IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WA.No. 2344 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.23474/2008 Dated 31/10/2008 .................... APPELLANT:PETITIONER IN W.P.C. --------------------------------------- DR.RAJI K.L W/O. SUMITH, ASSISTANT INSURANCE MEDICAL OFFICER, KERLAPURAM, KOLLAM DISTRICT, RESIDING AT ULLIRUPPIL KADAPPAKKADA, KOLLAM. ' BY ADV. SRI.C.K.PRASAD RESPONDENTS:RESPONDENTS IN W.P.C. --------------------------------------------- 1. THE DIRECTOR, MEDICAL EDUCATION THIRUVANANTHAPURAM 2. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, THIRUVANANTHAPURAM. 3. THE DIRECTOR,INSURANCE MEDICAL SERVICES, THIRUVANANTHAPURAM. 4. THE SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT (CHAIRMAN POST GRADUATE SELECTION COMMITTEE) SECRETARIAT, THIRUVANANTHAPURAM. 5. DR.SEEMA.V VISWANIKETHANAM, MURUNTHAL, PERINADU PO KOLLAM, PRESENTLY POST GRADUATE STUDENT RADIO DIAGNOSIS MEDICAL COLLEGE, THRISSUR THROUGH THE PRINCIPAL, MEDICAL COLLEGE,THRISSUR. WA 2344/08 6. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. ADV. SRI.PHILIP T.VARGHESE FOR R5 SRI.THOMAS T.VARGHESE FOR R5 GOVERNMENT PLEADER MR.BENNY GERVACIS FOR R1 TO 4 & 6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON 18/02/2009 DELIVERED THE FOLLOWING: KURIAN JOSEPH & S.S. SATHEESACHANDRAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.2344 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 18th February, 2009 JUDGMENT Satheesachandran,J. This Writ Appeal is directed against the judgment dated 31.10.2008 in W.P.C.No.23474 of 2008, in which the challenge raised by the appellant-petitioner against the selection of the 5th respondent to Post Graduate Medical Course in the Insurance Medical Services Quota had been repelled holding that her selection was in accordance with the criteria laid down in the prospectus for admission to that course. The appellant and the 5th respondent are Assistant Insurance Medical Officers and both of them had applied for admission to the Post Graduate Medical Course seeking selection in the Insurance Medical Services Quota. Considering the length of service put in by the 5th respondent which was longer, to that of the appellant-petitioner, she was selected to the course. The appellant had challenged that selection earlier under Writ Petition No.17683 of 2008, which was disposed by Ext.P4 judgment directing respondents 1 and 3 to consider the representation moved by her, with notice to the affected parties. After consideration, respondents 1 and 3 rejected the appellant's claim by Exts.P8 and P10 orders respectively. The appellant thereupon moved the Writ Petition covered by the impugned judgment challenging the WA 2344/08 2 selection of the 5th respondent and also questioning the correctness of Exts.P8 and P10 orders by the aforementioned respondents. She has also sought for a direction to the respondents to admit her in Post Graduate Medical Course (Radio Diagnosis) in the place of the 5th respondent. The learned Single Judge after consideration of the materials, found that the 5th respondent was selected in accordance with the eligibility criteria fixed under the prospectus and the claim of the petitioner over the 5th respondent was meritless. The Writ Petition was thus dismissed. 2. Admittedly, the controversy to be resolved as to who between the two, the appellant and the 5th respondent, was eligible for selection to the post of Post Graduate Course from the Insurance Medical Services Quota squarely rests on a correct and proper analysis of clause VII (a) 2 of the prospectus for admission to the Post Graduate Degree/Diploma Courses, 2008, which reads thus: “2. For candidates under Service quota total service will be reckoned as on 01.01.2008. Unauthorised absence or absence due to Leave without Allowance will not be counted for the purpose of calculating the seniority. Inter se seniority of actual physical service, excluding leave without allowance with acquirement of eligibility in the Entrance Examination will be the criterion for selection, if more than one candidate applies WA 2344/08 3 for the course and if, the difference in their length of service is more than 90 days. If it is below 90 days, the PSC seniority will be the criterion. Period of leave without allowance will be deducted for determining the seniority.” The learned counsel for the appellant banking upon the first part in the above clause contended that on excluding the period of leave without allowance taken by the 5th respondent, the appellant was senior between them and as such she should have been selected for the course. Where more than one candidate applies for the course, the above clause envisages that the actual physical service put in by the candidates excluding the unauthorised absence due to leave without allowance has to be calculated to fix their inter se seniority. The 5th respondent joined service, admittedly, much earlier to the appellant. The 5th respondent had availed leave without allowance from 4.9.2007 to 31.12.2007. Excluding that period, the total service put in by her as on 1.1.2008, the date fixed for reckoning the service for selection, is admittedly 214 days, calculated from the date of her joining of service. The appellant as on the date fixed, i.e. 1.1.2008 had put in 245 days in service. That being so, the appellant was senior to the 5th respondent and she should have been selected in the place of 5th respondent for the course, contends the learned counsel. If only the difference in the length of service is more than 90 days, then only the WA 2344/08 4 need for fixing the inter se senioirity as under clause VII (a) 2 emerges for consideration and in the present case as the difference between the two is less than 90 days, that exercise is uncalled for. Reliance is also placed on clause VII (h) which specifically pertains to selection from the Insurance Medical Service Quota. In clause VII(h), it is stated that the selection of the candidates under this category will be made on the basis of seniority of the period of 'actual service' in the Insurance Medical Department. According to the learned counsel, the actual service put in by the appellant is more than that of the 5th respondent and as such she should have been selected in the place of 5th respondent. 