IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 22014 of 2007(U) -------------------------- PETITIONER(S): --------------- M.M.HAKIM SHERIFF, S/O S.M.SHARIFF, THANAL, CHELAVANNOOR, KOZHIKODE. BY ADV. SRI.S.ABDUL RAZZAK RESPONDENT(S): --------------- 1. THE GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY & CHAIRMAN OF DPC, HEALTH & FAMILY WELFARE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. SMT. K.C.INDIRA DEVI, MEDICAL RECORDS LIBRARIAN - GRADE I, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM. 4. D.AJAYLAL, MEDICAL RECORDS LIBRARIAN - GRADE I, OPTHALMIC HOSPITAL, MEDICAL COLLEGE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.T.B.RAMANY FOR R1 & 2 BY ADV. MR.T.R.RAVI FOR R3 & 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/05/2009, ALONG WITH WPC NO. 27922 OF 2006 AND CONNECTED CASES THE COURT ON 05/06/2009 DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.27922/2006-Y, 33972/2006-K, 2698/2007-U, 21950/2007-K, 22014/2007-U & 14316/2008-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 5th June, 2009. JUDGMENT All these writ petitions concern common issue regarding the promotion to the post of Medical Records Superintendent. Therefore, they are being disposed of by a common judgment. Writ Petition No.22014/2007 was argued as the main case and therefore the facts stated therein which are necessary for the disposal of the cases, are the following: 2. The petitioner in the said writ petition is presently continuing as Medical Records Librarian Grade I. He entered service as Junior Laboratory Assistant on the advice of the Public Service Commission on 8.1.1990. Respondents 3 and 4 were also advised along with him and they are juniors to the petitioner. After his appointment, he was transferred and posted as Attender in the Medical Records Library of Medical College Hospital, Kottayam. He acquired the training, viz. the training in Medical Records Department in the Medical College for promotion as Medical Records Librarian Grade II, the qualification of which is prescribed in Ext.P2 Govt. Order dated 16.9.1965. On the basis of his qualification, he WPC 27922/2006, etc. 2 was promoted temporarily on 24.10.1991, to the said post. 3. The promotion of the petitioner and others were challenged before this court by respondents 3 and 4 and certain others in O.P.No.29744/2000 which was disposed of by Ext.P3 judgment. This court found that persons were being deputed for training without considering the seniority in the feeder category and therefore the promotion thus obtained will not enure to their benefit and accordingly a direction was issued to revise the inter-se seniority in the light of the seniority in the feeder category post. A Writ Appeal was filed by the petitioner herein and others which was also dismissed. Ext.P4 is the said judgment. 4. Ext.P5 is the final seniority list of Medical Records Librarian Grade I. Again, by Ext.P6 a revised seniority list was published after hearing various parties, wherein the petitioner is serial No.20 and respondents 3 and 4 are serial Nos.22 and 24 respectively. The date of completion of training by the petitioner is shown as 19.8.1991 and that of respondents concerned is shown as 23.2.1998. The date assigned for his notional promotion is shown as 1.2.1997. When the D.P.C. met, the case of the petitioner was also considered, going by Ext.P12 Notes submitted for the same. But in the select list his name was not shown and therefore he filed Ext.P14 representation. Ext.P15 is the order promoting respondents 3 WPC 27922/2006, etc. 3 and 4 which is under challenge in this writ petition. 5. Heard learned counsel for the parties Shri S.A. Razzak, Shri B. Raghunathan, Shri Premjit Nagendran, Shri T.R. Ravi, Smt. Dhanya P. Ashokan and Smt. T.B. Remany, learned Govt. Pleader. 6. It is mainly contended by the learned counsel for petitioner, Shri S.A. Razzak that minimum 10 years service in the Medical Records Library is required for promotion which the petitioner has acquired, if the date 24.10.1991 is reckoned. Therefore, he has challenged the revised seniority list by which the date assigned is changed to 1.2.1997 instead of 24.10.1991. 7. It was submitted by relying upon Exts.P3 and P4 judgments that even though it was held that juniors can supersede only those seniors who after giving a chance did not avail and therefore did not acquire the training qualification, in the operative portion it was directed that seniors who are wrongly superseded, will be given all benefits including seniority notionally without arrears of salary. The petitioner was admittedly promoted as per order dated 24.10.1991. Ext.P5 will show that all the seniors to the petitioner were assigned the date 24.10.1991. Serial Nos.6 onwards upto 14 are seniors to the petitioner. Therefore, the same will satisfy the directions issued in Ext.P3 judgment which was upheld in Ext.P4 judgment. WPC 27922/2006, etc. 4 This court has only allowed the respondents to provide notional promotion to the seniors and that has no reference to the actual date of occurrence of vacancies. The seniority list has been wrongly modified as per Ext.P6. 