Vacancies of Nurse; Sindhu P.B. Vs. Director Of Health Services [Kerala High Court, 17-06-2016]

Kerala Public Service Commission – Vacancies of Junior Public Health Nurse Gr.II (JPHN Gr.II) – Had the Government/Department effected provisional promotion of requisite number of JPHN Gr. II to the cadre of JPHN Gr.I, in conformity with the contents of Annexure A5 Circular on time, the vacancies resulted in the cadre of JPHN Gr.II, to such extent, could have been filled up on reporting of the vacancies to the PSC, pursuant to the interim orders passed by the Tribunal. Non compliance with the said requirement, but for filling up of the posts of JPHN Gr. I on contract basis, is a serious lapse on the part of the department/authority concerned, which very much affects the rights and interests of the persons like the petitioners herein – JPHN Gr.II were shown as excess, only because of the lapses on the part of the Department/Government in proceeding with further steps to fill up the post of JPHN Gr.I, which could not have been filled up by way of direct recruitment, but by promoting eligible candidates from JPHN Gr.II.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

O.P. (KAT) Nos. 184 and 185 of 2015

Dated, this the 17th day of June, 2016

AGAINST THE ORDER IN OA 812/2014 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 10-03-2015

PETITIONER(S)

SINDHU P.B. AND 4 OTHERS

BY ADV. SRI.O.D.SIVADAS

RESPONDENT(S)

1. THE DIRECTOR OF HEALTH SERVICES, HEALTH DEPARTMENT, GENERAL HOSPITAL JUNCTION, VANCHIYOOR P.O., THIRUVANANTHAPURAM – 695 035.

2. THE DISTRICT MEDICAL OFFICER (HEALTH) CIVIL STATION, PINAV, PIN – 685 602.

3. THE DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION, KATTAPPANA, IDUKKI – 685 602.

4. THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM – 695 004.

R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI. M. MUHAMMED SHAFI R3 & R4 BY SRI.P.C.SASIDHARAN, SC, KPSC

JUDGMENT

Ramachandra Menon, J.

Common cause of action is projected in both these original petitions. The grievance is against the verdict passed by the Tribunal, whereby the O.A. preferred by the petitioners for advising their names in respect of the vacancies of Junior Public Health Nurse Gr.II (JPHN Gr.II in short), Idukki district, came to be turned down, based on the submission made across the Bar from the part of the Government that no vacancies were available, though as per interim order dated 14.03.2014 in O.A. (EKM) No. 180 of 2014 and interim order dated 30.04.2014 in O.A.(EKM) No. 812 of 2014, 41 vacancies (18 and 23 vacancies respectively) were ordered to be reported to the PSC.

2. The sequence of events is as follows : The petitioners participated in the process of selection conducted by the PSC for appointment to the post of JPHN Gr. II in the Idukki district. On coming out successful in the process of selection, they got included in the rank list published on 10.11.2009. Some of the applicants, who were included in the rank list approached the Tribunal by filing O.A., stating that, all the vacancies were not being reported to the PSC and accordingly, necessary reliefs were sought for. The Kerala Administrative Tribunal, Ernakulam Bench passed an interim order in O.A.(EKM) No. 180 of 2014, whereby 18 vacancies of JPHN Gr.II were directed to be reported to the PSC on or before 28.04.2015. Similarly, as per interim order in O.A.(EKM) No. 812 of 2014 as well 23 vacancies were directed to be reported before the expiry of the rank list. The rank list expired on 09.05.2014. The O.A. (EKM) No. 180 of 2014 was subsequently disposed of, directing the second respondent/Director of Health Services to consider whether any actual vacancies were available, which could be reported to the PSC, so that PSC could advise candidates to all the said vacancies. Pursuant to the said direction, the second respondent/Director considered the matter and Annexure A4 order was passed to the effect that 26 JPHN Gr. II were working in excess to the cadre strength in the Idukki district and that no candidate would be advised by the PSC from that rank list.

4. Challenging the said order, the aggrieved party approached the Tribunal by filing O.A. No. 2218/2014 with the following prayers :

“(i) Call for the records leading to Annexure A4 and set aside the same.

(ii) Issue appropriate direction to the 2 nd respondent to re-consider Annexure A4 order and pass necessary orders after calling for a report from the 3 rd respondent regarding the vacancies of Junior Public Health Nurses Grade I and Grade II available in Idukki District in the light of Anx. A5 order.

(iii) Issue appropriate direction to the 2 nd and 3 rd respondents to issue necessary intimation to the 3 rd respondent regarding the vacancies of Public Health Nurses in Idukki District and pursuant to the above, direct the 4 th respondent to issue advice memo to the applicants, if they are otherwise eligible as per rules of reservation.

(iv) Grant such other and further reliefs which this Honourable Tribunal deem just and fit in the circumstances of the case including the cost of the proceedings.