3. We are afraid that the argument built with reference to clauses VII (a) 2 and (h) of the prospectus cannot be appreciated. Fixation of inter se seniority to select the eligible candidate from the quota fixed for a service candidate to the course has to be followed strictly in accordance with the guidelines given under clause VII (a) 2. It is not the actual service but actual physical service reckoned excluding unauthorised absence or absence due to leave without allowance that has to be taken into account for fixing inter se seniority among the candidates who apply in the service quota for the course. What is to be determined is inter se seniority based on actual physical service of such candidates excluding leave without allowance. If the WA 2344/08 5 difference in their length of service on such fixation is more than 90 days, then the candidate who had put in the actual physical service exceeding 90 days than the other candidate, has to be selected. If the difference between the two on fixation of such actual physical service is less than 90 days, then the clause states that P.S.C. seniority will govern the eligibility for selection. Excluding the period of leave without allowance taken by the 5th respondent, her actual physical service as on 1.1.2008, the date fixed for reckoning such service under the proceedings, is 262 days, whereas the actual physical service put in by the appellant as on the date of reckoning, i.e. on 1.1.2008 is 284 days. The difference is only 22 days, and so much so, it is a case where P.S.C. seniority alone will prevail as the difference in their length of actual physical service is less than 90 days. If that be so, the irresistible conclusion follows that the selection of the 5th respondent is unassailable. 4. Another attack on the selection of the 5th respondent mooted by the learned counsel for the appellant is built clause 7(h) wherein it has been stated that in the case of selection to the seats for the course earmarked for the Insurance Medical Service Quota, selection will be made “on the basis of seniority of the period of actual service” in the above department. 'Actual service', according to the counsel, has to be reckoned as actual physical service excluding leave without WA 2344/08 6 allowance. But actual service under service rules refers to service put in by an employee without break in service. Availing of leave without allowance, may lead to loss of service benefits during the period or eligibility for selection to any course, as in the present case, subject to the restrictions and guidelines imposed under the rules and regulations; but on no account it will lead to break in service unless so specifically provided in the service rules applicable. If actual service of the 5th respondent is reckoned with that of the appellant, then also her selection to the course cannot be impeached. It has also to be noted that clause VII (h) pertains to selection for filling up of the seats earmarked for the Insurance Medical Service Quota and clause VII (a) 2 applies to all categories for determining inter se seniority as between the candidates in a reserved quota, which has to be based on actual physical service of the candidates, and eligibility for selection being determined taking note of the difference in length of service, giving due regard to the guidelines applicable where such difference is above or below 90 days. If selection of the candidates from Insurance Medical Service Quota to the seats reserved for that quota in the course is to be determined on the basis of seniority, then the petitioner-appellant has no case whatsoever to challenge the selection of the 5th respondent. 5. The 5th respondent while submitting the application had not WA 2344/08 7 disclosed the leave without allowance availed by her from 4.9.2007 to 31.12.2007 has been highlighted by the counsel for the appellant to contend that her application deserved outright rejection or at least cancellation when that material suppression fact was later brought to the notice of the competent authority. The leave applied for by the 5th respondent was sanctioned under Ext.P3 on 21.4.2008 and that being so, she could not have stated in her application filed much earlier that she had been sanctioned such leave for the period from 4.9.2007 to 31.12.2007. Whether she had mentioned or not the availing of leave without allowance from 4.9.2007 to 31.12.2007 would not have caused any difference in the given facts of the case on her eligibility for selection to the course in preference to that of the appellant. Non- mentioning of the above leave in the application cannot be considered as a circumstance disentitling her selection to the course where she is found otherwise eligible. 6. There is thus no merit in the appeal and it is accordingly dismissed. KURIAN JOSEPH, JUDGE srd S.S. SATHEESACHANDRAN, JUDGE WA 2344/08 8