Kerala High Court
P.Valsala Devi @ Valsala vs The State Of Kerala on 28 September, 1989
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
TUESDAY, THE 26TH DAY OF AUGUST 2014/4TH BHADRA, 1936
WP(C).No. 14221 of 2010 (C)
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PETITIONER:
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P.VALSALA DEVI @ VALSALA,'DEVI DASANAM',
NAMBAKKAVELI, PARAVOOR,
PUNNAPRA NORTH, ALAPPUZHA.
BY ADV. SRI.B.KRISHNA MANI
RESPONDENT(S):
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1. THE STATE OF KERALA,REPRESENTED BY
CHIEF SECRETARY,SECRETARIAT, THIRUVANANTHAPURAM.
2. THE SECRETARY,HEALTH DEPARTMENT, GOVERNMENT OF KERALA
THIRUVANANTHAPURAM.
3. THE MANAGING DIRECTOR, KERALA HEALTH RESEARCH AND WELFARE
SOCIETY,THIRUVANANTHAPURAM.
4. THE REGIONAL ENGINEER,KERALA HEALTH RESEARCH AND WELFARE
SOCIETY,THIRUVANANTHAPURAM.
R1 & R2 BY ADV. GOVT. PLEADER SRI.NOUSHAD THOTTATHIL.
R3,R4 BY ADV. SRI.M.AJAY,SC,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26-08-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Pk
WP(C).No. 14221 of 2010 (C)
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APPENDIX
PETITIONERS EXHIBITS
EXT.P1:TRUE COPY OF THE PROCEEDINGS DATED 28.9.1989 ISSUED BY THE
MANAGING DIRECTOR,KERALA HEALTH RESEARCH AND WELFARE
SOCIETY,THIRUVANANTHAPURAM.
EXT.P2:TRUE COPY OF THE PASS CERTIFICATE IN 7TH STANDARD ISSUED BY
THE DISTRICT EDUCATIONAL OFFICER.
EXT.P3:TRUE COPY OF RELEVANT PORTION OF THE SENIORITY LIST ISSUED BY
THE 4TH RESPONDENT.
EXT.P4:TRUE COPY OF THE CIRCULAR DATED 19.1.2006 ISSUED BY THE
REGIONAL ENGINEER.
EXT.P5:TRUE COPY OF THE REPRESENTATION DATED 23.1.2006.
EXT.P6:TRUE COPY OF THE CERTIFICATE OF DISABILITY ISSUED BY THE
MEDICAL BOARD DATED 8.2.206.
EXT.P7:TRUE COPY OF THE ORDER DATED 19.1.2006 ISSUED BY THE 4TH
RESPONDENT.
EXT.P8:TRUE COPY OF THE REPRESENTATION DATED 14.1.2010 BEFORE THE
3RD RESPONDENT.
EXT.P9:TRUE COPY OF THE ORDER DATED 15.1.2010 PASSED BY THE 3RD
RESPONDENT.
EXT.P10:TRUE COPY OF THE ORDER DATED 16.1.2009 PASSED BY THE 3RD
RESPONDENT.
EXT.P11:TRUE COPY OF THE REPRESENTATION DATED 18.1.2010 BEFORE THE
3RD RESPONDENT.
EXT.P12:TRUE COPY OF THE ORDER DATED 25.1.2010 PASSED BY 3RD
RESPONDENT.
EXT.P13:TRUE COPY OF THE MEDICAL CERTIFIATE DATED 20.1.2004.
EXT.P14:TRUE COPY OF THE COMMUNICATION DATED 28.1.2010 ISSUED BY THE
MANAGING DIRECTOR,ALAPPUZHA.
pto
WP(C).No. 14221 of 2010 (C)
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RESPONDENTS EXHIBITS
EXT.R3(a):A TRUE COPY OF THE ORDER NO.E1-2166/89/KHRWS
DATED 07.02.1995.
EXT.R3(b):A TRUE COPY OF THE RELEVANT PAGES OPF THE SERVICE BOOK OF
THE PETITIONER.
