IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 OP.No. 26977 of 2000(J) ----------------------- PETITIONER(S): --------------- DR.L.SUDHA, ASST. PROFESSOR, ORAL & MAXILLOFACIAL SURGERY, DENTAL COLLEGE, TRIVANDRUM. BY ADV. SRI.PREMJIT NAGENDRAN RESPONDENT(S): --------------- 1. THE DIRECTOR OF MEDICAL EDUCATION, KERALA STATE, TRIVANDRUM. 2. THE GOVT. OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 3. THE CONVENOR, DEPARTMENTAL PROMOTION COMMITTEE, (HIGHER) FOR DENTAL COLLEGES, HEALTH AND FAMILY WELFARE DEPT., SECRETARIAT, TRIVANDRUM. 4. DR.C.R.GEETHA, NOW ASSOCIATE PROFESSOR, ORAL & MAXILLOFACIAL SURGERY, DENTAL COLLEGE, TRIVANDRUM. 5. DR.K.GEORGE VARGHESE, NOW ASSOCIATE PROFESSOR, ORAL & MAXILLOFACIAL SURGERY, DENTAL COLLEGE, KOTTAYAM. ADV. SRI.K.JAGADEESCHANDRAN NAIR FOR R5 GOVERNMENT PLEADER SHRI.M.R.SABU, FOR R1 TO R3 NAGENDRAN(SR.) THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 26977/00. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE GOVT. ORDER DTD.20.2.96 BY R3. P2. COPY OF THE GOVT. ORDER DTD.6.5.97. P3. COPY OF THE RELEVANT PORTION OF SENIORITY LIST. P4. COPY OF THE GOVT. ORDER DTD.7.6.95. P5. COPY OF THE GOVT. ORDER DTD.15.7.96. P6. -DO- DTD.22.12.76. P7. COPY OF THE ORDER DTD.23.11.96 BY THE PRINCIPAL MEDICAL COLLEGE, TRIVANDRUM. P8. COPY OF THE EXPERIENCE CERTIFICATE. P9. COPY OF THE GOVT. ORDER DTD.13.4.99. P10. COPY OF THE GOVT. ORDER DTD.10.6.99. P11. COPY OF THE REPRESENTATION DTD.30.6.99 TO R3. P12. COPY OF THE GOVT. ORDER DTD.21.7.99 BY R3. P13. COPY OF THE JUDGMENT IN O.P.NO.27946/99 OF THIS COURT. P14. COPY OF THE REMINDER DTD.20.3.06 TO R3. P15. COPY OF THE JUDGMENT IN O.P.NO.23308/00 OF THIS COURT. P16. COPY OF THE ORDER DTD.29.8.2000 OF R3. P17. COPY OF THE GOVT. ORDER DTD.24.10.2000. RESPONDENT(S)' EXHIBITS: R5.A. COPY OF THE OBJECTION BY R5. B. COPY OF THE APPOINTMENT ORDER DTD.18.10.89. C. COPY OF THE GOVT. ORDER DTD.27.5.75. D. COPY OF THE EXTRACT OF THE NOTIFICATION OF THE KERALA UNIVERSITY REGARDING QUALIFICATION AND EXPERIENCE. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 26977 of 2000 ================== Dated this the 15th day of December, 2008 J U D G M E N T The bone of contention in this original petition is with regard to promotion to the post of Associate Professor in the Medical Education Services for which the petitioner on the one hand and respondents 4 and 5 on the other are contesting. The qualifications prescribed for the post of Associate Professor, according to the petitioner, are as per Ext.P6 Government Order dated 22.12.1976 in which for various posts in Medical Education Department qualifications have been prescribed. In the same, for the Dental Department, for Assistant Professor and above the qualifications prescribed are MDS, FDS etc. preferably with MBBS, with teaching experience as Registrar/Tutor or an equivalent post for at least 3 years in a teaching institution. According to the respondents, the qualifications prescribed are as laid down by the University of Kerala, which are produced as Ext.R5(d) by the 5th respondent, in which the qualifications prescribed are MDS in the subject after BDS with five years' experience as Assistant Professor in the subject in a Dental College or in the Dental Department of a Medical College. The dispute in this original o.p.26977/2000 2 petition is as to whether the petitioner is in possession of the experience qualification. 2. Since both the Government and the 5th respondent rely on the qualifications prescribed by the University, we shall consider the eligibility of the petitioner with reference to that qualifications. As I have mentioned the experience qualification prescribed is as follows: “Five years experience as Assistant Professor in the subject in the Dental College or in the Dental Department of a Medical College.” 3. The petitioner is a member of the Medical Education Service as tutor. She was promoted as Assistant Professor with effect from 2.6.1988 and respondents 4 and 5 were given dates of promotion as Assistant Professors as 30.10.1989 and 31.10.1990. Therefore, in the post of Asst. Professor, the petitioner is senior to respondents 4 and 5. As per the seniority list also, the petitioner was shown as senior to respondents 4 and 5. But the petitioner after three years of service, went on leave without allowances for taking up employment in another institution by name A.B.Shetty Memorial Institute of Dental Sciences for the period from 26.11.1992 to 31.1.1999 after which period she rejoined duty. The question is as to whether, o.p.26977/2000 3 going by the recruitment rules, the teaching experience in the A.B.Shetty Memorial Institute of Dental Sciences, Mangalore, can be counted as experience