IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 OP.No. 29973 of 2002(R) ----------------------- PETITIONER(S): --------------- B. SUDHARMMA, DEPUTY GOVT. ANALYST, REGIONAL ANALYTICAL LABORATORY, KAKKANAD, KOCHI-30. BY ADV. SRI.N.SUGATHAN SRI.S.SANTHOSH KUMAR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CONVENOR, DEPARTMENTAL PROMOTION COMMITTEE (HIGHER), REPRESENTED BY THE SECRETARY TO GOVT., HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 4. A. NAJUMA BEEGUM, GOVT. ANALYST, REGIONAL ANALYTICAL LABORATORY, KOZHIKODE. 5. J. RAVEENDRAN, DEPUTY GOVT. ANALYST, GOVT. ANALYST LABORATORY, THIRUVANANTHAPURAM. 6. C. RAMACHANDRAN, DEPUTY GOVT. ANALYST, REGIONAL ANALYSTICAL LABORATORY, KOZHIKODE. ADV. SRI.ELVIN PETER P.J. FOR R4 SRI.P.N.SANTHOSH FOR R4 SRI.S.D.ASOKAN FOR R4 SRI.S.RAMESH FOR R4 SRI.NAVEEN.T FOR R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.PO.NO.50973/2002 IN O.P.No.29973/2002 DISMISSED 7-6-2010 SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF CERTIFICATE DATED 18-4-2000 ISSUED BY THE BOARD OF PUBLIC ANALYST EXAMINATION. EXT.P2. TRUE COPY OF G.O(P) NO.128/2000/H&FWD DATED 29-5-2000 EXT.P3. TRUE COPY OF SELECT LIST ISSUED IN G.O(P)No.207/2001/H & FWD DATED 1.8.2001. EXT.P4. TRUE COPY OF G.O(RT)NO.2611/2000/H & FWD DATED 21.6.2000 EXT.P5. TRUE COPY OF G.O(RT)NO.2776/2001/H & FWD DATED 24.10.2001 EXT.P6. TRUE COPY OF REPRESENTATION DATED 1.1.2002 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P7. TRUE COPY OF LETTER NO.A1.91/2002/GAL.1 DATED 9.1.2002 OF THE CHIEF GOVT. ANALYST TO THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS: EXT.R4(a). TRUE COPY OF CERTIFICATE DT. 4TH JUNE, 1987 ISSUED BY THE GOVT. OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE, DIRECTORATE GENERAL OF HEALTH SERVICES. EXT.R4(b). TRUE COPY OF ORDER, G.O(MS)NO.230/83/HD. DATED 27.8.1983 ISSUED BY THE GOVT. / TRUE COPY / P.S.TO JUDGE P.N.RAVINDRAN, J. ----------------------------------------- O.P.No.29973 of 2002 ----------------------------------------- Dated this the 7th day of June, 2010 JUDGMENT The petitioner, a post graduate degree holder in Bio-chemistry, entered service as Research Officer in the Government Analytical Laboratory under the Health Services Department on 1.6.1988. Respondents 4 to 6 entered service in the years 1990, 1991 and 1994 respectively and are admittedly junior to the petitioner in service. The next higher post to which a Research Officer can aspire to be promoted is that of Deputy Government Analyst. The post of Deputy Government Analyst is a selection post. The qualifications for appointment to the post of Deputy Government Analyst were prescribed by the Government by Ext.R4(b) order dated 27-8-1983. The qualifications prescribed in Ext.R4(b) for appointment by promotion to the post of Deputy Government Analyst are as follows:- 1. M.Sc. in Chemistry or Bio-Chemistry of a recognised University OR B.Sc. (Hons) in Chemistry of Bio-Chemistry of a recognised University. OR B.Sc. Degree in Chemistry I or II class of a recognised University O.P.No.29973 of 2002 -:2:- OR Association diploma of the Institution of Chemists (India) by examination in the section of Analysis of Food with at least 50% marks. 2. Experience in the Analysis of Food in the Government Analyst Laboratory in the State for a period of not less than three years of which not less than one year should be as Research Officer. 3. A pass in the qualifying examination for Public Analyst conducted by the Board appointed and notified by the Government of India under rule 6 of the PFA Rules, 1955.” 2. The petitioner passed the qualifying examination for Public Analyst conducted by the Central Food Laboratory in 1999. However, the Departmental Promotion Committee that met on 28-3-2000 did not consider her for promotion. Respondents 4 to 6, who were her juniors, were however selected and they were included in Ext.P2 select list as serial Nos.16 to 18. The petitioner represented against the non- inclusion of her name in Ext.P2 select list by filing a representation under rule 28(b)(i)8(a) of Part II of the KS & SSR. The Departmental Promotion Committee thereupon reconsidered the case of the petitioner and directed inclusion of her name in Ext.P2 select list immediately below the name of the 6th respondent. Ext.P3 revised O.P.No.29973 of 2002 -:3:- select list was thereupon published on 1.8.2001. 