IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 WP(C).No. 9290 of 2008(E) ------------------------------------ PETITIONER: ------------------- C.MURALEEDHARAN, REHABILITATION TECHNICIAN GRADE I (PROSTHETICS) GOVERNMENT GENERAL HOSPITAL, ERNAKULAM. BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, ADVS. SMT.SUSHYA RAJAN, SRI.P.K.MANOJKUMAR. RESPONDENTS & ADDITIONAL RESPONDENTS 4 TO 6: ------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY (HEALTH & FAMILY WELFARE), GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. V.GIREESAN, REHABILITATION TECHNICIAN GRADE I (PROSTHETICS), DISTRICT LIMB FITTING CENTRE, DISTRICT HOSPITAL, PALAKKAD. 4.G. MAMACHAN, REHABILITATION TECHNICIAN (PROSTHETIC), PHYSICAL MEDICINE AND REHABILITATION DEPARTMENT, DISTRICT LIMB FITTING CENTRE, GENERAL HOSPITAL, ERNAKULAM. 5. P. PARAMESWARAN, REHABILITATION TECHNICIAN (PROSTHETIC), PHYSICAL MEDICINE AND REHABILITATION DEPARTMENT, DISTRICT LIMB FITTING CENTRE, DISTRICT HOSPITAL, KANNUR. W.P.(C). NO.9290/2008-E: 6. P. JAYAKUMAR, REHABILITATION TECHNICIAN (PROSTHETIC), PHYSICAL MEDICINE AND REHABILITATION DEPARTMENT, DISTRICT LIMB FITTING CENTRE, DISTRICT HOSPITAL, KOLLAM. R1 & R2 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2010,ALONG WITH W.P.(C). NO. 8167/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.9290/2008-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER NO. EP2/30543/99/DHS. DTD. 16/02/1994 ISSUED BY THE R.2. EXT.P.2: COPY OF THE REPRESENTATION DTD. 03/03/1994 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.3: COPY OF THE REPRESENTATION DTD. 07/03/1994 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. EXT.P.4: COPY OF THE GOVERNMENT ORDER G.O.(RT).NO.1401/94/H & FWD DTD. 13/05/1994 ISSUED BY THE GOVERNMENT. EXT.P.5: COPY OF THE ORDER NO. E3/5685/94/DME DTD. 14/07/1994 ISSUED BY THE JOINT DIRECTOR (M) MEDICAL EDUCATION, TVM. EXT.P.6: COPY OF THE ORDER NO. EPI-32628/98/DHS DTD. 02/12/1998 ISSUED BY THE SUPERINTENDENT, DIRECTOR OF HEALTH SERVICES, TRIVANDRUM. EXT.P.7: COPY OF THE JUDGMENT DTD. 30/07/2002 IN O.P. NO. 23200/2001 PASSED BY THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM. EXT.P.8: COPY OF THE REPRESENTATION DTD. 19/08/2002 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P.9: COPY OF THE ORDER NO. EPI-32628/98/DHS DTD. 24/12/2002 ISSUED BY THE SENIOR ADMINISTRATIVE OFFICER, TRIVANDRUM. EXT.P.10: COPY OF THE JUDGMENT DTD. 21/11/2006 IN O.P. NO. 145/2003(P) PASSED BY THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM. EXT.P.11: COPY OF THE REPRESENTATION DTD. 20/01/2007 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY TO GOVERNMENT. EXT.P.12: COPY OF THE GOVERNMENT ORDER NO. G.O.(RT).NO.742/2008/H & PWD DTD. 29/02/2008 ISSUED BY THE GOVERNMENT. EXT.P.13: COPY OF THE ORDER NO. ES2-74283/97/DIS. DTD. 09/10/1997 ISSUED BY THE SUPERINTENDENT, THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. EXT.P.14: COPY OF THE SENIORITY LIST PUBLISHED BY THE R.2. NO. EF1-32628/98/DHS DTD. 22/07/2000 ISSUED BY THE SUPERINTENDENT, DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J ------------------- W.P.(C)s. 9290/2008 & 8167/2009 -------------------- Dated this the 18th day of June, 2010 JUDGMENT The challenge in W.P.(C).9290/2008 is mainly against Ext.P12 order passed by the 1st respondent. 2. The facts of the case are that the petitioner was working as Rehabilitation Technician (Prosthetics) Grade-II in the Medical Education Department. On 7.1.1993, he was deputed for a period of one year to the Health Services. Accordingly, he joined at the District Limb Fitting Centre, General Hospital, Kollam, on 11.1.1993. Deputation period was extended for a further period of one year. While so, on 12.1.1994, PSC advised the petitioner for appointment as Rehabilitation Technician (Prosthetics) Grade-II in the Health Services. Accordingly, he was issued Ext.P1 order of appointment. This order is dated 16.2.1994. Immediately petitioner submitted Ext.P2 before the Director of Health Services and Ext.P3 before the Director of Medical Education requesting to relieve him. Finally his deputation was cancelled by Ext.P4 order dated 13.5.1994 issued W.P.(C)s.9290/08 & 8167/09 2 by the 2nd respondent. Thereafter 3rd respondent relieved the petitioner on 17.7.1994 as per Ext.P5 order and accordingly the petitioner joined the Health Services on 20.7.1994. 3. While continuing as such, by Ext.P6 order, petitioner was promoted as Rehabilitation Technician (Prosthetics) Grade-I with effect from 28.2.1996. In Ext.P13 seniority list of Rehabilitation Technician (Prosthetics) Grade-I, petitioner was assigned Sl.No.1. However, in 2004, Rehabilitation Technician Grade-I in different disciplines were combined together and Ext.P14 combined seniority list was published, where the petitioner was assigned Sl.No.11. Further among Rehabilitation Technician (Prosthetics) Grade-I, petitioner was assigned Sl.No.5 reckoning his seniority from the date on which he joined duty in the Health Services. Petitioner represented against Ext.P14 and since there was no response, he approached this Court by filing W.P.(C).23200/2001. That writ petition was disposed of by Ext.P7 judgment. In that judgment though this Court upheld the competence of the authorities to publish the combined seniority list, insofar as the grievance regarding the seniority is concerned, it was held thus - W.P.(C)s.9290/08 & 8167/09 3 “The second grievance of the petitioner is that he has not been given seniority with effect from the date of advise. As evident from the materials produced in this case, the petitioner has applied for cancellation of his deputation in the Medical College, Calicut so that he could join service on 7.3.1995. The petitioner was appointed on 18.2.1994. Upon receipt of the order dated, he applied without delay for cancellation of his deputation. The Government by Ext.P13 order dated 13.5.1994 permitted the cancellation of deputation of the petitioner to enable him to join the Limb Fitting Centre, District Hospital, Kollam. Thereafter the Joint Director of Medical Education by Ext.P14 ordered to relieve him on or before 20.7.1994. On being relieved, he joined the Health Services Department on 19.7.1994. So there is practically no delay from the part of the petitioner. But on technical grounds, his seniority is not reckoned with effect from the date of advice. I find this is a matter which requires consideration by the Government.” 4. Accordingly, as directed in Ext.P7 judgment, petitioner represented to the authorities and during the pendecy of the W.P.(C)s.9290/08 & 8167/09 4 representation, Ext.P9 order was issued reverting the petitioner to the post of Rehabilitation Technician (Prosthetics) Grade-II. 5. Ext.P9 was called in question before this Court in O.P.145/2003 and that Original Petition was disposed of by Ext.P10 judgment directing that Ext.P8 be considered in the light of the directions in Ext.P7 judgment. Again the petitioner submitted Ext.P11 representation. Finally Ext.P12 order has been passed, paragraph 6 of which reads hereunder. “In the circumstances Government have examined the matter in detail in the light of the report of the Director of Health Services and the facts adduced by the petitioner at the time of personal hearing and found that Shri.C.Muraleedharan while working at District Hospital, Kollam on deputation from the Director of Medical Education was advised by the PSC as Rehabilitation Technician (Prosthetics) Grade-II in Health Services Department vide letter No.RIA(5) 31046/93/GW dated 12.1.94 and the Director of Health Services had issued posting orders to him vide proceedings No.EF2-30543/89/DHS dated W.P.