qualification for promotion to the post of Associate Professor. Ext.P8 is the experience certificate issued by the A.B.Shetty Memorial Institute of Dental Sciences. After rejoining duty subsequent to the leave without allowances the Departmental Promotion Committee considered the qualified persons and included respondents 4 and 5 in the select list. The petitioner was excluded. Ext.P10 is the select list prepared for that purpose. Immediately thereupon the petitioner filed Ext.P11 representation under Rule 28(b)(8) of the KS&SSR. When the same was not considered the petitioner filed O.P.No. 27946/1999 in which this Court directed consideration of Ext.P11 representation. The petitioner was not informed about the result of such consideration. Thereupon, the Departmental Promotion Committee sought to select persons for promotion to the post of Professor. The petitioner challenged the said proceedings by filing O.P.No. 23308/2000, in which the petitioner contended that without disposing of Ext.P11 representation as directed by this Court, further promotions cannot be made. When that original o.p.26977/2000 4 petition came up it was submitted on behalf of the State that Ext.P11 representation was disposed of on 31.12.1999. Therefore, this Court directed to issue a copy of the order to the petitioner. Accordingly, Ext.P16 order, on Ext.P11 representation, was served on the petitioner. In the same, the reason for rejection of the petitioner's representation given is that the five years' teaching has to be in the Medical Education Service itself. The petitioner challenges Ext.P16 and further promotions, viz., Exts.P12 and P17, on the ground that Ext.P16 is patently unsustainable. 4. According to the petitioner, even going by the recruitment rules relied on by the respondents themselves, the experience qualification required is in a dental college or in the Department of a Medical College. It does not stipulate that such experience has to be in the Medical Education Service itself. 5. Counter affidavits of both the 2nd respondent and the 5th respondent proceed on the basis of that the 5 years' experience should be in the Medical Education Service itself. Therefore, the question is as to whether the recruitment rules as relied on by the respondents themselves stipulated that the 5 o.p.26977/2000 5 years teaching experience should be in the Medical Education Service itself. From the rules quoted by the 5th respondent in Ext.R5(d), the 5 years' experience as Assistant Professor has to be in the subject, in a Dental College or in the Dental Department of a Medical College. It does not stipulate that the same should be in a college or department in the Medical Education Service of the Government of Kerala itself. Ext.P8 certificate of the petitioner is not disputed. It is also not disputed that A.B.Shetty Memorial Institute of Dental Sciences, Mangalore, is a Dental college. That being so, the experience of 6 years obtained by the petitioner plus three years experience in the Medical Education Service as Assistant Professor is more than sufficient experience for the petitioner to be considered for promotion to the post of Associate Professor. Therefore, Ext.P10 select list and Ext.P16 order on Ext.P11 representation filed by the petitioner, are patently unsustainable. Accordingly, the same are quashed. Consequently, the subsequent promotions are also liable to be reviewed in accordance with the fresh select list to be prepared considering the petitioner also. 6. The petitioner has already retired from service. But the o.p.26977/2000 6 petitioner had obtained an order on 27.3.2001 from this Court to the effect that in case the original petition is allowed, in spite of retirement, the petitioner shall be allowed the benefits of promotion. That being so, the petitioner's eligibility has to be reconsidered and the petitioner has to be given due promotion and monetary benefits thereof. 7. In the above circumstances, this original petition is disposed of as follows: The competent among respondents 1 to 3 shall constitute a Review Departmental Promotion Committee for reviewing Ext.P10 select list in accordance with the findings hereinabove and shall reconsider Ext.P10 select list. Exts.P12 and P17 promotions made shall also be reviewed accordingly. If the petitioner is found to be eligible for promotion in the place of respondents 4 and 5, the petitioner would be eligible for all monetary benefits arising from such promotions. Fresh orders in this regard shall be passed as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.26977/2000 7 S.SIRI JAGAN, J. ================= O.P.No. 26977 of 2000-J ================= J U D G M E N T 15th December, 2008