WA.No. 1686 of 2012 in WPC. 26702/2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 27TH DAY OF SEPTEMBER 2017 / 5TH ASWINA, 1939 WA.No. 1686 of 2012 IN WPC. 26702/2011 AGAINST THE ORDER/JUDGMENT IN WP(C) 26702/2011 of HIGH COURT OF KERALA DATED 06-06-2012 APPELLANT/APPELLANT/3RD PARTIES 1 HARIS V.P VETTARKUNNEL, PERUMPILLICHIRA P.O., THODUPUZHA, IDUKKI. - 2 MANIKANDA DASAN A.P., ANJUKALLIPARAMBIL, KADAKKASSERI, THAVANOOR, MALAPPURAM DISTRICT. - 3 PREMJITH A.K., ANNEKUNNATHU HOUSE, POTHANNOOR, POLPPAKKARA P.O., EDAPPAL, MALAPPURAM DISTRICT. BY ADV.SRI.D.KISHORE RESPONDENT(S): 1. DIVYA M CHIRAKKAL, MALAPPURAM DISTRICT. 2. SREELATHA.M., W/O.PRASADAN, AGED 29 YEARS, KALATHIL HOUSE, KOORIYAD POST, TIRURANGADI VIA., MALAPPURAM DISTRICT 676306. 3. SINI.M., W/O.VINOD K.C., AGED 26 YEARS, KANDANCHIRA, PUTHUPARAMBA POST - 676 501, KOTTAKKAL, MALAPPURAM DISTRICT. 4. SARITHA T., W/O.RAJESH, AGED 24 YEARS, THUDISSERY, NEDUVA POST - 676 303, PARAPPANANGADI, MALAPPURAM DISTRICT. 5. PRASEEDA P.V., W/O.SUNIL, AGED 30 YEARS, VELAKKAVIL, KOTTAKKAL POST - 676503, KAIPPALLIKUNDU, MALAPPURAM DISTRICT. 6. DIVYA.A., W/O.SUBHILASH, AGED 24 YEARS, AMMARAMBATH, KOTTAKKAL POST - 676503, KAIPPALLIKUNDU, MALAPPURAM DISTRICT. WA.No. 1686 of 2012 IN WPC. 26702/2011 7. SUBHILASH, S/O.UNNERI, AGED 28 YEARS, ANAKKAMPURATH HOUSE, POST PANANGATTOOR - 676302, VIA. TANUR, MALAPPURAM DISTRICT. 8. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, THIRUVANANTHAPURAM - 695001. 9. THE DIRECTOR, AYURVEDA MEDICAL EDUCATION, AROGYA BHAVAN, THIRUVANANTHAPURAM - 695001. 10. THE KERALA AYURVEDIC STUDIES AND RESEARCH SOCIETY, P.O.EDARICODE, MALAPPURAM DISTRICT - 676501 REPRESENTED BY ITS EXECUTIVE DIRECTOR. R1-R7 BY ADV. SRI.P.K.SURESH KUMAR (SR.) R1-R7 BY ADV. SRI.K.P.SUDHEER BY GOVERNMENT PLEADER SRI.T.RAJESEKHARAN NAIR, BY SRI.T.R.RAVI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ALONG WITH WA 210/15 & WPC 18885/12 ON 27-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 1686 of 2012 IN WPC. 26702/2011 APPENDIX ANNEXURE I: TRUE COPY OF THE CERTIFICATE DATED 23.3.2009 ISSUED BY THE 9TH RESPONDENT TO THE 1ST PETITIONER. - ANNEXURE 2: TRUE COPY OF THE MARK LIST DATED 15.1.2009 OF THE 1ST PETITIONER. ANNEXURE 3:TRUE COPY OF THE CERTIFICATE DATED 21.4.2009 ISSUED BY THE 9TH RESPONDENT TO THE 2ND PETITIONER. ANNEXURE4: TRUE COPY OF THE MARK LIST DATED 19.1.2009 OF THE 2ND PETITIONER. ANNEXURE 5:TRUE COPY OF THE CERTIFICATE DATED 30.10.2009 ISSUED BY THE 9TH RESPONDENT TO THE 3RD PETITIONER. ANNEXURE 6:TRUE COPY OF THE MARK LIST DATED 7.7.2009 OF THE 3RD PETITIONER. ANNEXURE 7: TRUE COPY OF THE GO(P) NO.575/2008/H & FWD DATED 19.11.2008 ANNEXURE 8:TRUE COPY OF THE ORDER DATED 18.7.2012 IN IA 381/2012 IN UNNUMBERED REVIEW PETITION OF 2012 OF THE LEARNED SINGLE JUDGE. ANNEXURE9:TRUE COPY OF THE JUDGMENT DATED 18.7.2012 IN WPC 16826/2012 OF THE LEARNED SINGLE JUDGE. TRUE COPY PS TO JUDGE ## **K.SURENDRA MOHAN & ANU SIVARAMAN, JJ.** **= = = = = = = = = = = = = = = = = = = = W.A.Nos.1686 of 2012 & 210 of 2015 and W.P.(C).No.18885 of 2012 = = = = = = = = = = = = = = = = = = = = Dated this the 27[th] day of September, 2017** ## **JUDGMENT** ## **Surendra Mohan, J.** 1.These writ appeals are filed against the judgment dated 06.06.2012 of the learned single Judge allowing W.P.(C). No.26702 of 2011. W.A.No.1686 of 2012 is filed by three persons, who were not parties to the writ petition. They have preferred writ petition, after obtaining leave from this Court. W.A.No.210 of 2015 is filed by the State and the Director of Ayurveda Medical Education, who were respondents 1 and 2 in the writ petition. W.P.(C).No.18885 of 2012 is filed by the appellants in W.A.No.1686 of 2012 as a public interest litigation challenging two Government Orders, Exhibit P12 dated 13.01.1998 and Exhibit P13 dated 07.10.1999. As per the said orders, the 5[th] respondent in the said writ petition, M/s.Vaidyarathnam P.S.Varrier's Aryavaidyasala, Kottackkal was issued with permission to conduct an Ayurveda Masseurs training certificate course having a duration of two years. By WA 1686/12 & con.cases 2 Exhibit P13, the duration of the course has been reduced to one year. The dispute in these cases is whether the holders of certificates issued pursuant to Exhibits P12 and P13 Government Orders were qualified to be appointed as Masseurs /Therapists. 