Sreejitha P.S. and Ciniramya K.R. v. The Principal & Controlling Officer, Government Homoeopathic Medical College, Thiruvananthapuram and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 ## **WP(C).No. 19854 of 2006(L)** ## **PETITIONERS:** 1. SREEJITHA.P.S.,49/905,SHANTHI, WEST NADAKKAVU, CALICUT. 2. CINIRAMYA.K.R.,KARANAYIL HOUSE, NEAR WATER PLANT,IRINJALAKUDA (NORTH) P.O., THRISSUR. BY ADV. SRI.P.V.KUNHIKRISHNAN ## **RESPONDENTS** : 1. THE PRINCIPAL & CONTROLLING OFFICER, GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM. 2. PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY,TRIVANDRUM. 3. DR.NISHA.M.,TUTOR IN MATERIA MEDICA, GOVT.HOMOEOPATHIC COLLEGE, IRANIMUTTOM P.O., THIRUVANANTHAPURAM. 4. DR.NIMI MOLE.K.L.,TUTOR IN MATERIA MEDICA, GOVT.HOMOEOPATHIC COLLEGE, IRANIMUTTOM P.O., THIRUVANANTHAPURAM. 5. THE PRINCIPAL, GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE, CALICUT. 6. THE SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. R4 BY ADV. SRI.ASP.KURUP R3 BY ADV. SRI.ELVIN PETER P.J. R2 BY STANDING COUNSEL SRI.ALEXANDER THOMAS SR.GOVERNMENT PLEADER SMT.T.B.REMANY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## **' PETITIONERS EXHIBITS** : EXT.P1 COPY OF THE NOTIFICATION DATED 26.11.2002. EXT.P2 COPY OF THE RANK LIST PUBLISHED BY THE SECOND RESPONDENT FOR THE POST OF TUTOR IN MATERIA MEDICA IN GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGES, NO.210/2005/SSIV. DATED 21.7.2005. EXT.P3 COPY OF THE COMPASSIONATE EMPLOYMENT SCHEME FRAMED BY THE GOVERNMENT AS PER GO(P)12/00/P&ARD DATED 24.5.1999. ## **' RESPONDENTS EXHIBITS** : EXT.R6(a) THE LETTER DATED 27.8.2001 EXT.R6(b) THE LETTER DATED 23.3.2005 EXT.R6(c) G.O.(MS)NO.308/2002/GAD DATED 16.9.2002 EXT.R6(d) ORDER NO.1256/E2/2002/GHMCT DATED 19.9.2002 EXT.R6(e) G.O.(MS)NO.581/03/FIN. DATED 3.11.2003. EXT.R6(f) ORDER NO.3267/E1/03/GHMCT DATED 18.11.2003. EXT.R6(g) ORDER NO.3188/E1/05/GHMCT DATED 28.2.2006. EXT.R4A TRUE COPY OF G.O.(RT)NO.834/2004/H&FWD DATED 20.3.2004 ISSUED BY GOVERNMENT OF KERALA. EXT.R4B TRUE COPY OF PROCEEDINGS NO.177/E1/2006/GHMCT DATED 16.2.2006 ISSUED BY GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE. EXT.R3(a) TRUE COPY OF THE ORDER, G.O.DATED 16.6.2008 ISSUED BY THE GOVERNMENT. //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J.** ## **-------------------------------------------W.P.(C) NO. 19854 OF 2006 L -------------------------------------------Dated this the 14[th] July, 2008** ## **JUDGMENT** The questions involved in this Writ Petition are: 1. Whether the petitioners who applied for the post of Tutor in Materia Medica in the Government Homoeopathic Medical Colleges as per Ext.P1 notification dated 26.11.2002 and who were included in Ext.P2 rank list dated 21.7.2005 could impugn the appointment of respondents 3 and 4 from 19.9.2002 and 18.11.2003 respectively, much before the coming into force of Ext.P2 rank list. 2. Whether the petitioners have locus standi to maintain the Writ Petition in such circumstances. 2. The petitioners applied to the post of Tutor in Materia Medica in Government Homoeopathic Medical College services on the basis of Ext.P1 notification dated 26.11.2002. Ext.P1 shows that the number of vacancy was one. Ext.P2 rank list was published on 21.7.2005. The petitioners are respectively rank Nos.4 and 5 in the main list. It is stated by the petitioners and it is not disputed by the respondents that from Ext.P2 list, Rank No.1 in the main list and a candidate from the supplementary list were appointed. W.P.