IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 WP(C).No. 18823 of 2008(N) -------------------------------- PETITIONER: ------------- DR.P.K. SANTHAKUMARI, SUPERINTENDENT IN CHARGE (SENIOR) PROFESSOR & HEAD OF THE DEPARTMENT, KAYACHIKITSA AND PANCHAKARMA DEPARTMENT, GOVERNMENT AYURVEDA COLLEGE HOSPITAL, TRIVANDRUM. BY ADV. SRI.K.SUBASH CHANDRA BOSE SRI.V.RAJASEKHARAN PILLAI SRI.K.J.JOMSON RESPONDENTS: ---------------- 1. STATE OF KERLA, REP. BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR, OFFICE OF THE DIRECTOR, DIRECTORATE OF AYURVEDA MEDCICAL EDUCATION, TRIVANDRUM. 3. DR.R. SREEKUMAR, PROFESSOR & HEAD OF DEPARTMENT, DEPARTMENT OF ROGANIDANA, GOVERNMENT AYURVEDA COLLEGE HOSPITAL, TRIVANDRUM. R3 BY ADV. SRI.ELVIN PETER P.J. R1 BY GOVT PLEADER STI T.T. MOHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ----------------------------------------------------- W.P.C. No 18823 of 2008 ---------------------------------------------------- Dated this the 18th September 2008 JUDGMENT The prayer in this writ petition is to quash Ext. P10 and to direct the first respondent to follow Ext.P9 recommendation for posting Superintendent in the Government Ayurveda College, Thiruvananthapuram. 2. Briefly noted, the facts of the case are that, the petitioner and the third respondent are governed by Ext.P5, the Rules for the Kerala State Ayurveda Medical Education (Teaching) Services, 2007 (hereinafter referred to as the Special Rules, for short). As far as service details of the petitioner are concerned, the petitioner commenced service as Tutor on 21.12.1981 and was promoted as Reader on 01.01.1998 and thereafter by Ext. P3 she was promoted as Professor with effect from 18.12.2001. In so far as the third respondent is concerned, he commenced service as Tutor on 17.08.1989 and has been promoted as Professor with effect from 25.10.2005. WPC 18823/08 2 3. The Superintendents of Hospitals attached to Ayurveda Colleges are posted as per Note 5 to Rule 3 of the Special Rules, which reads as follows: “5. Willing Professor from the Departments attached to Hospital will be appointed as Superintendent of the hospital attached to the Ayurveda College, Thiruvananthapuram, Trippunithura and Kannur and Readers as Resident Medical Officers. They will perform the responsibilties of Superintendents/Resident Medical Officers in addition to the normal duties in their Departments concerned. In speciality hospitals such as the Ayurveda College Hospital for Women and Children, Poojappura etc. Professors specialized in the concerned branches will be considered for appointment as Superintendents.” In terms of the Note, by Ext. P6, willingness was invited from Professors for posting as Superintendent of Ayurveda College Hospital, Thiruvananthapuram. In the meantime, on the retirement of the then Superintendent of Government Ayurveda College Hospital, Thiruvananthapuram, by Ext. P7, the petitioner was put in charge of that post as well. 4. It would appear that the petitioner, third respondent and yet WPC 18823/08 3 another person had expressed their willingness in response to Ext. P6. On receipt of the willingness from Professors, by Ext. P9, the second respondent informed the first respondent the details of the three willing Professors which included both the petitioner and the third respondent. The second respondent further stated in Ext. P9 as follows: “As only one can be appointed as Superintendent, Government Ayurveda College Hospital, Thiruvananthapuram, Dr P.K. Santhakumari (Senior) who is the seniormost among the three applicants may be appointed as Superintendent, Government Ayurveda College Hospital, Thiruvananthapuram.” However, the first respondent issued Ext. P10 order dated 20.06.2008, posting the third respondent as Superintendent of the Government Ayurveda College Hospital, Thiruvananthapuram and it is challenging Ext. P10 this writ petition has been filed. 5. Counsel for the petitioner would submit that petitioner is the seniormost among the three Professors who had expressed their willingness in response to Ext. P6. It is contended that the Special Rules do not contain any particular method to be followed in the WPC 18823/08 4 matter of posting of Superintendents and that in the past, such postings have been made following seniority of willing candidates accepting the recommendation made in that behalf by the Director concerned. In support of the above, learned counsel for the petitioner would refer me to Exts. P11 to P15, documents obtained by invoking the provisions of the Right to Information Act. 6. In the counter affidavit has been filed by the first respondent, it is conceded that all the applicants were eligible for posting as Superintendents. It is stated that the first respondent, after carefully considering the willingness expressed by the Professors, appointed the third respondent, giving due regard to his efficiency and skills. It is also