IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 WP(C).No. 30223 of 2010(C) -------------------------- PETITIONER(S): ------------------------ DR.JACOB M.TITUS, AGED 52 YEARS, S/O.M.J.TITUS, ASSOCIATE PROFESSOR, DEPARTMENT OF RASASASTHRA AND BHAISHAJYAKALPANA, GOVERNMENT AYURVEDA COLLEGE, THIRUVANANTHAPURAM PIN-695 001, RESIDING AT K.P.III 826, MURUNGAMANGALAM, MUKKOLA P.O.,TVM.-695 044. BY ADV. DR.SEBASTIAN CHAMPAPPILLY SRI.M.P.RAJU SMT.ANNIE GEORGE RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE DIRECTOR OF AYURVEDA MEDICAL EDUCATION, AROGYA BHAVAN, M.G.ROAD, THIRUVANANTHAPURAM, PIN-695 001. 3. DR.R.RAJAM, ASSOCIATE PROFESSOR, DEPARTMENT OF RASASASTHRA AND BHAISHAJYAKALPANA, GOVERNMENT AYURVEDA COLLEGE, THIRUVANANTHAPURAM, PIN-695 001. R1 & R2 BY GOVT. PLEADER R3 BY ADVS. SRI.B.RAGUNATHAN, SRI.G.S.MOHANDAS, SRI.R.SRINATH, SRI.VIPIN VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30223/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE G.O.(P) NO.214/2001/HJ&FWD DTD. 13.8.2001. P2:- COPY OF THE G.O.(RT) 1889/2004/H&FWD DTD. 13.7.2004 ISSUED BY THE IST RESPONDENT. P3:- COPY OF THE GOVERNMENT ORDER ISSUED VIDE G.O.(RT) 3663/2006/H&FWD DTD. 18.12.2006. P4:- COPY OF THE G.O.(RT) 2428/2006.HFWD DTD. 16.8.2006. P5:- COPY OF THE LETTER NO.42969/.D2/2006/H&FWD DTD. 7.12.2006. ISSUED BY THE IST RESPONDENT. P6:- COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE IST RESPONDENT DTD. 2.3.2007. P7:- COPY OF THE ORDER ISSUED AS G.O.(RT) 2261/2009/H&FWD, DTD. 7.8.2009. P8:- COPY OF THE REPRESENTATION DTD. 20.4.2010. P9:- COPY OF THE G.O.(RT) 2644/2001/H&FWD DTD. 7.7.2010. P10:- COPY OF THE G.O.(P) NO.20/2004/P&ARD DTD. 10.12.2004. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE SPECIAL RULES AS G.O.(P) NO.4/98/P&ARD DTD. 20.1.1998. R2(b):- COPY OF THE EXPLANATORY NOTE OF G.O.(P) 264/2007/H&FWD DT.D 2.8.2007. R2(c):- COPY OF THE G.O.(MS) NO.6/99/H&FWD DTD. 13.1.1999. R2(d):- COPY OF THE CIRCULAR. NO.10/E1/2000/DAME DTD. 13.3.2002. R2(e):- COPY OF THE G.O.(RT) NO.930/2002/H&FWD DTD. 17.5.2002. R2(f):- COPY OF THE APPLICATION DTD. 15.3.2010. R2(g):- COPY OF THE G.O.(RT) 1554/2005/H&FWD DTD. 31.5.2005. R2(h):- COPY OF THE G.O.(RT) 882/2009/H&FWD DTD. 28.3.2009. tss W.P.(C) NO.30223/2010 APPENDIX R3(a):- COPY OF THE G.O.(RT) NO.1540/2006/H&FWD DTD. 22.5.2006. R3(b):- COPY OF THE GO(P) NO.212/06/HJ.FWD DTD. 16.10.2006. R3(c):- COPY OF THE GO(RT) NO.2878/2008 /H&FWD DTD. 26.8.2008. R3(d):- COPY OF THE GO(P) NO.310/2009/H&FWD DTD. 28.8.2009 ALONG WITH THE SENIORITY LIST( RELEVANT PORTION.) TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 30223 of 2010-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of June, 2011. JUDGMENT The petitioner's claim is for promotion as Associate Professor with retrospective effect from 18.12.2006. A declaration is sought to the effect that the petitioner is senior to the third respondent in the cadre of Associate Professor. Exts.P3, P5, P7 and P9 orders are sought to be quashed. Some of the relevant facts relating to the petitioner and the third respondent are required to be stated, to appreciate the contentions of rival parties. 2. The petitioner entered service on 10.1.1991 as Tutor and the third respondent entered service o n 14.2.1996 also as Tutor. Both of them were promoted as Lecturer, the petitioner on 17.9.1998 and the third respondent on 12.10.2004. The probation of the respective parties were declared on 24.10.1999 and 12.10.2005 respectively. 3. The petitioner was deputed to Drugs Control Department on 22.5.2002. On 13.7.2004 the petitioner relinquished temporarily his claim for promotion as Reader. A vacancy in the post of Reader arose on 1.6.2005. As on that date there was no qualified candidate to be promoted, but the third respondent became qualified for promotion on 12.10.2005. A wpc 30223/2010 2 meeting of the Departmental Promotion Committee (D.P.C. for short) was held on 5.8.2006. Just before that, on 5.7.2006 the petitioner gave a representation for permission to withdraw his temporary relinquishment. It is stated that this was recommended by the second respondent as per letter dated 19.7.2006. In the meanwhile, the meeting of the D.P.C. was held and the third respondent who was found eligible, was later promoted by the Government as per Ext.P3 dated 18.12.2006. Ext.P4 is the order dated 16.8.2006 by which the Government accepted the request of the petitioner for withdrawal of the temporary relinquishment of promotion, with retrospective effect from 13.7.2006. Thereafter, the petitioner again staked his claim for promotion to the post of Reader. Even though an adhoc D.P.C. was held on 16.11.2006, the claim was rejected, as evident from Ext.P5 communication served on him. The petitioner again represented the matter before the Government as per Ext.P6, but the said representation was rejected by Ext.P7 order. 4. Later, the petitioner was promoted as Reader (Associate Professor) on 28.3.2009 and was placed junior to the third respondent. The petitioner again submitted a representation in the matter, as evident from Ext.P8, before the Secretary to Government, who was the Convener of the D.P.C. and the Government again rejected the request by Ext.P9 order. wpc 30223/2010 3 5. Heard learned counsel for the petitioner and learned counsel appearing for the third respondent who has filed a detailed counter affidavit opposing the claims of the petitioner. 