(C) NO.19854 OF 2006 :: 2 :: 3. It is stated that respondents 3 and 4 were appointed as Tutors in Materia Medica, not as per a rank list published by the Public Service Commission but by direct appointment under the dying in harness scheme (Compassionate Employment Scheme). The third respondent's father was working as Under Secretary in Kerala Public Service Commission. He died on 17.8.1996. The third respondent applied for employment assistance under the compassionate employment scheme on 12.7.1997. At that time, the scheme in force was that of the year 1995. The third respondent was appointed on 19.9.2002. The fourth respondent's father was the Head Accountant in the Treasury Department. He died on 12.5.1991. The fourth respondent applied for employment assistance under the Compassionate Employment Scheme on 23.1.1998 and she was appointed on 18.11.2003. 4. The case of the petitioners is that the appointments of respondents 3 and 4 were quite contrary to the Scheme for compassionate employment and if their appointments were held illegal, it could be taken that there were two vacant posts of Tutors to which the petitioners could be accommodated. The contention is that the scheme for compassionate employment assistance framed in 1995 was subsequently modified from time to time and finally Ext.P3 Scheme dated 24.5.1999 were framed. The petitioners contend that clause (3) of the W.P.(C) NO.19854 OF 2006 :: 3 :: 1999 Scheme provides that the pending applications as on the date of that order shall be dealt with as per the earlier orders. Respondents 3 and 4 having applied before coming into force of the 1999 Scheme, they were dealt with under the then existing Rules. Had they been considered under the 1999 Scheme, they could not have got appointment as Tutors. Clause 16 of the 1999 Scheme provides that appointment under the Scheme will be limited to Class III and Class IV posts in the Subordinate Service, Last Grade Service and in Part-time Contingent Service to which direct recruitment is one of the methods of appointment. Sri.P.V.Kunhikrishnan, learned counsel for the petitioners relied on the decision of the Supreme Court in **Umesh Kumar Nagpal** v. **State of Haryana and others** ((1994) 4 SCC 138), wherein the Supreme Court held as follows: “4. It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and IV. We are also dismayed to find that the decision of this Court in _Sushma Gosain v. Union of India_ ((1989) 4 SCC 468) has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV...” It is submitted that the 1999 Scheme was framed in tune with the law laid down by the Supreme Court in **Umesh Kumar Nagpal** v. **State of** W.P.(C) NO.19854 OF 2006 :: 4 :: **Haryana and others** ((1994) 4 SCC 138). The counsel for the petitioners also relied on the decision in **Ganesan** v. **State of Kerala** (1995 (2) KLT 700), wherein this Court relied on the decision of the Supreme Court in **Umesh Kumar Nagpal** v. **State of Haryana and others** ((1994) 4 SCC 138) and held that no posts above Class III and IV shall be offered for compassionate employment. The State Government was directed to take note of the directions issued by the Supreme Court and to pass fresh orders in the matter of compassionate employment after making necessary modifications and additions to the Government Order dated 30.3.1995. It is submitted that the 1999 Scheme was framed in accordance with the directions issued by this Court in **Ganesan** v. **State of Kerala** (1995 (2) KLT 700). 5. Learned counsel for the petitioners submits that clause 16 of Ext.P3 Scheme for compassionate employment is imperative and, therefore, there could be no appointment to any post above Class III. Respondents 3 and 4 were appointed as Tutors and evidently in violation of the 1999 Compassionate Employment Scheme. The stipulation in clause (3) of 1999 Scheme that pending applications as on the date of the order shall be dealt with as per the earlier orders is challenged by the petitioners in this Writ Petition. W.P.