IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 WA.No. 468 of 2007(B) --------------------- AGAINST THE JUDGEMENT IN WPC.11550/2004 DATED 01.01.2007 .................... APPELLANTS / RESPONDENTS 1 & 2 : -------------------------------------------------- 1. COCHIN PORT TRUST, COCHIN-9, REPRESENTED BY ITS CHAIRMAN. 2. CHIEF MEDICAL OFFICER, COCHIN PORT TRUST HOSPITAL, WILLINGDON ISLAND, KOCHI-3. BY ADV. MR. A.M.SHAFFIQUE, SENIOR ADVOCATE MR. E.K.NANDAKUMAR MR. A.K.JAYASANKAR NAMBIAR RESPONDENTS: --------------- 1. M.J. BRIDGET, NURSING ORDERLY, WORKING AS WARD ATTENDANT, MEDICAL DEPARTMENT, COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI-3. 2. SHAILAJA N.K., WARD ATTENDANT, MEDICAL DEPARTMENT, COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI-3. ADV. MR. SUNIL JACOB JOSE MR. T.S.RAJAN MR. S.CHANDRASENAN MR. C.A.MAJEED MR. SHAJAHAN P.M. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON 20/09/2011 DELIVERED THE FOLLOWING: W.A. NO. 468 OF 2007 APPENDIX APPELLANT'S ANNEXURES : ANNEXURE A : TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT IN O.P. NO. 26758 OF 2002 DATED 14.02.2003 ANNEXURE B : TRUE COPY OF THE JUDGMENT OF DIVISION BENCH OF THE HON'BLE HIGH COURT IN WRIT APPEAL NO. 2211/04 DATED 28.07.2005 ANNEXUTE C : TRUE COPY OF THE SENIORITY LIST OF NURSING ORDERLY AS ON 01.10.2002 /TRUE COPY/ P.A. TO JUDGE J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~ W.A. No. 468 OF 2007 ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 20th day of September, 2011 JUDGMENT Ramachandra Menon J. The appellants are the respondents 1 and 2 in the Writ Petition filed by the first respondent. The appellants are stated as aggrieved of the direction given by the learned single Judge to consider the claim of the writ petitioner and other similarly placed persons for promotion to the post of Laboratory Attender, according to the seniority and other qualifications if any, prescribed, making it clear that, the promotion already given to the 3rd respondent shall be subject to the result of the orders to be passed by the competent authority as above. 2. The factual matrix shows that the first respondent/writ petitioner was serving the appellant W.A No. 468 of 2007 : 2 : Port Trust as 'Ward Attendant' w.e.f. 24.01.1980. While so, the Port Trust, took a decision on 31.08.1998 to upgrade 10 posts of Ward Attendant as 'Nursing Orderly' and the writ petitioner was also one of the beneficiaries, having included in the aforesaid 'ten'. Accordingly, the petitioner stood elevated to the post of 'Nursing Orderly', which was having a higher scale of pay, as that of the 'Laboratory Attender' (Rs. 2035 - 3035) as given in Ext. P1 order of upgradation dated 31.08.1998. Pursuant to Ext. P1 order, the writ petitioner started drawing the benefits attached to the upgraded post of 'Nursing Orderly', though was discharging the duties of Ward Attendant, in view of the administrative exigencies and the undertaking given by all the 'ten' persons concerned. 3. While so, there arose a vacancy of 'Laboratory Attender' in the Port Trust on W.A No. 468 of 2007 : 3 : 01.04.2004, when the writ petitioner submitted a representation to promote her to the said post on the premise that she continued to retain her 'lien' in the post of the Ward Attendant even after the upgradation of the post to 'Nursing Orderly' and that she was the senior most hand among the Ward Attendants. The representation preferred by the writ petitioner was considered and rejected by the appellant Port Trust vide Ext. P5 order dated 29.03.2004, observing that, the post of 'Nursing Orderly' held by the writ petitioner, was not a feeder category for promotion to the post of 'Laboratory Attender'. The writ petitioner sought to challenge Ext.P5 order contending that, despite her upgradation as Nursing Orderly, she retained her 'lien' in the post of Ward Attendant and was liable to be promoted and posted in the vacancy of Laboratory Attender which arose on 01.04.2004. W.A No. 468 of 2007 : 4 : 4. Detailed counter affidavit was filed from the part of the appellant rebutting the claim. It was pointed out that the decision taken by the Port Trust was to upgrade 10 posts of 'Ward