IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 WP(C).No. 16380 of 2009(N) ---------------------------------------- PETITIONER(S): ------------------------ 1. N.RAJEEV,COOK GRADE.I,GOVERNMENT AYURVEDA HOSPITAL,VENGANOOR,THIRUVANANTHAPURAM, RESIDING AT MIDHUNAM,T.C.65/2073(1), THIRUVANANTHAPURAM-695 027. 2. DIRECTOR OF DEPARTMENT OF INDIAN SYSTEMS OF MEDICINE,THIRUVANANTHAPURAM. 3. DISTRICT MEDICAL OFFICER,INDIAN SYSTEMS OF MEDICINE,THIRUVANANTHAPURAM. BY ADVS. MR.T.P.DEYANANTHAN, MR.A.V.RAMAKRISHNA PANICKER, SMT.R.SEEMA. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS' SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF DEPARTMENT OF INDIAN SYSTEMS OF MEDICINE, THIRUVANANTHAPURAM. 3. DISTRICT MEDICAL OFFICER, INDIAN SYSTEMS OF MEDICINE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR.T.K.VIPIN DAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.RAVINDRAN, J. ----------------------------- W.P(C) No.16380 of 2009 -N ------------------------------ Dated this the 25th day of June, 2009. J U D G M E N T The petitioner entered service as Cook on 19.12.2005 in the Tribal Development Department. His probation in the category of Cook in the Tribal Development Department was declared satisfactorily completed with effect from 19.12.2006 by Ext.P1 order dated 19.3.2007 passed by the Project Officer. Thereafter the petitioner applied for and got inter departmental transfer as Cook, to the Indian Systems of Medicine Department. The petitioner accordingly joined duty as Cook in the Indian Systems of Medicine Department on 3.8.2007. Shortly after entry in service in the Indian Systems of Medicine Department, he moved the District Medical Officer, Indian Systems of Medicine, Thiruvananthapuram by submitting Ext.P6 representation dated 19.12.2008 requesting that he may be promoted as Attender Gr.II against one of the existing vacancies. In the said representation he claimed promotion contending that as he has passed the S.S.L.C examination, he need not pass the Attender's test and that he has also three years service on the date of representation. He thereafter filed W.P (C) No.10077 of 2009 in this Court. By Ext.P7 judgment delivered on 30.3.2009, a learned single Judge of this Court directed the District Medical Officer to W.P(C) No.16380 of 2009 -N 2 consider Ext.P6 representation and pass orders thereon within two months from the date of receipt of a copy of the judgment. 2. As directed by this Court in Ext.P7 judgment, the District Medical Officer, Indian Systems of Medicine, Thiruvananthapuram considered the request made by the petitioner in Ext.P6 representation and informed him that as he has not passed the Attender's test and does not have three years service in the Department, he cannot be promoted. Ext.P8, the letter sent by the District Medical Officer, Indian Systems of Medicine, Thiruvananthapuram to the petitioner in that regard is under challenge in this writ petition, wherein the petitioner prays that the stipulation in the Indian Systems of Medicine (Kerala) Subordinate Service Rules, 2008 that persons with three years service in the Department alone can be promoted as Attender Gr.II, be struck down. 3. Sri.Deyananthan, the learned counsel for the petitioner contends that though in Rule 17(d) of the Special Rules for the Kerala Last Grade Service it is provided that probationers and approved probationers seeking inter-departmental transfer will take their rank as the junior most in the department to which he is transferred, the service rendered in the parent department prior to such the transfer cannot be totally ignored for computing the length of service required in the transferee department for promotion to the post of Attender Gr.II. Rule 17(d) of the Special Rules for the Kerala Last Grade Service no doubt permits probationers and approved probationers to seek transfer to another W.P(C) No.16380 of 2009 -N 3 department. On such transfer they will join as the junior most among probationers or approved probationers as the case may be. In Ext.P5 Special Rules, the qualification prescribed for appointed as Attender Gr.II/Nursing Assistant Gr.II/Pharmacy Attender Gr.II is a pass in Standard VII or equivalent qualification and a pass in Attenders Test conducted by the Kerala Public Service Commission. Ext.P5 Special Rules also stipulate that those who have passed the S.S.L.C examination and have completed three years service in the department need not pass the Attenders' Test. The petitioner cannot in view of the stipulations in Ext.P5 Special Rules claim that as he has passed the S.S.L.C Examination he is eligible to be promoted. On the terms of the Special Rules that by itself is not sufficient. He should also have three years of service in the department. It was on this ground that the petitioner's request for promotion was rejected. The petitioner challenges the stipulation in the Special Rules that he must have three years service in the department. 4. A Full Bench of this Court has in Pankajaksy & ors. V. George Mathew & ors (1987(2) KLT 723) held that a subordinate legislation can be struck down only if it is ultra vires the parent Act or violates the fundamental rights or is in conflict with any other plenary law. It is trite law that no employee has a fundamental right to be promoted to higher posts . The petitioner has also no case that the Special Rules are in conflict with any other plenary law. A Government servant can claim promotion only in tune with the rules and if he satisfies the requirements, W.P(C) No.16380 of 2009 -N 4 though on limited grounds available the rules can be challenged. In my opinion the stipulation in Ext.P5 Special Rules that a person aspiring for promotion to the post of Attender Gr.II/Nursing Assistant Gr.II/Pharmacy Attender Gr.II must have three years service in the department, cannot said to be a stipulation, which is arbitrary or contrary to the stipulation in Rule 17(d) of the Kerala Last Grade Service Special Rules. Therefore the challenge to stipulation in Ext.P5 cannot be entertained. 5. The learned counsel for the petitioner contends that as Ext.P5 Special Rules came into force only on 19.11.2008 and there was no stipulation to the effect that only those persons who have 3 years service can claim promotion prior to the introduction of the Special Rules the petitioner who joined the Indian Systems of Medicine Department on 3.8.2007 had a vested right to be promoted. The petitioner has also not been able to point out that as per the rules in force prior to 19.11.2008, he was entitled to be promoted to the category of Attender Gr.II/Nursing Assistant Gr.II/Pharmacy Attender Gr.II before completing three years service in the department and without passing the Attenders test. Such a case is also not pleaded in the Writ Petition. The said contention cannot therefore be accepted. I accordingly hold that there is no merit in this writ petition. The writ petition fails and is dismissed. Sd/- ab P.N.RAVINDRAN, JUDGE //True Copy//