IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 WA.No. 1280 of 2008() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.20878/2003 Dated 14/06/2007 .................... APPELLANT: 3RD RESPONDENT ----------------------------------------------- DR.M.T. HARISH, NOW WORKING AS ASSISTANT PROFESSOR, DEPARTMENT OF PSYCHIATRY, MEDICAL COLLEGE, CALICUT. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENTS: PETITIONER & RESPONDENTS 1 AND 2 -------------------------------------------------------------------------------- 1. DR.T.V. ANIL KUMAR, ASSISTANT PROFESSOR OF PSYCHIATRY, MEDICAL COLLEGE, TRIVANDRUM. 2. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM 3. THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) FOR SELECTION TO THE POST OF ASSISTANT PROFESSOR OF PSYCHIATRY, REP. BY ITS CONVENOR, SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. BY GOVERNMENT PLEADER, SRI. SANDESH RAJA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2008, ALONG WITH W.A. NO. 1294 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== W.A.Nos.1280 & 1294 of 2008 ===================== Dated this the 14th day of July, 2008. JUDGMENT Koshy,J. The appellant was a Lecturer in Psychiatry. The Departmental Promotion Committee met on 15.5.2002 for promotion to the post of Assistant Professor. One of the qualifications prescribed for promotion to the post of Assistant Professor is a post graduate degree in the concerned subject, i.e., M.D. Psychiatry. The appellant was not qualified on 15.5.2002. Therefore, in Ext.P1 list published by the Government after considering the decision of the Departmental Promotion Committee, the name of the appellant was not included. 2. The appellant passed the M.D. qualification on 9.7.2002. He got provisional certificate. Thereafter, he filed a representation to the Government. Earlier also, within one month of the publication, he filed a representation. Since his representation was not considered, he approached this Court. WA Nos. 1280 & 1294/08 -: 2 :- This Court directed the Departmental Promotion Committee to consider his representation. By Ext.P3 (in O.P.No.20878 of 2003), the case was considered by the Departmental Promotion Committee and his name was included. In the Explanatory Note, it is stated as follows: "As per G.O.(P) 150/2002/H&FWD dated 28.6.2002, a select list of Lecturers fit for promotion to the category of Assistant Professors for the year 2002 in the Department of Psychiatry was published which comprised Dr. Varghese P. Punnoose, Dr. K. Sushil, Dr. T.V. Anilkumar and Dr. P.N. Sureshkumar. As per the inter-se seniority of Lecturers Dr.Harish, M.T. is senior to Dr.Sushil, Dr.T.V.Anilkumar and Dr.P.N.Sureshkumar. At the time of convening of the DPC for preparing the select list on 15.5.2002 he had not acquired PG in the concerned discipline. He has completed 3 years teaching experience on 31.7.2000 and acquired P.G. on 6/2002. His probation was declared with effect from 1.8.1999. As per Rule 28(b)(1)(10) of the K.S. & S.S.R., the claim of a person who qualified himself for a post after the select list in respect of the post has been prepared but before the date of occurrence of vacancy in the higher post shall not be over WA Nos. 1280 & 1294/08 -: 3 :- looked. Dr.Harish has filed OP No.23520/2002 praying to consider him for promotion by reviewing Departmental Promotion Committee select list. The Hon'ble High Court in its judgment dated 28.8.2002 has ordered to consider his request and pass orders within three months from the date of receipt of a copy of the judgment. Hence the matter was placed before the Departmental Promotion Committee. The Departmental Promotion Committee considered the matter in detail and came to the conclusion that as Dr.Harish. M.T. became eligible before the date of occurrence of vacancy he is eligible for placement in the select list after Dr.Varghese Punnoose. Therefore, the select list of Lecturers published as per G.O.(P)150/2002/H&FWD dated 28.6.2002 is to be revised. Hence the revised select list." 3. Ext.P3 order was challenged in the two Writ Petitions before this Court by persons who were originally included in Ext.P1 list. The learned single Judge allowed the Writ Petitions. Rule 28(10) of the Kerala State & Subordinate Services Rules reads as follows: "(10) The claims of a person who qualifies himself for a post, after the select list in respect of WA Nos. 1280 & 1294/08 -: 4 :- that post has been prepared but before the date of occurrence of the vacancy in the higher post shall not be over looked." Therefore, it is contended that if the vacancy arises after the select list is prepared and before the vacancy a person is omitted only because of the lack of qualification or himself qualified the claim should be considered as the seniority cannot be overlooked. Admittedly, the appellant was senior to the respondents - writ petitioners. The learned Single Judge relied on the decision of this Court in Shaji v. State of Kerala - 2004(1) K.L.T. 553. In that case, the list was prepared after the vacancies arose. In such cases, if there are no qualified candidates, the persons who first become qualified can be appointed even if he is junior in view of Rule 28(b)(iA) of the K.S. & S.S.R. The learned counsel also cited the decision of the Full Bench of this Court in Padmanabhan Nair v. Dy. Director - 1991 (1) K.L.T. 337. The above judgment is also in favour of the appellant wherein it is clearly stated as follows: "11. When qualifications are prescribed for a promotion post, eligibility for appointment to that post has to be reckoned with reference to the date on WA Nos. 1280 & 1294/08 -: 5 :- which the vacancy arose." 4. Here the whole question to be considered is when the vacancy of Assistant Professor arose. Admittedly four persons were promoted as Associate Professors on 1.8.2002. Only on the promotion of Assistant Professors as Associate Professors the vacancies of Assistant Professors arose. In other words, the vacancies of Assistant Professors arose only on 1.8.2002. So, on the date of occurrence of vacancy, the appellant, who is senior was qualified and before the appellant was qualified, there was no vacancy arose to the post of Assistant Professor. 5. The next contention raised was that there were vacancies of Associate Professors earlier before the appellant was qualified. If the Associate Professors vacancies were filled up by promoting Assistant Professors, there would have been vacancies of Assistant Professors before the appellant became qualified. But Annexure C as well as the Explanatory Note shows that the Assistant Professors were promoted as Associated Professors only in 2002. Here, the fact is that the post of Assistant Professor became vacant only on 1.8.2002. At the time when the vacancies of Assistant Professors arose consequent on the WA Nos. 1280 & 1294/08 -: 6 :- promotions to the category of Associate Professors, the appellant who was senior to the writ petitioner was qualified and therefore Ext.P3 is perfectly valid. We set aside the judgment of the learned single Judge, uphold Ext.P3 order and allow the Writ Appeal. The Writ Petitions dismissed. The appellant is entitled to the consequential benefits. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 16/7