Attendant' as 'Nursing Orderly' in the higher scale of pay 2035 - 3035 and that the same was accepted by the writ petitioner, who continued her career accordingly. It was stated that, the Writ Petitioner continued to do the work of the Ward Attendant by virtue of the undertaking given by her at the time of upgradation of the posts so as to meet the administrative exigencies. It was also pointed out that, the upgraded Nursing Orderlies will be allowed to discharge the duties of Nursing Orderlies as and when the Senior Nursing Orderlies vacated the post, either by way of promotion to the posts of 'Dressers' or otherwise (paragraph 6 and 7). It was the further contention of the appellant Port Trust, W.A No. 468 of 2007 : 5 : that promotion to the post of 'Laboratory Attender' was from the post of 'Ward Attendant' and that 'Nursing Orderly' was never a feeder category to the said post. In fact, 'Ward Attendant' could aspire for promotion, either to the posts of 'Laboratory Attender' or 'Nursing Orderly' as and when vacancies arose in the above two categories. It was brought on record that the posts of 'Laboratory Attender' and 'Nursing Orderly' were having the same scale of pay; one was never a promotion post of the other and that, the duties and responsibilities were different. It was in the said circumstance, that the Departmental Promotion Committee, which met on 23.04.2004 considered the claim of the 3rd respondent in the Writ Petition and promoted her to the post of Laboratory Attender, which is stated as not assailable under any circumstances. It is further stated that, even at the time of upgradation of the W.A No. 468 of 2007 : 6 : petitioner along with 9 others (by upgrading '9 posts' of Ward Attendant as Nursing Orderly), six persons were seniors to the writ petitioner and as such, no claim of writ petitioner was liable to be entertained. 5. However, after hearing both the sides, the learned Single Judge, arrived at a finding that, the petitioner's lien in the post of Ward Attendant was never lost as a result of up-gradation and that she could claim promotion to the post for which, 'Ward Attendant' is a feeder category. Reliance was also placed on the decision rendered by a Single Bench of this Court in O.P. 26758 of 2002, which was confirmed as per the judgment in W.A. 2211 of 2004, (copies of which have been produced as Annexures A and B in the Writ Appeal). Reliance sought to be placed by the appellant Port Trust on the verdict passed by the Apex Court in S.N Dhingra Vs. Union W.A No. 468 of 2007 : 7 : India 2001 (3) SCC 125 however was not accepted and they were directed to consider the case of the writ petitioner; which is under challenge in this Writ Appeal. 6. After hearing both the sides, we find that the upgradation of the 'post' of the petitioner from 'Ward Attendant' along with the upgradation given to the 9 others as 'Nursing Orderlies' as per Ext. P1 order dated 31.08.1998 stands admitted and the name of the writ petitioner was included in Annexure C Seniority List of Nursing Orderlies. Even after publication of Annexure C Seniority List of Nursing Orderlies giving proper placement to the writ petitioner therein, no case was put forth to have her name deleted therefrom, referring to the alleged lien in the post of Ward Attendant. It is also not in dispute that the posts of Laboratory Attender and Nursing Orderly were having the same scale of pay as W.A No. 468 of 2007 : 8 : 2035 - 3035 and the only common factor is that the post of Ward Attendant previously held by the writ petitioner happened to be the feeder category for both the posts of Laboratory Attender and Nursing Orderly. The question to be considered is whether the writ petitioner could successfully contend that she retained the lien in the post of Ward Attendant, after having obtained upgradation of the post as Nursing Orderly. 