The claim was sought to be resisted in tune with the contents of Annexure A4. It was brought to the notice of the Tribunal that the total cadre strength of JPHN Gr. II in Idukki district was 315, out of whom 158 were in JPHN Gr. II and 157 were in JPHN Gr. I. Subsequently, the total cadre strength came to be corrected as 314. By virtue of the change in the ratio [which earlier was 2 : 1], it is to be 1 : 1 between the JPHN Gr. I and JPHN Gr. II; as a result of which, 157 posts are available to be filled up by JPHN Gr.II and the remaining 157 posts by JPHN Gr. I. It also remains a fact that there is no direct recruitment to the cadre of JPHN Gr. I and the initial recruitment only to JPHN Gr. II, who in turn get promoted to JPHN Gr. I, based on their credentials and their position in the state wise seniority list. As per the pleadings raised before the Tribunal, there were 183 JPHN Gr. II in the Idukki district, whereas the cadre of JPHN Gr.I was occupied only by 110 persons, which means 25 JPHN Gr.II were working in excess than the cadre strength. It was in the said circumstances that the Tribunal passed Ext. P1 order in O.A. 2218 of 2014 to the effect that no vacancy of JPHN Gr. II was available and it was accordingly, that O.A. was dismissed, which in turn is under challenge in O.P. (KAT) No.185 of 2015. A Similar claim was put forth by the petitioner in O.P.(KAT) 184 of 2015, as well by filing O.A. (EKM) No. 812 of 2014, which came to be dismissed as per Ext. P1, in terms of the orders passed by the Tribunal in O.A. No. 2218 of 2014.

5. The concerned respondents have filed counter affidavits/statements in the aforesaid O.Ps. and the matter was heard at length.

6. When the matters came up for consideration on earlier occasions, this Court noted that there was no dispute with regard to the factual aspects in so far as the cadre strength is concerned and the actual number of persons, who were occupying the chair in both the cadres. Though there was an excess of 25 hands in JPHN Gr.II, much vacancies were available in the cadre of JPHN Gr.I. It is also an undisputed fact that nobody can be given direct employment to JPHN Gr.I, which could only be from JPHN Gr.II. Still, the persons who were occupying the lower rank of JPHN Gr.II were not permitted to go up in the ladder based on the said seniority and the vacancies in JPHN Gr. I were being filled up on contract basis by the second respondent/Director. The reason put forth was that such a course was necessitated because of the need of the hour, especially in connection with ‘Pulse Polio Immunisation Programme’. It was also brought to the notice of this Court that the term of appointment on contract basis, to the posts of JPHN Gr.II, was only for a period of 179 days. But, there was a Circular issued by the Government, way back on 30.09.2014 (Annexure A5), as to how the vacancies in the cadre of JPHN Gr. I were to be filled up. It is contended by the respondent State that various disputes were there with regard to the seniority of JPHN Gr.I, which placed hurdle in filling up the vacancies then and there. But going by the contents of Annexure A5 Circular, the Government has made clear that the vacancies in the post of JPHN Gr.I were to be filled up, by shifting the eligible candidates from JPHN Gr.II to the requisite extent, more so, when there was no direct recruitment to the post of JPHN Gr.I. This will result in vacancies in the cadre of JPHN Gr. II and these vacancies, as a matter of course, had to be filled up from the rank list prepared by the PSC in respect of the post of JPHN Gr.II. This exercise was not done by the Government/Department and the vacancies were being filled up by permitting the candidates from open market, to be appointed on contract basis, despite the better rights and credentials of the persons, who got enlisted in the rank list prepared by the PSC pursuant to a regular process of selection, to be appointed as JPHN Gr. II.

7. Serious lapses were noted by this Court in the above regard, on the part of the concerned respondents, and in the said circumstances an interim order came to be passed on 09.06.2015 in O.P.(KAT) No. 185 of 2015, which reads as follows:

“Writ petition stands admitted. Learned Government Pleader takes notice on behalf of respondents 1 to 3. Sri.P.C. Sasidharan, learned Standing Counsel takes notice on behalf of respondents 4 and 5.

2. It is seen from the proceedings that a submission was made before the Tribunal at the time of disposal of O.A. No. 2218 of 2014 to the effect that there was excess recruitment of Junior Public Health Nurse Grade-II in Idukki District. As against the total strength of 315 Junior Public Health Nurses, 158 are to be Junior Public Health Nurse Grade-II and 157 should be Junior Public Health Nurse Grade-I as per the ratio prescribed. But, as on date, there are 183 Junior Public Health Nurse Grade-II, while the strength of Junior Public Health Nurse Grade-I is only 110 in the said District. Hence, there is an excess of 26 Junior Public Health Nurse Grade-II over and above the cadre strength. It was in such circumstances, that interference was declined and the O.A. was dismissed.

