IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 OP.No. 19316 of 2002(Y) ------------------------------ PETITIONER(S): ------------------- BENNO GOMEZ. M., HEALTH EDUCATION INSTRUCTOR (RETD.), STATE INSTITUTE OF HEALTH & FAMILY WELFARE, THYCAUD, THIRUVANANTHAPURAM, RESIDING AT SIRLA HOUSE, MONAMKULAM,KAZHAKKUTTAM, THIRUVANANTHAPURAM. BY ADV. MR.ABRAHAM VAKKANAL, SENIOR ADVOCATE MR.ROY P.KURIAKOSE MR.SAJI KURIACHAN MR.M.R.NANDAKUMAR MR.PAUL ABRAHAM VAKKANAL RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPASRTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICE, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MS. SMITHA SUKUMAR (NO MEMO) THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 19316 of 2002 ORDER ON C.M.P.NO.33016 OF 2002 IN O.P.NO.19316 OF 2002 CLOSED. 27.2.2009. SD/-S. SIRI JAGAN, JUDGE. APPENDIX PETITIOENR'S EXHIBITS EXT.P1: COPY OF NOTIFICATION G.O.(P)424/99/H&FWD DT.14.10.1999 OF THE HEALTH AND FAMILY WELFARE (H) DEPARTMENT. EXT.P2: COPY OF PROPOSAL DTD 9.7.1998 ISSUED FROM THE R2. EXT.P3: COPY OF ORDER NO.FWA2-40370/2000/DHS DTD 18.5.2000 OF R2. EXT.P4: COPY OF G.O.(Rt)NO.3022/2001/H&FWD DATED 16.11.2001 OF THE HEALTH & FAMILY WELFARE (H) DEPARTMENT. EXT.P5; COPY OF THE PAY/LEAVE SALARY SLIP DTD 20.12.2001 OF THE PETITIOENR, SHOWING THE PAY OF BOTH POSTS. EXT.P6: COPY OF PETITION DTD 9.5.2000 FROM THE PETITIONER TO R1. EXT.P7: COPY OF CIRCULAR DTD 12.06.1998 OF THE PERSONNEL & ADMINISTRATIVE REFORMS (RULES) DEPARTMENT. EXT.P8: COPY OF THE PETITION DTD 2.11.2000 FROM THE PETITIONER TO R2. EXT.P9: COPY OF PETITION DTD 30.1.2001 FROM THE PETITIONER TO THE 1ST RESPONDENT. EXT.P10: COPY OF LETTER DATED 16.6.2001 FROM THE PETITIONER TO R1. EXT.P11: COPY OF LETTER DTD 18.6.2001 FROM R2. EXT.P12: COPY OF LETTER DTD 29.9.2001 FROM 2ND RESPONDENT TO R1. EXT.P13: COPY OF RELEVANT PORTION OF G.O.(MS)126/66/HLD DT. 26.2.1966 OF THE HEALTH & LABOUR (A) DEPARTMENT. EXT.P14: COPY OF G.O.(MS)99/73/HD DT.13.4.1973 FROM THE HEALTH (FP) DEPARTMENT. OP.No. 19316 of 2002 EXT.P15: COPY OF PETITION DTD 19.11.2001 FROM THE PETITIOENR TO R1. EXT.P16: COPY OF LETTER NO.FWA2-56141/01/DHS DTD 27.11.2001 OF THE DIRECTORATE OF HEALTH SERVICES. EXT.P17; COPY OF PETITION DATED 11.12.2001 FROM THE PETITIONER TO R1. EXT.P18: COPY OF LETTER NO.55487/H2/2001/H&FWD DATED 20.3.2002 OF THE HEALTH & FAMILY WELFARE (H) DEPARTMENT. EXT.P19: COPY OF ORDER DATED 11.6.2002 IN COMPLAINT NO.464/2002 OF KERALA LOK AYUKTA. EXT.P20: COPY OF G.O.(Rt)2456/90/H &FWD DATED 3.8.1990 OF THE HEALTH & FAMILY WELFARE (H) DEPARTMENT. EXT.P21: COPY OF G.O.(Rt) NO.552/97/H&FWD DATED 26.2.97 OF THE HEALTH & FAMILY WELFARE (H) DEPARTMENT. EXT.P22: COPY OF G.O.(Rt)NO.786/98/H& FWD DATED ,28.3.98 OF THE HEALTH & FAMILY WELFARE (H) DEPARTMENT. EXT.P23: COPY OF G.O.(Rt) NO.4168/97/H&FWD DTD 26.11.97 OF -DO - TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.19316 OF 2002 ---------------------------------------- Dated this the 27th day of February, 2009 JUDGMENT The petitioner retired from service as a Health Education Instructor in the Health and Family Welfare Department, Government of Kerala on 30.11.2001. He entered service as an Urban Extension Educator/District Extension Educator on 10.4.1973. That post was re-designated as Deputy District Education Media Officer from 1993 onwards. He was promoted as District Education Media Officer in 1992. Since he had earlier enjoyed the time bound higher grade, he did not get any financial benefit on account of the regular promotion, except fixation of pay. He was promoted as School Health Education Officer on 29.5.1998 by Ext.P1 order. But here also he did not get any financial benefit since he had earlier