stated that seniority is not the criterion for posting as Superintendent and that the Government have examined the records and assessed the ability of the persons who had expressed their willingness to be posted as Superintendent. Yet another reason stated is that third respondent is having service of more than five years and continuity of service is one of the criterion that weighed with the Government. Proceeding further it is stated that the second respondent has sent Ext. P9 recommendation without considering Ext.P5 Special Rules and WPC 18823/08 5 that any recommendation of the Director is not contemplated by the Special Rules. It is also the case of the first respondent that first respondent is not bound to act on the recommendation which has been made without assessing the comparative merit and ability of the persons eligible to be posted as Superintendent. It is on these reasons that the first respondent is seeking to justify Ext. P10 order posting the third respondent as Superintendent. 7. Third respondent has also filed counter affidavit seeking to sustain Ext P10 and supporting the stand taken by the first respondent in its counter affidavit. 8. Learned Government Pleader and the counsel for the third respondent would contend for the position that it is not seniority which is relevant in the posting as Superintendents but it is the ability and competence of the person concerned which is relevant. Although it is not raised in the counter affidavit, it is also contended that going by Rule 60 (a) of Part I K.S.R the petitioner had attained the age of superannuation on 31.08.2008, but is continuing in service till the end of the academic year on the strength of Rule 60 (c). It is stated that such continuance only entitles her to continue as Professor in the teaching faculty and not for anything further. In WPC 18823/08 6 effect, what is argued is that the post is a selection post and that during the period subsequent to 31.08.2008 the petitioner cannot aspire to be posted as Superintendent of the hospital and should give way for her junior. 9. I shall first deal with the contention relying on Rule 60 (a) and (c), Part I, K.S.R. In so far as the plea now raised relying on Rule 60 (c) of Part I K.S.R is concerned, I should confess my inability to accept the same for more reasons than one. As rightly pointed out by the counsel for the respondents, as per the Special Rules posting as Superintendent is not a case of promotion. However, so long as the petitioner continues as Professor, whether it be on the strength of Rule 60 (c) or otherwise, in my view, except those benefits which are expressly denied to her by terms of the Rules itself, she is entitled to all other benefits. If that be so, I cannot find anything in the Rule denying the benefit of posting as Superintendent. 10. That apart, it is also to be noted that Ext. P10 order by which the third respondent was posted as Superintendent, was issued on 20.06.2008 which is much prior to 31.08.2008, the date on which the petitioner had attained the age of superannuation going WPC 18823/08 7 by Rule 60(a). This court is examining the correctness of Ext. P10 and therefore the eligibility of the petitioner and third respondent is required to be assessed as on the date of Ext. P10, viz.,20.06.2008. If that be so, the argument now raised relying on Rule 60(c), which is also not raised in the counter affidavits filed by respondents 1 and 3, is devoid of any substance. 11. Now what remains is whether seniority of the Professors has to be accepted as the basis for posting. A reading of the Special Rules would show that apart from stating that posting is to be made from among willing Professors, there is no indication in the Special Rules with regard to the process to be adopted in choosing and posting one among the willing Professors. In such a case, I feel, what is relevant to be examined is the yardstick that has been adopted by the first respondent in the past when the post was filled up on different occasion. This is seen disclosed to the petitioner as per Exts. P11 to P15 which have been produced along with the reply affidavit filed by the petitioner. 12. Ext. P11 is a query raised by the petitioner in which she has raised a specific question as to whether on earlier occasions when Superintendents were posted, seniority of the willing WPC 18823/08 8 Professors has been overlooked. This has been answered by the Public Information Officer, Directorate of Ayurveda Medical Education by his reply dated 21.08.2008 in Ext. P11, stating that- 13. Ext. P12 is a letter dated 24.09.1999 from the Principal of Government Ayurveda College, Thiruvananthapuram addressed to the first respondent, in which, in so far as the posting of Superintendent is concerned, the following recommendation is made. “Superintendents: As per guidelines Para No.13 willingness from the Professors of Clinical Department may be considered for the posting of Superintendent in the Collegiate Hospital. Dr P.S. Syamalakumari, Professor of Kayachikitsa and Dr K. Krishnankutty Nair, Professor of Agadathanthra have submitted their willingness for the post of Superintendent, Ayurveda College Hospital, Trivandrum. Among them Dr P.S. Syamalakumari is the senior hand. Hence Dr P.S. Syamalakumari, Professor of Kayachikitsa, Government Ayurveda College, Trivandrum may be appointed as the Superintendent of Government Ayurveda College, Trivandrum.” It is revealed from the Government order dated 17.11.1999 that WPC 18823/08 9 accepting the above recommendation Dr P.S. Syamalakumari was posted as Superintendent of Government Ayurveda College Hospital, Thiruvananthapuram. 