8. At any rate, it is contended that respondents 3 and 4 who acquired the training qualification were sent for Medical Records Training Course without considering the claim of persons like the petitioners who are seniors and therefore going by the dictum laid down in Ext.P3 judgment itself, the training qualification acquired by them for the promotion as Medical Records Superintendent cannot be considered and in that view of the matter, the petitioner ought to have been considered, going by his eligibility recorded in Ext.P12, which is the Note provided by the Director of Medical Education to the D.P.C. The D.P.C. ought to have considered the matter strictly in accordance with the seniority and as respondents 3 and 4 are juniors to the petitioners, the promotion granted to them as per Ext.P15 is totally unjustified. 9. The contentions raised by respondents 3 and 4 and the first respondent are that the petitioner has only obtained a temporary promotion as Medical Records Librarian Grade II on 24.10.1991 and his position was reassigned in the seniority list in accordance with the date of occurrence of vacancy and his eligibility can be considered only in accordance with the WPC 27922/2006, etc. 5 revised date 1.2.1997. By reckoning the said date he has not completed the required 10 years service for promotion as Medical Superintendent. It is submitted by Shri T.R. Ravi, learned counsel appearing for respondents 3 and 4 that in the year 1991 there was only one vacancy and therefore as there were several seniors entitled for promotion, the petitioner herein cannot get the assigned date as 24.10.1991. It is submitted that the effect of Exts.P3 and P4 judgments are not to assign the same date on which the petitioner was temporarily promoted. Actually, the direction was to give all benefits including seniority to the seniors who are wrongly superseded. Since the seniority had to be revised, it was declared that they will be given all benefits including seniority notionally without arrears of salary. But that does not mean that the petitioner who was wrongly given a promotion overlooking the claim of seniors under Rule 31(a)(i) of KS & SSR, has to be assigned the said date itself which one of his seniors alone is eligible to get. It is further submitted that even if the petitioner had been promoted on 24.10.1991 that was only by way of temporary promotion and the said adhoc service which was obtained overlooking the claim of seniors, cannot be reckoned for the purpose of higher promotion. 10. As regards the training qualification that is acquired by respondents 3 and 4, it is submitted that going by the Special Rules, the WPC 27922/2006, etc. 6 training qualification is one which a person can acquire in the training conducted in the specified institution by the Central Government and it is not an in-service training. The petitioner ought to have applied for it at the right point of time if he wanted to attend the said course. Having failed to do so, he cannot raise the present contention. 11. In the counter affidavit filed on behalf of the first respondent, as regards the allegation that the petitioner was not sent for the training course, it is stated in para 14 that in 2003 he was not sent for training for want of substitute and as and when substitute was available, he had the opportunity to acquire the training qualification. It is further pointed out that even though the petitioner was also included in the field of choice, he was not included in the select list for want of vacancy. 12. Therefore, the main question is whether the petitioner is entitled to reckon his service from 24.10.1991 obtained on the basis of temporary promotion as Medical Records Librarian Grade II to count the 10 years service required for promotion as Medical Superintendent. In fact, the argument of the learned counsel for the petitioner, Shri S.A. Razzak is supported by the learned counsel Shri Premjit Nagendran, appearing for the petitioner in Writ Petition No.21950/2007 who is senior to the petitioner in Writ Petition No.22014/2007 as well as the learned counsel for the WPC 27922/2006, etc. 7 petitioner Smt. Dhanya P. Ashokan, in Writ Petition No.14316/2008. The petitioner therein is also senior to the petitioner in Writ Petition No.22014/2007. If all of them are entitled to reckon the date 24.10.1991 as the date of promotion to the post of Medical Records Librarian Grade II, then respondents 3 and 4 herein will be out of the picture for promotion to the post of Medical Superintendent. 