OP(KAT)No.89 of 2019 1 2025:KER:26134 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 OP(KAT) NO. 89 OF 2019 AGAINST THE ORDER DATED 07.04.2017 IN OA(EKM) NO.214 OF 2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONERS/RESPONDENTS IN THE O.A.: 1 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001 2 DIRECTOR OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM, KERALA-695035 3 DISTRICT MEDICAL OFFICER, CIVIL STATION, KOLLAM-691001, KERALA. 4 THE MEDICAL OFFICER IN CHARGE, COMMUNITY HEALTH CENTRE, CHAVARA, KOLLAM, KERALA-691583 BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE RESPONDENT/APPLICANT IN THE O.A.: SHYLAJA.R., AGED 48 YEARS, D/O. LATE NANNU, ATTENDER GR. II, COMMUNITY HEALTH CENTRE, CHAVARA, KOLLAM-691 583, OP(KAT)No.89 of 2019 2 2025:KER:26134 RESIDING AT NEELACHARIYATH HOUSE, VATTATHRA, MUKUNDAPURAM P.O, CHAVARA, KOLLAM, KERALA-691583 BY ADVS. S.SHAJI C.MOHANAN THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 19.03.2025, THE COURT ON 28.03.2025 DELIVERED THE FOLLOWING: OP(KAT)No.89 of 2019 3 2025:KER:26134 JUDGMENT P.Krishna Kumar, J. The respondent has been working as a Hospital Attendant Grade II in the Community Health Centre at Chavara since 16.07.2013. As per Annexure A1 order dated 16.07.2013, she was appointed to the post on a provisional basis for a period of six months or till a regular hand joins. When she received Annexure A4 notice dated 4.2.2015 proposing to terminate her service, she challenged it before the Kerala Administrative Tribunal. 2. As per the impugned order, the Tribunal found that the respondent was selected on a regular basis after following the statutory method for the regular appointment. Accordingly, the Tribunal set aside Annexure A4 notice and declared that the appointment of the respondent was on a regular basis and thus she is OP(KAT)No.89 of 2019 4 2025:KER:26134 entitled to get all consequential benefits. This order is under challenge before us at the instance of the State. 3. We have heard the learned Senior Government Pleader and the learned counsel appearing for the respondent. 4. It is contended by the State that even though the respondent was originally appointed through the Employment Exchange on a provisional basis for six months, her continuation after the said period was only as a daily-wage worker. She had also given a written declaration that she would not claim permanency in her appointment in any circumstance and her appointment was made on such condition, it is contended. It is also pointed out that as per the Special Rules applicable to the respondent, the method of appointing a Hospital Attendant on a regular basis through Employment Exchange is possible only if the other two methods of appointment viz., (i) by promotion from the Part-time contingent employees of certain departments, and (ii) by promotion from the list prepared by the District Collector based on OP(KAT)No.89 of 2019 5 2025:KER:26134 a common seniority list, as per Rule 5, Category 4(a)(i) & (ii) of the Special Rules for the Kerala Last Grade Service, got exhausted. 5. The respondent, on the other hand, contended that her appointment was strictly in terms of the extant Special Rules and that was done after following all procedural formalities to be followed for a regular appointment. The appointment was also against a substantive vacancy, it is argued. It is further pointed out that the Government has regularised the service of several other employees who were similarly placed as that of the respondent. It is also urged that the respondent is suffering from a fatal illness and she deserves equal treatment with those who have been regularized by the Government. According to the respondent, the undertaking was obtained by the higher officials by compelling her. 6. As per Rule 5, Category 4, clause (a)(iii) of the Special Rules for the Kerala Last Grade Service, one of the methods of regular appointment to the post of Hospital Attendant Grade II is, by direct recruitment OP(KAT)No.89 of 2019 6 2025:KER:26134 through Employment Exchange, when there is no other suitable hands as per clause (a)(i) & (ii). From Annexure A1 appointment letter, it is evident that the respondent was appointed after obtaining a list from the District Employment Officer, Kollam and that the list was prepared by the Employment Officer after conducting an interview of the eligible candidates. It is also clear from Annexure A1 that the appointment was against a vacancy in the said post. Indeed, Annexure A1 states that the appointment is purely temporary and that the person who is appointed on a temporary basis should furnish an undertaking that he would not make any claim for permanent appointment. However, it is not in dispute that the respondent has been working in the said hospital since the date of initial appointment, atleast as a daily wage employee on and after the term of the first appointment. 