EXT.R3(c):A TRUE COPY OF THE MEDICAL CERTIFICATE NO.MR/4/2010/GH4
DATED 30.3.2010.
EXT.P3(d):A TRUE COPY OF THE PROCEEDINGS SANCTIONING SPECIAL
ALLOWANCE TO THE POETITIONER DATED .6.2012.
//TRUE COPY//
P.S.TO JUDGE
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A.V.RAMAKRISHNA PILLAI, J
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W.P.(C) No.14221 of 2010
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Dated this the 26th day of August, 2014
JUDGMENT
Alleging that the petitioner has completed 26 years of service under the third respondent, the petitioner has come up before this Court for a direction to appoint her as Nursing Assistant under the said respondent.
2. The petitioner alleges that she entered service as cleaner in the Department of Health, Government of Kerala on 9.7.1984 and therefore, she is entitled to get the benefits of Ext.P1 with regard to regularisation of service. The petitioner alleges that she, who passed 7th standard, was not given any promotion after her induction in the service. She alleges that the next promotional post is Nursing Assistant and she is eligible to be promoted to the said post. It is with these allegations, the petitioner has come up before this Court.
WPC No.14221 of 2010 2
3. In the counter affidavit filed by the third respondent, they would contend that the petitioner was initially employed on daily wages in KHRWS which is a society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 to provide ancillary services to the public health care institutions under the Health Services Department. Even though she was initially engaged in 1984, she was not regularly appointed. She was regularised in service with effect from 17.1.1995 as per Ext.R3(a) order. It is further stated that as per the special rules of KHRWS, there is no post of Nursing Assistant. A cleaner who has passed SSLC can be promoted as Payward Assistant Grade II. In the absence of cleaners with SSLC, cleaners who have passed Standard VII can be promoted as Payward Assistant Grade II provided they have 5 years experience as cleaners; it is contended. It was further contended that promotion is granted only on the basis of seniority.
4. It is pointed out that there are many cleaners senior to the petitioner and they have not yet been WPC No.14221 of 2010 3 promoted since they do not fall in the zone of consideration for promotion. It was also averred that as and when vacancies arise and the petitioner falls in the zone of consideration, she would be considered for promotion. It is further contended that considering the repeated requests of the petitioner and her partially handicapped status, she was assigned to do lighter jobs. On her request, even though there is no such post, she was allowed to function as Nursing Assistant which is a post in the Health Services Department.
5. I have heard the learned counsel for the petitioner and the learned standing counsel for the third respondent.
6. It is crucial to note that Ext.P1 list was published in the year 1989. In Ext.P1, the name of the petitioner is not made mention of.
7. As rightly pointed out by the learned standing counsel for the respondent, had the petitioner been eligible to be included in Ext.P1, she should have taken up the matter with the KHRWS. It is evident from Ext.R3(a) WPC No.14221 of 2010 4 that she was regularised in service with effect from 17.1.1995 only.
8. In the counter affidavit the third respondent has averred that the petitioner does not come within the zone of consideration and as and when vacancies arise and the petitioner falls in the zone of consideration, she would be considered for promotion as Payward Assistant Grade II. At present on sympathetic ground, the petitioner is given a posting as a Nursing Assistant which is a lighter job in nature.
9. It is also relevant to note that on account of repeated requests made by the petitioner to assign her lighter duties a second medical report was called for vide Ext.P14. Special allowance was sanctioned to her on the basis of the subsequent disability certificate produced by her which shows that she is having a disability of 40%.
10. As there is no post of Nursing Assistant at present, the petitioner can be considered only to the post of Payward Assistant Grade II provided there are no senior candidates who have passed SSLC working as cleaners WPC No.14221 of 2010 5 who are due for promotion or senior candidates who have passed standard VII who are working as cleaners for five years.
In the light of the above, this Court is of the definite view that the petitioner is not entitled to get the relief as prayed for. Therefore, this writ petition is dismissed.
sd/-A.V.RAMAKRISHNA PILLAI
JUDGE
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P.S.TO JUDGE