13. The trump card of the argument raised by the learned counsel Shri S.A. Razzak is that in Ext.P3 judgment this court had clearly directed that seniors who are wrongly superseded will be given all benefits including seniority notionally without arrears of salary. It is therefore submitted that the method adopted by the respondents with reference to the date of occurrence of vacancy is incorrect. It is argued by Shri T.R. Ravi that in the year 1991 there was only one vacancy in the post of Medical Records Librarian Grade II and therefore the petitioner cannot have a claim for assignment of the said date as he was not the seniormost to be promoted as on that date. 14. The findings contained in Ext.P3 judgment are therefore material to decide this issue. In para 8 of Ext.P3 judgment, it was held by this court that seniors who were not sent for training for no fault of theirs are entitled to get seniority in the promoted category over their juniors who by sheer WPC 27922/2006, etc. 8 chance got training earlier. There was actually no direction in the judgment to the effect that the senior should be promoted with effect from the date on which the junior obtained promotion. The seniority had to be rearranged in the light of the seniority in the feeder category. There was no direction to effect any promotion by taking the date 24.10.1991 as the crucial date also. In the light of the above, I am of the view that as contended by the learned counsel for respondents 3 and 4, the seniority has to be assigned with reference to the date of occurrence of vacancies and if that be so, in the year 1991 there was only one vacancy and therefore the petitioner in Writ Petition No.22014/2007 was not entitled to be promoted on the basis of seniority as on that date. What was granted to him was only a temporary promotion obviously under Rule 31(a)(i) of the General Rules. It is axiomatic that while granting promotion under Rule 31(a)(i) of the General Rules, persons who are admittedly seniors, shall also be promoted. Therefore, when this court directed that the seniors who are wrongly superseded, will be given the benefit of promotion, it is obvious that the writ petitioner cannot retain the date 24.10.1991 in the absence of a clear vacancy available for his promotion. The promotion obtained by him thus is only under fortuitous circumstances. It was only a windfall. In that view of the matter and in the light of the fact that there was only one vacancy in the WPC 27922/2006, etc. 9 year 1991 which has been clearly pleaded by respondents 3 and 4 and which fact is admitted in para 13 of the counter affidavit filed by the second respondent in Writ Petition No.33972/2006, I am of the view that the claim raised by the petitioner in Writ Petition No.22014/2007 that he is entitled to be assigned 24.10.1991 as the date for promotion as Medical Records Librarian Grade II cannot be sustained. In the light of the background of the case and in the light of the directions issued by this court in Exts.P3 and P4 judgments, the only safe method is to assign seniority in the light of the date of occurrence of vacancies which is a well accepted mode. The same will not be arbitrary also. 15. Shri T.R. Ravi pointed out that unless the date of occurrence of vacancy is taken, it will be difficult to reckon 10 years experience in the post of Medical Records Librarian for promotion as Medical Superintendent as specified in the Special Rules. As far as promotion to the post of Medical Superintendent is concerned, one of the qualification prescribed as per Ext.P8 herein is that there should be a minimum 10 years experience as Medical Record Librarian in a Collegiate Hospital after acquiring academic qualification of pass in S.S.L.C., in the absence of Medical Record Training Course conducted by the Central Government or Medical Record Keeping Course conducted in the Medical College, WPC 27922/2006, etc. 10 Trivandrum. As far as the petitioner in Writ Petition No.22014/2007 and the petitioners in Writ Petition Nos.21950/2007 and 14316/2008 are concerned, they are claiming promotion as Medical Superintendent only on the basis of 10 years experience and they are not having the training qualification. Therefore, what is required under the relevant rules is 10 years actual experience as Medical Records Librarian and not an experience gained by assigning a notional date in the cadre of Medical Record Librarian Grade II. It is pointed out that the seniors to the petitioner in Writ Petition No.22014/2007 will not therefore get 10 years actual experience for promotion which is also a crucial aspect to be considered to find out whether the petitioner in Writ Petition No.22014/2007 is entitled to retain the date 24.1.1991. 