7. This Court has disposed of O.P.(KAT)Nos.343/2017 & 344/2017 on 13.12.2024 through a common judgment, wherein some of the questions raised before us were OP(KAT)No.89 of 2019 7 2025:KER:26134 exactly similar to the contentions raised in the present case. The Court held: “15.In fact, it is no more res integra that even if the appointment in Category 4 of the Last Grade Service was shown as provisional, it could be considered a regular appointment in certain circumstances. This Court considered such an issue in Sreekala v. Superintendent, Oldage Home (2008 2 KHC 84). After adverting to Rule 5 of the Rules and various other provisions in the said Rules, this court opined as follows: “9. Thus, going by the Special Rules, appointment through Employment Exchange is one of the methods prescribed for the post of Cook. But, whether the appellant was appointed on a regular basis or provisionally, will depend upon the facts of the case. The appointment order says that the appointment is temporary and for a period of 179 days. The mention in an appointment order that it is provisional or temporary, may not be conclusive. Even in the case of regular appointments, it is stated by some appointing authorities that the appointment is temporary. But, in this case, we notice that as pointed out by the learned Government Pleader, the procedure followed was that of provisional appointment and not of regular appointment. The candidates from all the Employment Exchanges in the Kottayam District were not sponsored. The appointment order was not issued by the Head of the Department, who is the appointing authority, but by the Superintendent of the Old Age Home, Ithithanam, who OP(KAT)No.89 of 2019 8 2025:KER:26134 is only the Head of the office / institution concerned. The unit of appointment being the District, the Head of the institution can never make regular appointment. Further, the rules of reservation were also not followed. Therefore, the contention of the learned counsel for the appellant that her appointment is regular, cannot be accepted.” 16.Again this Court considered the issue in State of Kerala v. Sunitha Beevi S. and Others (2019 KHC 19), wherein a similar decision of the Kerala Administrative Tribunal was challenged by the State before this Court. After referring to the ratio in Sreekala’s case (supra), this court found that mere mention in the appointment order that it is provisional or temporary would not be conclusive and what is relevant is the procedure that was followed for effecting the appointment (paragraph 16). The learned counsel for the respondents also referred to a decision of this court in W.A. No. 96, 152 and 491 of 2000, dated 20.02.2003, wherein this court accepted similar claims raised by the petitioners in those cases. 17. The respondents strenuously assert that there was no common seniority list maintained by the District Collector on a revenue district- wise basis for effecting appointment by promotion from Part-time contingent employees to the post of Sweeper/Sanitation Worker and that is why the Head of the Institution opted for the alternate course viz., direct recruitment through Employment OP(KAT)No.89 of 2019 9 2025:KER:26134 Exchange. It is interesting to note that, in paragraph 5 of the reply statement filed on behalf of the second respondent in O.A.(Ekm)No.554/2017, it is stated that provisional appointment to the post of Sanitation Worker/Sweeper through the Employment Exchange was resorted to in the absence of a common seniority list prepared by the District Collector for the Part-time contingent employees. Nevertheless, we did not find any such statement in the other case (O.A. (Ekm)No.499/2017). 18.In the impugned order in O.P. (KAT)No.343/2017, the Tribunal issued a direction to regularise the appointment as Sweeper, but in the impugned order in O.P.