Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN FRIDAY, THE 1ST DAY OF FEBRUARY 2013 12TH MAGHA 193 WP(C).No. 26172 of 2012 (V) --------------------------- PETITIONER(S): -------------------------- VINEETHA, AGED 3 YEARS, D/O.VASANTHI, INDEEVARAM, KUNDAMON BHAGOM PEYAD P.O. BY ADVS.SRI.R.T.PRADEEP SRI.P.BIJIMON RESPONDENT(S): ---------------------------- 1. DISTRICT PROGRAMME MANAGER (NRHM) DISTRICT HEALTH & FAMILY WELFARE SOCIETY OFFICE OF THE DISTRICT HEALTH & FAMILY WELFARE SOCIETY W&C HOSPITAL COMPOUND, THYCAUD, THIRUVANANTHAPURAM.
2. CHIEF EXECUTIVE OFFICER, DISTRICT HEALTH & FAMILY WELFARE SOCIETY OFFICE OF THE DISTRICT HEALTH & FAMILY WELFARE SOCIETY W&C HOSPITAL COMPOUND, THYCAUD, THIRUVANANTHAPURAM. R1,2 BY ADV. SRI.M. AJAY,SC,NATIONAL RURAL HEALTH MISSSION BY ADV. SRI. P.C.SASIDHARAN , SC, PSC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.26172/12-V APPENDIX PETITIONER(S) EXHIBITS: EXHIBIT P1. TRUE COPY OF THE NOTIFICATION DATED 19 10.2010 BY WHICH RANKED LIST FOR THE POST OF PHARMACIST GRADE-II IN THIRUVANANTHAPURAM DISTRICT. EXHIBIT P2. TRUE COPY OF THE ORDER DATED 31 07.2012 IN O.A.NO. 962/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P3. TRUE COPY OF THE JUDGMENT DATED 10 09.2012 IN O.P. (KAT)NO.2905/2012. EXHIBIT P4. TRUE COPY OF THE ORDER DATED 09 07.2012 OF DISTRICT MEDICAL OFFICER, THIRUVANANTHAPURAM. EXHIBIT P5. TRUE COPY OF THE NOTIFICATION OF WALK-IN-INTERVIEW DATED 01 11.2012. EXHIBIT P6. TRUE COPY OF THE CIRCULAR DATED 25 02.2011 PUBLISHED BY NATIONAL RURAL HEALTH MISSION IN KERALA. RESPONDENTS' EXHIBITS: ANNEXURE-I: TRUE COPY OF THE LETTER NO.DTG(2)2149/2006 DT.20.12.11 ISSUED BY THE DISTRICT OFFICER OF THE KPSC. Okb. //TRUE COPY// P.A. TO JUDGE P.N.RAVINDRAN, J.
--------------------------- W.P.(C) No.26172 OF 201.-------------------------- Dated this the 1st day of February, 2013 JUDGMENT
The petitioner, a Diploma holder in Pharmacy and a candidate included in Ext.P1 ranked list published by the Kerala Public Service Commission on 19.10.2010 for the post of Pharmacist Grade-II in Health Services Department in Thiruvananthapuram District, has filed this writ petition challenging Ext.P5 notification and seeking a writ in the nature of mandamus commanding the respondents to select Pharmacists to be engaged on daily wages from Ext.P1 ranked list. It is stated that though Ext.P1 ranked list of Pharmacist Grade-II was published on 19.10.2010 and it is in force, respondents 1 and 2 have issued Ext.P5 notification dated 1.11.2012 that was published in the Thiruvananthapuram edition of the Mathrubhumi daily dated 2.11.2012, inviting candidates who possess a Diploma in Pharmacy to appear for a walk-in-interview for the post of Pharmacist, before the District Medical Officer of Health, Thiruvananthapuram. Relying on Ext.P6 circular dated 25.2.2011 issued by the State Mission Director, National Rural Health Mission, Kerala, it is contended that as a ranked list of candidates published by the Kerala Public Service Commission is available, the candidates included in the ranked list are entitled to WPC No.26172/2012 2 be appointed as Pharmacists on contract basis.
2. A statement dated 15.11.2012 has been filed on behalf of the respondents. It is stated that the Central Government provides funds to the State Health and Family Welfare Society to augment, strengthen and supplement the health care facilities in the States, that the programmes of the National Rural Health Mission for the next year (2013) prepared by the district level societies and submitted to the National Rural Health Mission, New Delhi are pending approval, that it is only after approval of these programmes and allocation of funds from National Rural Health Mission, New Delhi that the district level societies are empowered and can engage health care personnel on contract basis, that for the current year (2012-2013) there is no approval and no allocation of funds for engagement of Pharmacists in Thiruvananthapuram District under the National Rural Health Mission, New Delhi and therefore, when the State Government decided to implement a scheme to provide generic medicines at affordable rates through the five Government Medical Colleges and other health care institutions, a decision was taken to engage Pharmacists through the National Rural Health Mission to tide over the situation and that it was in such circumstances that Ext.P5 notification was issued inviting Diploma holders in Pharmacy to appear for a walk-in-interview WPC No.26172/2012 3 scheduled to be held in the office of the District Medical Officer of Health, Thiruvananthapuram on 2.11.2012. Regarding Ext.P6 circular, it is contended that it is not statutory in nature, that it was issued by the State Mission Director only for the guidance of district societies and it is amenable to be varied/rescinded by the State Mission Director or the State Health and Family Welfare Society and that the engagement of Pharmacists on daily wage basis has the approval of the State Mission Director. In paragraph 5 it is stated that to implement the decision taken by the State Government to provide generic medicines at affordable rates through the Government Medical College, Thiruvananthapuram and other health care centres in Thiruvananthapuram, it was necessary to engage 14 Pharmacists in the Medical College Hospital, 6 Pharmacists in the SAT Hospital and 4 Pharmacists in the Regional Institute of Ophthalmology Hospital. It is stated that on an earlier occasion, the Kerala Public Service Commission was requested to provide a list of candidates included in the ranked list for the purpose of appointing them as Junior Public Health Nurses on contract basis, but the Kerala Pubic Service Commission sent Annexure 1 letter dated 20.12.2011 informing the first respondent that they have taken a decision not to furnish ranked lists for appointment of candidates included therein on contract basis WPC No.26172/2012 4 by the National Rural Health Mission.