16. It is pointed by Shri S.A. Razzak, learned counsel for the petitioner in Writ Petition No.22014/2007 that going by the well settled distinction between notional promotion and regular promotion as delineated in the decision in Gracy v. State of Kerala (1985 KLT 269), the date 24.10.1991 alone can be taken. In para 3 of the judgment, their Lordships relied upon the dictum laid down in Narayana Menon v. State of Kerala (1978 KLT 29) to the effect that notional promotion is one which a WPC 27922/2006, etc. 11 Government servant gets under particular exigencies of situation, which he cannot claim as of right. In the light of the factual situation emerging in this case, according to me, the said principle is of no assistance to the petitioner herein. Learned counsel for the petitioner also brought to my notice a decision of a learned Single Judge of this court in Ibrahim v. Commissioner and Secretary to Government (2003 (1) KLT 534) in support of the plea. Therein, this court was pleased to hold that for the purpose of grant of higher grade, the period of notional service can be taken as service for the purpose. The position herein is clearly distinguishable. The learned counsel vehemently argued, that especially in the light of the directions in Ext.P3 judgment, the petitioner cannot be denied the benefit of seniority and promotion with effect from 24.10.1991. As already found, this court has not issued any direction to promote the seniors with effect from the date on which the juniors like the petitioner was promoted, in Ext.P3 or in Ext.P4 judgment. In fact, the petitioner herein is one of the appellants in the Writ Appeal filed from Ext.P3 judgment. A reading of Ext.P4 judgment does not show that there was any finding in his favour to the effect that he is entitled to retain 24.10.1991 for assignment in the cadre of Medical Record Librarian Grade II. In that view of the matter, I am of the view that WPC 27922/2006, etc. 12 the date assigned to him in Ext.P6, viz. 1.2.1997 is perfectly justified. This is so in the case of the other petitioners also who are assigned similar dates. Therefore, the claim raised by the petitioner in Writ Petition No.22014/2007 and the petitioners in Writ Petition Nos.21950/2007 and 14316/2008 that they are entitled for assignment of the date 24.10.1991 in the cadre of Medical Record Librarian Grade II, cannot be sustained. If that be so, they are entitled for promotion to the post of Medical Superintendent only after 10 years of experience, based on the revised seniority list. 17. Herein, the vacancy to which respondents 3 and 4 were promoted are of the year 2004. As on that date, even though they were not having experience of 10 years, they had acquired the training qualification. This is evident from Ext.P12 Notes submitted to the D.P.C. The date of eligibility assigned to the petitioner in Writ Petition No.22014/2007 is 1.2.2007, the petitioners in Writ Petition No.21950/2007 is 1.4.2005 and 14316/2008 is 7.10.2005. As far as respondents 3 and 4 are concerned, the assigned date is 1.7.2004 and therefore they were rightly promoted in the vacancies which arose in the year 2004. In that view of the matter, the select list prepared by the D.P.C. cannot be faulted and the consequent order of promotion, Ext.P15 cannot therefore be said to be illegal. 18. The next issue is one regarding training qualification acquired by WPC 27922/2006, etc. 13 respondents 3 and 4. The petitioners in Writ Petition Nos.22014/2007, 21950/2007 and 14316/2008 have got a case that respondents 3 and 4 were sent for the training course without giving opportunity to the seniors like them to acquire the training qualification and therefore going by the dictum laid down in Ext.P3 judgment, they are not entitled to count the training qualification acquired for further promotion as Medical Records Superintendent. 19. It is submitted by Shri T.R. Ravi, learned counsel for respondents 3 and 4 (petitioners in Writ Petition No.33972/2006) that they obtained the training qualification pursuant to the selection conducted by the official respondents in accordance with the terms of the notification issued by the Central Government. Learned counsel submitted that the training qualification that is acquired by them is not an in-service training. It is a course offered by the Central Government. Therefore, the petitioners who are now contending for the position that they were not sent by the department, cannot raise such an argument since the petitioner in Writ Petition No.22014/2007 was not selected for want of a substitute and he never challenged