enjoyed time bound higher grade promotion, except fixation benefits. He completed probation in that post on 29.5.1999. Subsequently his date of promotion as School Health Education Officer was re-assigned as 27.11.1997 with retrospective effect. By Ext.P2, his superior O.P.No.19316/2002 2 officer recommended him for promotion to the post of Health Education Instructor. While so, the State Mass Education and Media Officer retired from service on 31.10.1999. The petitioner's senior was put in full additional charge of the same. The petitioner's senior retired on 30.4.2000. The petitioner was given full additional charge with effect from 1.5.2000. By Ext.P4 dated 16.11.2001, the petitioner was promoted as Health Education Instructor. The petitioner repeatedly requested for appointment as State Mass Education and Media Officer, which did not evoke any response. The petitioner retired from service on 30.11.2001. By Ext.P7, the petitioner requested for notional promotion as State Mass Education and Media Officer. By Ext.P18, the same was rejected on the ground that an officer promoted provisionally under Rule 31(a)(1) cannot claim promotion on a notional basis with retrospective effect. The petitioner is challenging Ext.P18 order. 2. The petitioner's contention is that by Exts.P20 to P22, other similarly situated persons had been given appointment as State Mass Education and Media Officers under Rule 9(a)(1) of the K.S & S.S.R. Therefore, the petitioner O.P.No.19316/2002 3 submits that he should also be given that benefit retrospectively at least notionally with retirement benefits as applicable to the State Mass Education and Media Officer. 3. No counter affidavit has been filed by the respondents in this case. The learned Government Pleader, on the basis of files, disputes the contentions raised by the petitioner. The petitioner's claim in this original petition is for appointment as State Mass Education and Media Officer. But it is conceded by the learned counsel for the petitioner that as per the special rules applicable, the method of appointment to the post of State Mass Education and Media Officer is by direct recruitment and not by promotion. As such the petitioner does not have a right for being appointed as State Mass Education and Media Officer either provisionally or regularly. The petitioner's contention is that for years together the practice followed in the Health and Family Welfare Department is that the senior most Health Education Instructor would be appointed to that post. Even assuming that to be true, that itself is an unsustainable practice. When as per the special rules, the method of appointment is by direct recruitment, all procedure prescribed for direct recruitment has to be followed. O.P.No.19316/2002 4 In fact from Exts.P20 to P22, I find that the appointments made were only under Rule 9(a)(1). Under Rule 9(a)(1) the appointments are being made temporarily in exigencies of service. Nobody has a right to be appointed under Rule 9(a) (1). It is in the discretion of the Government to decide to appoint a person under Rule 9(a)(1) in public interest. Even assuming that some persons have been earlier appointed irregularly that cannot give a right for the petitioner to similar treatment, in so far as it is settled law that nobody can claim a right on the basis of negative discrimination. As such, the petitioner has not been able to satisfy me that he had a right to be appointed as State Mass Education and Media Officer. In that view the petitioner is not entitled to the reliefs prayed for in this original petition. Accordingly, the original petition is dismissed. S. SIRI JAGAN, JUDGE Acd O.P.No.19316/2002 5