IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 WP(C).No. 18131 of 2008(H) -------------------------- PETITIONER(S): ---------------------- DR.LAILA RANI VIJAYARAGHAVAN ASSOCIATE PROFESSOR OF PATHOLOGY, MEDICAL COLLEGE, THIRUVANANTHAPURAM, RESIDING AT ANUGRAHA, T.C.14/79(2), HILL PARK AVENUE, NEAR KIMS HOSPITAL, ANAYARA, THIRUVANANTHAPURAM 695 029 BY ADVS. MR.PIRAPPANCODE V.SREEDHARAN NAIR MR..PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. CONVENER, DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) AND SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 4. DR.P.P.SATHI, PROFESSOR OF PATHOLOGY, MEDICAL COLLEGE, KOZHIKODE. 5. DR.RAJEEVAN.K., ASSOCIATE PROFESSOR, DEPARTMENT OF PATHOLOGY, MEDICAL COLLEGE, KOZHIKODE. 6. DR.SUPRIYA.N.K., PROFESSOR OF PATHOLOGY, MEDICAL COLLEGE, KOTTAYAM. 7. DR.RAMANI K.S., ASSOCIATE PROFESSOR, DEPARTMENT OF PATHOLOGY, MEDICAL COLLEGE, THRISSUR. 8. DR.MATHEW C.F., ASSOCIATE PROFESSOR, DEPARTMENT OF PATHOLOGY, MEDICAL COLLEGE, KOZHIKODE. 9. DR.SANKAR.S., ASSOCIATE PROFESSOR, DEPARTMENT OF PATHOLOGY, MEDICAL COLLEGE, KOTTAYAM. 10. DR.SANTHA SADASIVAN, ASSOCIATE PROFESSOR DEPARTMENT OF PATHOLOGY, MEDICAL COLLEGE, KOTTAYAM. BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR ADV. SRI.S.JAYAKRISHNAN FOR R7,9,10 SRI.DEVAN RAMACHANDRAN FOR R5 SRI.K.M.ANEESH FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2009, ALONG WITH WPC NO. 35532 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18131 of 2008(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE APPOINTMENT ORDER NO. G1/4301/88 DATED 18.8.1988 OF THE DIRECTOR OF MEDICAL EDUCATION. EXT.P2 - TRUE COPY OF THE ORDER NO. G1-16776/89 DATED 22.3.1990 ISSUED BY THE 3RD RESPONDENT. EXT.P3 - TRUE COPY OF THE ORDER NO. E3/59/5916/90 MCK DATED 10.4.1990 ISSUED BY THE PRINCIPAL, MEDICAL COLLEGE, KOTTAYAM. EXT.P4 - TRUE COPY OF THE G.O.(Rt) NO. 1519/98/H&FWD DATED 19.6.1998. EXT.P5 - TRUE COPY OF THE RELEVANT PAGES G.O.(P) NO. 75/96/H&FWD DATED 20.2.1996. EXT.P6 - TRUE COPY OF THE ORDER NO. 14182/78/MCK DATED 4.11.1978 OF THE PRINCIPAL, MEDICAL COLLEGE, KOTTAYAM. EXT.P7 - TRUE COPY OF THE CERTIFICATE OF JOINING DUTY ISSUED IN FAVOUR OF DR.ANNIE BELTHAZER. EXT.P8 - TRUE COPY OF THE ORDER NO. K.DIS.4569/81/MCK DATED 25.6.1981 OF THE PRINCIPAL, MEDICAL COLLEGE, KOTTAYAM. EXT.P9 - TRUE COPY OF THE G.O.(Rt) NO. 1578/89/H.FWD DATED 27/5/1989. EXT.P10 - TRUE COPY OF THE G.O.(P) NO. 145/2000/H&FWD DATED 16.6.2000 ALONG WITH THE RELEVANT EXTRACT OF ITS ANNEXURE. EXT.P11 - TRUE COPY OF THE G.O.(Rt) NO. 3733/97/H&FWD DATED 23.10.1997. EXT.P12 - TRUE COPY OF THE REPRESENTATION DATED 3.10.1998 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P13 - TRUE COPY OF THE LETTER NO.G2/25614/98/DME DATED 2.8.2001. EXT.P14 - TRUE COPY O THE REPRESENTTION DATED 21.10.2001 FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P15 - TRUE COPY OF THE JUDGMENT DATED 2.6.2005 OF THIS COURT IN O.P. NO. 5005/2003-U. EXT.P16 - TRUE COPY OF THE G.O.(Rt) NO. 3831/2007/H&FWD DATED 9.11.2007. EXT.P17 - TRUE COPY OF THE REPRESENTATION DATED 15.11.2007 FILED BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR HEATLH AND FAMILY WELFARE. EXT.P18 - TRUE COPY OF THE G.O.(Rt) NO. 3264/2004/H&FWD DATED 20.11.2004. WP(C).No. 18131 of 2008(H) EXT.P19 - TRUE COPY OF THE G.O.(Rt) NO. 3758/2006/H&FWD DATED 27.12.2006. EXT.P20 - TRUE COPY OF THE GAZETTEE NOTIFICATION DATED 24.4.2007. EXT.P21 - TRUE COPY OF THE G.O.(Rt) NO. 2070/2007/H&FWD DATED 12.6.2007. EXT.P22 - TRUE COPY OF THE STATUTORY REPRESENTATION DATED 24.4.2007 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P23 - TRUE COPY OF THE G.O.(P) NO. 157/2008/H&FWD DATED 17.5.2008 PUBLISHED IN THE KERALA GAZETTEE EXTRAORDINARY DATED 20.5.2008. EXT.P24 - TRUE COPY OF THE REPRESENTATION DATED 23.4.2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P25 - TRUE COPY OF THE LETTER NO.P.7997/81/MC DATED 26.8.1981 OF THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, THIRUVANANTHAPURAM. EXT.P26 - TRUE COPY OF THE G.O.(MS) NO. 377/81/HEALTH DATED 2.12.1981. EXT.P27 - TRUE COPY OF THE G.O.(MS) NO. 156/2004/H&FWD DATED 20.7.2004. