ANITHA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioners are members of the Kerala Last Grade service, appointed as candidates sponsored by the Employment Exchange. They were provisionally appointed as Attenders in Government Home Dispensary, arakuzh and Manjapra respectively. Their complaint in the original petitions is that the directions given by the Director of Homeopathy in his circular Ex. P4, by which provisional hands except nurses who have completed 3 months service should be relieved outright without waiting for substitutes is clearly illegal and violative of the relevant statutory rules concerning their service. The circular Ext. P4 dated 217 1977 reads: "in the light of government letter No. 21664/spl

(2.) /77 HD dt. 11-5-77 Attenders/ Attendants/nursing Assistants are not para-medical staff and hence provisional hands belonging to the said category cannot be permitted to continue in service beyond 3 months. Hence all provisional hands, except nurses who have completed 3 months service should be relieved out right without waiting for substitutes and report compliance to this office. The Nurses are treated as para medical staff and hence provisional nurses can be allowed to continue is service beyond 3 months subject to a maximum period of 12 months A list of those provisional hands who are continuing in service in the light of writ petitions and stay orders has already been sent to all Chief Medical Officers and professor-Cum-Superintendent. These provisional hands may be permitted to continue in service until further orders from this office. " It would appear that both the petitioners have now been relieved from service consequent on that circular. What is contended before me is that the petitioners are members of the Kerala Last Grade Service and they will come within category 2 in R. 1 of the Special Rules regarding Kerala Last Grade Service. R. 1 relates to the constitution of the service and states that the service shall consist of the categories specified therein. 2nd category consists of "duffadar, Mochee, gazman, Guard, Helmsman, Dispensary attendant, field workers, Ayah. Court-keeper, Dresser, Head keeper, Filed Assistant, Turn Cock (Keeper) and last grade attenders. " 2. Admittedly the petitioners are Dispensary Attendants and will come within category 2. In regard to temporary appointments to the service, the provision is contained in R. 6 of the Rules. R. 6 states: " (a) Where in any office other than the Governor's secretariat it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of any category of the service and there would be undue delay in making such appointment in accordance with these rules, the appointing authority may appoint a person, otherwise than in accordance with these rules, temporarily until a person is appointed in accordance with these rules. (b) A person appointed under sub-rule (a) shall be replaced as soon as possible by a member of the service or a candidate qualified to hold the post under these rules. Such person shall not be regarded as a probationer in the service or be entitled by reason only of such appointment to any preferential claim to future appointment to the service. If such person is subsequently appointed in accordance with these rules, he shall commence bis probation therein from the date of such subsequent appointment or from such earlier date as may be determined by the appointing authority without prejudice to the seniority of others. He shall also be eligible to draw increments in the time-scale of pay applicable to him from the date of commencement of his probation but shall not entitled to arrears of pay unless otherwise ordered by the government. ". Rule 3 of the Rules is to the effect that, "part II of the Kerala State and Subordinate services Rules other than R. 3,4, 10c, 14,15,16 and 17 shall not apply to the service. " Therefore, R. 9 of the Kerala State and Subordinate services Rules will not be applicable in the case 2nd proviso to R. 9 is to the effect that, "a person appointed under this clause by direct recruitment to a post other than teaching post and a post covered by the proviso to clause (iii) of R. 10 (b) shall not be allowed to continue in such post for a period exceeding three months. " The Circular could have been justified if the appointment was under R. 9 of the K. S. S. R. But as the petitioners contend their appointments could only have been in accordance with R. 6 of the Special Rules referred to above and therefore they cannot be relieved merely on the completion of three months of service. A person appointed under R. 6 (a) can be replaced as soon as possible by a member of the service or a candidate qualified to hold the post under the Rules. But merely because they have completed 3 months of service their services cannot be terminated. Therefore, Ext. P4 circular is clearly illegal and I declare that the termination of the services of the petitioners based on the same is void and would be of no effect in law. They are entitled to continue in service. As the order is void, it had to be deemed that the petitioners were continuing is service and they will be entitled to all consequential benefits like salary. The original petitions are disposed of as above. I make no order as to costs. Issue carbon copy of the order to the petitioners on payment of requisite charges and to the Government Pleader free of charges. Allowed. . .