IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 WP(C).No. 2493 of 2009(V) PETITIONER: DR.VINU.C.V., MS (GENERAL SURGERY), SENIOR LECTURER IN THORACIC SURGERY, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM, “REMYA', VADAKKEVILA P.O., KOLLAM. BY ADV. SRI.H.HAMZA ROWTHER SRI.V.K.PEERMOHAMED KHAN RESPONDENTS: 1. SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. DR.RATHEESH.R., SR.LECTURER IN THORACIC SURVERY, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM, 'BREEZE ENCLAVE', ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 4. DR.SHAJI.P., SR.LECTURER IN THORACIC SURVERY, MEDICAL COLLEGE HOSPITAL, KOTTAYAM, PALANGADAN, PETTA P.O., THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/01/2009, ALONG WITH W.P.(C) NO.2566 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 2493 OF 2009 and W.P.(C) NO. 2566 OF 2009 ------------------------------------------------------ Dated this the 22nd January, 2009 JUDGMENT Petitioners in these Writ Petitions are Senior Lecturers in Thoracic Surgery in the Medical College Hospital, Thiruvananthapuram and Kozhikode respectively. They aspire for being promoted as Assistant Professors. As per G.O.(MS) 141/94/H&FWD dated 18th June 1994 (Ext.P2), the qualifications for the post of Assistant Professor in surgical specialities were revised as follows: “3. Government have examined the proposal in consultation with the Kerala Public Service Commission and are pleased to revise the qualification for the post of Assistant Professor in the surgical specialities. (Thoracic Surgery, Neuro Surgery, Plastic Surgery, Genito Urinary Surgery, Pediatric Surgery etc.) under Medical Education Service as follows and orders accordingly: A. 1. M.S. 2. M.Ch. in the concerned speciality. 3. Three years' teaching experience as Tutor/ Lecturer in the concerned speciality. B. In the absence of candidates with the above qualifications: 1. M.S. 2. M.Ch. in the concerned speciality W.P.(C) NOS. 2493 & 2566 OF 2009 :: 2 :: 3. Three years teaching experience as Tutor/ Lecturer in the Department of Surgery. C. In the absence of qualified hands under A & B above: 1. M.S. 2. Three years teaching experience as Tutor/ Lecturer in the concerned speciality.” 2. The respective petitioners submitted representations before the Government stating that as per Government Order dated 18.6.1994, there are no candidates who have the qualifications specified in A and B referred to above and, therefore, the petitioners are entitled to be promoted as Assistant Professors in the Department of Thoracic Surgery. As per Ext.P6 judgment dated 13.6.2008 in W.P.(C) No.13588 of 2008 and W.P.(C) No.14124 of 2008, the Writ Petitions filed by the petitioners were disposed of directing the Government to consider and dispose of the representations submitted by the petitioners within a period of three months, after affording an opportunity of being heard to them. It is stated that the representations submitted by the petitioners have not been disposed of so far. It is clear from Ext.P7 application filed by the Government for extension of time to comply with the judgment, that the Government have not complied with Ext.P6 judgment in the matter of disposal of the representations within time. W.P.(C) NOS. 2493 & 2566 OF 2009 :: 3 :: 3. Meanwhile, as per Ext.P4, G.O.(MS) No.100/2008/H&FWD dated 7.4.2008, the qualification and method of appointment of the faculties under the Medical Education Service were fixed in supercession of all the existing Rules and orders in force. As per Ext.P4, the qualification prescribed for the post of Assistant Professor is M.Ch (Cardiovascular & Thoracic surgery) DNB (Cardiovascular & Thoracic Surgery) M.Ch. Cardiac Surgery/M.Ch.(Thoracic Surgery). The petitioners do not have the qualification as mentioned in Ext.P5. The contention put forward by the petitioners is that as per the 1994 Government Order (Ext.P2), they were qualified to be promoted as Assistant Professors. That is exactly the prayer made by the petitioners in the representations submitted by them before the Government and which were directed to be disposed of as per Ext.P6 judgment. Now the matter is pending before the Government. 4. The grievance put forward by the petitioners is that the Departmental Promotion Committee is to convene its meeting on 23.1.2009 and the existing vacancies would be filled up in accordance with Ext.P4, in which case, the petitioners would lose their opportunity to get promotion as Assistant Professors if the Government finds ultimately that they are entitled to be promoted in the light of the 1994 Government Order. W.P.(C) NOS. 2493 & 2566 OF 2009 :: 4 :: 5. There is no case for the petitioners that they are entitled to be promoted as per Ext.P4 Government Order. The matter has to be considered by the Government as directed in Ext.P6 judgment. At the same time, there is no justification for stopping the process of promotion from qualified hands. If ultimately the Government finds that the petitioners are entitled to be promoted, necessary orders could be issued to accommodate them suitably. That is not a ground for entertaining these Writ Petitions. The Writ Petitions are accordingly disposed of with an observation that if the Government ultimately decides in favour of the petitioners, as per the direction in Ext.P6 judgment, it would be open to the Government to pass such consequential orders as are found necessary. It is also made clear that any promotion made as per Ext.P4 would be subject to any such orders passed by the Government. (K.T.SANKARAN) Judge ahz/