, THE COURT ON 05.07.2019 DELIVERED THE FOLLOWING:** OP(KAT)Nos.342,390 & 423 of 2018 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** ## **OP(KAT).No.390 of 2018** **AGAINST THE ORDER DATED 25-07-2018 IN O.A.NO.2142/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/APPLICANTS IN O.A.:** **1 SABU K.B., S/O.BALAKRISHNA PILLAI, AGED 44 YEARS, RESIDING AT NARAYANAVILASAM, EAITHUKONDAKANI, AMARAVILA P.O., THIRUVANANTHAPURAM-695122, WORKING AS JR. HEALTH INSPECTOR GR.I, CHC VELLARADA P.O., THIRUVANANTHAPURAM-695 505. 2 M.SASEENDRAN, S/O.MADHAVAN PILLAI, AGED 40 YEARS, RESIDING AT VAKIYAVILAVEEDU, KAKKANAM, MARAYAMUTTAM P.O., THIRUVANANTHAPURAM-695 124, WORKING AS JR.HEALTH INSPECTOR GR.I, PHC KUNNATHUKAL, KARAKKONAM P.O., THIRUVANANTHAPURAM-695 504. 3 SAIJU K.RAMANATH, S/O.K.K.RAMANATHA PILLAI, AGED 38 YEARS, RESIDING AT KANDATHIL HOUSE, EDUKUNNAM P.O., PARATHODU, KOTTAYAM-686 512, WORKING AS JR.HEALTH INSPECTOR GR.I, CHC VANDIPERIYAR, VANDIPERIYAR P.O., IDUKKI-685 533.** **4 ASHARAF.V.H., S/O.HASSAN.V.M., AGED 35 YEARS, RESIDING AT VALLATHUPADY HOUSE, VELLIKULANGARA P.O., THRISSUR-680 699, WORKING AS JR.HEALTH INSPECTOR GR.II(HG), CHC ELINGIPRA P.O., CHALAKKUDI, THRISSUR-680 699.** OP(KAT)Nos.342,390 & 423 of 2018 4 **5** **LIYAKHATH.P.P., S/O.YUSUF, AGED 32 YEARS, RESIDING AT POOZHIPARAMBATH HOUSE, AZHIYUR P.O., KOZHIKODE-673 309, WORKING AS JR.HEALTH INSPECTOR GR.II, PHC ANCHARAKKANDY, MAMBA P.O., KANNUR DISTRICT.** **(PETITIONERS 2, 3 & 5 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 5.7.2019 IN I.A.NO.1/2019)** **BY ADVS. SRI.G.SIVASANKAR SRI.A.JANI(KOLLAM) SMT.L.JYOTHY KUMARI** ## **RESPONDENTS/RESPONDENTS IN O.A.:** - **1 SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695 035.** - **3 FOOD SAFETY COMMISSIONER, OFFICE OF THE COMMISSIONER OF FOOD SAFETY, THYCAUD, THIRUVANANTHAPURAM-695 014.** - **4 THE PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THULASI HILLS, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695 004.** - **5 KANNAN.P., AGED 27 YEARS, S/O.PURUSHOTHAMAN, THIRUVATHIRA, PUNNAKKULAM, KOTTUKAL P.O., BALARAMAPURAM, THIRUVANANTHAPURAM-695 501.** - **6 RAJEEV SIMON, AGED 31 YEARS, S/O.T.J.SIMON, THANIKKAL CHALISSERY, KARAMUCKU, KANDASSANKADAVU, THRISSUR-680 613.** - **7 DHANYA SREEVALSAM.D., AGED 30 YEARS, W/O.SANJUSHAN.M.G., SREEVALSAM, KADAKAMPU, ATHIYANNUR, ARALUMMOODU P.O., THIRUVANANTHAPURAM-695 123.** OP(KAT)Nos.342,390 & 423 of 2018 5 **8 UNMESH.P.G., AGED 33 YEARS, S/O.GANGADHARAN NAIR.K.P., THAPSYA, CHENOLI P.O., PEREMBRA, KOZHIKODE-673 525.** - **9 VIMAL.C.A., AGED 27 YEARS, S/O.C.P.ANIL KUMAR, DULCIMER HOUSE, NADUVATTOM, NORTH BEYPORE P.O., KOZHIKODE-673 015.** - **10 SHEENA I.NAIR, AGED 30 YEARS, D/O.S.PARAMESWARAN NAIR, RESIDING AT LEELA MANDIRAM, PUNNAKKULAM, KARUNAGAPALLY, K.S.PURAM, KOLLAM-690 544.** **11 ARUN KUMAR.V.S., AGED 30 YEARS, S/O.VASUDEVAN, DEVANANDANAM, THADATHARIKATHUVEEDU, NETTA, NEDUMANGAD P.O., THIRUVANANTHAPURAM-695 541.** **R1 TO R3 BY SRI.ANTONY MUKKATH, GOVT.PLEADER R4 BY SRI.P.C. R10 BY ADVS.SRI.VISHNU BHUVANENDRAN SMT.B. ANUSREE R11 BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY** **THIS OP(KAT) HAVING BEEN FINALLY HEARD ON 04.07.2019, ALONG WITH OP(KAT).423/2018 & OP(KAT).342/2018, THE COURT ON 05.7.2019 DELIVERED THE FOLLOWING:** OP(KAT)Nos.342,390 & 423 of 2018 6 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** ## **OP(KAT).No.423 of 2018** **AGAINST THE ORDER DATED 25-07-2018 IN O.A.NO.351/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT IN O.A.:** **VINOD P.V. S/O VELAYUDHAN NAIR, AGED 36 YEARS RESIDING AT PUTHOYOTHIL HOUSE, KALLURUTTY P.O., OMASSERY VIA, KOZHIKODE-673582, WORKING AS JUNIOR HEALTH INSPECTOR (GRADE II), PUBLIC HEALTH CENTRE, KARASSERY, ALLEY P.O., KOZHIKODE-673602.