2.The dispute arose consequent to a notification issued by the Kerala Ayurvedic Studies and Research Society, Kottackal on 14.12.2011 calling for applications from qualified candidates, who were desirous of being considered for appointment as Therapist. The qualification prescribed as per Exhibit P9 was a Masseurs/Therapists Certificate issued either by the Government of Kerala or by a recognised institution. Respondents 1 to 7 are holders of certificates issued by the 5[th] respondent in W.P.(C).No.18885 of 2012. The 5[th] respondent had conducted the course pursuant to permission granted to them by the Government as per Exhibits P12 and P13 orders challenged in the said writ petition. However, the applications submitted by respondents 1 to 7 were rejected. They had, therefore, challenged the said action before this Court in W.P. WA 1686/12 & con.cases 3 (C).No.26750 of 2011. As per an interim order dated 11.12.2011, they were directed to be permitted to attend the interview, provisionally for selection and appointment in the post of Therapist that was notified. Accordingly, they participated in the interview. The ranked list prepared is evidenced by Exhibit P6 in the writ petition, from which W.A.No.1686/2012 is filed. In Exhibit P6, respondents 1 to 7 have all been ranked. They have obtained fairly high ranking in the selection. - 3.The writ petition was considered by the learned single Judge. On an examination of the notification, the learned single Judge found that both persons, who were holders of certificates issued by the Government as well as by Government recognised institutions, were qualified in view of the Government Orders dated 13.01.1998 and 17.10.1999 which are referred to earlier as Exhibits P12 and P13 and found that there was Government recognition for the certificates possessed by respondents 1 to 7. Accordingly, appointments were directed to be made from Exhibit P6 ranked list. 4 WA 1686/12 & con.cases - 4.The appellants in W.A.No.1686 of 2012, who were not parties to the writ petition and who were ranked lower down in Exhibit P6 rank list, sought leave to file a review petition by filing I.A.No.381 of 2012. They had also filed W.P.(C). No.16826 of 2012. As per the judgment evidenced by Annexure A9 in W.A.No.1686 of 2012, the said writ petition was dismissed holding that the remedy of the petitioners was to file a public interest litigation. It was pursuant to the said judgment that W.P.(C).No.18885 of 2012 was filed by the petitioners. As per Exhibit P8 order the review petition was dismissed. W.A.No1686 of 2012 was filed thereafter, obtaining permission from this Court. - 5.According to Sri.D.Kishore, the learned counsel who appears for the appellants in W.A.No.1686 of 2012 and the petitioners in the writ petition, respondents 1 to 7 in the appeal are not qualified for appointment to the notified posts, since they were holders of a certificate not issued by the Government of Kerala. Our attention is drawn to Exhibit P16 produced along with W.P.(C).No.18885 of 2012, the Special Rules applicable to WA 1686/12 & con.cases 5 the Indian Systems of Medicine (Kerala) Subordinate Service Rules, 2008, to contend on the point that the qualification prescribed therein for a Masseur/Skilled Assistant is a pass in SSLC or equivalent qualification and pass in Masseurs' Training course conducted by the Government of Kerala. On the basis of the Special Rules, it is contended that only persons who have the said qualifications should be considered for appointment to the notified posts. Exhibits P12 and P13 Government Orders are attacked pointing out that the Government has granted permision only to conduct the course and not to issue certificates as done in this case. The certificates are to be issued by the Director of Ayurvedic Medical Studies. Reliance is placed on the decision in **Rajasthan Pradesh v. S.Sardarshahar and Anr.v.Union of India** [AIR 2010 SC 2221], particularly, paragraph 10 and 18, to point out that certificates issued by self styled educational institutions are not to be accepted for any purpose. Practice of permitting such institutions to conduct courses of like nature has been deprecated by the Apex Court, it is contended. The counsel, therefore, seeks interference of the judgment of the WA 1686/12 & con.cases 6 learned single Judge. The learned Government Pleader, who appears for the appellants in W.A.No.210 of 2015 supports the contentions of the counsel for the appellants in the connected appeal and seeks interference of the judgment of the learned single Judge. 