3. I heard Sri.R.T.Pradeep, learned counsel appearing for the petitioner and Sri.M.Ajay, learned standing counsel appearing for the respondent. I have also gone through the pleadings and the materials on record. The main contention raised by the petitioner is that when a ranked list of candidates who have been selected for appointment as Pharmacist Grade II is presently in force, candidates included therein should be appointed on contract basis to work as Pharmacists, in terms of the stipulation contained in that regard in Ext.P6 circular dated 25.2.2011. It is contended that if no bonded candidates are available, candidates included in the ranked list are entitled to be appointed on contract basis. The stand taken by the respondents is that it was having regard to the exigencies of the situation that a decision was taken to appoint Pharmacists on daily wage basis in view of the fact that during the current year (2012-2013) there is no staff for engagement on contract basis and allocation of funds for Pharmacists in Thiruvananthapuram district under the National Rural Health Mission. Ext.P6 circular which was issued on 25.2.2011 by the State Mission Director, National Rural Health Mission, recites that it is issued pursuant to the decision taken by the governing body at its meeting held on 22.2.2011. Inter alia it is stipulated therein that WPC No.26172/2012 5 Pharmacist/Lab Technician should be appointed on contract basis by appointing bonded/partial boded candidates and in their absence by appointing candidates from the ranked list given by the Kerala Public Service Commission on contract basis. It is also stipulated that if both the said categories of candidates are not available, then open recruitment can be resorted to. It is also stipulated that in respect of such candidates who are selected for appointment on contract basis, the contract can be renewed based on performance of the individual except in the case of bonded/partial bonded candidates. It is evident from Ext.P6 circular that it applies only in respect of appointments on contract basis. Ext.P5 notification inviting candidates who possess a Diploma in Pharmacy to appear for the walk-in-interview discloses that it was issued pursuant to the decision taken by the National Rural Health Mission to appoint 24 Pharmacists on daily wage basis in Thiruvananthapuram district. The respondents have in paragraph 5 of the statement dated 15.11.2012 stated that a decision was taken on 25.10.2012 to conduct a walk-in-interview, for the appointment of 24 Pharmacists (14 Pharmacists in the Medical College Hospital, 6 Pharmacists in the SAT Hospital and 4 Pharmacists in the Regional Institute of Ophthalmology Hospital) having regard to the fact that distribution of generic medicines through Government Medical College, WPC No.26172/2012 6 Thiruvananthapuram and other health care institutions run by the Government was to commence on 1.11.2012.
4. When the writ petition came up for hearing on an earlier occasion, having regard to the stand taken by the Kerala Public Service Commission in Annexure-I letter dated 20.12.2011 produced by the respondents, the learned standing counsel for the Kerala Public Service Commission was requested to ascertain and submit whether the Kerala Public Service Commission is willing to furnish the ranked list of candidates selected for appointment as Pharmacist Grade II, to the State Health and Family Welfare Society for appointment on contract basis. To that query, the learned standing counsel submitted on instructions that the Kerala Public Service Commission has no objection to the ranked list of Pharmacist Grade II being forwarded to the State Health and Family Welfare Society. That by itself is not in my opinion a reason to hold that the respondents have acted illegally or arbitrarily, when to tide over an emergent situation, they resorted to appointment on daily wage basis. Therefore, for the mere fact that the Kerala Public Service Commission is willing to forward the ranked list of Pharmacist Grade II to the State Health and Family Welfare Society for appointment on contract basis does not lead to the conclusion that the decision taken by the competent authority on WPC No.26172/201”
25. 10.2012 to conduct a walk-in-interview on 2.11.2012 was illegal or arbitrary or that it is vitiated by extraneous considerations. From the materials on record, it is evident that the decision taken by the respondents to conduct a walk-in-interview for appointment of Pharmacists on daily wage basis was to tide over an emergency. In paragraph 9 of the statement filed on behalf of the respondents it is stated that depending upon the success of the scheme for distributing generic medicines and the need for Pharmacists on contract basis, the State Health and Family Welfare Society will engage Pharmacists on contract basis subject to approval of the National Rural Health Mission. It is also undertaken that such engagement will be in accordance with the rules and regulations which govern the National Rural Health Mission at the relevant point of time.
5. After hearing the submissions made at the Bar and on going through the pleadings, I am of the considered opinion that no interference is called for with Ext.P5. Apart from the fact that the petitioner may not have had the time to appear for the walk-in- interview, I find no reason for the petitioner to feel aggrieved, when, to tide over an emergent situation, the District Health and Family Welfare Society decided to appoint 24 Pharmacists on daily wage basis. WPC No.26172/2012 8 I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed with the observation that if in order to tide over an emergent situation, walk-in-interviews are conducted to appoint Pharmacists or any other health care personnel on daily wage basis or contract basis, the respondents shall ensure that at least 2 clear days notice is given and with the further observation that when contract appointments are made, Ext.P6 shall be adhered to, so long as it continues to be in force. P.N.RAVINDRAN, (JUDGE) vps WPC No.26172/2012 9 WPC No.26172/2012 10