** **BY ADVS. SRI.G.SIVASANKAR SMT.A.JANI SMT.L.JYOTHY KUMARI** ## **RESPONDENTS/RESPONDENTS IN O.A.:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2 THE DIRECTOR OF HEALTH SERVICES GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695035.** OP(KAT)Nos.342,390 & 423 of 2018 7 **3 THE COMMISSIONER OF FOOD SAFETY THYCAUD,THIRUVANANTHAPURAM-695014.** ## **BY SRI.ANTONY MUKKATH, GOVT.PLEADER** **THIS OP(KAT) HAVING BEEN FINALLY HEARD ON 04.07.2019, ALONG WITH OP(KAT).390/2018 & OP(KAT).342/2018, THE COURT ON 05.07.2019 DELIVERED THE FOLLOWING:** OP(KAT)Nos.342,390 & 423 of 2018 8 ## **JUDGMENT** ## Chitambaresh, J. 1. It cannot be disputed that the petitioners holding the post of Junior Health Inspector Grade-II were eligible to be promoted as Food Inspector when the Prevention of Food Adulteration Act, 1954 was in force. They possessed a Degree in Chemistry in addition to five years' experience in the Department which was the necessary qualification as per the Executive Orders then in vogue. It is conceded by all that vacancies arose (including that in Kasaragod and Kannur) during the period from 2007-2011 to the post of Food Inspector waiting to be filled up. 2. The Prevention of Food Adulteration Act, 1954 was repealed by virtue of Section 97 of the Food Safety and Standards Act, 2006 whereunder the post of Food Inspector was redesignated as Food Safety Officer. The method of appointment was altered as direct recruitment as per the Food Safety and Standards Rules, 2011 which came into force with effect from 5.8.2011. It is submitted that as many as five vacancies in the post of Food Inspector existed awaiting to be filled up at the OP(KAT)Nos.342,390 & 423 of 2018 9 time the Food Safety and Standards Rules were brought into force. 3. We find that many Junior Health Inspectors (Grade-II) have been promoted to the re-designated post of Food Safety Officer even after the Food Safety and Standards Act, 2006 and before the Rules came into force. The letter dated 17.1.2011 of the Health & Family Welfare (E) Department and order dated 6.10.2012 of the Commissioner of Food Safety bear ample testimony. The order dated 21.7.2011 of the Local Self Government Department is categoric that the Food Safety and Standards Act, 2006 was implemented in full after the Rules came into force. 4. There is no reason as to why the petitioners alone should be denied promotion which they have sought by repeated representations from the year 2010 itself followed by writ petition and original applications. The Supreme Court in State of Uttar Pradesh and others v. Mahesh Narain and others [AIR 2013 SC 1778] had occasion to observe as follows in a similar contingency: OP(KAT)Nos.342,390 & 423 of 2018 10 “This Court therefore, restored the promotion order of the employees to which they were entitled prior to the change of Service Rules as it was held that the change of Service Rules cannot be made to the prejudice of an employee who was in service prior to the change. The Court further went on to hold that if the delay in promotion takes place at the instance of the employer, an employee cannot be made to suffer on account of intervening events.” Therefore the fact that the post of Food Inspector was abolished under the Food Safety and Standards Act, 2006 or that the method of appointment has changed should not affect the petitioners for promotion. 