6.Respondents 1 to 7 in the writ appeal are represented by Senior Counsel Sri.C.K.Suresh Kumar and C.K.Sherin. According to the counsel, the certificate course permitted as per the impugned Government Orders were being conducted from 1997 onwards. Lots of students have passed out and have entered various reputed institutions in various parts of the country as well as abroad. They form an unidentifiable number of persons who are likely to be prejudiced by any order setting aside the impugned Government Orders. The certificates issued to them are recognised by the Government and therefore, as per the notification, they are fully qualified for being considered for appointment. At the selection board they have performed much better than the persons who are now challenging the competence and have obtained high WA 1686/12 & con.cases 7 ranking positions in Exhibit P6 rank list. Pursuant to the direction issued by the learned single Judge, they have been appointed and continuing in service. There is nothing to show that the Special Rules relied on is applicable to the posts notified in this case. Therefore, it is contended that there are absolutely no grounds for interference with the judgment of the learned single Judge. - 7.The learned Government Pleader points out that a statement has been filed in W.P.(C).No.18885 of 2012 producing Annexure R1(a) Government Order by which the permission granted to conduct the course as per the impugned Government Orders has been directed to be stopped. The learned counsel for the 5[th] respondent in the said writ petition Adv.Ramadas points out that the course was stopped pursuant to Annexure R1(a) and has not been conducted any more. - 8.We have heard Adv.T.R.Ravi, who appears for the 4[th] respondent in the writ petition, the authority that has issued the notification also. WA 1686/12 & con.cases 8 9.A perusal of the notification evidenced as Exhibit P6 in the writ petition from which W.A.No.1686 of 2012 is filed, leaves no doubt in our mind that the qualifications stipulated therein is either a certificate issued by the Government or approved by it. Admittedly, respondents 1 to 7 in the writ appeal are persons possessed the said qualifications. The impugned Government Orders showed that M/s.Vaidyarathnam P.S.Varrier's Aryavaidyasala, Kottackkal was permitted to conduct the certificate course at the relevant point of time. We do not find any restriction in the impugned Government Orders against issuing such certificates. The fact remains that such certificates were being issued by the said institution, eversince the permission was granted as stated above. Therefore, a number of persons who could have attended the course are passed out armed with similar certificates. As rightly pointed out by the learned counsel for respondents 1 to 7, all such persons would be working in different institutions. Any attempt of setting aside the impugned Government Orders would cause harm to all such persons. The interference is hence not warranted for no reasons thereof. WA 1686/12 & con.cases 9 10.In the first instance, the challenge against the Government Orders come after a considerable lapse of time, orders being of the year 1998-99. Secondly, there is nothing on record to show that the course conducted on the basis of the said Government Orders were of inferior standards or that certificates were issued to persons without subjecting that to a proper and regulated course of instruction or studies. On the contrary, the performance of respondents 1 to 7 in the writ appeal showed that they are persons who are competent in performing their duties. There is nothing on record to show that the Special Rules placed on reliance has any application to the selection that is under dispute. Apart from the above, as per Annexure R1(a) the Government itself has interdicted the conduct of the course. We are also told that the course no longer will continue. Two persons out of respondents 1 to 7 have been appointed. The validity of rank list has expired. In view of the above circumstances, we do not find it expedient to interefere with the judgment of the learned single Judge. WA 1686/12 & con.cases 10 In the result, the writ petition and writ appeals fail and are accordingly dismissed. **K.Surendra Mohan, Judge** **Anu Sivaraman, Judge** sj