7. It is quite relevant to note that the upgradation given to the petitioner and nine others vide Ext. P1, was never an upgradation of scale of pay alone. If it were the case of upgradation of scale of pay alone, it could be open to contend that, the person concerned was having a 'lien' in the post. Similarly, if such upgradation was only in respect of some 'adhoc' appointment to a higher post, it could be said that the person concerned W.A No. 468 of 2007 : 9 : retaining the lien in the parent post. Unlike this, in the instant case, besides upgradation of the scale of pay, ten posts of Ward Attendants were upgraded as 'Nursing Orderlies', after which an equal number of posts in the category of Ward Attendant (from which the petitioner and 9 others were elevated) stood abolished, as specifically pleaded in the counter affidavit. This is not denied by the writ petitioner and this aspect has not been considered by the learned Single Judge while passing the judgment. 8. The operative portion of the judgment under challenge (paragraph 5) is extracted below: 5. In this case, the point that arises for decision is whether the petitioner's lien in the post of Ward Attendant has been lost as a result of up gradation. The Apex Count in S.N. Dingra's case only held that up gradation results in regular promotion and the promotees are entitled to get further W.A No. 468 of 2007 : 10 : promotion. Even assuming the up gradation of the post held by the petitioner as Nursing Orderly is regular and therefore, she is entitled to get further promotion in that line, still, I feel that her lien is not cut off in the post of Ward Attendant and she can claim promotion to the post for which Ward Attendant is a feeder category. The decision of the Apex Court does not deal with the point which directly arises in this case. Further, the view taken by me is supported by the aforementioned judgments of this Court in O.P. 26758/2002 and W.A. No. 2211/2004. Accordingly, it is declared that the petitioner shall be treated as continuing in the post of Ward Attendant, for the purpose of promotion to the post of Laboratory Attender. So, the claim of the petitioner and other similarly placed persons, for promotion to the post of Laboratory Attender shall be considered according to their seniority and other qualifications, if any, prescribed. This the competent authority of the Port Trust shall do within two months from the date of production of a copy of this judgment. The promotion already granted to the 3rd respondent will be subject to the orders W.A No. 468 of 2007 : 11 : that will be passed by the competent authority as directed above.“ It is seen that the learned Judge has relied on Annexures A and B judgments (in the OP and Writ Appeal respectively). It is evident from Annexure B verdict in the Writ Appeal that the persons concerned therein were actually working as 'Fire men' in the class IV posts, when they were given upgradation as 'Leading Firemen', which was a class III post, purely on 'adhoc basis'. It was in the said circumstances, that an observation was made, that their permanent lien was in the category of the 'Firemen' and the persons appointed on adhoc basis were to face reversion at any point of time from the class III posts and this being the position, their chance for promotion to another Class III category on regular basis could not be denied. The above observation in paragraph '3' is reiterated in the last paragraph (paragraph No.4) as well. W.A No. 468 of 2007 : 12 : 9. Unlike this, the position in the instant case is such that, the upgradation given to the writ petitioner as per Ext. P1 from the post of Ward Attendant, to that of 'Nursing Orderly', was against a regular post, by virtue of the upgradation of the post itself. The specific pleading of the appellant / Port Trust is that, pursuant to the upgradation of 10 posts of Ward Attendant as Nursing Orderly, consequential reduction of an equal number of posts in the lower category of Ward Attendant was effected. The above factual position is no where disputed by the first respondent / writ petitioner and as such, the upgradation was on a regular basis and not on an adhoc basis, to apply the law laid down by the Division Bench in Annexure B judgment. As it stands so, the observation of the learned Single Judge that the said verdict passed by the W.A No. 468 of 2007 : 13 : Division Bench is in support of the finding to have allowed the Writ Petition is not correct or proper. 