6. Learned counsel for the petitioner submitted that the petitioner had submitted the request to withdraw the temporary relinquishment of promotion, well in time, but the same was kept without passing any orders deliberately to help the third respondent. It is pointed out that the Chairman of the D.P.C. and the Principal Secretary to the Government was the same person and when the D.P.C. met, the representation of the petitioner was not brought to the notice of the D.P.C. also. It is therefore submitted that the whole action is malafide in nature. 7. It is further pointed out that the meeting of the D.P.C. was on 5.8.2006. Ext.P4 order, even though is dated 16.8.2006, as the request for withdrawal of temporary relinquishment has been accepted with effect from 13.7.2006, the proceedings of the D.P.C. had to be reviewed for that reason. 8. Learned counsel appearing for the third respondent submitted that it is not the date of convening of the D.P.C. that is relevant, but what is relevant is Rule 28(b)(iA) of KS & SSR. It is pointed out that as on the date of occurrence of vacancy on 1.6.2005, nobody was qualified. In the light of the Note to the above Rule, the person who gets qualified first, will have wpc 30223/2010 4 to be considered for promotion. If that be so, as the probation of the third respondent was declared on 12.10.2005, she became qualified and the petitioner becomes qualified only when the withdrawal of relinquishment was accepted by Ext.P4. The Note to Rule 28(b)(iA) of KS & SSR reads thus: “If there are no qualified persons for promotion to a post on the date of occurrence of the vacancy, the person who gets qualified first thereafter, shall be considered for promotion to that post.” In the light of the relevant provisions of KS & SSR, the D.P.C. was obliged to consider the effect of the said provisions and the Note therein. The Government in Ext.P7, has therefore taken the view that going by the Note, the third respondent became qualified on 12.10.2005 and the petitioner became qualified with effect from 13.7.2006, viz. the date from which the withdrawal of relinquishment became effective. 9. Therefore, what is relevant is not the date of convening of the D.P.C. Going by the Note, when a vacancy arises and nobody is qualified as on the date of occurrence of vacancy, the person who gets qualified first thereafter, will have to be considered for promotion. There cannot be any dispute that the third respondent became qualified, on 12.10.2005. 10. These facts have been stated in the counter affidavit filed by the wpc 30223/2010 5 second respondent also. The allegations of malafides have been denied. The second respondent has also stated that at the time of the meeting of the D.P.C. (Higher) on 5.8.2006, there was no order granting permission to withdraw the relinquishment of claim for promotion before the D.P.C. (Higher) to assess the suitability of the petitioner for promotion to the post of Reader in Rasasastra and Bhaishajyakalpana Department. The allegation that the first respondent withheld the petitioner's representation, for granting undue benefit to the third respondent, was also denied. 11. Evidently, in the light of the Note to Rule 28(b)(iA) of KS & SSR, the said allegations have no merit also. I am fortified in this view by the decision of a Division Bench of this Court in Joseph v. State of Kerala (1987 (2) KLT 579). While interpreting Rule 38 of KS & SSR, the Division Bench considered the effect of relinquishment of right to promotional post therein, it was held thus: “It is expressly provided in Rule 38 that the right or privilege which has been relinquished is not required to be recognised either under the KS & SSR or the Special Rules. Thus, if a person relinquishes his right to a promotional post, he loses the right to be considered for promotion until the relinquishment ceases. He may be considered for promotion for the first vacancy that arises after the relinquishment ceases. On such promotion he cannot claim seniority wpc 30223/2010 6 over those who had been promoted during the interregnum, i.e. between the date of relinquishment and the date of promotion of the person after the relinquishment ceases. Full effect has to be given to these consequences, having regard to the mandate of rule 38, notwithstanding anything contained in rule 27 or other rules of KS & SSR or the Special Rules. The explanation which provides that relinquishment of the right for promotion shall entail loss of seniority only clarifies the position flowing from rule 38. The same would have been the consequence even without the aforesaid explanation. Therefore, the fact that the Explanation to Rule 38 has been added only in the year 1982, does not come to the aid of the appellant.” Hence, the petitioner can be considered only for the first vacancy that arises after the relinquishment ceases. For all these reasons, the orders passed by the Government are perfectly legal and valid and the promotion of the third respondent cannot be held to be illegal on any account. Hence, the writ petition is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/