14. Similarly, Ext. P13 is yet another recommendation of the Principal of the College recommending that the duties of the Superintendent, Ayurveda College, Tripunithura be entrusted to the seniormost Professor working in that hospital. It is stated that Dr C. Retnakaran is the seniormost Professor working in the Government Ayurveda College hospital, Tripunithura and that he be appointed as Superintendent. This recommendation was accepted and by G.O dated 17.01.2001, Sri C. Retnakaran, the seniormost Professor, has been posted as Superintendent of Government Ayurveda College hospital, Tripunithura. 15. Similar recommendation has been made in Ext. P14 dated 18.05.2001, recommending that M.R. Vasudevan Nair, the seniormost among the Professors in the Ayurveda College hospital, Thiruvananthapuram be posted as Superintendent of that hospital. That was also accepted and as per G.O dated 27.06.2001 posting has been effected. 16. From these documents, it is therefore evident that the WPC 18823/08 10 consistent practice hitherto followed was based on the recommendation made by the Principal/Director Government has been making postings of Superintendent and that too following the seniority of the Professors who have expressed their willingness to be posted. In the counter affidavit filed by the first respondent, there is absolutely no justification offered for departing from this settled precedent that has been followed for several years. The contention that Rules do not contemplate a recommendation from the second respondent and that the posting is based on selection, are all against facts as disclosed above. The remaining length of service of the third respondent, is also not seen taken as a criterion in the past and is now adopted only to justify Ext.P10. In this context, it also needs to be noticed that there is no case in the counter affidavit of the first respondent that the petitioner is unsuitable to be posted as Superintendent of the hospital. In view of all these, in my view, seniority has to be the basis and if so, Ext. P10 order posting the third respondent cannot be sustained. 17. For these reasons, I quash Ext. P10 and direct that the petitioner shall be posted as Superintendent of Government Ayurveda College hospital, Thiruvananthapuram as expeditiously as WPC 18823/08 11 possible, at any rate within two weeks from the date of production of a copy of this judgment. The writ petition is allowed as above. Sd/- ANTONY DOMINIC Judge 18/09/2008 en [true copy] WPC 18823/08 12 Appendix Petitioner's exhibits: Ext.P1 - True copy of the third page of her S.S.L.C Book Ext.P2 - True copy of combined seniority list of teaching staff of Govt Ayurveda Colleges, the Thiruvananthapuram, Tripunithura and Kannur on 1.1.1998 Ext.P3 - True copy of order promoting petitioner and others tothe post of Professor dated 18.12.2001 Ext.P4 - True copy of order appointing the third respondent dated 26.10.2005 Ext.P5 - True copy of Special Rules for the Kerala State Ayurveda Medical Education (Teaching) Services dated 4.8.2007 Ext.P6 - True copy of Circular dated 22.04.2008 Ext.P7 - True copy of order dated 28.4.2008 Ext.P8 - True copy of order dated 22.5.2008 Ext.P9 - True copy of letter dated 2.6.2008 forwarded from the office of the second respondent. Ext.P10 - True copy of order dated 20.06.2008 forwarded from the office of the second respondent. Ext.P11 - True copy of the letter and the information received from the Ayurvedic Education Department Ext.P12 - True copy of letter and the information received from the Ayurvedic Education Department Ext.P13 - True copy of recommendation of principal dated 24.09.1999 and the appointment made by the first respondent on 17.11.1999 Ext.P14 - True copy of the letter seeking the ratification of Govt in posting seniormost professor as Superintendent by the Director dated 18.5.2001 and the ratification order issued by the first respondent on 27.6.2001 Ext.P15- True copy of recommendation of Director dated 30.5.2005 and the appointment made by the first respondent on 20.09.2005 Ext.P16 - True copy of order dated 31.5.2008 issued by the first respondent. Respondent's exhibis: Nil [true copy] WPC 18823/08 13