3. The contents of Ext.P3 dated 05.01.2015, which is the proceedings of the third respondent (produced along with I.A. No. 7663 of 2015), shows that during the pendency of the O.A., the 3 rd respondent has proceeded with steps to recruit persons on contract basis, in respect of the vacancies stated as in existence in Idukki District. That apart, Annexure A-5 dated 30.9.2014 issued by the Government to the 2 nd respondent (which was sought to be relied on, from the part of the applicant) was not properly dealt with by the Tribunal while passing the final verdict.

4. In the above circumstances, the District Medical Officer, Idukki is directed to file an affidavit before this Court as to the course and events and as to how the third respondent would reconcile with the submission made before the Tribunal, with reference to the contents of Ext.P3.

5. It is stated that the rank list has expired. But before the expiry of the rank list, pursuant to the interim order passed by the Tribunal, altogether 41 vacancies have already been reported to the PSC. Further proceedings shall be subject to the result of the Original Petition.”

Similar order was passed in O.P.(KAT) No. 184 of 2015 on 09.06.2015.

8. Despite the specific direction given by this Court to the District Medical Officer Idukki, to file an affidavit, no such affidavit was filed by the DMO. It was taken serious note of by this Court on 17.08.2015, however granting some more time based on the submission made by the learned Government Pleader. Pursuant to this, an affidavit dated 26.08.2015 was filed by the DMO, wherein the factual position as to the cadre strength of JPHN Gr.I, with a similar strength in JPHN Gr.II (157 each) was conceded. The particulars of filled up posts and the available vacancies were also given in the said affidavit. In view of the undisputed facts, the course of action pursued by the DMO was liable to be deprecated, for not doing the exercise in the light of Annexure A5 Circular, which was seen blatantly violated. This Court observed that the affidavit filed by the DMO was rather evasive and expressed the necessity to proceed with further steps, by passing the following order on 20.05.2016.

“ Heard both the sides.

2. A detailed order was passed on 09.06.2015 as to the nature of grievance with reference to the availability of vacancies in the cadre of Junior Public Health Nurse Grade-I and II and the course of action, which was being followed by the Department by engaging persons on contract basis.

3. The specific contention of the petitioners was that pursuant to the interim orders passed by the Tribunal, 41 vacancies were reported before expiry of the rank list to the post of Junior Public Health Nurse Grade-II. There is no direct recruitment to the post of Junior Public Health Nurse Grade-I. The total cadre strength is 315 and as per the ratio 1:1, the present cadre strength, which stands reduced by ‘1’, is 157 in Grade I and 157 in Grade II.

4. The Original Application was disposed of based on the submission made on behalf of the Government that there was excess recruits in the cadre of Junior Public Health Nurse Grade-II and hence no actual vacancies did exist to accommodate persons from the rank list before its expiry. The discrepancies were taken note of by this Court and it was accordingly that a detailed order was passed on 09.06.2015 directing the D.M.O. to file an affidavit as to the factual particulars. Now an affidavit dated 26.08.2015 has been filed, wherein the factual position is not disputed and the availability of 157 vacancies in the cadre of Junior Public Health Nurse Grade-I and 157 in the cadre of Junior Public Health Nurse Grade-II is conceded.

5. From paragraphs 2 and 3, it is seen that only 97 vacancies are filled up or occupied in the cadre of Junior Public Health Nurse Grade I and 35 vacancies are available in Idukki district. At the same time it is seen that there is an excess of 25 Junior Public Health Nurse Grade-II as against the cadre strength of 157. It is further stated that it was because of very urgent requirements in connection with the various health programmes and since there were no sufficient hands in Junior Public Health Nurse Grade-I that contract appointments to the post of Junior Public Health Nurse Grade-I was proceeded with in Idukki district, appointing 32 persons purely on a temporary basis for 179 days or till PSC hands joined duty, whichever was earlier. It is also stated that these provisional hands were already terminated from service on completion of 179 days. But the District Medical Officer has conveniently avoided to explain as to how PSC hands could join the cadre of Junior Public Health Nurse Grade-I, when there is no direct recruitment to the said cadre and if so, how temporary appointments could be effected on contract basis to the said cadre? The DMO has simply mentioned that, it was for 179 days or till PSC hands joined duty whichever was earlier. Prima facie, a foul play is doubted and it may be for the reasons best known to the concerned authority who permitted the persons from outside to join service as Junior Public Health Nurse Grade I on contract basis, without any regard to the rightful claims of the persons who are occupying the lower tier of Junior Public Health Nurse Grade-II. This, obviously, is also in conflict with the clear mandate of the direction given by the Government as per Annexure -A5 as to the course and manner in which the vacancies are to be filled up to the post of Junior Public Health Nurse Grade I, i.e. by filling up the vacancies from the persons, who are occupying the chair of Junior Health Nurse Grade II and to have the service regularised in accordance with law, subject to eligibility and maintaining the ratio.