(C) NO.19854 OF 2006 :: 5 :: 6. The petitioners were included in Ext.P2 rank list dated 21.7.2005. They could not challenge any appointment made in any Department before that date since, evidently, they would not be the affected persons. It is well settled that a public interest litigation is not maintainable in service matters. It could be said that the petitioners acquired locus standi only after 21.7.2005, after Ext.P2 rank list was published. If the petitioners are to be allowed to challenge the appointments made before that date, there would be no end to raking up issues which were already settled and there would be no dividing line up to which the challenge could go and extend. Therefore, I am of the view that the petitioners have no locus standi to maintain the Writ Petition and to challenge the appointment of respondents 3 and 4. 7. The validity or otherwise of the appointment of respondents 3 and 4 need not be looked into at this distance of time. There is no challenge by any person who is really affected by the appointment of respondents 3 and 4. Learned counsel for the contesting respondents, Sri.Elvin Peter, pointed out that clause 3 of Ext.P3 Scheme for Compassionate Employment is not void as such. He adds that, even assuming it is voidable, it could be avoided only by a person who is affected and who has locus standi. He relied on the decision in **Gopalakrishnan Nair** v. **State of Kerala** (I.L.R.(1992 (3) Kerala 739), W.P.(C) NO.19854 OF 2006 :: 6 :: ## wherein a Division Bench of this Court held in paragraph 18 thus: “But at the same time it is equally a well settled principle that unless a court of law either sets aside or declares an administrative instruction, direction or order as invalid and inoperative, it will be presumed to be valid and operative. The supreme Court in the decision reported in _State of Punjab_ v. _Gurudev Singh_ (AIR 1991 SC 2219) has stated the principle thus: “Apropos to this principle, Prof. Wade stated: the principle must be equally true even where the 'brand of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the court (see: Administrative Law 6[th] Ed.p.352). Prof. Wade sums up these principles: The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another.” (Ibid p.352).” ## 8. In **State of Kerala** v. **Official Liquidator** (1987 (1) KLT 801), it was held that: “4. It is a well accepted principle of administrative law that, except in cases of total nullity – a rare and exceptional phenomenon in public law – the order of a competent authority remains effective and operative until set aside or declared void by due process of law. It is true that an error W.P.(C) NO.19854 OF 2006 :: 7 :: going to jurisdiction – breach of natural justice is such an error – makes the order void, but not so void as to be a total nullity. It is void only in so far as it is voidable; and until set aside or its invalidity declared, it continues to operate against the person against whom it was made. But once it is quashed, it is deprived of all legal effect right from its inception. On the other hand an order which is not void, but only voidable – a distinction which is neither clear-cut nor logical in public law, and which is a concept inappropriately borrowed from private law-remains valid even when it is quashed for the period of its operation. See the authorities cited in _**Govindan Unnithan**_ v. _**Industrial Tribunal,**_ 1981 KLT 342; and, _**Indo-Marine Agencies**_ v. _**Sales Tax Officer, Bombay**_ , 1979 KLT 845.” 9. In the light of the principles of law mentioned above, I do not find any ground to grant the reliefs prayed for in the Writ Petition. Learned counsel for the petitioners submitted that the third respondent was promoted as Lecturer and consequently, there would be a vacancy of Tutor available now. Learned Government Pleader submits that the post of Tutor is a vanishing category and, therefore, the contention put forward by the petitioners may not be sustainable. At any rate, this is a matter to be taken up by the petitioners before the appropriate authority at the appropriate stage, if such right is available to the petitioners. With the above observations, the Writ Petition is dismissed. No order as to costs. **(K.T.SANKARAN) Judge** ahz/