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) Nos. 35532 of 2007 & 18131 of 2008 ................................................. Dated this the 12th day of August, 2009 J U D G M E N T The petitioner in these two writ petitions are the same. She is challenging the select list for promotion to the posts of Professor and Assistant Professor in the department of Pathology in Medical College Service of the Government of Kerala. Prior to entering the Department of Pathology the petitioner had service in the Department of Blood Bank. Petitioner's grievance is that for the purpose of seniority and promotion, the service of the petitioner in the blood bank is not being counted. According to the petitioner, several other persons who had shifted from one department to another had been given benefit to the service in the earlier department for the purpose of seniority and promotion. The petitioner earlier approached this court by filing WP(C) No. 5005 of 2003 and obtained Ext.P15 judgment to consider the representation filed by the petitioner in that regard. In compliance with that judgment, the Government has passed Ext.P16, again rejecting the claim of the petitioner on the ground W.P(C) Nos. 35532 of 2007 & 18131 of 20089 -2- that the recruitments to blood bank and department of Pathology are by different Public Service Commission selections and therefore service in the two departments cannot be added together for the purpose of seniority and promotion in one department. Regarding the contention of the petitioner that some other persons were given such benefit, the Government rejected the same stating that the Government finds it unhealthy to go after precedence and hence finds no valid reason to allow the request. Petitioner submits that this stand of the Government is discriminatory and violative of the rights of the petitioner. Petitioner therefore seeks the following reliefs: “WP(C)No. 35532 of 2007 i) issue a writ of certiorari of any other appropriate writ, order or direction calling for the records leading to Exts.P16, P20 and P21 and quash them. ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3 to reckon the service rendered by the petitioner between 29.8.1988 and 10.4.1990 in the Department of Blood Bank towards her qualifying service for the purpose of seniority and promotion and all other service benefits in the Department of Pathology and grant her all consequential benefits as if Ext.P16 were never issued at all. iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to pass orders on Ext.P22. iv) issue a writ of mandamus or any other W.P(C) Nos. 35532 of 2007 & 18131 of 20089 -3- appropriate writ, order or direction commanding the respondents 1 and 2 to review Exts.P20 and P21 by placing the petitioner above respondents 4 and 5 therein (in category of Professor) and promote her as such with effect from 12.6.2007 with all consequential benefits. v) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent to suitably modify Exts.P11, P18 and P19 by giving credit to the petitioner's service in the Department of Blood Bank.” “ W.P(C) No. 18131 of 2008 I) issue a writ of certiorari of any other appropriate writ, order or direction calling for the records leading to Exts.P16, P20, P21 and P23 and quash them. ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3 to reckon the service rendered by the petitioner between 29.8.1988 and 10.4.1990 in the Department of Blood Bank towards her qualifying service for the purpose of seniority and promotion and all other service benefits in the Department of Pathology and grant her all consequential benefits as if Ext.P16 were never issued at all. iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to pass orders on Exts.P22 and P24. iv) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 and 2 to review Exts.P20, P21 and P23 by placing the petitioner above respondents 4 to 10 therein (in the category of Professor) and promote her as such with effect from 12.6.2007 with all consequential benefits. v) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondents to suitably modify Exts.P11, P18 and P19 by giving credit to the petitioner's service in the Department of Blood Bank.” W.P(C) Nos. 35532 of 2007 & 18131 of 20089 -4- 2. Petitioner relies on the decision of the Supreme Court in Principal King George's Medical College, Lucknow v. Dr. Vishan Kumar Agarwal and another 1984(1) SCC 416 in which the Supreme Court held that when some persons have been given relaxation in the matter of qualifications for admission to MD course such relaxation cannot be denied to the petitioner in that case. The counsel for the petitioner also submits that relying on this judgment this court has also taken a similar view in University Grant Commission v. Rajesh 2008(4) KLT 223. 3. A counter affidavit has been filed by the 1st respondent wherein the stand taken is that the department of the blood bank and the Pathology department are two separate water tight departments and seniority in one department cannot be reckoned by adding service of the person in the department in which he/she previously worked. It is submitted that selections to the two departments are separate and the PSC publishes separate rank lists for such selections. 4. I have considered the rival contentions in detail. 5. It is settled law that a person who enters service in one W.P(C) Nos. 35532 of 2007 & 18131 of 20089 -5- department after undergoing a selection process, later undergoes another selection process and joins another department, for the purpose of seniority and promotion in the latter department the service in the former would not be counted. In fact even in inter departmental transfers a person who gets transfer to the new department has to forgo his seniority in the erstwhile department. That is so even in the case of inter district transfers. Therefore, if the contention of the petitioner is accepted as law, that would cause havoc to the entire service law on the subject of seniority and promotion and it would effect the service conditions of Government employees in every department. The fact that the Government earlier illegally gave such benefits to some other persons is no ground for giving the petitioner also the benefit of the very same illegality. In this connection I note the contention of the learned Government Pleader that such benefits were given at a time when the two departments were not strictly considered as water tight departments, although he admits that at that time also selection to the two departments were by separate rank list of the PSC. I am not prepared to lay down as a proposition of law W.P(C) Nos. 35532 of 2007 & 18131 of 20089 -6- that the petitioner is entitled to the benefit, she is seeking now. For the above said reasons, I am of opinion that the decision relied upon by the petitioner is clearly distinguishable on facts. The decision of the Supreme Court in Agarwal's case (supra) was in a case where the Supreme Court found that a particular condition in the eligibility criteria was not invariably insisted upon by the University or by the College and they did not consider those conditions as mandatory. In the decision in Rajesh's case also what was in contemplation was grant of relaxation from UGC qualification when qualifications were relaxed for another candidate. The Division Bench held that such relaxation should not be denied to the petitioner in that case. I am of opinion that there the court was considering the power of relaxation and here there is no question of any relaxation at all. Therefore the facts of those cases are clearly distinguishable on facts. I am satisfied that the petitioner is not entitled to the reliefs prayed for despite the fact that earlier other persons were given benefit of such an illegality. 6. I am disturbed to find that many cases are coming before me, particularly in respect of matters under the Kerala W.P(C) Nos. 35532 of 2007 & 18131 of 20089 -7- Education Rules, and service matters wherein the Government gives illegal benefits to certain teachers by passing orders or circulars and when those orders or circulars are sited by another petitioner they simply take the stand that the earlier decision is incorrect. That would show the disinclination of the Government to go by the Rule of law. The Government should not forget that we are still living in a country ruled by rule of law and if they flout law in the case of some individuals and refuse to follow the same in respect of others, that would ultimately result in anarchy. It should be prevented at all costs. Therefore the Government would do well to see that at least in future, they refrain from giving benefits against rules in individual cases illegally. With the solemn hope that wisdom would dawn on the Government at least now, I dismiss these writ petitions. S. SIRI JAGAN, JUDGE rhs