IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WP(C).No. 1390 of 2008(M) ------------------------------------- PETITIONER: ------------------- P.H.NASEER, FIELD ASSISTANT, NFCP UNIT, ERNAKULAM, KOCHI - 682 035. BY ADV. MR.K.S.AJAYAGHOSH. RESPONDENTS: ----------------------- 1. THE DIRECTOR OF HEALTH SERVICES, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SMT. SUDHA DEVI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.1390/2008-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O.(MS).NO.85/97/H & F.WD DTD. THIRUVANANTHAPURAM 13/03/1997 ISSUED BY H&F.W. DEPARTMENT, GOVT. OF KERALA. EXT.P.2: COPY OF THE ATTESTED COPY OF THE CERTIFICATE ISSUED BY DIRECTORATE OF HEALTH SERVICES, GOVT. OF KERALA. EXT.P.3: COPY OF THE CERTIFICATE NO. C-289 DTD. 21/01/1986 ISSUED BY THE NATIONAL INSTITUTE OF COMMUNICABLE DISEASES, DELHI. EXT.P.4: COPY OF THE ORDER NO. (K.DIS) A7-9854/2007/DMOH/EKM/DTD. 19/06/2007 ISSUED BY DISTRICT MEDICAL OFFICER OF HEALTH, ERNAKULAM. EXT.P.5: COPY OF THE REPRESENTATION DTD. 23/01/2007 SUBMITTED BY THE PETITIONER TO THE R.1. EXT.P.6: COPY OF THE REPRESENTATION DTD. 23/04/2007 FORWARDED TO THE R.1. EXT.P.7: COPY OF THE REPRESENTATION DTD. 02/07/2007 SUBMITTED TO THE R.1. EXT.P.8: COPY OF THE JUDGMENT DTD. 19/10/2007 IN W.P.(C).NO.31105 OF 2007 OF HIGH COURT OF KERALA. EXT.P.9: COPY OF THE ORDER NO. EGI-68842/07/DHS DTD. 04/12/07 ISSUED BY R.1. EXT.P.10: COPY OF THE LETTER NO. EGI 12926/2008/DHS, DT. 28/03/2008 ISSUED BY R.1. EXT.P.11: COPY OF THE ORDER NO.EG3-77819/06/DHS DT. 29/01/2008 ISSUED BY R.1. EXT.P.12: COPY OF THE ORDER NO. EG3-79648/2008/DHS DTD. 28/11/2008 ISSUED BY R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. V.GIRI, J ------------------- W.P.(C).1390/2008 -------------------- Dated this the 20th day of March, 2009 JUDGMENT Petitioner entered service in the Health Service Department as Field Assistant. His date of first effective advice is 16.1.1984, in the General Health Services Wing and the posts therein were integrated with those of Malaria and Filaria wing and the integration of General Health Services Wing was effected by G.O.(MS).133/77/HD dated 14.6.1977. The posts of Field Assistants and Insect Collectors in the Filaria Wing were declared as addition to the cadre of Basic Health Worker/Health Assistants Grade-II, later designated as Junior Health Inspector Grade-II of General Health Services Wing. Ext.P1 Government Order has also provided for fixation of the interse seniority consequent upon the combined gradation list of Basic Health workers/Health Assistants/Field Assistants. In so far as the direct recruits are concerned, obviously in terms of Rule 27C of Part-II of K.S. & S.S.R, their seniority has to be reckoned with reference to the date of their first effective advice. Promotees were fitted on the basis of the date of joining as Field Assistant/Insect W.P.(C).1390/2008 2 Collectors. According to the petitioner, there were vacancies available in the next promotion post of Junior Health Inspectors Grade-I and further promotion post of Filaria Inspector Grade-II/Health Inspector Grade-II/Filaria Inspector Grade-I/Health Inspector Grade-I. But he has not been considered for such promotion. Instead, he was granted a time bound higher grade on completion of 23 years of service, as evidenced by Ext.P4 order. Petitioner claimed that he was entitled to be promoted as Filaria Inspector Grade-I and his claim in this regard was directed to be considered by the Director of Health Services as per Ext.P8 judgment. By Ext.P9, the Director of Health Services rejected his claim. Relevant portion of Ext.P9 reads as follows:- “District Medical Officer of Health, Ernakulam has issued orders for Time Bound Higher Grade on completion of 23 years service to Sri.P.H.Naseer, Field Assistant, National Filaria Control Programme Unit and the scale of pay sanctioned to him for higher grade is not correct as he is qualified only on 21.2.2007. W.P.(C).1390/2008 3 For promotion to the post of Filaria Inspector (Health Inspector Grade-I) he must supersede 3 posts viz., Junior Health Inspector Grade-II, Grade-I and Health Inspector Grade-II. The petitioner has been summoned for a hearing on 17.11.2007 and he has not appeared for the hearing. As the petitioner is qualified only on 21.2.07 his further promotions is based on the seniority acquired after technical qualifications and also Government has been addressed for sanction for giving provisional promotion.” 2. Ext.P9 has been challenged in this writ petition. 3. Counter affidavit has been filed on behalf of the respondents. Ext.P9 is supported therein. It is reiterated that the petitioner's claim for promotion to the post of Filaria Inspector Grade-I is not sustainable at this point of time as he became qualified for promotion to the next higher post vis-à-vis the post which he currently occupies on 21.2.2007. 4. Essentially, petitioner seems to be under a misconception that a grant of 23 years time bound higher W.P.(C).1390/2008 4 grade as per Ext.P4, should be treated as a recognition of his eligibility to be promoted to the post of Filaria Inspector Grade-I. The grant of time bound higher grade is one different from cadre promotion. Petitioner's claim for promotion to the next higher post and the post even higher to the same, will have to be considered on the basis of the availability of vacancies and with reference to the date on which he became qualified for promotion to the next higher post. A fresh order shall be passed in this regard by the Director of Health Services, within two months from the date of receipt of a copy of this judgment. If the petitioner retires in the meanwhile, his claim, if accepted, would result in giving notional promotion and consequential benefits. Petitioner shall file a detailed representation and produce a copy of the judgment along with his representation, as early as possible. V.GIRI, Judge mrcs