3. It appears, in the meanwhile, based on Ext.P2 select list respondents 4 to 6 were promoted by Ext.P4 order dated 21-6-2000 as Deputy Government Analyst. Respondents 4 and 5 were promoted against vacancies which arose on 21-6-2000 on the promotion of Sri.P.Asokakumar and Sri.K.Sasidharan Nair as Government Analysts. The 6th respondent was promoted and posted as Deputy Government Analyst in an existing vacancy. Consequent on the inclusion of the petitioner's name in the select list on review, she was also promoted as Deputy Government Analyst by Ext.P5 order dated 24.10.2001. However, in the meanwhile, a select list of Deputy Government Analysts eligible for promotion to the category of Government Analyst was also prepared and in that select list the 4th respondent was ranked first and respondents 5 and 6 were ranked second and third. It was in the vacancy that arose on the promotion of the 4th respondent as Government Analyst that by Ext.P5 order the petitioner was promoted and posted as Deputy Government Analyst. The petitioner thereupon filed Ext.P6 representation contending that as she has been included in Ext.P3 select list and the vacancies against which respondents 4 to 6 were promoted arose only on 21.6.2000 or thereabouts, the petitioner O.P.No.29973 of 2002 -:4:- ought to have been promoted earlier than respondents 4 to 6 applying rule 28(b)(i)(7) of Part II of the KS & SSR. This writ petition was thereupon filed seeking the following reliefs:- i) to issue a writ of mandamus or any other appropriate writ or order directing the 2nd respondent to consider and pass orders on Ext.P6 representation at once; ii) to issue a writ of mandamus or any other appropriate writ or order directing the 2nd respondent to revise Ext.P3 select list for promotion to the post of Deputy Government Analyst and to assign the petitioner rank above respondents 4 to 6 in that list; iii) to issue a writ of mandamus or any other appropriate writ or order directing the 1st respondent to promote the petitioner to the post of Deputy Govt. Analyst with effect from 21.6.2000 and to grant her all consequential benefits; iv) to issue a writ of certiorari or any other appropriate writ or order quashing notification IV in Ext.P3 select list of officers fit for promotion to the post of Government Analyst. v) to issue a writ of mandamus or any other appropriate writ or order directing respondents 1 to 3 to consider the name of the petitioner for inclusion in the select list for O.P.No.29973 of 2002 -:5:- promotion to the post of Government Analyst for the year 2001 and to include her name in preference to respondents 4 to 6. The main contention raised by the petitioner is that as she is admittedly senior to respondents 4 to 6, in view of the inclusion of her name in Ext.P3 revised select list for the post of Deputy Government Analyst, she ought to have been ranked above them. It is contended that if that be so, she ought to have been promoted to the category of Deputy Government Analyst along with respondents 4 to 6. The petitioner contends that in any view of the case as two vacancies of Deputy Government Analyst arose only on 21.6.2000 she ought to have been promoted earlier than respondents 5 and 6. 4. Though respondents 4 to 6 have been served only the 4th respondent has chosen to enter appearance and file a counter affidavit. According to the 4th respondent the post of Deputy Government Analyst, against which he was appointed, arose in the year 1999 at a point of time when the petitioner was not qualified for the reason that she had not passed the test and therefore, notwithstanding the fact that the petitioner is senior in the entry post, the 4th respondent was entitled to be promoted earlier than the petitioner. The official respondents have not filed a counter affidavit O.P.No.29973 of 2002 -:6:- though this original petition has been pending for nearly eight years. 