IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 26343 of 2004(J) -------------------------- PETITIONER(S): --------------- S.GEETHA (ASSISTANT PROFESSOR OF PHARMACEUTICAL ENGINEERING, COLLEGE OF PHARMACEUTICAL SCIENCES, MEDICAL COLLEGE, THIRUVANANTHAPURAM), W/O.V.RAMESH BABU,`ROHINI', SP.15/76, VENCHAVODE, SREEKARYAM,PANGAPARA VILLAGE THIRUVANANTHAPURAM TALUK. BY ADV. SRI.K.N.PADMAKUMAR RESPONDENT(S): --------------- 1. THE SECRETARY TO THE GOVT. OF KERALA, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL EDUCATION DIRECTORATE, MEDICAL COLLEGE(PO) THIRUVANANTHAPURAM. 3. THE PRINCIPAL, MEDICAL COLLEGE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER K. SANTHOSHKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26343 of 2004(J) APPENDIX Petitioners Exhibits: Ext.P1: A true copy of the G.O.P No.75/96/H&FWD dated 20.02.1996 Ext.P2: A true copy of the promotion order of the petitioner G.O.(Rt) 1864/99/H&FWD dated 20.02.1996 Ext.P3: A true copy of the Letter of the Director of Mdical Education No. G5-26085/01/DME dated 12.4.2002 /True copy/ P.A. To Judge C.T. RAVIKUMAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 26343 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of September, 2009 J U D G M E N T The petitioner is an Assistant Professor of Pharmaceutical Engineering under the Medical Education Service. She commenced her career as a lecturer in Pharmaceutical Engineering on 15.3.1984. At that point of time she possessed only B.Tech degree in Pharmaceutical Engineering. Subsequently she acquired Post Graduation (M.Tech) in Pharmaceutical Engineering on 1.2.1990. Thereafter Ext.P1 Government Order dated 20.2.1996 was issued by the Government. It is a Government Order pertaining to Career Advancement Clause I(a) of Ext.P1 Order reads thus:- “Lecturers with postgraduate degree in concerned speciality and who have 6 years of (Physical) teaching experience will be promoted as Assistant Professor in the scale of pay of Rs. 3000- 5000.” 2. Going by the above extracted clause, a Lecturer with P.G.Degree in the concerned speciality and possesses six years of (Physical) teaching experience would be promoted as WPC.No. 26343 OF 2004 : 2 : an Assistant Professor in the scale of pay Rs.3000-5000. Though the petitioner possessed all the requisite qualifications she was not promoted as Assistant Professor since there was no post of Assistant Professor in Pharmaceutical Engineering. At the same time persons who commenced their services in other specialities later than the petitioner obtained promotion in terms of Ext.P1. In the said circumstances, the petitioner represented before the competent authorities for getting her grievance redressed. Finally taking note of the special circumstances, Government as per Ext.P2 upgraded the post of Lecturer held by the petitioner to that of Assistant Professor of Pharmaceutical Engineering in the scale of pay of Rs. 3000- 5000 w.e.f. 21.9.1991. Pursuant to Ext.P2 Order monitory benefits flowing from it with effect from 1.4.1995, were also granted to the petitioner. The present grievance of the petitioner is with respect to the inaction on the part of the respondents in terms of Clause I(b) of Ext.P1 Order. Clause I (b) of Ext.P1 reads as follows: Assistant Professors with 8 years of teaching experience (Physical) and those who have put in 14 years of total service as Lecturer and Assistant Professor, put together, will be promoted as Associate Professor in the scale of pay of Rs.3700-5700 3. Going by Clause I(b) of Ext.P1 Assistant Professor WPC.No. 26343 OF 2004 : 3 : with 8 years teaching experience(Physical) and who have put in 14 years of service as Lecturer and Assistant Professor, taken together, would be promoted as Associate Professor in the scale of Rs.3700-5700. Delay in considering the claim for promotion in terms of Clause I(b) made the petitioner to approach the Government once again. However, as per Ext.P3 her request was rejected. The reason for such rejection revealed from Ext.P3 are as follows: “I am to inform you that there is no post of Assistant Professor or Associate Professor in Pharmaceutical Engineering . Smt. S. Geetha is not yet promoted as regular Assistant Professor. For getting Time Bound Cadre Promotion as Associate Professor she has to complete the required physical Teaching Experience as regular Assistant Professor. Hence, she is not eligible for Time Bound Cadre Promotion as Associate Professor. She may be informed accordingly.” It is challenging Ext.P3 that this writ petition has been filed by the petitioner. 4. According to the petitioner, the reasons assigned for rejecting her request as per Ext.P3 are unsustainable in the light of her promotion to the post of Assistant Professor. The respondent can not be heard to say that the petitioner is not holding the post of Assistant Professor, it is contended. The post of Lecturer in Pharmaceutical Engineering held by the petitioner was upgraded w.e.f 21.9.91 and the petitioner was WPC.No. 26343 OF 2004 : 4 : admittedly, granted all the monitory benefits flowing from said order w.e.f.1.4.95. That apart in Ext.P2, it was made clear that the said post of Assistant Professor would cease to exist as and when the petitioner vacates the post either by promotion, retirement/ relinquishment. It is based on the aforesaid admitted facts that the petitioner assails Ext.P3. The first respondent filed a counter affidavit wherein the reasons assigned in Ext.P3 are amplified to support and sustain Ext.P3. The learned Government Pleader reiterated the said contentions to resist the claim of the petitioner. 5. In the light of Ext.P2 it cannot be said that the petitioner is not holding the post of Assistant Professor. Admittedly, the post held by her was upgraded w.e.f. 21.9.91 and consequential monitory benefits were granted w.e.f 1.4.95. Moreover it is made clear in Ext.P2 that the said upgraded post would cease to exist as and when the petitioner vacates it either by promotion, retirement/relinquishment. Therefore, finding to the effect that the petitioner is not yet promoted as Assistant Professor cannot be comprehended. 6. A perusal of Ext. P3 would show the other reason to reject the request of the petitioner viz. absence of the post of WPC.No. 26343 OF 2004 : 5 : Associate Professor in Pharmaceutical Engineering under the Directorate of Medical Education. When that be the position, this court cannot issue a writ or direction, commanding the respondents to consider the petitioner for promotion to the post of Associate Professor. When confronted with such a factual situation the counsel for the petitioner made a submission that the respondent may be directed to consider the scope of issuing an order like the one in Ext.P2. I am afraid, I cannot issue any such direction. Government, on their own, may pass an order like Ext.P2 considering thespecial circumstances and hardships faced by the petitioner. As noticed herein before, Ext.P3 was issued on a ground which was not actually available to the respondents. It is evident from Ext.P2 that the petitioner was promoted as Assistant Professor and consequential benefits were also disbursed to her. Therefore, the rejection of the request of the petitioner on that ground cannot be sustained. But that will not save the situation for the petitioner. As held earlier, a direction cannot be issued to consider the petitioner for promotion to the post of Assistant Professor which is not in existence. In the circumstances no reliefs can be granted to WPC.No. 26343 OF 2004 : 6 : the petitioner as prayed for in the writ petition. However, it is made clear that this will not stand in the way of the petitioner to approach the Government with a request to consider the scope of issuing an order like Ext.P2, if advised. Subject to the above observation, the above writ petition is dismissed. ( C.T. RAVIKUMAR, JUDGE) jma