IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 OP.No. 12603 of 2003(A) -------------------------------- PETITIONER(S): ----------------------- DR. SOBHA SUNDARESWARAN, ASSOCIATE PROFESSOR, DENTAL COLLEGE, MEDICAL COLLEGE,CALICUT BY T.R. RAMACHANDRAN NAIR ADV. SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT , HEALTH AND FAMILY WELFARE (SPECIAL) DEPARTMENT, TRIVANDRUM. 2. THE DIRECTOR OF MEDICAL EDUCATION, TRIVANDRUM. 3. THE PRINCIPAL MEDICAL COLLEGE, CALICUT. BY GOVERNMENT PLEADER SRI. K.V.MANOJ KUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 12603 of 2003(A) C.M.P. NO. 21503 OF 2003 IN O,P. NO 12603 OF 2003 STAY PETITION DISMISSED. I.A. NO. 13716 OF 2003 IN O.P. NO. 12603 OF 2003. DIRECTION PETITION DISMISSED. SD/- S.SIRI J AGAN, JUDGE 14.11.2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF ORDER NO. 2459/87/F3/LME DATED 12.11.1987. EXT.P2 - TRUE COPY OF GO(P) NO 75/96/H AND FWD DATED 20.2.1996 OF THE GOVT. EXT.P3 - TRUE COPY OF GO(P) NO. 155/97/H AND FWD DATED 6.5.97 OF THE GOVT. EXT.P4 - TRUE COPY OF GO(Rt) NO. 278/99//H AND FWD DATED 1.2.1999 OF THE GOVT. EXT.P5 - TRUE COPY OF GO.(Rt) 2779/99/H AND FWD DATED 11.10.1999. EXT.P6 - TRUE COPY OF GO(Rt) 3046/99 H AND FWD DATED 6.11.1999. EXT.P7 - TRUE COPY OF GO(Rt) NO. 731/03 H AND FWD DATED 10.3.2002 OF THE GOVT. OF KERALA. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ================== O.P. No.12603 of 2003 ================== Dated this the 14th day of November, 2008. J U D G M E N T The petitioner started service as a Tutor in Dental College in the Medical Education Service on 2.6.1984. The Government issued Ext.P2 order, which has modified by Ext.P3 order, whereby teachers of Medical, Dental and Pharmaceutical Science Colleges were given benefit of Time Bound Grade Promotions. By Ext.P4 order dated 1.2.1999, the petitioner was given Time Bound Cadre Promotion as Assistant Professor with effect from 21.8.1990 with monetory benefits from 1.4.1995. Later on by Ext.P5 order dated 11.10.1999 the petitioner was given the next Time Bound Cadre Promotion as Associate Professor with effect from 29.10.1998. Further by Ext.P6 order dated 6.11.1999 the petitioner was promoted as Assistant Professor on regular basis. However, by Ext.P7 order, Ext.P5 order granting Time Bound Cadre Promotion as Associate Professor with effect from 29.10.1998 was canceled on the ground that the petitioner did not have five years of physical teaching experience which is an eligibility condition for Time Bound Cadre Promotion as Associate Professor as per Ext.P3 O.P. No.12603 of 2003 - 2 - Government Order. The petitioner filed the original petition challenging Ext.P7. Subsequently by an interim order in I.A. 13716/2003 this Court directed the petitioner to file a representation in this regard, with a further direction to the Government to consider that representation and pass appropriate orders thereon by order dated 18.3.2004. Consequent upon that order, the petitioner filed Ext.P9 representation and Ext.P10 order dated 19.1.2005 was passed by the Government again confirming Ext.P7 order. The petitioner therefore amended the original petition including a challenge against Ext.P10 order also. The petitioner's contention is that in Ext.P3, Government have stipulated that from 1.4.1990 onwards all promotions would be Time Bound Cadre Promotions and when the incumbent is given further cadre promotions or he/she ceases to hold the post, the same would be downgraded, subject to the condition that the total staff strength of the department remains the same. That being so, according to the petitioner, as per clause 2(2) of Ext.P3 for becoming eligible for Time Bound Cadre Promotion as Associate Professor what is required is only eight years physical teaching experience as Assistant Professor or 14 years of total service as lecturer and Assistant Professor put together O.P. No.12603 of 2003 - 3 - out of which 5 years of service shall be as Assistant Professor. According to the petitioner by virtue of Ext.P4 the petitioner had service as lecturer with effect from 2.6.1984 and as Assistant Professor with effect from 21.8.1990. Therefore as on 29.10.1998 the petitioner had 22 years of service as lecturer and assistant professor put together and 8 years of service as Assistant Professor which would satisfy eligibility conditions for Time Bound Cadre Promotion as Associate Professor with effect from 29.10.1998. That being so, according to the petitioner Ext.P5 order granting Time Bound Cadre Promotion to the petitioner with effect from 29.10.1998 is perfectly in accordance with Ext.P3 Government order which governs the eligibility conditions for Time Bound Cadre Promotion as Associate Professor. Therefore, the petitioner submits that Exta.P7 and P10 orders canceling Ext.P5 are unsustainable. 