IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 WA.No. 1903 of 2006() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33261/2003 Dated 14/08/2006 .................... APPELLANT/PETITIONER ---------------- DR.K.SASIDHARAN, ASST. PROFESSOR, (PAEDIATRICS), MEDICAL COLLEGE, KOZHIKODE. BY ADV. SRI.K.R.B.KAIMAL, SENIOR ADVOCATE RESPONDENTS/ RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER), MEDICAL EDUCATION DEPARTMENT, REP. BY ITS CONVENOR, PRINCIPAL SECRETARY TO GOVT. HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER ,SMT.R.BINDU FOR R1TOR3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. -------------------------------- W.A.No.1903 OF 2006 ---------------------------------- Dated this the 22nd day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. Appellant is the writ petitioner. The main grievance raised by the writ petitioner, who was an Assistant Professor in the Department of Medical Education, was non-consideration of his claim for promotion to the post of Associate Professor, while Ext. P13, DPC list for the year 2003 and Ext.P14 list for the year 2004 were prepared. 2. The brief facts of the case are following. The petitioner joined Medical Education Service as Lecturer in Paediatrics on 8.12.1986. By Ext. P1 order dated 22.9.1997, he was granted grade promotion as Assistant Professor with effect from 21.12.1992 by upgrading the post of Lecturer held by him. He joined duty in the post of Assistant Professor on 22.9.1997 itself as evident from Ext.P2. The Accountant General has treated him as working in the post of W.A.No.1903/2006 2 Assistant Professor from 22.9.1997 and has released salary to that post from the said date as evident from the service particulars of him, furnished by the Office of the Accountant General, as per Ext.P12. Later, a vacancy arose in the cadre post of Assistant Professor and he was promoted to that vacancy at Thiruvananthapuram by Ext.P3 order dated 24.9.1997 under Rule 31(a)(i) of the General Rules. As per Ext.P1, as mentioned earlier, he was granted grade promotion to the post of Assistant Professor with effect from 21.12.1992. Apparently, feeling aggrieved by the conflict between Exts.P1 and P3, he filed a representation before the Government. The Government rejected the representation stating that the promotion under Ext.P1 is only a grade promotion and the promotion as per Ext.P3 is a promotion to a vacancy in the cadre post of Assistant Professor. Still later by Ext.P5 order on 7.8.1999, he was posted as Assistant Professor in Medical College, Kozhikode. Pursuant to Ext.P3, he was never relieved from Kozhikode and he never joined duty at Thiruvananthapuram. So, while issuing Ext.P5 posting him at Kozhikode, he was already working in that Medical College. W.A.No.1903/2006 3 3. The DPC considered his claim for promotion as Assistant Professor and he was found eligible for promotion with effect from 24.9.1997 on regular basis . This is evident from Ext.P6 DPC list published by the Government by order dated 23.9.1999. That list was revised because of the seniority dispute between some other incumbents, as per Ext.P7 Government Order. As per the list contained in Ext.P7 Government Order also, the petitioner was found eligible for regular promotion from 24.9.1997. Later, the government issued Ext.P8 order stating that his temporary promotion made under Rule 31 (a) (i) of the General Rules is regularised with effect from 12.8.1999. The stand of the Government is that pursuant to Ext.P3, he started discharging functions of the post of Assistant Professor only from 12.8.1999. In that view of the matter, his probation was declared with effect from 12.8.2000 as per Ext.P9. Feeling aggrieved by the above stand of the Government, the petitioner preferred Ext.P10 representation. 4. While so, the Government published the select list for promotion to the post of Associate Professor in Paediatrics for the year 2003 by government order dated 21.1.2004, a copy W.A.No.1903/2006 4 which is produced as Ext.P13. Again, the list of Assistant Professors eligible for promotion as Associate Professors during the year 2004 was published by Ext.P14 Government order dated 21.8.2004. The petitioner filed Ext.P15 representation before the Convenor of the D.P.C. claiming that he should be treated as qualified from 24.9.2002 or at any rate even going by the stand of the Government he should be treated as qualified on 7.8.2004. Since Ext.P14 D.P.C list is published for the purpose of promotion to anticipated vacancies, the vacancies which arose after 7.8.2004 can be filled up only after considering his claim also, not withstanding the fact that he is not included in Ext.P14. The claim of the appellant was considered by the Government and rejected by Ext.P16. So, the Writ Petition was filed challenging Exts.P8 and P9 to the extent they are against him and also Exts.P13, P14 and P16. He also sought consequential reliefs. 5. We heard the learned senior counsel Sri. K.R.B.Kaimal for the appellant and also Smt.R.Bindu, learned Government Pleader for the respondents. The learned senior counsel submitted that in view of Ext.P6 and P7 he is entitled to W.A.No.1903/2006 5 have regular promotion to the post of Assistant Professor from 24.9.1997. In view of Exts.P1, P2, P3, and P5, it is evident that the appellant was functioning as Assistant Professor from 22.9.1997 and notionally he was drawing the scale of pay in that post from 21.12.1992. By virtue of Exts.P6 and P7, he was regularised in that post on 24.9.1997 also. Therefore, the appellant is entitled to count his regular service in the cadre of Assistant Professor from 24.9.1997 for promotion, it is submitted. The learned Government Pleader took us through the averments in the counter affidavit and submitted that pursuant to Ext.P5 the appellant joined duty as Assistant Professor only on 12.8.1999, therefore the service rendered by him from the said date alone could be reckoned. 6. We considered the rival submissions made at the Bar and went through the materials on record. By virtue of Ext.P3 order, it should be treated that he was continuing in a vacancy in the cadre post of Assistant Professor. By virtue of Ext.P2, it is evident that he was working as Assistant Professor from 22.9.1997 pursuant to grade promotion. By virtue of Exts.P6 and P7 he has been regularly promoted with retrospective W.A.No.1903/2006 6 effect from 24.9.1997. Therefore, it should be taken that he has been working in the post of Assistant Professor regularly from 24.9.1997. Therefore, we find no reason why the appellant could not count his service in the cadre of Assistant Professor from the date he was found eligible for the same by the D.P.C., which was approved by the Government also as evident from Exts.P6 and P7 orders. 7. In view of the above position, Ext.P16 is quashed and the 3rd respondent is directed to consider the claim of the appellant for promotion as Associate Professor taking that he has got regular service in the cadre of Assistant professor from 24.9.1997, in accordance with law, within 3months from the date of production of a copy of this judgment. The 1st respondent shall pass consequential orders based on the decision of the 3rd respondent. The Writ Appeal is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps