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Judgment
Shaffique, J.—Applicants before the Kerala Administrative Tribunal are the petitioners herein. They approached the Tribunal on the allegation that they were working on daily wage basis in the post of Hospital Attendant Grade-II in Government Hospitals/Primary Health Centres in Pathanamthitta District. According to them, they were appointed by selection made through the District Medical Officer after inviting applications through paper publication. In fact, while attempts were made to terminate their services, they approached this Court by filing W.P(C).No. 14034 of 2006, which was dismissed by judgment dated 30.5.2006. The said judgment has become final. Though the matter was taken in appeal, the Appellate Court held as follows:
While affirming the judgment of the learned Single Judge regarding the finding on the question of the right of the appellants to continue in service, we make it clear that the appellants can be allowed to continue until new set of daily wage employees join duty, even if their date of joining duty is beyond the period of one month. Respondents shall take necessary steps to appoint hands in accordance with the special Rules. Subject to the above observations, writ appeal is dismissed.
It is not in dispute that the petitioners were not appointed through the regular channel by invoking Rule 5 of the Kerala State and Subordinate Service Rules. It is also not in dispute that if persons are appointed under Rule 5 of the Special Rules, then the petitioners'' opportunity will be lost. In that view of the matter, the Tribunal dismissed the application. Challenging the said order, this Writ Petition came to be filed.
It is the contention of learned Senior Counsel appearing for the petitioners that there are still vacancies in the department and even if persons are appointed as per the Special Rules, still there will be temporary vacancies which can be allotted to the persons like the petitioners without retrenching them.
The Government has filed two separate counter affidavits; one through the District Collector''s office and the another through the District Medical Officer''s office. Paragraph 10 of the counter affidavit filed by Mr. M. Suresh Kumar, Senior Superintendent (Suit), Collectorate, Pathanamthitta reads as follows:
In view of the above factual position, there is no reason as to why daily wage employee like the petitioners should be allowed to continue in service by obstructing the promotion prospectus of eligible candidates. The prayer of the petitioners to continue in service is far fetched and without any legal or factual basis. The petitioners, who were engaged on daily wage basis are liable to be terminated and their prayer for regularization cannot be acceded to on any count. It is, however, submitted that in view of the likelihood of outbreak of communicable diseases during the monsoon season, the Government has taken a decision to appoint additional Doctors and other staff on contractual basis according to necessity. Based on the said Government decision, the Director of Health Services has issued Circular No. PH4-43375/2012 dated 19.06.2012 whereby sanction is accorded for engaging a maximum of 60 persons as cleaning staff in the District of Pathanamthitta, as and when required and subject to requirement and necessity. If the petitioners are to respond to such notification to be made by the competent authority to make contractual appointments in view of the above circular issued by the Director of Health Services, they would also be considered subject to their eligibility.
In paragraphs 6 of the counter affidavit filed by Mr. Saramma K. Mathew, Senior Superintendent, District Medical Office (Health), Pathanamthitta read as follows:
It is further submitted that out of the total 38 vacancies set apart for the Health Service Quota, apart from the above 20 vacancies which are earmarked for candidates belonging to Scheduled Tribe category, 8 vacancies are earmarked for those belonging to dying-in-harness category and 2 vacancies are set apart for appointment by inter- district transfer, both of which, are processed by the Director of Health Service. It is pertinent to point out at this juncture that by letter dated 08.07.2012, the Director of Health Services has informed the 3rd respondent herein that there is no pending application to be considered for appointment under dying-in-harness scheme. A true copy of the letter dated 08.07.2012 issued by the Director of Health Services to the 3rd respondent is produced herewith and marked as Exhibit R3(c). In Exhibit R2(c), it is clearly mentioned that since there are no eligible persons to be appointed under the dying-in-harness category, the 3rd respondent can take appropriate steps to fill up those vacancies. It is also relevant to submit herein that by another letter dated 09.07.2012, the Director of Health Services has further informed the 3rd respondent that there are no applications pending for being considered for inter- district transfer also. It is respectfully submitted that in the event of non-availability of eligible persons who are eligible to be appointed under the dying-in-harness scheme and inter-district transfer requests, the 3rd respondent is entitled to fill up those vacancies from among the eligible candidates in the Feeder Category of Part Time Contingent Employees who are entitled to be promoted to the post of Hospital Attendant Grade II.
Having heard learned counsel on both sides and after going through the averments in the counter affidavit filed by the Government making its stand clear, we do not find any reason to interfere with the order passed by the Kerala Administrative Tribunal. It is submitted that in regard to 60 vacancies that may be filled up as and when exigencies arise some preference may be given to the petitioners. As stated by the fourth respondent if there is any opportunity and the petitioners respond to it, the petitioners may be considered in preference to others.
Accordingly, with the above observations, the Original Petition is disposed of.