6. No explanation is given in the affidavit of the D.M.O. as to the apparent violation of Annexure-A5 as well. If the above course has been pursued without any regard to the specific direction issued by the Government, it may have to be presumed that, either the officer is ignorant of the orders passed by the Government or was consciously violating the same for the reasons best known to the said officer. We do not want to express anything further in this regard for the time being, in view of the submission made by the learned Government Pleader, that one more opportunity might be given to clarify the position, by filing a proper affidavit incorporating all the facts and figures. In fact, it was for explaining the position, that we passed a detailed order on 09.06.2015 giving a chance to the concerned D.M.O. But the affidavit appears to be very much evasive and this Court cannot but proceed with further steps, if there was any attempt, wilful or otherwise, to have taken this court for a ride.

List the matter for further consideration on 31.05.2016.”

9. By filing necessary proceedings in the meanwhile, it was brought to the notice of this Court that the tenure of the contract employees was already over and that the posts were remaining vacant. The third respondent/District Medical Officer filed an additional affidavit dated 06.06.2016 in O.P.(KAT) No. 185 of 2016, to the effect that interim orders passed by this Court have already been given effect to and that the vacancies stand already reported to the PSC. The third respondent also tendered ‘unconditional apology’ with regard to the course and events. Based on the submissions made by the learned Government Pleader as well as the learned standing counsel for the PSC, to ascertain the factual particulars as to the availability of actual vacancies; the date of reporting and such other particulars, further time was granted as per interim order dated 09.06.2016, which was further extended as per interim order dated 14.06.2016. Pursuant to the above proceedings, a statement has been filed on behalf of the 3 rd respondent, asserting that pursuant to the interim order passed by the Tribunal on 14.03.2014 in O.A. (EKM) No. 180 of 2014, ‘18′ vacancies were reported to the PSC on 27.03.2014 (wrongly typed as 27.03.2015) as per Annexure R3 (a). Similarly, pursuant to the interim order dated 13.04.2014 in O.A. 812 of 2014, the 3 rd respondent had reported ‘23 vacancies‘ on 07.05.2014 to the PSC as per Annexure R3(b). Thus, a total of ‘41 vacancies‘ were reported to the PSC. The learned standing counsel for the PSC had submitted earlier, that as per their records, only 24 vacancies in the cadre of JPHN Gr.II were available, as reported to them. But, after getting instructions, the learned standing counsel submits, with reference to the contents of the letter dated 18.06.2016 sent by the Secretary to the PSC and attachments, that ‘41 vacancies’ were reported by the DMO as pointed out in the statement. It is stated that the requisition however did not contain the particulars of the date of arising of vacancies and some clarifications were sought for, which were not supplied by the DMO and that was the reason why a submission had to be made before this Court earlier, that only lesser vacancies were available. Existence of actual extent of vacancies during the currency of the rank list is conceded by the learned Government to the extent as aforesaid. .

10. After hearing both the sides, this Court finds that, had the Government/Department effected provisional promotion of requisite number of JPHN Gr. II to the cadre of JPHN Gr.I, in conformity with the contents of Annexure A5 Circular on time, the vacancies resulted in the cadre of JPHN Gr.II, to such extent, could have been filled up on reporting of the vacancies to the PSC, pursuant to the interim orders passed by the Tribunal. Non compliance with the said requirement, but for filling up of the posts of JPHN Gr. I on contract basis, is a serious lapse on the part of the department/authority concerned, which very much affects the rights and interests of the persons like the petitioners herein. We find that JPHN Gr.II were shown as excess, only because of the lapses on the part of the Department/Government in proceeding with further steps to fill up the post of JPHN Gr.I, which could not have been filled up by way of direct recruitment, but by promoting eligible candidates from JPHN Gr.II.

11. In the above circumstances, the rest of the action to be pursued is to give effect to Annexure A5 Circular and fill up the remaining vacancies of JPHN Gr.I on a provisional basis and fill up the resultant vacancies by accommodating the candidates included in the rank list, based on their seniority, as to be advised by the PSC. The petitioners are entitled to succeed to the said extent. The PSC is directed to advise the candidates in respect of the 25 vacancies, based on their seniority, in accordance with law, at the earliest, at any rate, within one month. It will be for the Government/Department to take necessary steps and pass consequential orders, so as to give effect to the verdict as aforesaid.

Based on the advise to be given by the PSC, appointment orders shall be issued to the eligible hands. In view of the expression of ‘unconditional apology’ by the 3 rd respondent in the affidavit dated 06.06.2016, and persuasive submission made by the learned Government Pleader, no further steps are intended to be pursued against the concerned respondent, despite the serious lapses mentioned above.

Both the matters stands disposed of accordingly.

Comments