IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 WP(C).No. 18854 of 2008(T) --------------------------------------- PETITIONER(S): ------------------------ 1. S. HARILAL, JUNIOR LABORATORY ASSISTANT, DEPARTMENT OF PHARMACY, MEDICAL COLLEGE, TRIVANDRUM. 2. P. MOHANA KUMAR, JUNIOR LABORATORY ASSISTANT, DEPARTMENT OF PHYSIOLOGY, MEDICAL COLLEGE, TRIVANDRUM. 3. K. GILBERT, JUNIOR LABORATORY ASSISTANT, BSC MLT DEPARTMENT, MEDICAL COLLEGE, TRIVANDRUM. 4. P.SUNILKUMAR, JUNIOR LABORATORY ASSISTANT, DEPARTMENT OF ANATOMY, T.D. MEDICAL COLLEGE, ALAPPUZHA. 5. F.K. JOHNY JOSE, JUNIOR LABORATORY ASSISTANT, BIO CHEMISTRY DEPARTMENT, T.D. MEDICAL COLLEGE, ALAPPUZHA. BY ADV. SRI.B.RAGUNATHAN SRI.G.S.MOHANDAS SRI.V.V.MATHEW SMT.P.RETNAKUMARI SRI.R.SRINATH RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001. 2. DIRECTOR OF MEDICAL EDUCATION, TRIVANDRUM-695 011. W.P.(C) NO.18854/2008 * ADDL. R3 AND R4 IMPLEADED ADDL.R3: ARUNCHANDRAN R.S., CLERICAL ATTENDER, MEDICAL COLLEGE, THIRUVANANTHAPURAM. ADDL. R4: LAILA BEEVI, CLERICAL ATTENDER, MEDICAL COLLEGE, THIRUVANANTHAPURAM. * ADDL. R3 AND R4 ARE IMPLEADED AS PER ORDER DATED 05/12/2008 IN I.A.NO.8418/2008. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR ADDL.R BY GOVERNMENT PLEADER SMT.T.B.RAMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/12/2008, ALONG WITH WPC NO. 19801 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.18854/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE SENIORITY LIST OF JLAS PUBLISHED BY THE 2ND RESPONDENT (RELEANT PORTION). P2:- COPY OF THE CIRCULAR DT. 11.10.91 ISSUED BY THE PRINCIPAL , MEDICAL COLLEGE, THIRUVANANTHAPURAM. P3:- COPY OF THE ORDER DT. 28.11.01 OF THE 2ND RESPONDENT. P4:- COPY OF THE LETTER DT. 24.11.06 OF THE 2ND RESPONDENT. P5:- COPY OF THE REPRESENTATION DT. 7.1.08 OF THE IST PETITIONER. P6:- COPY OF THE REPRESENTATION DT. 30.5.08 OF THE PETITIONERS AND 6 OTHERS. P7:- COPY OF THE REPRESENTATION DT. 9.6.08 OF THE 5TH PETITIONER. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE CERTIFICATE NO.ENI/8922/08/MCT DT. 11.6.08 OF THE ADMINISTRATIE OFFICER, MEDICAL COLLEGE, THIRUVANANTHAPURAM. R3(b):- COPY OF THE CERTIFICATE DT. 7.2.07 ISSUED TO THE 4TH RESPONDENT BY THE PRINCIPAL, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM. R3(c):- COPY OF THE G.O.(MS) NO. 738-65 DT. 16.9.65. R3(d):- COPY OF THE G.O.(P) NO. 112/65/FIN DT. 5.4.66. R3(e):- COPY OF THE G.O.(RT) NO.2408/70/HEALTH D/ 11.11.70 HEALTH B DEPARTMENT. R3(f):- COPY OF THE G.O.(M.S) BNO.90/99/H&FWD DT. 4.3.99. R3(g):- COPY OF THE G.O.(RT) NO.597/2008/H&FWD DT. 16.2.08. /TRUE COPY/ P.A. TO JUDGE tss ANTONY DOMINIC, J. ============== W.P.(C) NOs. 18854 & 19801 OF 2008 ========================= Dated this the 5th day of December, 2008 J U D G M E N T WPC 18854/08 Petitioners are Junior Lab Assistants in the Medical Colleges. They were recruited by the PSC and on being advised, they joined last grade service on 23/9/91, 31/8/91, 28/9/94, 24/5/95 and 24/5/95 respectively. Subsequently on 17/4/93, 13/5/93, 3/5/96, 20/9/97 and 27/6/98, they were promoted as Junior Lab Assistants. In this writ petition, what they claim is promotion to the post of Medical Record Librarian Grade II. 2. According to them, there are 9 vacancies which arose during the period 2007-08 due to promotion of the incumbents. They claimed promotion by making Exts. P5 to P7 representations. Since there was no response to these representations, the writ petition has been filed praying to direct the respondents to promote the petitioners to the existing vacancies of Medical Record Librarian Grade II w.e.f. the date of occurrence of vacancies. 3. Petitioners refer to Ext.P4, a letter issued on behalf of the Director of Medical Education to the Principal of the Medical College, Alleppey that when vacancies arise in the category of Medical Record WPC 18854 & 19801/08 :2 : Librarian Grade II, those Junior Lab Assistants who have got training in the Medical Record Library for one year will be promoted. It is contended that the petitioners have undergone training in the Medical Record Library for one year and as they are working in the category of Junior Lab Assistants, they are entitled to be promoted to the cadre of Medical Record Librarian Grade II which has been assured by the 2nd respondent in Ext.P4. 