IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 WP(C).No. 32281 of 2009(E) ----------------------------------------- PETITIONER(S): ----------------------- P.V.THULASI, AGED ABOUT 55 YEARS, W/O.SRI.BALAKRISHNAN, CHERUKUTTICKAL HOUSE, MARADU, NOW WORKING AS NURSING ASSISTANT, GOVT.AYURVEDIC HOSPITAL, THRIPUNITHURA. BY ADV. MR.P.M.HABEEB RESPONDENT(S): --------------------------- 1. THE PRINCIPAL, GOVT.AYURVEDIC COLLEGE HOSPITAL, PUTHIYAKAVU, TRIPUNITHURA. 2. THE SUPERINTENDENT, GOVT. AYURVEDIC COLLEGE HOSPITAL, PUTHIYAKAVU, THRIPUNITHURA. 3. THE DIRECTOR, INDIAN SYSTEMS OF MEDICINE, THIRUVANANTHAPURAM. 4. THE SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 5. K.M.BASHEER, NURSING ASSISTANT, GOVT.AYURVEDIC COLLEGE HOSPITAL, PUTHIYAKAVU, THRIPUNITHURA. 6. BASHEER, NURSING ASSISTANT, GOVT.AYURVEDIC COLLEGE HOSPITAL, PUTHIYAKAVU, THRIPUNITHURA. Kss ..2/- ...2.... WPC.NO.32281/2009 E 7. JISHA P.S., MASSEUR/THERAPIST, GOVT.AYURVEDIC COLLEGE HOSPITAL, PUTHIYAKAVU, THRIPUNITHURA. 8. JYOTHI P.V., MASSEUR/THERAPIST, GOVT.AYURVEDIC COLLEGE HOSPITAL, PUTHIYAKAVU, THRIPUNITHURA. 9. BINDU A.K., MASSEUR/THERAPIST, GOVT.AYURVEDA COLLEGE HOSPITAL, PUTHIYAKAVU, THRIPUNITHURA. *ADDL.R10 IMPLEADED: R10. THE DIRECTOR, AYURVEDA COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. *ADDL.R10 IS IMPLEADED AS PER ORDER DTD. 7/12/09 IN I.A.NO.15389/09. R1 TO R4 & R10 BY GOVERNMENT PLEADER MR. V. MANU R7 TO R9 BY ADVS. MR.K.C.CHARLES, MR.M.POLY MATHAI, MR.P.CHELLAPPAN, MR.E.N.HARI, MR.VIMAL K.CHARLES. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.32281/2009 E APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEASING ORDER NO.E/259/97 THIRUVANANTHAPURAM DTD. 11/05/98. P2: COPY OF THE LETTER SHOWING PERMISSION TO JOIN DUTY 12/05/1998. P3: COPY OF THE ORDER NO.2878/B1/98 DTD. 22/11/1999. P4: COPY OF THE PROCEEDINGS NO.2344/E/2001 TRIPUNITHURA DTD. 22/12/2001. P5: COPY OF THE PROCEEDINGS NO.1744/B1/2003 DTD. 25/10/2003. P6: COPY OF THE LETTER DTD. 9/10/2009. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE SENIORITY LIST. R2(B): COPY OF THE RULES THAT GOVERN PROMOTION TO THE POST OF MASSEUR IN GOVERNMENT AYURVEDA COLLEGE. R2(C): COPY OF LETTER NO.E2/1830/08/DAME DTD. 4/12/2008. R2(D): COPY OF LETTER WERE RECEIVED FROM KERALA PUBLIC SERVICE COMMISSION ADVISING CANDIDATES AGAINST THE VACANCIES. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.32281 OF 2009 (E) -------------------------------------------------- Dated this the 9th day of March, 2010 J U D G M E N T Petitioner is a Nursing Assistant now working in the Ayurveda College, Thrippunithura. She is a matriculate with more than 5 years experience. She is aspiring for promotion to the post of Masseur/Therapist, which post is to be filled up in the ratio of 1:1 by direct recruitment and promotion. According to the petitioner she is to retire on 31st March, 2010 and therefore she should be ordered to be promoted to an existing vacancy. 2. However, in the counter affidavit filed by the respondents, it is pointed that going by the seniority list, respondents 5 and 6 are seniors to the petitioner. Referring to Ext.R2(c) communication issued by the Director of Ayurveda Collegiate Education, the 10th respondent, to the effect that in view of the fact that the amendment to the special rules is at final stage, posts need not be filled up by promotion, it is stated that in view of Ext.R2(c) no promotions are recommended even if the vacancies are available. WPC.No.32281 /09 :2 : 3. Therefore, even though the petitioner's eligibility to be considered for promotion is not under challenge, having regard to the fact that there is only one vacancy and which is to be filled up by seniority, the senior most alone can aspire for promotion. In such an event there are seniors to the petitioner. Even otherwise, having regard to the decision taken by the respondents in Ext.R2 (c) not to fill up the existing vacancies, this court will not be justified in directing the respondents that they shall fill the vacancies, irrespective of their decision to the contra. 4. Counsel for the petitioner submits that even in spite of Ext.R2(c) persons were appointed by direct recruitment. Learned Government Pleader explains this contention of the learned counsel for the petitioner by submitting that, by Ext.R2(c) what is ordered to be not done is only promotion and not direct recruitment. In the light of the above, any direction to the respondents as sought for by the petitioner cannot be issued. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WPC.No.32281 /09 :3 :