IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 OP.No. 37616 of 2002(C) ----------------------- PETITIONER: ------------ DR.D.KALPANA, SENIOR LECTURER IN PAEDIATRICS, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM. BY SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.S.D.ASOKAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. DR.MARY IYPE, SENIOR LECTURER IN PAEDIATRIC NEUROLOGY, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM. BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) FOR R3 GOVERNMENT PLEADER FOR R1,2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.37616/2002 ORDER ON CMP NO.63516/2002 IN OP NO.37616/2002, I.A.NOS.13787/2004 IN OP NO.37616/2002 & 332/2008 IN OP NO.37616/2002 DISMISSED. 30/05/2008 SD/- (C.N.RAMACHANDRAN NAIR, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF ORDER NO.F3/3621/98 DATED 05/03/1998 OF R2. P2 : COPY OF ORDER, G.O.Rt.NO.2064/80/HD DATED 25/07/1980. P3 : COPY OF ORDER G.O.(Rt.) No.3120/93/H&FWD DATED 30/12/2000. P4 : COPY OF ORDER, G.O.(Rt.) NO.4286/2000/H&FWD DATED 30/12/2000. P5 : COPY OF SELECT LIST ISSUED AS PER G.O.(P) NO. 459/2002/H&FWD DATED 28/06/2002. P6 : COPY OF ORDER G.O.(Rt.) NO.1124/02/H&FWD DATED 10/06/2002. P7 : COPY OF ORDER NO.G.O.(P) 3002/92/H&FWD DATED 09/12/2002 ISSUED BY THE GOVERNMENT. P8 : COPY OF PROVISIONAL CERTIFICATE DATED 23/06/2004 ISSUED BY THE UNIVERSITY OF KERALA. P9 : COPY OF ORDER DATED 04/05/2006 OF THE GOVERNMENT. P10 : COPY OF ORDER DATED 16/10/2007 ISSUED BY THE GOVERNMENT. RESPONDENT'S EXHIBITS R3(a) : COPY OF the GOVERNMENT ORDER G.O.(P) 455/76/HEALTH DATED 22/12/1976. R3(b) : COPY OF G.O.(Rt.) NO.942/2003/H&FWD DATED 25/03/2003. R3(c) : COPY OF G.O.(Rt.) NO.1124/2002/H&FWD DATED 10/06/2002. R3(d) : COPY OF G.O.(Rt.) NO.3541/2007/H&FWD DATED 16/10/2007. R3(e) : COPY OF G.O.(Rt.) NO.3120/93/H&FWD DATED 25/11/1993. R3(f) : COPY OF ORDER NO.E1/2833/04/MCT DATED 11/02/2004. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR, J. ------------------------- O.P. No. 37616 of 2002 --------------------------------- Dated, this the 30th day of May, 2008 J U D G M E N T The petitioner, a lecturer in the Department of Paediatrics in Medical College, Thiruvananthapuram, is challenging the promotion given to 3rd respondent to the post of Assistant Professor (Paediatrics Neurology) in the Medical College on the ground that petitioner is senior to 3rd respondent. 2. I heard learned counsel appearing for petitioner and learned Government Pleader and learned counsel appearing for 3rd respondent. 3. Government has conceded that rules are not framed for postings and promotions in the various specialities of the very same department. Since there are no rules, the only thing to be considered is whether the action in giving promotion to 3rd respondent or the petitioner is illegal, arbitrary or unfair. Admittedly, when the promotion was given to 3rd respondent in 2002 as Assistant Professor, petitioner did not have the qualification for promotion, i.e. D.M.(Neurology), which entitles for a posting in that speciality. It is reported that even before creation of separate sub department of neurology in the Paediatrics O.P.No.37616/2002 -2- Department, the Government started appointment of persons with special qualification in Paediatric Neurology in that Department as Tutor, Assistant Professor etc. In other words, posts were created for qualified persons to occupy the same. Even though the normal Rule should be to create the posts first and to select the person, reverse has happened in this case when the Government created posts for the persons with special qualifications. In any case, since between the petitioner and 3rd respondent only the 3rd respondent was qualified to be appointed as Assistant Professor in the Department of Paediatric Neurology, the promotion given to her in preference to the petitioner in the general cadre of Assistant Professor cannot be interfered with. Consequently, the prayer to set aside the promotion given to 3rd respondent as Assistant Professor (Paediatric Neurology) is rejected. However, I feel, injustice is done to petitioner by not promoting her in the Department of Paediatric Neurology as Assistant Professor because petitioner acquired the qualification of D.M. (Neurology) in the year 2004. Therefore, if petitioner opts for posting in the Paediatric Neurology Department, there will be direction to respondents 1 & 2 to give the posting to petitioner with the eligible seniority, probably O.P.No.37616/2002 -3- in the post created on promotion of 3rd respondent with effect from the date on which she was given promotion as Associate Professor in the Paediatric Neurology Department. It is for the petitioner to convey her option to switch over to the Paediatric Neurology Department, if she is so choses, along with a copy of this judgment for the respondents to implement the same by granting seniority. (C.N.RAMACHANDRAN NAIR, JUDGE) jg