IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 WP(C).No. 2040 of 2008(P) ------------------------- PETITIONER: ------------------- B.RAJEEV, KANDATHIL HOUSE, MADPLATHURUTHU, MOOTHAKUNNAM P.O., (RETD. AS NON MEDICAL SUPERVISOR, TALUK HEAD QUARTERS HOSPITAL, KODUNGALLUR, THRISSUR.) BY ADV. SRI.K.B.GANGESH SMT.SMITHA CHATHANARAMBATH RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER, THRISSUR. BY GOVERNMENT PLEADER SRI.BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/01/2008, ALONG WITH WPC. NO.2603/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No. 2040 of 2008 -------------------------- Dated this the 17th January, 2008 J U D G M E N T Petitioner retired as Non Medical Supervisor on 31.12.2007. According to him, he was entitled to be considered for promotion to the post of Assistant Leprosy Officer with effect from 1.11.2007. As per the seniority list of Leprosy Health Visitors, re-designated as Leprosy Health Inspectors published on 28.12.2007 as per Exhibit P1 and confirmed as per Exhibit P2, 12 persons were placed above the petitioner apparently on the strength of the fact that they were appointed under a quota for wife/children of Jawan. Petitioner contends that this mistake was later noticed and it was rectified also. Petitioner’s case is that since there are vacancies , persons upto Sl. No.17 in Exhibit P3 were promoted. There were further vacancies but apparently they were not filled up. Petitioner contends that another Health Inspector had approached this Court pointing out that she is due to retire on 31.10.2007 and prayed that her claim for provisional promotion be considered. According to the petitioner, pursuant to Exhibit P4 Judgment, her claim was considered and the W.P ( C) No. 2040 of 2008 2 petitioner in Exhibit P4 was provisionally promoted. The said person retired on 31.10.2007 and it is the petitioner’s case that as on 1.11.2007 there were eight open vacancies as Assistant Leprosy Officer. He has a further contention that if an interim order passed by this Court in W.P.2982 of 2007 had been complied within time, Another vacancy would have arisen in which case the petitioner could have been considered for promotion to the said vacancy. 2. Petitioner had approached this Court in W.P (C) No.36842 of 2007 seeking a direction to consider his claim for promotion to the post of Assistant Leprosy Officer. Apparently, a reference was made to the vacancy caused by the retirement of the petitioner in Exhibit P4 judgment. By Exhibit P6 judgment, taking note of the fact that the petitioner is due to retire on 31.12.2007, the Director was required to take a decision on the petitioner’s request for promotion preferably on or before 31.12.2007. The Director considered the petitioner’s request and rejected it under Exhibit P7. The reason stated is that the petitioner was the 9th person to be promoted to the post of Assistant Leprosy Officer. Only 8 vacancies are available. W.P ( C) No. 2040 of 2008 3 Therefore, the petitioner is not eligible to be promoted to the cadre of Assistant Leprosy Officer. 3. In essence what is stated in Exhibit P7 is that there were not enough vacancies to accommodate the petitioner. The correctness of this statement could have been verified had the petitioner continued in service even now. Assuming it is found that one more vacancy would have arisen or was available, if Exhibit P5 order had been implemented, it may not really improve the case of the petitioner when she makes a plea for promotion to the post of Assistant Leprosy Officer. It is one thing to say that vacancy was available and it is another thing to compel the appointing authority to necessarily to fill up that vacancy. This is especially so, when the post is a selection post. There were no select list available and it is not the petitioner’s case that his seniority was superseded or that a junior to him had been promoted. 4. In the result, though the reasons given in Exhibit P7 may not be a complete answer to the claim of the petitioner, I am of the view that the correctness of Exhibit P7 need not be considered at this stage. Even if, it is assumed that there were 9 W.P ( C) No. 2040 of 2008 4 vacancies, available as on the date of Exhibit P7, it may not really entitle the petitioner to necessarily compell the authorities to promote him in the 9th vacancy. In the result, I do not find any grounds to interfere with Exhibit P7. But it is made clear that petitioner will be entitled to approach the Government, with a representation pointing out the existence of 9th vacancy in the post of Assistant Leprosy Officer, prior to 31.12.2007. If such a representation is filed within one month from today, the Government shall consider the same de hors Exhibit P7. If the Government also finds that vacancies in the post of Assistant Leprosy Officer had to be filled up prior to 31.12.2007, then the petitioner’s claim for notional promotion shall be considered on merits. If a representation is filed within one month as aforementioned after necessary enquiry and after hearing the petitioner, the same shall be considered and a decision shall be taken, within four months thereafter. The writ petition is disposed of as above. (V.GIRI, JUDGE) ma W.P ( C) No. 2040 of 2008 5 W.P ( C) No. 2040 of 2008 6 K.THANKAPPAN,J CRL.A. NO.92 OF 1999 W.P ( C) No. 2040 of 2008 7 ORDER 25th May, 2007