IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WP(C).No. 28499 of 2010(J) -------------------------- PETITIONER(S): ---------------------- 1. S.MADHU, CLERICAL ATTENDER, MEDICAL COLLEGE, KOTTAYAM. 2. B.SUDHAKARAN NAIR, CLERICAL ATTENDER, MEDICAL COLLEGE, KOTTAYAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHEER RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt K.T.SANKARAN, J. ------------------------------ W.P.(C).No.28499 OF 2010 ------------------------------ Dated this the 30th day of September, 2010 JUDGMENT The petitioners entered service as Peon in the Education Department on 9.10.2000 and 22.11.1999 respectively. They got inter departmental transfer to the Department of Medical Education and they were posted as Peon in that Department in 2005 and 2006 respectively. As per order dated 27.5.2009, the petitioners were promoted as Clerical Attenders and they were posted in the Medical College, Kottayam. It is stated that they had completed service of more than one year as Clerical Attenders in the Medical Record Library of Medical College, Kottayam. Exts.P1 and P2 certificates are relied on to prove the same. 2. According to the petitioners, they are qualified to be promoted as Medical Record Librarian Gr.II in Medical College, Thiruvananthapuram. The post of Medical Record W.P.(C).No.28499 OF 2010 2 Librarian Gr.II was originally designated as Medical Record Technician. The petitioners alleged that there was an attempt on the part of the respondents to fill the post of Medical Record Librarian Gr.II by appointing junior Laboratory Assistants in Medical Education Service, overlooking the legitimate claims of the Clerical Attenders. This led to the filing of W.P.(C) Nos.19801/2008 and 18854/2008 before this court. The case put forward by the Junior Laboratory Assistants that they have preference to the promotion of Medical Record Librarian Gr.II over the Clerical Attenders as they held post carrying more salary than the Clerical Attenders, was turned down by this court in the Writ Petitions referred to above, which were confirmed in Ext.P5 judgment in W.A.No.166 of 2009. The relevant portion in Ext.P5 judgment reads as follows: “5. We considered the rival submissions made at the bar and also the decisions cited by the learned counsel for the appellants. Normally, this Court is the final arbiter as to the correct meaning to be assigned to a rule or order prescribing qualifications and W.P.(C).No.28499 OF 2010 3 method of appointment. Of course, the Court will give deference to the views of the rule making authority and the practice, if any it has followed consistently in the matter, provided, it is a plausible view. In this case, we notice that, the rule making authority, the Government, did not subscribe to an interpretation canvassed by the appellants. The Government's earlier stand assumes significance, if only the view taken in favour of the appellants is a plausible view, having regard to the words used in the above quoted order. Going by the order, we feel that, in 1965, the Attenders were classified into two groups. Those drawing the scale of pay of Rs.40-80 and Rs.35-60. At that time, the posts in both the groups were known to all concerned, including the appointing authority. If a mechanical interpretation is given now, nobody will be in the pay scale and no one could be promoted. But, whatever be the revised scale of pay now, the posts with the scale of pay of Rs.40-80 in 1965 should be preferred for promotion and only in their absence, persons in the lower scale could be considered. We think, that is the only reasonable construction, that could be placed on the words of the above quoted rule. The Government have taken a correct view of the rules now. We think, based on some technical contentions, we should not interfere with that view, which has been upheld by the learned Single Judge also. The decisions, cited by the learned counsel, cannot be made applicable in this case, for the reason that, it was the Director of Medical Education, who was consistently following that practice. He is an officer subordinate to the rule making authority, the Government. If the Government decide to follow a correct interpretation of the order, prescribing qualifications and method of appointment, we think we are not justified in interfering with the same.” W.P.(C).No.28499 OF 2010 4 3. The contention of the petitioners is that in the light of Ext.P3 Government Order and Exts.P4 and P5 judgments respectively in the Writ Petitions and the Writ Appeal, they are entitled to be considered for promotion to the post of Medical Record Librarian. They also say that sufficient number of Clerical Attenders having requisite length of service are available for promotion. However, no steps are being taken to make promotions. The petitioners apprehend that the delay is caused to the process of promotion only to help some Clerical Attenders, who are seniors to the petitioners but who do not have the requisite period of service. According to the petitioners, the relevant date for consideration of the qualification for promotion is the date of occurrence of vacancy and therefore, even availability of qualified hands for promotion who acquired qualification for promotion subsequently, may not be of any avail to deny the legitimate claims of the petitioners. Pointing out their grievance, petitioners have submitted Ext.P7 W.P.(C).No.28499 OF 2010 5 representation before the Director of Medical Education (second respondent). 4. The reliefs prayed for by the petitioners in the Writ Petition are the following: “i) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to promote the petitioners to the post of Medical Record Librarian Gr.II, with effect from the date of occurrence of vacancies and with all consequential service benefits. ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to dispose of Ext.P7 representation as expeditiously as possible and at any rate within a time limit to be fixed by this Hon'ble Court. iii) declare that the petitioners are entitled to be promoted to the post of Medical Record Librarian Gr.II in the existing vacancies. And iv) grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case including the cost of this Writ Petition.” 5. The learned counsel for the petitioners submitted that for the time being, it would be sufficient if relief No.(ii) is granted leaving open the contentions of the petitioners. The request is just and reasonable. W.P.(C).No.28499 OF 2010 6 Accordingly, the Writ Petition is disposed of as follows: a) The second respondent shall consider and dispose of Ext.P7 representation dated 7.6.2010 submitted by the petitioners, as expeditiously as possible and at any rate within a period of two months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioners and any other affected party. b) The petitioners shall produce a certified copy of the judgment and copy of the Writ Petition before the second respondent. K.T.SANKARAN, JUDGE. cms