5. All vacancies (approximately five in number) existing up to the date of coming into force of the Food Safety and Standards Rules, 2011 on 5.8.2011 should be filled up by qualified Junior Health Inspectors. The Junior Health Inspectors shall be promoted to the re-designated post of Food Safety Officer by the appointing authority under the Food Safety and Standards Act, 2006. The remaining substantive vacancies to the post of Food Safety Officer shall be filled up from the ranked list OP(KAT)Nos.342,390 & 423 of 2018 11 published by the Public Service Commission on 9.9.2016. The impugned order of the Tribunal in so far as it relates to the petitioners shall stand modified and necessary follow up action shall be taken by the respondents forthwith. The original petitions are disposed of. No costs. Sd/V.CHITAMBARESH, JUDGE Sd/ASHOK MENON, JUDGE Sha/040719 OP(KAT)Nos.342,390 & 423 of 2018 12 ## **APPENDIX OF OP(KAT) 342/2018** ## **PETITIONERS' EXHIBITS:** - **ANNEXURE P1 TRUE COPY OF ORDER DATED 25.07.2018 IN T.A.NO.3922 OF 2012 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL.** - **ANNEXURE P2 TRUE COPY OF T.A.NO.3933 OF 2012 (WP(C).18175/10).** - **ANNEXURE P3 TRUE COPY OF STATEMENT FILED ON BEHALF OF THE 4TH RESPONDENT.** - **ANNEXURE P4 TRUE COPY OF REPLY STATEMENT FILED BY THE PETITIONER.** - **ANNEXURE P5 TRUE COPY OF AFFIDAVIT OF PETITION FOR DIRECTION FILED BY THE APPLICANT.** - **ANNEXURE P6 TRUE COPY OF M.A NO.2156/2012 FILED BY THE PETITIONER.** - **ANNEXURE P7 TRUE COPY OF M.A NO.366 OF 2013 FILED BY THE APPLICANT.** - **ANNEXURE P8 TRUE COPY OF M.A NO.916 OF 2013 FILED BY THE PETITIONER.** - **ANNEXURE P9 TRUE COPY OF M.A NO.794 OF 2016 FILED BY THE PETITIONER.** - **ANNEXURE P10 TRUE COPY OF M.A NO.643 OF 2017 FILED BY THE PETITIONER.** **ANNEXURE P11 TRUE COPY OF M.A NO.1346 OF 2018 FILED BY THE PETITIONER. ANNEXURE P12 TRUE COPY OF REPLY STATEMENT FILED BY THE 2ND RESPONDENT. ANNEXURE MA2(A) TRUE COPY OF STATEMENT OF MARKS OF 2ND PETITIONER.** OP(KAT)Nos.342,390 & 423 of 2018 13 ## **APPENDIX OF OP(KAT) 390/2018** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER DATED 25.07.2018 IN O.A NO.2142 OF 2015 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL.** **EXHIBIT P2 TRUE COPY OF O.A NO.2142 OF 2015 ALONG WITH ANNEXURES A1 TO A23.** **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF REPLY STATEMENT OF THE 1ST RESPONDENT.** **EXHIBIT P5 TRUE COPY OF REPLY STATEMENT FILED BY RESPONDENTS 5-9.** **EXHIBIT P6 TRUE COPY OF M.A NO.1345/2018 FILED BY THE PETITIONERS.** **EXHIBIT P7 TRUE COPY OF M.A NO.1373/2017 FILED BY THE PETITIONERS.** OP(KAT)Nos.342,390 & 423 of 2018 14 ## **APPENDIX OF OP(KAT) 423/2018** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER DATED 25.07.2018 IN O.A NO.351 OF 2017 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL.** **EXHIBIT P2 TRUE COPY OF O.A NO.351 OF 2017. EXHIBIT P3 TRUE COPY OF THE ADOPTION MEMO FILED BY THE 1ST RESPONDENT IN O.A.NO.351/2017. EXHIBIT P4 TRUE COPY OF REPLY STATEMENT OF THE 1ST RESPONDENT IN O.A.NO.2142/2015.**