5. I have considered the submissions made at the Bar by Sri.N.Sugathan, learned counsel appearing for the petitioner and Sri.S.Ramesh, learned counsel appearing for the 4th respondent. I have also heard Sri.T.K.Sajeev, learned Government Pleader appeared for the official respondents. The fact that the petitioner is senior to respondents 4 to 6 in the entry post is not in dispute. The fact that the petitioner had passed the prescribed test conducted in the year 1999 is also not in dispute. The fact that though in Ext.P2 select list the petitioner was not included, on review her name was included and a revised select list evidenced by Ext.P3 was published is also not in dispute. However, in Ext.P3 list the petitioner was ranked below respondents 4 to 6. Pursuant to Ext.P2 select list dated 29-5-2000 respondents 4 to 6 were promoted by Ext.P4 order dated 21-6-2000. By that order four Deputy Government Analysts were promoted as Government Analysts and consequently the said four vacancies and two other vacancies of Deputy Government Analyst that were existing were filled up. Respondents 4 and 5 were promoted as Deputy Government Analysts consequent on the promotion of Sri.P.Asokakumar and Sri.K.Sasidharan Nair. The 6th respondent was O.P.No.29973 of 2002 -:7:- promoted and posted as Deputy Government Analyst against an existing vacancy. Besides the 6th respondent, Sri.A.Bhadran was also promoted and posted as Deputy Government Analyst against an existing vacancy. Going by Ext.P4 it is evident that atleast on the date on which it was passed two vacancies of Deputy Government Analysts were in existence. Sri.A.Bhadran is admittedly senior to the petitioner. He is also ranked above respondents 4 to 6 in Ext.P2 select list. Therefore Sri.A.Bhadran was rightly promoted against one of the existing vacancies. Since the 4th respondent had acquired the qualification earlier than the petitioner and as Ext.P4 shows that besides the vacancy against which Sri.A.Bhadran, who is admittedly senior to all the parties, was promoted, one more vacancy of Deputy Government Analyst existed prior to Ext.P2 order, the 4th respondent, who acquired the qualification earlier than the petitioner though junior to the petitioner, was, in my opinion, entitled to be posted against that vacancy. The result of the test which the petitioner had taken in the year 1999 was published only on 18-4-2000. Therefore, the petitioner cannot, in my opinion, claim promotion in the vacancies against which Sri.A.Bhadran and the 4th respondent were promoted. However, in view of the fact that two vacancies of Government Analyst arose only O.P.No.29973 of 2002 -:8:- on 21-6-2000 as a result of promotion of two Deputy Government Analysts as Government Analysts, I am of the opinion that the petitioner, who is admittedly senior to respondents 5 and 6, was entitled to be promoted as Deputy Government Analyst at least with effect from 21-6-2000. Consequently she is also eligible to be considered for promotion to the category of Government Analyst on the basis that she ought to have been promoted as Deputy Government Analyst with effect from 21.6.2000. I accordingly dispose of the writ petition with the following directions: (a) The competent authority among the respondents shall issue orders promoting the petitioner as Deputy Government Analyst with effect from 21.6.2000, the date on which respondents 4 to 6 were promoted to the category of Deputy Government Analysts. The petitioner will be entitled to be ranked above respondents 5 and 6 in the category of Deputy Government Analyst. Orders in that regard shall be issued within one month from the date on which petitioner produces a certified copy of this judgment before the Secretary to Government, Health and Family Welfare Department. (b) The Government shall, within two months from the date of issue of orders as directed above, consider the case of the petitioner O.P.No.29973 of 2002 -:9:- for promotion to the category of Government Analyst, on the basis that the petitioner stood promoted as Deputy Government Analyst with effect from 21-6-2000. If necessary, the Government shall constitute a Departmental Promotion Committee to consider the said claim of the petitioner. (c) Needless to say, the petitioner will be entitled to monetary benefits in the category of Deputy Government Analyst with effect from 21-6-2000 and in the category of Government Analyst with effect from the date on which she is found eligible to be promoted, after the Government/Departmental Promotion Committee reconsiders her case for promotion to the said category. (d) It is declared that the petitioner will have no claim as against the 4th respondent and that the promotions given to the 4th respondent are in order. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- O.P.No.29973 of 2002 ---------------------------- JUDGMENT 7th June, 2010