Shelin Jose v State of Kerala, Kerala Nurses & Midwives Council & Registrar, Kerala Nurses & Midwives Council

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 30TH DAY OF JULY 2012/8TH SRAVANA 1934** ## **WA.No. 407 of 2011 ( )** **---------------------------------AGAINST THE JUDGMENT IN WPC. 6624/2011 DATED 11-3-2011 ----------------** ## **APPELLANT/PETITIONER IN THE WRIT PETITION :** **------------------------------------------------------------------------** **SHELIN JOSE, PART TIME ATTENDER, KERALA NURSES AND MIDWIVES COUNCIL, THIRUVANANTHAPURAM.** ## **BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH** ## **RESPONDENTS/RESPONDENTS IN THE WRIT PETITION :** **----------------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE (C), DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001.** **2. THE KERALA NURSES & MIDWIVES COUNCIL, REPRESENTED BY ITS PRESIDENT, RED CROSS ROAD THIRUVANANTHAPURAM-695 001.** ## **3. THE REGISTRAR,** - **THE KERALA NURSES & MIDWIVES COUNCIL RED CROSS ROAD, THIRUVANANTHAPURAM-695 001.** **R2 & R3 BY ADV. SRI.N.RAGHURAJ, SC** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WA.No. 407 of 2011 ( )** ## **APPENDIX** ## **PETITIONER'S ANENXURES :** **ANNEXURE I : COPY OF THE G.O.(RT) 1556/2012/H & FWD DATED 8.5.2012 OF THE 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **MANJULA CHELLUR (Ag.CJ) & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** Writ Appeal No.407 of 2011 ---------------------------------------Dated this the 30[th] day of July 2012 ## **J U D G M E N T** ## **MANJULA CHELLUR,Ag.CJ** Heard learned counsel for the appellant, learned Standing Counsel for respondents 2 and 3 and Smt.Girija Gopal, learned Special Government Pleader representing the State. 2. It is not in dispute that the appellant herein was appointed as a Full time Gardener in the year 1999 in the Kerala Nurses and Midwives Council (hereinafter referred to as 'the Council') and he completed 10 years of service also as full time Gardener. He claims that he was appointed initially through a regular process of selection and therefore, according to him, powers conferred under Section 17(3) of the Kerala Nurses and Midwives Act, 1953, the 2[nd] respondent, as the employer of the appellant, has competency to appoint the appellant as Attender, but the 2[nd] respondent, totally ignoring the powers conferred upon him, sought for approval of his order of regularising the service of the appellant as Attender from the State Government. W.A.No.407/11 2 Then the Government fell into error by issuing Ext.P6 directing the Council to fill up the vacancy through open recruitment and further the Council committed error by advertising as per Ext.P7. These were under challenge before the learned Single Judge. 3. The learned Single Judge, after referring to the arguments of learned counsel for the appellant/petitioner as well as learned Standing Council for the Council, proceeded to opine that Ext.P10 communication does not in any way indicate whether the appellant was engaged originally after undergoing the selection process. Therefore, there is no certainty with regard to the stand of the appellant that he was appointed as per regular selection process. Therefore, every person who claims to have been qualified for employment under the 2[nd] respondent has to establish that he is an eligible person in terms of the law declared by the Apex Court. The learned Single Judge, after referring to various aspects especially the deficit of establishing the appellant having undergone a selection process before he was engaged by the 2[nd] respondent, opined that there is no justification in the claim of the appellant. Aggrieved by the same, the matter is before us. W.A.No.407/11 3 4. Reading of sub Section 3 of Section 17 of the Kerala Nurses and Midwives Act, 1953, we note the relevant Sections are 1 to 6. Relevant Sub sections are Sub Section (3) including the proviso and so also Sub Sections (4) and (5). No doubt, not only with regard to conditions of service such as pay, allowances, promotion, leave, pension, gratuity and provident fund ; but also with regard to method of recruitment whether it is by direct recruitment or any other process of recruitment, there has to be approval of the Government. Sub Section (5) refers to the power of the Council to appoint the officers and servants other than Registrar. Reading of these provisions definitely indicate that there has to be prior approval only in certain situations; but so far as regularisation of service of employee who is already in service of the Council, there is no direct available material from these sub Sections which indicates any conditions necessary for such approval of appointment orders of the Council. However, method of recruitment under sub Section (4) could take into its fold method of any nature of recruitment including regularisation of service of an employee who is already in service. Apart from method of recruitment, it also says all Rules governing officers and servants of Government would apply to W.A.No.407/11 4 the employees of the Council. Therefore, according to learned counsel for the Council, sub Section (4) of Section 17 covers the matter in question. That apart, in order to agree with the contention of learned counsel for the appellant that in Ext.P8 in a similar situation the Government gave a positive direction, we are of the opinion, having regard to the law declared by the Apex Court in **Secretary, State of Karnataka v. Umadevi (3)** [2006 (4) SCC 1), we have to uphold the rule of law by following the directions of the Apex Court. Paragraph 53 of law declared in **Umadevi** 's case (Supra) takes into its fold the situation of the present nature. 5. Therefore, even if the appellant has ten years of service, such length of service may be to his benefit provided the conditions enumerated in the decision of the Apex Court in **Umadevi** 's case are complied with. Therefore, if the appellant is able to establish that his initial appointment was after due selection process, then he is entitled for the benefit he is asking for. It is for the Council to see whether such selection process was undergone by the appellant at initial appointment and then proceed with the matter in question. Therefore, a duty is cast upon both the State Government and the Council to see whether W.A.No.407/11 5 the prescription in the statute that is Section 17 and Rules applicable to the Government employees are complied with and also to see that the conditions contemplated in **Umadevi** 's case are available in the present case and whether the appellant has satisfactorily complied with such conditions. With these observations, we dispose of the present appeal. The entire process of finalising the claim for regularisation of service of the appellant shall be completed within a period of two months. While doing so, the respondent authorities shall also take into consideration the fact that the appellant did not report for duty for the last 1 ½ years and he did not seek any positive direction to report for duty when the matter was pending before this Court. (sd/-) **(MANJULA CHELLUR, ACTING CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr 01/08/2012 W.A.No.407/11 6 W.A.No.407/11 7 W.A.No.407/11 8