(KAT)No.344/2017, the direction was to verify whether there was any such common seniority list of Part-time contingent employees maintained by the District Collector and whether any eligible claimant was available on the date of occurrence of vacancy or on the date of appointment of the applicants. It was further directed that if it is not available, the applicants are to be treated as regular appointees. In view of the factual situations we noted above, this direction aligns more closely with the statutory rules and such verification is even otherwise necessary not only to consider the existence of the said list but also to see that the appointment was made after following other OP(KAT)No.89 of 2019 10 2025:KER:26134 formalities as mentioned above in Sreekala’s case (supra).” 8. In short, the mention in an appointment order that it is provisional or temporary, is not conclusive. Even when the respondent claimed before the Tribunal that her appointment was a regular one, under clause (a)(iii) of Category 4 in Rule 5 of the Special Rules, we note that the State has not stated anything in the reply statement as to whether there were any eligible candidates for appointment under Clause (a)(i)and (ii), at the time of her appointment. The State could have furnished the details of the employees who were eligible for regular appointment under the abovesaid clauses, had there been any such persons. It is significant to note that Rule 5 mandates that a common-seniority list has to be prepared for the regular appointment under Clause (a) (i) & (ii). There is no reference to such lists in the pleadings made by the State. We also note that, even at the time when the State challenged the order of the OP(KAT)No.89 of 2019 11 2025:KER:26134 Kerala Administrative Tribunal before us, no such materials were made available. In the absence of qualified hands as mentioned in Category 4(a)(i) and (ii), the respondent would have been entitled to a regular appointment, as the appointment was against a substantive vacancy. 9. We also find no merit in the contention that the respondent issued an undertaking as above said. According to the respondent, she did not issue it on her freewill. Anyway, if she is entitled to get regular appointment as per clause (a)(iii), it is unfair to deny it based on such an undertaking. Similarly, even if she was engaged on daily wages later, that will not outweigh her claim, if she was actually entitled to appointment under clause (a)(iii), in view of the particular fact- situation of this case. 10. At any rate, if the Government has already regularised the service of any other persons who are similarly placed as that of the respondent, it cannot single out the respondent, even if her appointment was OP(KAT)No.89 of 2019 12 2025:KER:26134 not made under clause (a)(iii) of Category 4. After all, the petitioner will reach the age of superannuation in May, 2025. In the above circumstances, we find no reason to interfere with the impugned judgment. 11. However, we make it clear that if the State finds any indisputable materials to establish that eligible candidates were then available for promotion as per Category 4 Sub-Clause (a)(i) and (ii) of Rule 5, it can issue a fresh order in place of Annexure A4, after affording the respondent an opportunity to furnish her objections. In the result, the original petition is dismissed, but subject to the above observations. Sd/- A.MUHAMED MUSTAQUE JUDGE Sd/- P.KRISHNA KUMAR JUDGE sv OP(KAT)No.89 of 2019 13 2025:KER:26134 APPENDIX OF OP(KAT) 89/2019 PETITIONER'S EXHIBITS EXHIBIT P1 A TRUE COPY OF THE ORIGINAL APPLICATION ALONG WITH ANNEXURES. Annexure A1 TRUE COPY OF THE ORDER DATED 16.07.2013 ISSUED BY THE 3RD RESPONDENT. Annexure A2 TRUE COPY OF THE ORDER NO.58/14/CHC ISSUED BY THE 4TH RESPONDENT. Annexure A3 TRUE COPY OF THE DISCHARGE CERTIFICATE DATED 17.03.2014 ISSUED BY THE 4TH RESPONDENT. Annexure A4 TRUE COPY OF THE NOTICE DATED 04.02.2015 ISSUED BY THE 4TH RESPONDENT. Annexure A5 TRUE COPY OF RELEVANT PART OF SPECIAL RULES. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FIELD BY THE 1ST PETITIONER HEREIN THE ORIGINAL APPLICATION. EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD PETITIONER HEREIN HE ORIGINAL APPLICATION. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 7.4.2017 IN THE O.A. RESPONDENT'S EXHIBITS Exhibit R1(a) True copy of the prescription dated 18.05.2022 from Cancer Care Centre, Kollam Exhibit R1(b) True copy of the communication of the 3rd petitioner herein to the 2nd petitioner dated 03.01.2024