the same at the right point of time. He did not apply subsequently and the principles stated in Ext.P3 judgment have no application here. In the counter affidavit filed by the first respondent, with WPC 27922/2006, etc. 14 regard to the petitioner's argument that he was not given permission to take training qualification, it is pointed out that he was not sent for training in 2003 for want of a substitute. As and when substitute became available, he had the opportunity to acquire the training qualification. Learned counsel for the petitioner further submitted that even if he was not sent for training in the year 2003, he could have been offered the training in the year 2004 and that opportunity was not given. 20. The petitioners in other writ petitions have also raised a similar contention. The course in question is conducted by the Central Government which is named Medical Records Training Course having a duration of six months. The scheme for conduct of the course is evident from Ext.P3 produced in Writ Petition No.2698/2007. Ext.P3 shows that the Government of India, Ministry of Health and Family Welfare has forwarded the Schedule of CBIII Inservice Training Courses for Medical Record Technicians and Medical Record Officers during the year 2005 to the Director of Health Services, Director of Medical Education, Director Medical Services and Principals of all MCI, Recognised Medical Colleges in India. Para 3 therein shows that the respective officers are requested to circular the training schedule to all the Government, Local Government Bodies, Public Sector Undertakings, Autonomous Government WPC 27922/2006, etc. 15 Establishment, District Health Officers, etc. with a request to the establishment to sponsor the eligible candidates for the training courses. 21. Therefore, the question is whether opportunity had been there for all the persons in the feeder category for a chance to undergo the training. This issue has been raised in Writ Petition Nos.27922/2006, 2698/2007, 21950/2007 and 14316/2008. 22. In the counter affidavit filed by the department, the modalities and the procedure as to how the opportunity for appearing for undergoing the training course, has been granted, is not explained. It is asserted by learned counsel for respondents 3 and 4 that it is not an inservice training course. It is conducted by the Central Government. Therefore, the establishment has to sponsor the eligible candidates for the above training at the right point of time. But still, in the absence of the further details in the matter, the question cannot be gone into in detail at this stage. Whether the Director of Medical Education has circulated the details to the respective parties and whether the petitioners in the writ petitions were given opportunity, etc. have therefore to be examined by the first respondent Government itself. 23. Now I will come to the other issues raised in the individual writ petitions. First I will deal with Writ Petition No.27922/2006. Therein, the WPC 27922/2006, etc. 16 petitioner has retired from service already. As on the date of filing of the writ petition, he was working as Medical Record Librarian Grade I. According to him, if he had been deputed for training and promoted to the post of Medical Record Librarian Grade II, he would have acquired 10 years experience in that regard in the year 1993. He was given promotion to the post of Medical Record Librarian Grade I pursuant to the judgment in O.P.No.29744/2000 and connected cases, on 7.4.1998 as per Ext.P1. He was given full additional charge of the post of Medical Records Superintendent during 2003, 2004 and 2005 in the Medical Record Library, Medical College, Thiruvananthapuram. 24. Going by the averments in para 8 of the writ petition, the petitioner is not having any training qualification required for promotion as Medical Records Superintendent since he was not able to join the training as he was overaged at that point of time. In paragraphs 3 and 4 of the counter affidavit, the reasons for not allowing him to join the course have been explained. He is seeking promotion on the basis of seniority and eligibility. He was due to retire from service on superannuation on 31.1.2007. 25. It is clear that the petitioner is the person who is not having any training qualification required for promotion as Medical Records Superintendent. He is assigned the date 22.3.1995 in Medical Records WPC 27922/2006, etc. 17 Librarian Grade II. He is not entitled to get any date prior to that obviously. None of his juniors who have been promoted, not made parties to the writ petition also. No specific challenge is made about any of the promotions made. In that view of the matter and as he has now retired from service, no further orders