10. Equally wrong is the observation as to the scope of the verdict passed by the Apex Court in 2001 (3) SCC 125 (cited supra) and the consequence as discussed in paragraph 5 of the judgment. The Apex Court clearly held that the upgradation as involved therein resulted on regular promotion and that the promotees were entitled to get further promotion. The learned Single Judge still observed that, even if it was assumed that the upgradation of the post held by the writ petitioner as Nursing Orderly was a 'regular one' and she was entitled to get further promotion in that line, her lien was not cut off in the post of Ward Attendant and she could claim promotion to the post, to which Ward Attendant was a feeder category, which is without any basis. The observation that the view taken by the learned W.A No. 468 of 2007 : 14 : Single Judge is supported by Annexure B judgment passed by the Division Bench does not appear to be correct, as existence of lien was accepted by the Division Bench only in the circumstance when the upgradation was on 'adhoc basis' as discussed herein before with reference to paragraphs 3 and 4 of Annexure B judgment. 11. Another important aspect to be noted is that upgradation of the 'scale' of the writ petitioner along with the 'post' giving placement as 'Nursing Orderly' in the scale of pay of Rs. 2035 - 3035 as given in Ext.P1 (the scale was subsequently enhanced to Rs.3840 - 6720) was fully given effect to, by including in 'Annexure C' Seniority list in respect of the relevant posts. When the writ petitioner was given placement at appropriate place (serial No. 9) among the 'Nursing Orderlies' showing the date of entry as 31.08.1998 (date of Ext. P1), the name of W.A No. 468 of 2007 : 15 : the writ petitioner stood deleted from the seniority list of Ward Attendants contained in the very same document. There was no case for the writ petitioner against Anenxure C Seniority List of Class IV Hospital Staff as on 01.10.2002, particularly, with regard to the deletion of her name from the seniority list of the Ward Attendants having a lesser scale of pay and as to the alleged lien in the post of Ward Attendant till 01.04.2004. 12. As mentioned hereinbefore, Ext. P4 Recruitment Rules [same as Ext. R3 (e)] stipulates that the post of Laboratory Attender is to be filled from among the Ward Attendants / Ayahs. It is asserted by the Port Trust in their counter affidavit that the post of Ward Attendant is a feeder category for both the posts of Laboratory Attender and Nursing Orderly (which are having the same scale of pay). The writ petitioner, having W.A No. 468 of 2007 : 16 : been given upgradation in the scale, with upgradation of the post as Nursing Orderly and when the Rules are not under challenge and further when such upgradation was on a 'regular basis' enlisting the writ petitioner in the seniority list of Nursing Orderlies as per Annexure C (which was never under challenge), the writ petitioner ought not to have been heard to say that she was having 'lien' in the lower category of Ward Attendant, which plea was mooted for the first time when she filed an application for a posting as Laboratory Attender in respect of the vacancy which arose on 01.04.2004. 13. Ext. P1 order granting upgradation, does not say that 'lien' of the persons concerned will be retained in the lower post, nor is there any case for the writ petitioner that such upgradation of scale with upgradation of post as given by Ext. P1 was accepted under protest or subject to any W.A No. 468 of 2007 : 17 : condition. After having enjoyed the fruits of Ext. P1 order in a 'regular post' of higher scale (stated as having equal scale as of Laboratory Attender), the writ petitioner cannot be permitted to take a 'U' turn to set up a new case. 14. In the above circumstances, this Court finds that the appellants are entitled to succeed. It is declared that the writ petitioner does not have any lien in the post of Ward Attendant. The finding arrived at to the contrary, by the learned single Judge is not correct or proper and the judgment under challenge is set aside. The appeal is allowed and the Writ Petition is dismissed. No cost. J. CHELAMESWAR, CHIEF JUSTICE P. R. RAMACHANDRA MENON, JUDGE kmd