IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 WA.No. 823 of 2007() -------------------- AGAINST THE JUDGEMENT IN WPC.26684/2003 Dated 19/06/2006 .................... APPELLANT(S): RESPONDENTS 1 TO 3 -------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER), MEDICAL EDUCATION SERVICE, REPRESENTED BY ITS CONVENER SECRETARY TO GOVERNMENT OF KERALA, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SRI.BENNY GERVACIS RESPONDENT(S): PETITIONER & 4TH RESPONDENT ------------------------------------------ 1. DR.K.JYOTHINDRA KUMAR, PROFESSOR & HEAD OF THE DEPARTMENT OF ORTHODONTICS DENTAL COLLEGE, THIRUVANANTHAPURAM. 2. DR.SOBHA KURIAKOSE, PROFESSOR AND HEAD OF THE DEPARTMENT OF PEADODONTICS DENTAL COLLEGE, THIRUVANANTHAPURAM. ADV. SRI.K.R.B.KAIMAL SRI.ELVIN PETER P.J. FOR R2 SRI.S.RAMESH FOR R2 SRI.NAVEEN.T FOR R2 SRI.C.V.BIMAL ROY FOR R1 SRI.C.A.CHACKO FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No. 823 of 2007 ---------------------------------------- Dated 30th March, 2010 JUDGMENT Ravindran, J. The appellants in this writ appeal are respondents 1 to 3 in W.P.(C)No.26684 of 2003. The first respondent is the writ petitioner and the second respondent is the fourth respondent therein. For the sake of convenience, the parties are referred to as they are arrayed in the writ petition. The brief facts of the case are as follows: 2. The petitioner entered service as Lecturer in Orthodontics in the Medical Education Service on 3.3.1980. He was promoted as Assistant Professor on 18.6.1986 and as Associate Professor on 18.6.1991. The fourth respondent in the writ petition (2nd respondent herein) entered service as Lecturer in Paedodontics in the Medical Education Service on 28.11.1976. She was promoted as Assistant Professor on 25.3.1983. Since there was no post of Associate Professor in Paedodontics and as the post of Associate Professor was created only with effect from 20.3.1995, she was promoted as Associate Professor only with effect from that date. It is not in dispute that the petitioner is senior to the fourth respondent in the category of Associate Professor. W.A.No.823/2007 2 3. By G.O.(MS)No.99/96/H&FWD. dated 4.3.1996 the Government created two posts of Principals, one in Dental College, Thiruvananthapuram and the other in Dental College, Kozhikode. Thereupon, by Ext.P2 Government order dated 12.7.1996, Dr.Thressiamma Joseph, Professor of Paedodontics, Dental College, Thiruvananthapuram and Dr.Rezy Cheru, Professor of Periodontics, Dental College, Thiruvananthapuram were temporarily promoted and posted as Principals in the newly created posts at Kozhikode and Thiruvananthapuram respectively. By Ext.P2, the post of Joint Director of Medical Education that fell vacant on 1.7.1996 was filled up by promoting Dr.George Jacob, Professor of Orthodontics, Dental College, Thiruvananthapuram. By the same order, the petitioner and the fourth respondent were temporarily promoted as Professors under Rule 31(a) (i) of the Kerala State & Subordinate Services Rules, 1958. 4. After the petitioner and the fourth respondent were temporarily promoted, the Departmental Promotion Committee met on 14.8.1998 and considered the names of Associate Professors eligible for promotion to the category of Professor. The fourth respondent who became eligible for promotion to the category of Professor on 21.3.1995 was selected and was assigned the date 18.7.1996. The petitioner who became eligible for promotion as Professor on 26.9.1991 was selected and assigned the date 12.7.1996 for promotion to the category of Professor by the Departmental Promotion W.A.No.823/2007 3 Committee that met on 31.8.1999. The fourth respondent objected to the assignment of the date 18.7.1996. The Departmental Promotion Committee that met on 29.9.2001 considered her claim and revised the date of effect of her promotion as 25.7.1996. The petitioner thereafter claimed promotion as Professor with effect from 4.3.1996. By Ext.P8 notification dated 22.12.2001 the Government rejected the petitioner's request and assigned him the date 25.7.1996 for promotion to the category of Professor. Ext.P9 communication was also issued. He thereupon filed W.P.(C)No.26684 of 2003 in this Court challenging Exts.P8 and P9, inter alia, on the ground that as he was temporarily promoted by Ext.P2 order dated 12.7.1996, he is entitled to have the said date assigned to him on regular promotion as Professor. Reliance was placed on Ext.P10 judgment of this Court in O.P.No.2306 of 2001 in support of the said contention. 5. The appellants resisted the writ petition. They contended that the petitioner was assigned the date 25.7.1996 for the reason that the vacancy of Professor arose only on that date when the incumbent was promoted to the category of Principal. It was also contended that the petitioner was earlier assigned the date 12.7.1996, namely the date of order of promotion and the fourth respondent was assigned the date 18.7.1996, the date on which the vacancy occurred. It was contended that, in such circumstances, the challenge to Exts.P8 and P9 is without any merit. The learned single Judge over ruled the W.A.No.823/2007 4 contentions of the appellants and held that as the petitioner and the fourth respondent were promoted provisionally by Ext.P2 order dated 12.7.1996 and as rule 27 (a) and (b) of the Kerala State & Subordinate Services Rules indicate that seniority shall be determined based on the date of order of first appointment and as the petitioner was placed above the fourth respondent in Ext.P2 order of promotion, he entitled to have the date 12.7.1996 assigned to him. 6. We heard Sri.Benny Gervasis, the learned Senior Government Pleader appearing for the appellants. We have also gone through the pleadings and the materials on record. The petitioner and the fourth respondent were temporarily promoted under rule 31(a)(i) of the Kerala State & Subordinate Services Rules by Ext.P2 order dated 12.7.1996 when two posts of Professor in the respective disciplines fell vacant on the incumbents being promoted to the category of Principal. The post of Principal was sanctioned by Government order dated 4.3.1996. The petitioner was placed above the fourth respondent in Ext.P2 order evidently for the reason that he was senior to the fourth respondent in the category of Associate Professor. Though the fourth respondent was earlier assigned the date 18.7.1996 for promotion to the category of Professor, later, that date was changed to 27.7.1996. The fourth respondent did not challenge the same. The petitioner was not aggrieved thereby for the reason that he was assigned the date 12.7.1996 for promotion to the category W.A.No.823/2007 5 of Professor. Later, the fourth respondent objected to the assignment of the date 18.7.1996. The Departmental Promotion Committee thereupon instead of assigning her the date 12.7.1996, altered the date assigned to the petitioner as 25.7.1996. In our opinion, as the petitioner and the fourth respondent were promoted by Ext.P2 order dated 12.7.1996, though temporarily, and as in that order the petitioner was placed above the fourth respondent and as he was admittedly eligible to be promoted earlier than the fourth respondent, the petitioner was entitled to have the date 12.7.1996 assigned to him. Under sub-rule (7) of Rule 28(b)(i) of the Kerala State & Subordinate Service Rules, 1958, the petitioner being senior to the fourth respondent in the category of Associate Professor was entitled to maintain his seniority in the promotion post of Professor also. We are therefore in agreement with the learned single Judge that the petitioner is entitled to have the date 12.7.1996 assigned to him. We therefore find no grounds to entertain the writ appeal. The writ appeal fails and it is accordingly dismissed. P.R.RAMAN Judge P.N.RAVINDRAN Judge TKS