IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 WP(C).No. 24266 of 2009(C) --------------------------------------- PETITIONER(S): ----------------------- DR.P.SUNIL KUMAR, ASSISTANT DENTAL SURGEON, GOVERNMENT TALUK HEADQUARTERS HOSPITAL, MANNARKAD, PALAKKAD. BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24266/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROCEEDINGS NO.B1/11457/03/DME DTD. 26.2.2004. ISSUED BY THE DIRECTOR OF MEDICAL EDUCATION IN FAVOUR OF THE PETITIONER. P2:- COPY OF THE ORDER NO.B1/11457/03/DME DTD. 16.4.2004 OF THE JOINT DIRECTOR OF MEDICAL EDUCATION. P3:- COPY OF THE G.O.(RT) NO.3562/2004/H&FWD DTD. 22.12.2004. P4:- COPY OF THE REPRESENTATION DTD. 30.1.2007 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR HEALTH AND RESPONDENTS. P5:- COPY OF THE G.O.(RT) NO.2407/08/H&FWD DTD. 14.7.08. P6:- CERTIFICTE HEARING NO.B1/3964/08/DCT DTD. 24.12.2008 ISSUED BY THE PRINCIPAL, GOVERNMENT DENTAL COLLEGE, THIRUVANANTHAPURAM CERTIFYING THAT THE PETITINER WAS ADMITTED TO POST-GRADUATE COURSE IN MDS- ORTHODONTICS ON 26.2.2004 AND THAT HE HAD UNDERGONE THE COURSE UP TO 16.4.2004. P7:- COPY OF THE REPRESENTATION DTD. 26.12.2008 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. P8:- COPY OF THE LETTER NO.51000/E1/08/H&FWD DTD. 31.3.2009 ISSUED BY THE GOVT. TO THE PETITIONER. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.24266/2009-C ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 14th day of October, 2010 J U D G M E N T The petitioner herein is aggrieved by the order Ext.P8 by which the Government regularised the period of service from 26/02/2004 to 16/04/2004 by a direction to grant Leave Without Allowance on condition that the period will not be counted for increment, higher grade, pension or accumulation of leave. 2. The petitioner was working as a Dental Surgeon in the Health Service Department while he was selected for admission to Post Graduate course (MDS-Prosthodontics) in the in-service quota and he was rank No.3 and was directed to report before the Principal, Dental College, Thiruvananthapuram. There was an interim order staying the selection, passed by this Court in W.P.(C).No.2187/2004 and the writ petition was disposed of by Judgment dated 19/02/2004 pursuant to which the petitioner was selected for MDS-Orthodontics instead of MDS-Prosthodontics. He joined the MDS-Orthodontics with effect from 26/02/2004 which is evident from Ext.P1. The Judgment in W.P.(C). No.2187/2004 was challenged in W.A.No.434/2004 by certain candidates which was allowed as per Judgment dated 07/04/2004. Thereafter, his admission in MDS-Orthodontics W.P.(C). No.24266/2009 -:2:- was cancelled and he was allotted to MDS-Prosthodontics in Dental College, Thiruvananthapuram. 3. By Ext.P3, he was granted deputation benefits for undergoing P.G Course in M.D.S at Dental College, Thiruvananthapuram for the period from 26/02/2004 to 25/02/2007 subject to condition prevalent there. For extension of deputation upto 30/04/2007, the date on which the course MDS-Prosthodontics was over, he filed Ext.P4 application. Thereafter, the Government passed Ext.P5 order whereby deputation benefits were allowed for the period from 17/04/2004 to 16/04/2007 cancelling Ext.P3. Nothing is mentioned therein with regard to his period of study in MDS-Orthodontics for the period from 26/02/2004 to 16/04/2004 which was based on the Judgment in W.P.(C). No.2187/2004. In such circumstances, he filed a representation again as per Ext.P7 seeking for appropriate benefits for the period from 26/02/2004 to 16/04/2004 during which he was attending a course in MDS-Orthodontics. 4. It is submitted by the learned counsel for the petitioner that the refusal to regularise the period from 26/02/2004 to 16/04/2004 by granting deputation is not correct. It is pointed out that the petitioner joined MDS- Orthodontics on 26/02/2004 and when he was re-allotted to MDS-Prosthodontics, he joined the said course. Ext.P6 is the Certificate issued by the Principal, Government Dental W.P.(C). No.24266/2009 -:3:- College, Thiruvananthapuram showing that the petitioner was admitted to P.G Course in MDS-Orthodontics on 26/02/2004 and he had undergone the course upto 16/04/2004. 5. The facts reveal that the petitioner was earlier selected for admission to Post Graduate course in MDS- Orthodontics and, accordingly, he was directed to report before the Principal as per Ext.P1 which was done by him. He had to change the same to MDS-Prosthodontics in the light of the Judgment in W.A.No.434/2004, which is evident from Ext.P2 proceedings also. Going by the said order, the selection and admission given to the petitioner in MDS- Orthodontics in Dental College, Thiruvananthapuram was cancelled. It is not the fault of the petitioner that he had to change the course of study from MDS-Orthodontics to MDS-Prosthodontics. It happened only because of the Judgments in the Writ Petition and Writ Appeal. Initially, the Government decided to grant deputation benefits for undergoing P.G Degree in MDS-Orthodontics at Dental College, Thiruvananthapuram for the period from 26/02/2004 to 25/02/2007. But while considering Ext.P4 representation wherein the petitioner sought for extension for 3 years upto 30/04/2007, the period was limited from 17/04/2004 to 16/04/2007. Obviously, the period from 26/02/2004 to 16/04/2004 was not considered there. Therefore, his request in Ext.P7 is only reasonable. W.P.(C). No.24266/2009 -:4:- 6. It is not a case where the petitioner can be compelled to avail Leave Without Allowance from 26/02/2004 to 16/04/2004. Therefore, the decision taken in Ext.P8 that he will have to apply for leave for the said period and that the period will not count for increment, higher grade, pension or accumulation of leave cannot be justified. 7. As the petitioner had undergone the course pursuant to the selection as an in-service candidate for the period from 26/02/2004 to 16/04/2004, the said period has also to be treated as on deputation with all the benefits. In that view of the matter, the writ petition is allowed. Ext.P8 is quashed. There will be a direction to the respondents to treat the period of study of the petitioner in MDS-Orthodontics from 26/02/2004 to 16/04/2004 as deputation for higher studies and to reckon the same for service benefits. Appropriate orders will be passed within two months from the date of receipt of a copy of this Judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms