IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 WA.No. 17 of 2009() ------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.3886/2008 Dated 03/12/2008 .................... APPELLANT/RESPONDENT NO.4 IN THE W.P.(C): -------------- DAVID THARAKAN K.R., KALLARACKAL 5, ASWATHY, BHAVAN, AMBALATHARA, POONTHURA P.O. THIRUVANANTHAPURAM. BY ADV. SRI.K.R.B.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 IN THE W.P.(C): --------------- 1. DR. ABHILASH B, PRIMROSE, T.C. 48/462 (V) KALLATTUMUKKU, MANACAUD P.O., THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 3. SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 4. DIRECTOR OF MEDICAL EDUCATION, DME'S OFFICE, MEDICAL COLLEGE P.O., TRIVANDRUM. ADV. SRI.THOMAS ABRAHAM FOR R1 SRI.ALEXANDER THOMAS FOR R2. GOVERNMENT PLEADER, SMT.R.BINDU FOR R3 & R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2009, ALONG WITH WA NO. 501 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.Nos. 17 & 501 OF 2009 ------------------------------- Dated this the 25th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. These appeals are filed by the aggrieved respondents in W.P.(C) No.3886/2008. 1st respondent herein , Dr.Abhilash.B, was the writ petitioner. The dispute raised for resolution was the application of communal rotation for appointment to the post of Senior Lecturer in Oral and Maxillofacial Surgery. 2. The brief facts of the case are the following: We will refer to the parties as they are arrayed in the writ petition for convenience. The PSC invited applications for appointment to one vacancy in the post of Senior Lecturer in Oral and Maxillofacial Surgery by publishing Ext.P1 notification. The qualification prescribed for the post was Post Graduate Degree in Oral and Maxillofacial Surgery. In the absence of candidates with the said P.G. qualification, the candidates with Degree, that is, Bachelor of Dental Surgery, were also eligible to apply. But, the post, in the W.A.Nos.17 & 501/2009 2 event of appointment of the degree holder, will be teated as Lecturer in Oral and Maxillofacial Surgery. The same is evident from Ext.P1 notification. The PSC completed the selection process and published Ext.P2 rank list on 26.12.2007. The petitioner belongs to 'Ezhava' community. Though he is Rank No.9, he was the 1st Ezhava candidate in that list. But, when appointments were made, Rank No.1 was appointed in the Non- Joining Duty (NJD) vacancy of an open competition candidate of the previous rank list. In the 100 point roster, advices were made up to Point No.33 from the previous rank list for the post. So, the main rotation started from the roster point No.34E. That turn was an Ezhava turn. But, if an Ezhava candidate is appointed, at that particular point of time, the reservation will exceed 50%. Therefore, that was temporarily passed over and in the next vacancy, the 4th respondent was appointed. 3. According to the petitioner, Senior Lecturer is a newly created post. So, the appointment to it should have started from roster point No.1 with the 1st turn going to the open competition candidate and the 2nd vacancy being Ezhava reservation should have gone to the petitioner. The previous rank list was one of W.A.Nos.17 & 501/2009 3 Lecturer and there was no justification for clubbing of these two posts of Lecturer and Senior Lecturer for the purpose of continuance of the reservation. Therefore, the petitioner filed the Writ Petition challenging the appointment of the 4th respondent and seeking a further direction to advise him to the 2nd vacancy in the post of Senior Lecturer. 4. The PSC filed a counter affidavit stating that the post of Senior Lecturer is created by re-designation of the post of Lecturer and taking both the posts as belonging to the same cadre, the reservation turn will start from the point where it was stopped at the time of last advice made from the previous list for Lecturer. They also submitted that, even if, the post of Senior Lecturer is taken as a newly created post, there is only one vacancy reported in that post. Therefore, the 1st vacancy will go to the Rank No.1 and the petitioner has to wait for the next vacancy. The NJD vacancy can be filled up only by making fresh recruitment to the post of Lecturer, in view of the newly introduced amendment to Rule 15 in the form of a Note in the Kerala State & Subordinate Services Rules, 1958 (for short 'KS & SSR') W.A.Nos.17 & 501/2009 4 5. The 4th respondent also filed a counter affidavit raising more or less identical contentions . But, the learned Single Judge, accepted the contentions of the writ petitioner, held that Senior Lecturer is a new post and therefore, the reservation should start from the roster point No. 1 and the advice of the 4th respondent was set aside. The relevant portion of the said judgment is as follows: “13. Even otherwise, the anxiety of the PSC for compensating the unsatisfied turns, can only be in relation to the post of Lecturer, which post even now continues though by virtue of a fall back clause in the recruitment rules. Therefore, even if there is any short fall, PSC can make good such short fall, in the category of Lecturer, as and when the PSC resorts to the fall back clause in the recruitment rule and appoint Lecturers. For this limited purpose, PSC can even continue the old roster and make appropriation in that roster. 14. Therefore, there is no substance in the contention raised by the PSC that the post of Senior Lecturer has to be considered as in effect re-designation. 15. Since I have found that Senior Lecturer is a newly created post and not re-designation of the existing post of Lecturer, the PSC has W.A.Nos.17 & 501/2009 5 to start operating a fresh roster and advice candidates from the select list on that basis. PSC and the 4 th respondent both had no case that if the roster is to start afresh, the advice of the 4 th respondent is not erroneous. Therefore, as a necessary consequence of my finding that the post is a newly created one, advice of the 4 th respondent is erroneous. The advice of the 4 th respondent and his appointment will necessarily stand set aside. PSC shall, advise candidates from Ext.P2 ranked list, in the light of the observations made herein above.” 6. Feeling aggrieved by the above direction, the 4th respondent has preferred the Writ Appeal No. 17/ 2009 and the PSC has filed Writ Appeal No.501/2009. We heard the learned senior counsel Sri.K.R.B Kaimal and Sri. Alexander Thomas, Standing Counsel for the PSC, for the appellants. As directed by this Court, the Director of Medical Education has filed a statement in W.A.No.17/2009. The learned Senior Government Pleader, Sri.Benny Gervasis, supported the stand of the PSC. We heard Sri. Thomas Abraham, learned counsel for the writ petitioner/1st respondent. W.A.Nos.17 & 501/2009 6 7. According to the learned counsel for the appellants and learned Government Pleader, the post of Senior Lecturer is a re-designated post of Lecturer. When the incumbent holding the post has Post Graduate qualification, then the post will be treated as post of Senior Lecturer and the scale of pay will be Rs.10,000-15,200/-. When the incumbent holding the post is only a Graduate, then the post will be called Lecturer and its scale of pay will be Rs.8,000-13,500/-. Ext.R4(a) contained the proposal for higher scale of pay and designation of Senior Lecturer for Post Graduates. The relevant portion of Ext.R4(a) reads as follows: “Hereafter recruitment will be to the Senior Lecturer post only and the qualification will be PG Degree in the respective discipline. Only in case PGs are not available recruitment will be made to the post of Lecturers (8000- 13500) with MBBS qualification. Recruitment rules will be amended suitably to the above effect. The existing Lecturers with PG will be redesignated as Senior Lecturers and paid Rs.10,000-15,200. IV. Career Advancement:- (a) Senior Lectures who have PG Degree in the speciality concerned and also have 5 years of (Physical) teaching experience will be promoted as Assistant Professors in the scale of pay of Rs.12000-18300. W.A.Nos.17 & 501/2009 7 (b) Assistant Professors with 5 years teaching experience (Physical and those who have put in 10 years of total service as Senior Lecturer and Assistant Professor, put together will be promoted as Associate Professor in the scale of pay of Rs.14300- 19250. (c) Lecturers without PG Degree will be granted the scale of pay of Rs.12000- 18300 on completion of 10 years of Physical teaching experience without any change of designation. They will not be eligible for any further promotion till they acquire the PG Degree in the respective discipline.” Based on the above recommendation of the Pay Commission, which was accepted by the Government, it issued consequential orders in consultation with the PSC providing for the qualification and method of appointment to the post of Lecturer and Senior Lecturer on 10.1.2005. In the said order, the first paragraph is devoted to summarize the suggestions in Ext.R4(a) and the said para ends with the following sentence. “It was also ordered therein that the existing Lecturers with PG will be re-designated as Senior Lecturers and paid Rs.10,000-15,200/-.” W.A.Nos.17 & 501/2009 8 8. The appellants further pointed out that the cadre strength of Lecturer/ Senior Lecturer is the original cadre strength of Lecturer. As a result of Exts. R4(a) and R(b), recruitment will be made only to the post of Senior Lecturer. If sufficient post Graduates are not available in the subject, then only the recruitment will be made to the post of Lecturer. Even if a person is appointed as Lecturer on his acquisition of P.G qualification, he will be treated as a Senior Lecturer. The appellants also relied on the statement filed on behalf of the Director of Medical Education, wherein the said Officer fully supported the contentions of the appellants. In the said statement it is submitted as follows: “It is respectfully submitted that as per G.O. (P) No.145/2000 re-designation of the post of lecturer alone had taken place whereby those lecturers with post graduate degree were classified as senior lecturers with a higher scale of pay whereas those without post graduation were to continue as lectures. The direct recruitment to the post of lecturers were thereafter made to the post of senior lectures and the qualification prescribed was post graduate degree and only in the absence of post graduate degree candidates appointments were to be made to W.A.Nos.17 & 501/2009 9 the post of lectures with bachelors degree. It is submitted that by the above re-designation there has been no variation in the cadre strength and the post of senior lecture and lecture together constitute the cadre strength of the post of lecture which is re-designated as senior lecture. The duties and responsibilities attached to both the above posts are the same and as and when a lecturer acquires post graduate degree in the respective discipline he would be re- designated as senior lecture in the scale of pay of Rs.10,000/- 15,200/-. It is therefore submitted that no creation of a new post was carried out by the issuance of G.O.