IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 OP.No. 22792 of 2002(L) ---------------------------------- PETITIONER(S): ---------------------- DR.LYLA SASIDHARAN, W/O. LATE DR.P.G.SASIDHARAN, TAPASYA, SURABHI ROAD, EDAPPALLY. BY ADV. MR.DEEPU THANKAN, SMT.DEEPA DEEPU THANKAN. RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HEALTH SERVICES, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. ACCOUNTANT GENERAL (AUDIT), INDIAN AUDIT AND ACCOUNTS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. THE CONVENER, DEPARTMENTAL PROMOTION COMMITTEE, DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. R1 TO R4 BY GOVERNMENT PLEADER MR.DILEEP MOHAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 22792/2002-L ORDER ON C.M.P. NO.38992/2002 IN O.P. NO. 22792/2002 CLOSED 05/01/2010. SD/- S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GOVERNMENT ORDER NO.G.O.RT.1586/99/H&FWD DATED 05/06/1999. EXT.P2: COPY OF THE COMMUNICATION OF THIRD RESPONDENT NO.GE5/B/S14-7/1760 DATED 22/12/2000. EXT.P3: COPY OF THE JUDGMENT IN O.P. NO. 4698/01 DATED 28/01/2002 OF THIS HONOURABLE COURT. EXT.P4: COPY OF THE REQUEST SUBMITTED BY THE PETITIONER TO 1ST RESPONDENT DATED 07/01/2002. EXT.P5: COPY OF THE LETTER NO.GE 5/B/S14-7/2161 DATED 06/03/2002 ISSUED BY THE 3RD RESPONDENT. EXT.P6: COPY OF THE LETTER NO.GE 5/B/S.14-7/665 DATED 18/07/2002 ISSUED BY THE 3RD RESPONDENT. EXT.P7: COPY OF THE GOVERNMENT ORDER NO.G.O.(RT)NO.1393/2002/H&FWD DATED 02/07/2002. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.SIRI JAGAN, J. ================== O.P.No.22792 of 2002 ================== Dated this the 5th day of January, 2010 J U D G M E N T The petitioner's husband, Dr.P.C.Sasidharan, died on 15.11.2001, while working as Civil Surgeon in the Department of Health of the Government of Kerala. The petitioner is aggrieved by Ext.P7 order passed on 2.7.2002, whereby the promotion given to the petitioner's late husband as Civil Surgeon by order dated 5.6.1999 has been cancelled on the ground that his name was wrongly included in the select list prepared by the Departmental Promotion Committee. The petitioner contends that a promotion granted to an Assistant Surgeon as Civil Surgeon cannot be cancelled after the death of the person. It is further contended that since the husband of the petitioner had actually discharged the duties of a Civil Surgeon from the date of promotion till the date of his death, he is entitled to salary attached to the post, which has not been paid to the late husband of the petitioner. The petitioner, therefore, seeks the following reliefs: “a) call for the records leading to Exhibit P7 and Notification No.2368/DDCI/01/H&FWD dated 12.11.2001 of the first respondent and issue a writ of certiorari or any other appropriate writ, order or direction, quashing both; b) issue a writ of mandamus or any other appropriate writ or direction directing the respondents to pay all the retirement benefits of the late husband of the petitioner with interest, to the petitioner as he has retired as Civil Surgeon; c) declare that the cancellation of the promotion of Late. o.p.22792/02 2 Dr.P.G.Sasidharan, husband of the petitioner is illegal and arbitrary and against the provisions of the Kerala State Subordinate Service Rules; d) issue a writ of mandamus or any other appropriate writ or direction directing the respondents to pay the balance of salary of late Dr.P.G.Sasidharan, Civil surgeon from 5.6.99 to till the date of the death to the petitioner with 18% interest.” 2. A counter affidavit has been filed taking the contention that the name of the petitioner's husband was included in the select list wrongly, since at the time of inclusion of his name in the select list he had not successfully completed the period of probation, which is a condition precedent for becoming eligible for promotion. 3. I have considered the rival contentions in detail. 4. I find that the name of the petitioner's late husband was removed from the select list while the petitioner's late husband was still alive, against which the petitioner's husband filed O.P.No. 4698/2001, which was disposed of by Ext.P3 judgment after the death of the petitioner's husband without prejudice to the right of the legal heirs to pursue the cause of action. 5. In order to succeed in this original petition, the petitioner should satisfy me that the petitioner's husband's name was wrongly deleted from the select list. Admittedly at the time of inclusion in the select list, the petitioner's husband had not completed probation. That being so, he was not eligible to be included in the select list and consequentially the promotion given to the petitioner's husband was o.p.22792/02 3 also liable to be cancelled, which only has been done by Ext.P7 order. Therefore, I do not find anything illegal in Ext.P7 order. 6. As regards the claim of the petitioner for the salary for the period during which the petitioner's husband actually worked as Civil Surgeon on promotion, I find that there is no essential difference between the duties of an Assistant Surgeon and a Civil Surgeon. That being so, I do not think that the petitioner's husband is entitled to payment of salary attached to the post of Civil Surgeon simply because he had actually worked as Civil Surgeon from the date of promotion till the date of his death. As such, the claim for salary for the period the petitioner's husband worked as Civil Surgeon is also without merit. Therefore, I do not find any merit in the original petition. Accordingly, the same is dismissed. However, if any terminal benefits due to the petitioner in respect of the service of the petitioner's late husband are still remaining unpaid, the same shall be disbursed as expeditiously as possible, at any rate, within one month 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.22792/02 4 S.SIRI JAGAN, J. ================== O.P.No.22792 of 2002-L ================== J U D G M E N T 5th January, 2010