IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 W A.No. 13 of 2009 - ---------------------------- AGAINST THE JUDGEMENT IN OP.24277/1999 Dated 05/11/2008 .................... APPELLANT(S): PETITIONER ------------------------ ANNIE GEORGE, SCIENTIFIC ASSISTANT, (OCCUPATIONAL THERAPY), MEDICAL COLLEGE, TRIVANDRUM. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S)//RESPONDENTS:- -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, TRIVANDRUM. 2. DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE, TRIVANDRUM. 3. SMT.M.V.SOSAKUTTY, SCIENTIFIC ASSISTANT, (OCCUPATIONAL THERAPY), MEDICAL COLLEGE, TRIVANDRUM. 4. DEPARTMENT OF PROMOTION COMMITTEE, REPRESENTED BY ITS CONVENOR, HEALTH SECRETARY, TRIVANDRUM. R1,2 & 4 BY GOVT. PLEADER SMT.R. BINDU. R3 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR & ADV. SRI.SAJU JOHN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. No. 13 of 2009 ------------------------------ Dated this, the 10th day of July, 2009 JUDGMENT Balakrishnan Nair, J. The appellant is the writ petitioner. The brief facts of the case are the following: The appellant and the third respondent were appointed to the post of Scientific Assistant (Occupational Therapy) respectively on 19.8.1986 and 1.12.1986, pursuant to the advice of the Public Service Commission. Thus, the petitioner was senior to the third respondent in the above post. While so, the petitioner went abroad taking leave without allowance from 15.6.1993 to 21.6.1995. She rejoined duty only on 22.6.1995. Thereafter, she availed leave from 24.11.1995 to 7.7.1997. After she rejoined duty, the Departmental Promotion Committee met on 29.9.1998 and prepared Ext.P11 DPC list for promotion to the post of Chief Occupational Therapist, in which, the appellant was not included, but the third respondent was given a place. Feeling aggrieved by the said DPC list, published W.A. No.13 of 2009 :-2-: in the gazette on 29.12.1998, she filed Ext.P15 representation on 15.9.1999. Soon thereafter, she filed the writ petition on 27.9.1999 challenging the said DPC list and also seeking promotion to the post of Chief Occupational Therapist in preference to the third respondent. Soon after the filing of the writ petition, Ext.P15 representation was rejected by the Government by Ext.P16 communication dated 8.10.1999. She was informed that though the Departmental Promotion Committee met only on 29.9.1998, the vacancy to which the third respondent was considered arose on 1.6.1997. At that time, the appellant/writ petitioner was on leave without allowance and therefore, her claim was not considered. 2. The petitioner has not chosen to amend the writ petition or challenge Ext.P16. The respondent filed a counter affidavit in the writ petition resisting the prayers therein. So, the petitioner filed a reply affidavit in October 2006 and along with that she has produced Exts.P15 and P16. In the reply affidavit, she has contended that the vacancy which arose on 1.6.1997 was only a leave vacancy. The substantive vacancy arose only on 1.9.1999. By that time, she was back in service W.A. No.13 of 2009 :-3-: after the expiry of the leave without allowance. 3. Learned Single Judge after hearing both sides dismissed the writ petition. Hence this writ appeal. The learned counsel for the appellant, Sri.S.Ramesh Babu, submitted that since the vacancy, which arose on 1.6.1997 was not a substantive vacancy, the promotion could have been made only under Rule 31 (a) (i) of K.S. & S.S.R. and not under Rule 28 of the said Rules. Since the substantive vacancy arose on 1.9.1999, the appellant's claim also should have been considered. 4. We notice that, this is not a point raised in the writ petition, but only in the reply affidvit. We also notice that, Ext.P16 has not been challenged in the writ petition. Therefore, the appellant/petitioner is not entitled to get any relief in this appeal. In this context, we also refer to Rule 155 of the Kerala High Court Rules, 1971, which reads as follows: “155. New ground or relief not to be raised.- No ground shall be relied upon and no relief sought at the hearing except the grounds taken and reliefs sought in the Original Petition and accompanying affidavit. W.A. No.13 of 2009 :-4-: Provided that the Court may, at the hearing of the said petition and affidavit to be amended upon such terms as to costs or otherwise as the Court thinks fit.”. In view of the above Rule, the petitioner cannot raise the aforementioned point at the time of hearing of the writ petition or in this writ appeal. In the result, the Writ Appeal is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)