(P)No.145/2000 and therefore the recruitment by the Public Service Commission to the post of Senior Lecturer Oral and Maxilo Facial surgery is the continuation of the earlier recruitment carried out to the post of Lecturer, Oral and Maxilo Facial surgery.” 9. The Government, who is the author of Exts.R4(a) and R4(b), also supported the stand of the appellants. The appellants also pointed out that if the post of Lecturer is treated as a separate post, the NJD vacancy reported in that cadre based on which Ext.P1 notification was issued, cannot be filled up from Ext.P2 rank list, which is published for filling up of the post W.A.Nos.17 & 501/2009 10 of Senior Lecturer. Recently, an amendment has been introduced to Rule 15(a) of the Kerala State & Subordinate Services Rules, 1958 (for short 'KS & SSR'), which reads as follows: Note: All pending uncompensated turns of vacancies such as temporarily passed over, no candidate available and non-joining duty as on the 2 nd February, 2006, shall be compensated”. If the said Rule is to be implemented, there should be a separate selection to the post of Lecturer, provided, Lecturer is treated as a separate cadre. But, going by Exts.R4(a) and R4(b), now recruitment can be made only to the post of Senior Lecturer. That means, the aforementioned note can never be implemented, if the contention of the appellants is accepted. In view of the above position, the appellants and Government prayed for allowing the appeal. 10. Sri. Thomas Abraham, submitted that there is nothing in Exts. R4(a) or R4(b) to show that Senior Lecturer is a re- designated post of Lecturer. Therefore, the uncompensated turns cannot be compensated from Ext.P2 list. The post being a W.A.Nos.17 & 501/2009 11 new post, the reservation has to start afresh from roster point No.1. The learned counsel also submitted that even if he cannot be appointed to the second vacancy, the appointment of the 4th respondent to the second vacancy is unsustainable and therefore, it was rightly set aside by learned Single Judge. 11. We considered the submissions made at the Bar and also gone through the relevant materials on record. We notice that the learned Single Judge did not have the benefit of the views of the appointing authority, while the writ petition was heard. We feel that due weight should be given to the views of the Government that post of Senior Lecturer is re-designated post of Lecturer and the cadre strength of the original post of Lecturer is remaining unchanged. Therefore, the roster for reservation should be applied in continuance of the last turn as was done by PSC in this case. The notification issued by the PSC stated that it was meant to recruit Senior Lecturers with P.G. qualification and in the absence of candidates with P.G. qualification, to recruit Lecturers with degree qualification. We notice that if no Post Graduates applied for the post and if the rank list of Lecturers alone was prepared, then all the W.A.Nos.17 & 501/2009 12 vacancies, which arose in the cadre strength will be treated as the vacancies of Lecturers. If all the posts are occupied by Post Graduates and newly appointed persons are also Post Graduates, then the total posts in the cadre will be treated as those of Senior Lecturers. If they are separate and different posts, as contended by the writ petitioner, the above position will never be available. So, we are inclined to accept the contention of the State and also the appellants herein that Senior Lecturer cannot be treated as a separate cadre post for the purpose of application of communal rotation as provided under Rule 14 to 17 of the KS & SSR. We are of the view that decision of the learned Single Judge to the contrary cannot be upheld. We also find considerable force in the submission made relying on the newly introduced Note to the Rule of the KS & SSR. The previous selection was to the post of Lecturer. The present selection was to the post of Senior Lecturer. The pending uncompensated turns are in the post of Lecturer. If the 1st respondents contention is accepted for filling up those turns a special recruitment to the post of Lecturer has to be made. In the present position obtained under the Rules, recruitment can be made only to the post of Senior Lecturer. So, the contention of W.A.Nos.17 & 501/2009 13 the 1st respondent will make the Rules unworkable. Further, as pointed out by the PSC in whatever manner the Rules are applied, the first respondent will get only the next vacancy. So, the contentions of the writ petitioner/first respondent are liable to be rejected. In the result the Writ Appeals are allowed, the judgment of the learned Single Judge is reversed and the Writ Petition is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps