IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 OP.No. 17161 of 2000(R) ---------------------------------- PETITIONER: ------------------- DR. DINESHAN KUNIMMAL MATTANCHERY, S/O. K. KRISHNAN, AGED 39 YEARS, “VAISHNAVA”, KUTHIRAVATTOM.P.O., CALICUT - 16. BY ADV. SRI.S.ANANTHAKRISHNAN, SRI.SHYAM PADMAN, SRI.N.K.SUBRAMANIAN. RESPONDENTS: ------------------------ 1. GOVERNMENT OF KERALA, REP. BY SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, TRIVANDRUM - 695 004. 3. DIRECTOR OF MEDICAL EDUCATION, TRIVANDRUM - 11. *ADDL. RESPONDENTS 4 TO 7 IMPLEADED: 4. DR. A.V. VENUGOPALAN, SENIOR LECTURER IN GENITO URINARY SURGERY, MEDICAL COLLEGE, CALICUT. 5. DR. C.H. HARIS, SENIOR LECTURER IN GENITO URINARY SURGERY, MEDICAL COLLEGE, THIRUVANANTHAPURAM. O.P. NO. 17161/2000-R: 6. DR. P. HARIGOVINDAN, SENIOR LECTURER IN GENITO URINARY SURGERY, MEDICAL COLLEGE, CALICUT. 7. DR. M.R. CHANDRASENAN NAIR, SENIOR LECTURER IN GENITO URINARY SURGERY, MEDICAL COLLEGE, THIRUVANANTHAPURAM. *ADDL. R4 TO 7 IMPLEADED AS PER ORDER DATED 17/12/02 IN C.M.P. NO. 63620/2002. BY SR. GOVERNMENT PLEADER SRI. T.T. MUHAMOOD, ADV. SRI.ALEXANDER THOMAS,SC,KPSC, SRI.ELVIN PETER P.J, SRI.P.N.SANTHOSH, SRI.S.D.ASOKAN, SRI.S.RAMESH, SRI.NAVEEN.T, SRI.JACOB ABRAHAM. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NOS. 28261/2000 & 52558/2002 IN O.P. NO. 17161/2000-R DISMISSED 03/03/2008. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE COMMUNICATION DT. 10/05/1997 SENT BY THE PETITIONER TO THE R.2. EXT.P.2: COPY OF THE COMMUNICATION DT. 31/05/1997 ISSUED BY THE R.2. TO THE PETITIONER. EXT.P.3: COPY OF THE ORDER DTD. 27/12/1999 PASSED BY THE R.1. EXT.P.4: COPY OF THE COMMUNICATION DTD. 05/11/1997 ISSUED BY THE PETITIONER TO THE R.3. EXT.P.5: COPY OF THE REQUEST DTD. 03/04/2000 MADE BY THE PETITIONER TO THE 2ND AND 3RD RESPONDENTS. EXT.P.6: COPY OF THE PROVISIONAL ORDER DTD. 28/03/1996. EXT.P.7: COPY OF THE REPRESENTATION DTD. 04/10/2002 PENDING BEFORE THE R.1. EXT.P.8: COPY OF THE SELECT LIST PUBLISHED AS PER G.O. (P). NO. 298/2002 DT. 15/11/2002. EXTS.P.9 TO 13: NIL. EXT.P.14: COPY OF THE G.O. NO. 2376/2003 DT. 11/08/2003. EXT.P.15: COPY OF THE G.O. NO. 725/2004 DT. 11/03/2004. EXT.P.16: COPY OF THE REPRESENTATION DT. 10/07/03. O.P. NO. 17161/2000-R: EXT.P.17: COPY OF THE REPRESENTATION DT. 22/12/03. EXT.P.18: COPY OF THE REPRESENTATION DTD. 12/03/04. RESPONDENT'S EXHIBIT: EXT.R4.A: COPY OF THE SELECT LIST PUBLISHED AS PER G.O. (P). NO. 298/2002/H& FWD. DT. 15/11/2002. //TRUE COPY// prv. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 17161 OF 2000 ---------------------------------------- Dated this the 3rd day of March, 2008 JUDGMENT While the petitioner was working as Lecturer in Surgery in Calicult Medical College, he obtained M.Ch in Urology. According to the petitioner, he resigned from the post of lecturer in Surgery with effect from 23.11.1994. However he was not given any communication regarding acceptance of the same. He issued a reminder dated 26.10.95 which although received, was not replied to. On 3.2.1997, the PSC advised the petitioner to the post of Lecturer in Genito Urinary Surgery in Medical Education Department. However, pursuant thereto, the petitioner was not appointed. When he enquired about the reason for the same he was informed that the disciplinary proceedings were pending against him for unauthorized absence from 23.11.1994. Subsequently on 28.3.1996, Ext.P6 order of provisional removal from service was passed against him. In the above circumstances, the petitioner approached this Court filing this original petition seeking a direction to appoint the petitioner as O.P.No.17161/2000 2 Lecturer in Genito Urinary Surgery pursuant to the advice memo dated 3.2.1997. While the original petition was pending, the petitioner was appointed pursuant to the advice memo. In the meanwhile, by Ext.P3 order dated 27.12.1999 the petitioner was removed from service from the post of Lecturer in Surgery. Now the issue relates to seniority of the petitioner vis-a-vis additional respondents 4 to 7 who were advised subsequent to the advice of the petitioner but who got appointment and joined duty prior to the petitioner. After getting appointment, the petitioner amended the original petition and sought quashing of Ext.P8 select list to the post of Assistant Professor and also sought a direction to consider the petitioner for promotion to the post of Assistant Professor in Genito Urinary Surgery. The contention of the petitioner is that by virtue of Rule 27(c) of the Kerala State and Subordinate Service Rules, the petitioner is entitled to get seniority with effect from the effective date of advice by the P.S.C. which is earlier than that of additional respondents 4 to 7 and therefore the petitioner is entitled to get seniority to additional respondents 4 to 7. 2. The counsel for respondents 4 to 7 points out that O.P.No.17161/2000 3 the punishment of removal from service was imposed on the petitioner only by Ext.P3 order dated 27.12.99, till which date the petitioner was a Lecturer in Surgery and therefore he cannot obtain seniority in the post of Lecturer in Genito Urinary surgery with reference to any date prior to that date, since a Government servant cannot hold two posts at the same time. 3. I have considered the rival contentions in detail. Rule 27(C) of KS& SSR reads thus: “Notwithstanding anything contained in clause (a) and (b) above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list. Going by this rule perhaps the petitioner may be entitled to claim seniority with effect from 3.2.1997 that is the date of advice of the petitioner to the post of Lecturer in Genito Urinary Surgery by the PSC. But it remains a fact that the petitioner was removed from service from the post of lecturer in Surgery only on 27.12.99. Therefore he must be deemed to have been in service as a Lecturer in Surgery till that date. O.P.No.17161/2000 4 Rule 15(b) of Chapter III of Part I Kerala Service Rules stipulates that an officer cannot be appointed substantively except as a temporary measure, to two or more permanent posts at the same time. That being so, I am satisfied that the petitioner cannot, as of right, claim seniority in the post of Lecturer in Genito Urinary Surgery any time prior to 27.12.99, i.e. the date on which he was removed from service as a Lecturer in Surgery. Therefore I am satisfied that the petitioner is not entitled to seniority in the post of Genito Urinary Surgery, as against persons who joined service prior to 27.12.99. In the above circumstances, I do not find any merit in this original petition and accordingly the same is dismissed. S. SIRI JAGAN, JUDGE Acd O.P.No.17161/2000 5