IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WP(C).NO. 31666 OF 2008(T) --------------------------------------- PETITIONER(S): ----------------------- K.K. SHYAMALA, D/O.KUNJUMON, KOLLANMAKUDY HOUSE, MANNAMKANDOM P.O AYIRAM ACRE, ADIMALY. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY DEPARTMENT OF HEALTH, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT MEDICAL OFFICER (HEALTH) OFFICE OF THE DISTRICT MEDICAL OFFICER, PAINAVU P.O., IDUKKI DISTRICT. R1 & R2 BY GOVT. PLEADER MR.P. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 31666/2008-T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(MS)NO.6/98/EMPLOYMENT DATED 20/02/1998. EXT.P2: COPY OF THE JUDGMENT DATED 22/03/2007 IN WP(C) NO. 4265/2007. EXT.P3: COPY OF THE ORDER NO.A2 2842/04/GMA DATED 12/06/2007. EXT.P4: COPY OF THE RELEVANT PAGE SHOWING THE MARKS. EXT.P5: COPY OF THE ORDER NO.A2/2842/04/GMA (HEALTH) IDUKKI DATED 21/11/2006. EXT.P6: COPY OF THE REPRESENTATION DATED 21/06/2007 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P7: COPY OF THE ORDER NO.A2-156/01/GMA (HEALTH) IDUKKI DATED 28/12/2006. EXT.P8: COPY OF THE JUDGMENT DATED 07/08/2007. EXT.P9: COPY OF THE ORDER DATED 01/08/2007. EXT.P10: COPY OF THE JUDGMENT DATED 02/01/2008 IN WP(C) NO. 13/2008. EXT.P11: COPY OF THE REPRESENTATION DATED 05/01/2008. EXT.P12: COPY OF THE G.O.(RT)NO.1536/2008/H &FWD DATED 28/04/2008. EXT.P13: COPY OF THE ORDER DATED 19/09/2009 ISSUED BY THE DMO (H) IDUKKI. EXT.P14: COPY OF THE ORDER DATED 08/05/2010 ISSUED BY THE DMO (H) IDUKKI. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE CIRCULAR DATED 24/05/2005. //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.31666 OF 2008(T) -------------------------------------------------- Dated this the 20th day of July, 2010 J U D G M E N T Petitioner was sponsored by the Employment Exchange for appointment to the post of Part Time Sweeper. Though she was entitled to be given 5 marks available to special categories, that benefit was not given to her and she was awarded only 24.5 marks. Denial of 5 marks was challenged by the petitioner in WP(c). No.4265/2007. That writ petition was disposed of by Ext.P2 judgment directing that the claim of the petitioner shall be considered for awarding marks available to the special category applicants. Accordingly, the benefit of 5 marks was given to her and on that basis, giving her a total of 29.5 marks and she was issued Ext.P3 order of appointment with effect from 12.6.2007. 2. However, those who participated in the selection process along with her, were appointed by Ext.P5 order dated 25.11.2006. In the process since the petitioner lost seniority in the category of part time sweeper, she submitted Ext.P3 representation requesting the 2nd respondent to reassign the date of her appointment as WPC.No.31666 /08 :2 : 21.11.2006 and thus to restore the seniority that is due to her. While the claim was thus pending, the persons who were appointed as part time sweeper as per Ext.P5, were promoted to the post of Hospital Attendant Grd.II as per Ext.P7 order dated 28.12.2006. Since her representation was remaining unattended she again approached this court and in Ext.P8 judgment rendered by this court in WP(c).No.24038/07 her claim was ordered to be considered. Accordingly, her claim was considered and by Ext.P9 order dated 1.8.2007 she was promoted to the post of Hospital Attendant Grd.II, but however only with prospective effect. She pursued her claim for restoration of seniority by approaching the Government, which resulted in Ext.P12 order rejecting her claim on the ground that in view of the provisions contained in Rule 27(a) of KS & SSR seniority of a person can be determined only by date of first appointment. It is thereupon that this writ petition is filed. 3. The contention of the petitioner is that though she was entitled to be awarded 5 marks available to the Special category and had it been awarded to her in the selection process, she should have got appointment along with other candidates in Ext.P5 and would WPC.No.31666 /08 :3 : have earned promotion along with the persons promoted by Ext.P7. It is stated that the denial of the marks resulted in the delay in her appointment and that threfore, she cannot be deprived of her seniority and consequential benefits. It is stated that therefore, the view taken in Ext.P12 is incorrect. 4. I heard the counsel for the petitioner and also the learned Government Pleader. 5. In the facts as noticed above, I am inclined to agree with the learned counsel for the petitioner. As already seen, if the entitlement of the petitioner for 5marks as per Ext.P1 was recognized in time and the benefit given to her, she would have been one of the candidates appointed by Ext.P5. If she was appointed as per Ext.P5, she would have got promotion to the post of Hospital Attendant Grd.II along with others in Ext.P7. This did not happen only for the reason that respondents denied her legitimate right to have the marks due to her under Ext.P1. Now that her entitlement under Ext.P1 has been recognized and she has been given appointment and promotion, in my view, she ought to have been given promotion with effect from the date of Exts.P5 and P7. WPC.No.31666 /08 :4 : Therefore the contrary view in Ext.P12 is incorrect and cannot be accepted. 6. Accordingly I quash Ext.P12 and the 2nd respondent is directed to reassign seniority in the vacancy of Part Time Sweeper with effect from 21.11.2006 when the other candidates were appointed by Ext.P5 and in the category of Hospital Attendant Grd.II with effect from 28.12.2006 when the other candidates were promoted by Ext.P7. She shall also be extended all consequential benefits. However, it is made clear that, though the petitioner will be entitled to restoration of seniority and further promotion, if any, she will not be entitled to any arrears of pay on that basis. 7. Consequential orders will be passed at any rate within 6 weeks from the date of production of a copy of the judgment. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WPC.No.31666 /08 :5 :