(C)s.9290/08 & 8167/09 5 16.294. As per the posting orders issued by the Director of Health Services the petitioner ought to have joined in service within 15 days of the receipt of the order, but he joined duty in the department on 19.7.94. He had taken more than 4 months for joining duty and the delay caused in joining duty is due to his deputation to the Department of Health Services from the Department of Medical Education at the time of posting in the Health Services Department. There was no delay worth the name on the part of Government in the matter. His seniority was fixed with effect from the date of actual joining duty as per proviso to Rule 27 © of General Rules KS & SSR. The Director of Health Services has fixed his seniority by following proper criteria and the action of the Director of Health Services is in order. The request of the petitioner to reckon his seniority with effect from the date of advice by the PSC cannot be considered on merit. Therefore the representation submitted by Shri.C.MUraleedharan, Rehabilitation Technician (Prosthetics) Grade-I is rejected and ordered accordingly.” 6. A reading of the above paragraph shows that the Government have found there was no delay on its part in issuing appointment W.P.(C)s.9290/08 & 8167/09 6 orders and the delay to join duty in the Health Services Department has been attributed to the petitioner. It is on that basis his claim has been rejected. 7. Learned counsel for the petitioner contends that in view of the positive findings of this Court in Ext.P7 judgment which has become final, the conclusion in Ext.P12 is erroneous. 8. It is contended by the respondents that there is delay on the part of the petitioner to join duty. It is also contended that delay in joining the post in the Health Services Department is only attributable to the petitioner and therefore, conclusion in Ext.P12 are correct. 9. As far as the contention regarding the alleged delay in challenging the seniority is concerned, I do not think that there is any substance in the contention. As can be seen from the facts, petitioner has been agitating his grievances before the authorities and before this Court throughout the period. This contention therefore, has to be rejected. The objection that there has been W.P.(C)s.9290/08 & 8167/09 7 delay on the part of the petitioner to join duty also has to be rejected, in the light of the positive findings in Ext.P7 judgment, the relevant portion of which is extracted above. For these reasons, Ext.P12 cannot be sustained and the same is quashed. 10. Respondents are directed to assign seniority to the petitioner as Rehabilitation Technician (Prosthetics) Grade-II with effect from 12.1.1994, the date on which the petitioner was advised by the PSC for appointment in the Health Services Department, with all consequential benefits. Orders in this regard shall be passed as expeditiously as possible at any rate, within six weeks of production of a copy of this judgment. W.P.(C).8167/2009 In this writ petition, petitioner, who is presently working as Rehabilitation Technician (Prosthetics) Grade-I in the Health Services Department, is claiming promotion to the post of Foreman. Today, this Court disposed of W.P.(C).9290/2008 directing that the seniority of the petitioner will be re-assigned with effect from the W.P.(C)s.9290/08 & 8167/09 8 date on which he was advised by the PSC for appointment as Rehabilitation Technician (Prosthetics) Grade-II. Accordingly, he is entitled to get his seniority re-assigned with effect from 16.2.1994. Necessarily therefore, the petitioner herein is entitled to have his claim for promotion to the post of Foreman considered, in the light of the re-assigned seniority. Accordingly 2nd respondent is directed to pass necessary orders consequent to the above. The claim of the petitioner for 2nd Time Bound Higher Grade, will also be considered by the 2nd respondent and orders in this behalf will be passed as expeditiously as possible, at any rate, within two months of production of a copy of this judgment. Writ petitions are disposed of as above. Sd/-/- ANTONY DOMINIC, Judge mrcs The date “16.2.1994” occurring in page 8 of the judgment dated 18.6.2010 in W.P.C.No.9290/2008 & 8167/2009 is corrected as “12.1.1994” as per order dated 14.7.2010 in I.A.No.9316/2010 in W.P.(C)No.8167/2009. Sd/-/- Registrar (Judicial) W.P.(C)s.9290/08 & 8167/09 9