IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 WP(C).No. 34287 of 2008(F) -------------------------------------- PETITIONER(S): ---------------------- B.M. ALI, SOCIAL WORKER, BLOOD BANK, MEDICAL COLLEGE, THIRUVANANTHAPURAM. BY ADV. MR.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 2. DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE PO., THIRUVANANTHAPURAM. 3. IRISHIKESHAN P.S., SOCIAL WORKER, DEPARTMENT OF RESPIRATORY MEDICINE, GOVERNMENT MEDICAL COLLEGE, THIRUVANANTHAPURAM. R1 & R2 BY SR. GOVERNMENT PLEADER SMT.M.R. SREELATHA. R3 BY ADV. MR.P.S.KRISHNA PILLAI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 34287/2008-F APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DATED 21/07/2005 OF THIS HONOURABLE COURT IN O.P. NO. 4748/1999. EXT.P2: COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P3: COPY OF THE G.O.(RT)NO.2047/2007/H&FWD DATED 11/06/2007. EXT.P4: COPY OF THE LETTER NO.H2/5668/99/DME DATED 06/08/2007 OF THE 2ND RESPONDENT. EXT.P5: COPY OF THE LETTER DATED 09/08/2007 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P6: COPY OF THE G.O.(RT)NO.306/2008/H& FWD DATED 25/01/2008. EXT.P7: COPY OF THE REQUEST DATED 11/04/2008 MADE BY THE PETITIONER. EXT.P8: COPY OF THE LETTER NO.H2/19392/08/DME DATED 04/09/2008 OF THE 2ND RESPONDENT ADDRESSED TO THE PRINCIPAL, MEDICAL COLLEGE, THIRUVANANTHAPURAM. EXT.P9: COPY OF THE FIXATION STATEMENT. EXT.P10: COPY OF THE RELEVANT EXTRACT OF THE G.O.(P)NO.145/2006/FIN. DATED 25/03/2006. EXT.P11: COPY OF THE LETTER NO.H2/16187/05/DME DATED 14/10/2008 ADDRESSED TO THE PRINCIPAL, MEDICAL COLLEGES, DENTAL COLLEGES AND NRUSING COLLEGES. EXT.P12: COPY OF THE APPLICATION DATED 30/10/2009 FOR APPOINTMENT OF SOIAL SCIENTIST SUBMITTED BY THE PETITIONER. EXT.P13: COPY OF THE G.O.(MS)NO.194/1990/H&FWD DATED 22/10/1990. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.34287 of 2008-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2009. JUDGMENT The petitioner is mainly aggrieved by Exts.P6 and P8 orders. As per Ext.P3, he was directed to be promoted with effect from 24.4.1998 reverting the third respondent. The said order was modified as per Ext.P6, whereby it was clarified that the petitioner is notionally promoted as Social Worker with effect from 24.4.1998 without any back arrears, cancelling Ext.P3. By Ext.P8 he is informed that the claim for grant of 8 years higher grade in the category of social worker with effect from 24.4.2006 cannot be considered, since his notional promotion as Social Worker for the period from 24.4.1998 to 1.10.2004 will not be reckoned as qualifying service for time bound higher grade. 2. Learned counsel for the petitioner submitted that in the light of the decision of this Court in Ibrahim v. Commissioner & Secretary to Government (2003 (1) KLT 534), Ext.P8 order cannot be sustained. Therefore, even though Ext.P6 order cannot be supported, he is confining his argument on the validity of Ext.P8. 3. The petitioner started his career as Driver in the Govt. Medical wpc 34287/2008 2 College, Calicut. He possesses the qualifications of B.Com., B.A. and M.A. Degrees in Sociology obtained from the Calicut University. The petitioner was claiming for promotion to the post of Social Worker when a vacancy arose in the Medical Education Service on 28.2.1995. He had to approach this Court by filing O.P.No.4748/1999 and this Court by judgment dated 21.7.2005 directed the petitioner to file a representation in the matter. Pursuant to the same, Ext.P3 order was passed. It is pointed out that the petitioner is senior to the third respondent and the denial of promotion was absolutely wrong also. By Ext.P4, he was asked whether he has got any objection to the proposal whereby the third respondent was sought to be accommodated in one of the vacancies and the petitioner can be accommodated as Social Worker in the department of Blood Bank. The petitioner’s willingness as directed above, was forwarded by him as per Ext.P5 with retrospective effect from 24.4.1998. Later, by Ext.P6, he was granted notional promotion. 4. The question is whether the period from 24.4.1998 to 1.10.2004 could be reckoned as qualifying service for time bound higher grade. In Ibrahim's case (2003 (1) KLT 534) it was held by this Court in similar circumstances that when a person obtained the promotion based on the direction issued by this Court, the period of notional service could be wpc 34287/2008 3 reckoned for the purpose of granting higher grade. It was held thus in para 1: “Stagnation in a scale for ten years is the basis for granting higher grade. Though the petitioner was granted only notional benefits, it has to be seen that he was in the scale in the said period of ten years. Whether a person who was in actual discharge of duties attached to a post is not a consideration relevant in the matter of granting higher grade. Having been denied promotion and the promotion having been restored pursuant to the directions issued by this Court, it is only in the interest of justice that the petitioner is granted at least the higher grade taking the period of notional service as service for the purpose of granting higher grade.” 5. The petitioner was denied promotion initially and only by Ext.P3 order, he could get promotion. In that view of the matter, by denying the benefit of higher grade without counting the period from 24.4.1998 to 1.10.2004, he will loose back arrears as well as the benefit of higher grade. In the light of the dictum laid down by this Court in Ibrahim's case (2003 (1) KLT 534) the said position cannot be accepted. 6. Therefore, Ext.P8 is quashed. It is declared that the petitioner is entitled for grant of higher grade reckoning the period from 24.4.1998 to 1.10.2004. Going by Ext.P13, a notification has been issued inviting applications for the post of Social Scientist. Therein, there is a Note wpc 34287/2008 4 indicating that when there are more than one employee in the Medical Education Service willing for promotion to the post of Social Scientist, the person in the higher scale will be preferred. In the light of the direction issued by this Court to grant higher grade, the claim of the petitioner also will be considered along with others, if any. Appropriate orders with regard to the higher grade benefits will be passed within a period of two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/