2. A counter affidavit has been filed by the 1st respondent. Their case is that in order to become eligible for Time Bound Cadre Promotion as Associate Professor an Assistant Professor, should put in minimum 5 years of physical teaching experience in addition to total service of 14 years as lecturer and Associate Professor put together. The petitioner does not possess 5 years of physical teaching experience as Assistant Professor, as on O.P. No.12603 of 2003 - 4 - 29.10.1998 she having been promoted as Assistant Professor only on 6.11.1999 and joined duty on 9.11.1999. The 1st respondent therefore supports Exts.P7 and P10 orders. 3. I have considered the rival contentions in detail. 4. Paragraph 4 of Ext.P3 reads thus: “From 1.4.1990, all promotion will be cadre promotions. In the case of those who do not have any promotion posts the posts will be upgraded for the purpose and will be downgraded as and when the existing incumbents vacate the post, subject to the condition that the total staff strength in the Department remains the same.” By virtue of the above said provision vacancy based promotions have been dispensed with, substituting the same with cadre promotion. Once a lecturer become eligible for Time Bound Cadre Promotion as Assistant Professor, the post held by that lecturer itself would be upgraded as post of Assistant Professor and as and when he/she either leaves service or gets further promoted that post would again be downgraded as lecturer. In the same way when an Assistant Professor becomes eligible for Time Bound Cadre Promotion as Associate Professor, the post of Assistant Professor held by that person itself would be upgraded as post of Associate Professor and as and when that Associate Professor leaves service or gets further promoted, that post would again downgraded, so that the total staff strength of the department remains the same. Consequently O.P. No.12603 of 2003 - 5 - there would not be any need for promotions based on vacancies. 5. Originally the Time Bound Cadre Promotions were governed by Ext.P2. The provision for Time Bound Cadre Promotion as Associate Professor is contained in clause 1(b) of Ext.P2 which reads thus: “1. (b) Asst. Professors with 8 years of teaching experience (Physical) and those who have put in 14 years of total service as Lecturer and Asst. Professor, put together, will be promoted as Associate Professor in the scale of pay of Rs. 3700-5700/-” However, by Ext.P3, Ext.P2 order was modified to read the provision for Time Bound Cadre Promotion as Assistant Professor thus in clause 2(2) of Ext.P3: “The Assistant Professors with 8 years of teaching experience (Physical) or those who have put in 14 years of total service as Lecturers and Asst. Professor put together, out of which 5 years of service shall be that of Assistant Professor will be promoted as Associate Professor in the scale of pay of Rs. 3700-5700 provided the total strength of all categories in each Department remains the same.” 6. Obviously the word “AND” used clause 1(b) of Ext.P2 was a mistake. That was corrected by clause 2(2) of Ext.P3 making it “OR”. Therefore the eligibility requirements for Time Bound Cadre Promotion as Associate Professor was either 8 years of teaching experience (Physical) as Assistant Professor or 14 years of total service as lecturer and Assistant Professor put together out of which 5 years of service shall be that of O.P. No.12603 of 2003 - 6 - Assistant Professor. It is important to note that the language used in the 1st limb of clause 2(2) and the 2nd limb thereof in Ext.P3 are distinct and separate. In the 1st limb the words used are “teaching experience (Physical)” whereas in the 2nd limb the word used is “service”. That would lead to the irresistible conclusion that while issuing Ext.P3, the Government wanted to distinguish between teaching experience (Physical) and service. In this case, although the petitioner did not have 5 years physical teaching experience as Assistant Professor as on 29.10.1998, the petitioner did have total 22 years of service as lecturer and Assistant Professor put together, out of which 8 years of service were as Assistant Professor. Therefore the reasoning in Exts.P7 and P10 that for becoming eligible for Time Bound Cadre Promotion as Associate Professor the incumbents should have 5 years of Physical teaching experience as Assistant Professor is clearly not warranted by Ext.P3 which governs the issue. When by Ext.P3 all promotions were made cadre promotions vacancy based promotions have no relevance. This is abundantly clear from the provisions in Clause 4 of Ext.P3. As such Ext.P6 cannot be pressed into service to hold that the petitioner became an Assistant Professor only on 9.11.1999. Therefore I am of opinion that O.P. No.12603 of 2003 - 7 - Ext.P5 promotion of the petitioner as is perfectly in accordance with Ext.P3. Hence Exts.P7 and P10 cancelling Ext.P5 are unsustainable. Accordingly, Exts.P7 and P10 are quashed and Ext.P5 restored with consequential reliefs to the petitioner. The original petition is allowed as above. S.SIRI JAGAN, JUDGE rhs