4. On the other hand, additional respondents 3 and 4 who are now working as Clerical Attenders in the Medical College are objecting to the claim of the petitioners mainly relying on Ext.R3(c). It is contended that Ext.R3(c) is the order issued by the 1st respondent, specifying the qualification and method of appointment to the post of Medical Records Technician later redesignated as Medical Record Librarian Grade II. It is stated that apart from the qualifications and experience prescribed therein which includes training in the medical records department or one years service in the medical records library, the method of appointment also has been prescribed It is stated that the feeder category is Attenders in the then scale of pay of Rs.40-80 and in their absence, Attenders in the scale of Rs.35-60 are to be promoted. According to the respondents, they fall in the first category of Attenders in the scale of Rs.40-80 and that the WPC 18854 & 19801/08 :3 : petitioners fall in the second category of Attenders in the Scale of pay Rs.35-60. Therefore, it is contended that respondents category is to be promoted and that the petitioners category can be promoted only in the absence of the former category of Attenders. 5. The learned Government Pleader also submits that as at present the rule which governs appointment to the post of Medical Record Librarian Grade II is Ext.R3(c). It is contended that although in the past, it is factually correct that employees in the category of the petitioners were also promoted as Medical Record Librarian Grade II, the present issue arose when the category of which respondents 3 and 4 belong, objected to the promotion from the petitioners category. She also points out that since Ext.R3(c) is issued way back in 1965, the Government is proposing to make suitable modifications to meet the present day requirements. 6. Thus from the pleadings it is therefore evident that as at present Ext.R3(c) is the rule which governs the field. Going by Ext.R3(c), the first category which is entitled to promotion is the category of Attenders in the erstwhile scale of pay 40-80 and only in the absence of that category, can promotion be effected from the category of Attenders in the erstwhile scale of pay of 35-60. Respondents 3 and 4 contended that WPC 18854 & 19801/08 :4 : they were in the first category of Attenders in the scale of pay of 40-80 and they also contend that the petitioners fall in the second category of Attenders in the scale of pay of 35-60. Though the contention that the petitioners fall in the category of Attenders 35-60 is disputed by the counsel for the petitioner, fact remains that even according to the Government, the category represented by respondents 3 and 4 fall in the category of Attenders 40-80. If that be so, so long as Ext.R3(c) stands as such, when promotion is effected, the first category from which promotion is to be effected is Attenders in the Scale of Rs.40-80 to which, the respondents 3 and 4 belong. Therefore, the claim of any category other than the category to which the respondents 3 and 4 belong can be considered only in the absence of the former category. If that be so, the direction now sought for that the petitioners should be directed to be promoted to the vacancies which now exist, cannot be granted by this court. 7. It is contended by the learned counsel for the petitioner that Ext.R3(c) is an obsolete Government order and that promotions so far has been effected without adhering to the same. Even inspite of it, still fact remains that this is the rule which governs promotions to the post of WPC 18854 & 19801/08 :5 : Medical Record Librarian Grade II and therefore is to be followed until the same is modified or replaced. Therefore the writ petition is only to be dismissed and I do so. WPC 19801/08 8. In so far as WP(C) 19801/08 is concerned, the petitioners claim promotion on the basis of Ext.R3(c) referred to above. Now that I have accepted the contention that Ext.R3(c), which is Ext.P3 herein, is the rule which governs promotion to the post of Medical Records Librarian Grade II, necessarily promotions to that post will have to be effected based on Ext.R3(c) with reference to the date of occurrence of vacancies. In the result, WP(C) No.18854/08 is dismissed and WP(C) No.19801/08 is disposed of. ANTONY DOMINIC, JUDGE Rp