IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 OP.No. 29637 of 2001(C) ------------------------------- PETITIONER(S): ---------------------- DR. V.P.SATHEESAN NAMBIAR, HEAD OF THE DEPARTMENT OF SAMHITHA & SIDHANTHA VAIDYARATNAM AYURVEDA COLLEGE, OLLUR-THAIKKATTUSSERY P.O., THRISSUR DIST - 680 322 BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.K.RADHAKRISHNAN SRI.N.NANDAKUMARA MENON (SR.) SRI.K.VINODKUMAR RESPONDENT(S): ------------------------ 1. THE PRINCIPAL SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. VAIDYARATNAM AYURVEDA COLLEGE, OLLUR, THAIKKATTUSSERY, THRISSUR - 680 322, REPRESENTED BY ITS MANAGER. 3. ADDL. R3 - DR. D. SHEELA, D/O - K.K.DEVADAS, PROFESSOR, PRASOOTHITHANTRA VAIDYARATNAM AYURVEDA COLLEGE, OLLUR - IS IMPLEADED AS ADDITIONAL 3RD RESPONDENT VIDE ORDER DATED 31.5.2005 IN CMP NO. 59802/01. 4. ADDL. R4 - SRI. P.M. SURESH KUMAR, LECTURER IN SALYATHANTHRA, VAIDYARATNAM AYURVEDA COLLEGE, OLLUR, THAIKKATTUSSERY, THRISSUR - 680 322 - IS IMPLEADED AS ADDITIONAL 4TH RESPONDENT VIDE ORDER DT.17.5.2005 IN I.A.6203/05. BY GOVERNMENT PLEADER SMT. K.R.DEEPA FOR R1 ADV. SRI.T.M.CHANDRAN FOR R2 SRI.N.NANDAKUMARA MENON (SR.) FOR R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 29637 of 2001(C) I.A. NO.6204 OF 2005 IN O.P.29637 OF 2001 STAY PETITION DISMISSED. C.M.P.NO.48137 OF 2001 IN O.P.29637 OF 2001 DIRECTION PETITION DISMISSED. I.A.NO.212 OF 2005 IN O.P. NO.29637 OF 2001 DIRECTION PETITION DISMISSED. SD/- S.SIRI JAGAN, JUDGE 11.11.2008. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE ORDER ISSUED BY THE GOVT. OF KERALA. EXT.P2 - TRUE COPY OF THE ORDER DTD.10.4.2000 ISSUED BY R2. EXT.P3 - TRUE COPY OF THE REPRESENTATION DATED 2.8.2000 SUBMITTED BY THE PETITIONER BEFORE R2. EXT.P4 - TRUE COPY OF THE LETTER FROM R2 TO R1 DATED 12.2.2001. EXT.P5 - TRUE COPY OF THE REPRESENTATION DATED 30.9.2000 SUBMITTED BY THE PETITIONER BEFORE THE GOVT. EXT.P6 - TRUE COPY OF THE REPRESENTATION DATED 13.2.2001 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER FOR HEALTH & FAMILY WELFARE, GOVT. OF KERALA. EXT.P7 - TRUE COPY OF THE ORDER DATED 25.8.2001 ISSUED BY R1. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ================== O.P.No.29637 of 2001 ================== Dated this the 11th day of November, 2008. J U D G M E N T The petitioner is a Reader in the Vaidyaratna Ayurveda College, the 2nd respondent herein, which is a college affiliated to the University of Calicut. The petitioner was formerly working as a Reader in the Salyasalakia department of the college. By Ext.P1 order the Government sanctioned two posts of Professors in Samhita & Sidhantha Department and another in Swasthavritha Department of the college. According to the petitioner, perceiving better opportunity for promotion as Professor in Samhita & Sidhantha Department he opted to be shifted to the Samhita and Sidhantha department, which option was accepted by the management, by Ext.P2 order dated 10.4.2000. From then on the petitioner has been working as Reader in Samhita and Sidhantha department. According to the petitioner, the post of Professor in Samhita and Sidhantha department sanctioned as per Ext.P1 order was never filled up. In spite of the repeated representations by the petitioner, the petitioner was not given promotion although the petitioner was fully qualified for such promotion. Therefore the petitioner O.P.No.29637 of 2001 - 2 - filed Ext.P6 representation before the Secretary to the Government of Kerala. In answer to that representation by Ext.P7, the petitioner was informed that the petitioner's request was rejected as there is no post of Professor vacant in the Samhitha and Sidhantha department in the 2nd respondent's college. The petitioner is challenging Ext.P7 order. The contention of the petitioner is that the statement in Ext.P7 that there is no vacancy is clearly wrong in view of Ext.P1 order. The petitioner therefore seeks the following reliefs: “a) To call for the records leading upto Exhibit P7 and quash the same by the issuance of a Writ of Certiorari or any other appropriate writ, order or direction. b) To issue a Writ of Mandamus commanding the respondents to immediately promote the petitioner to the post of Professor in Samhitha & Sidhantha in the college of the second respondent in the existing vacancy of professor, which is unfilled and lying vacant.” 2. The 2nd respondent and the additional 3rd respondent have filed counter affidavits controverting the averments in the original petition. According to them, the post of professor in Samhitha & Sidhantha department sanctioned as per Ext.P1 was filled up by promoting the additional 3rd respondent as per Ext.R3A order dated 1.2.1999, which was approved by the University. Subsequently in tune with the directions of the Central Council of Indian Medicine the 2nd respondent decided O.P.No.29637 of 2001 - 3 - to introduce 13 department system instead of the 7 department system prevailing in the college. On introduction of the 13 department system, options were called for from all the employees for choosing department of their choice if eligible. It is pursuant there to that the petitioner opted for Samhitha & Sidhantha department. At the same time the additional 3rd respondent, who had be promoted to the post of Professor of Samhitha & Sidhantha department sanctioned as per Ext.P1, opted to be shifted to Prasoothitantra department as Professor which was sanctioned by the college. However, later on, the Government canceled the introduction of 13 department system in the college, since the same was without sanction from the Government. Therefore legally the 3rd respondent now continues only as Professor of Samhitha & Sidhantha department, is the contention raised. As such at present there is no vacancy of Professor in Samhitha & Sidhantha department. According to them, as and when the 13 department system is approved for the college, then if the 3rd respondent opts for Prasoothithantra department and 6 more posts of Professors are sanctioned, the petitioner can aspire for promotion to the post of Professor of Samhitha & Sidhantha department is the contention raised. O.P.No.29637 of 2001 - 4 - 3. I have considered the rival contentions in detail. 4. Admittedly as on today, legally the 7 department system is the one prevailing in the 2nd respondent college and there are only seven sanctioned posts of Professors. One of the sanctioned post is Professor of Samhitha & Sidhantha department. That post is occupied by the 3rd respondent. The petitioner has no case that the petitioner is entitled to be promoted as Professor in preference to the additional 3rd respondent. The additional 3rd respondent is presently holding the post of Professor of Samhitha & Sidhantha. Since there is only one post of Professor of Samhitha & Sidhantha, the petitioner cannot aspire to be Professor of Samhitha & Sidhantha department. As pointed out by the counsel for the respondents 2 and 3 as and when 13 department system is approved for the college and additional posts of professor are sanctioned for each department, the petitioner can aspire for further promotion as Professor. In the above circumstances, I do not find any merit in this original petition and accordingly, the same is dismissed. S.SIRI JAGAN, JUDGE rhs