IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 WA.No. 1840 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.28716/2003 .................... APPELLANT/PETITIONER ------------------------ DR.MAYA MATHEW, W/O.MATHEW, GOVT.HOMEO DISPENSARY,NEDIYASALA, THODUPUZHA. BY ADV. SRI.RAJU JOSEPH RESPONDENT(S): RESPONDENTS -------------------------- 1. SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HOMEOPATHY THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2010, THE COURT ON 10/08/2010 DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ----------------------------------------- W.A.No.1840 of 2009 ----------------------------------------- Dated this the 10th day of August, 2010 JUDGMENT Ravindran. J. The appellant is the petitioner in W.P(C)No.28716 of 2003. The writ petition was filed challenging Ext.P7 order issued by the Director of Homeopathy declining salary and allowances to the appellant with effect from the date on which she was notionally promoted to the category of Non Cadre Medical Officer. By judgment delivered on 9.7.2009 the learned single Judge dismissed the writ petition. Hence this writ appeal. 2. The appellant entered service as Pharmacist in the Homeopathy Department on 28-5-1999. As per the Special Rules, appointment to the post of Medical Officer is to be made; (1) by direct recruitment; (2) by transfer from the category of Nurse (Homeopathy); (3) by transfer from the category of Pharmacist (Homeopathy); and (4) by transfer from the category of Clerk (Homeopathy). The appointments are to be made in the ratio 5:1:1:1 between appointment by direct recruitment, appointment by transfer from the category of Nurse (Homeopathy), appointment by transfer from the category of Pharmacist (Homeopathy) and appointment by W.A.No.1840 of 2009 -:2:- transfer from the category of Clerk (Homeopathy). After the appellant entered service as Pharmacist, the Government by letter dated 9.8.2000 accorded sanction to make temporary promotions of qualified Pharmacists, Nurses and Clerks to the post of Medical Officer applying the prescribed ratio against the then existing 59 vacancies pending regular appointment in terms of the Special Rules. Thereupon seven Pharmacists, one Nurse and one Clerk were temporarily promoted and posted as Medical Officer, Homeopathy, in the scale of pay of Rs.6675- 10550, by P1 order dated 10.8.2000 issued by the Director of Homeopathy. The Government had in the meanwhile issued Ext.P2 order dated 7.8.2000 according sanction for upgrading 25 posts of Pharmacists in the scale of pay of Rs.5000-8150 and to re-designate them as Non Cadre Medical Officers. Thereupon, 23 Pharmacists, who were junior to the seven Pharmacists temporarily promoted as Medical Officer, Homeopathy by Ext.P1 order dated 10-8-2000, were redesignated as Non Cadre Medical Officers in the scale of pay of Rs.5000-8150 by Ext.P3 order dated 19.10.2000. 3. While matters stood thus, five among the persons temporarily promoted to the category of Medical Officer by Ext.P1 order, moved this Court by filing O.P.No.9081 of 2002. In that writ petition they claimed regular promotion against vacancies that had arisen between W.A.No.1840 of 2009 -:3:- 1996 and 1999. The Government resisted the said writ petition contending inter alia that regular promotions could not be effected during the said period in view of an order of stay passed by this Court in another writ petition, that new special rules have come into force with effect from 12.4.1999 and therefore the claim of the petitioners in O.P.No.9081 of 2002 for promotion to the category of Medical Officer could not be considered during the period in question. In fact the Government conceded in paragraph 7 of the counter affidavit filed in O.P.No.9081 of 2002 that the petitioners in that original petition ought to have been promoted against vacancies that arose during the period from 1996 to 1999 had there been no order of stay from this Court. The defence set out by the Government in the said writ petition was that the petitioners therein cannot claim promotion against vacancies that arose during the period from 1996 to 1999 as a new set of special rules have come into force with effect from 12.4.1999. The said contention was overruled holding that the entitlement of the petitioners in O.P.No.9081 of 2002 for promotion has to be decided with reference to the date of occurrence of the vacancies in the light of the rules then in force. In that view of the matter this Court disposed of O.P.No.9081 of 2002 by Ext.P4 judgment delivered on 3.9.2002 with a direction to the Director of Homeopathy to consider the claim of W.A.No.1840 of 2009 -:4:- the petitioners in that writ petition for regular promotion to the category of Medical Officer against vacancies that existed between 1996 and 1999 in the light of the special rules then in force governing such promotion. This Court further directed that such consideration shall be done taking into account the seniority of the incumbent in the feeder category and even if a senior hand had not approached this Court, his claim should not be overlooked. 4. Pursuant to the direction issued by this Court in Ext.P4 judgment, the Director of Homeopathy issued Ext.P5 order dated 23- 10-2002 promoting 12 persons who were then working either as Medical Officer or as Non Cadre Medical Officer to the category of Medical Officer with retrospective effect from various dates. The 12 persons thus promoted included six of the Pharmacists who had been temporarily promoted by Ext.P1 order dated 10-8-2000 and five of the Pharmacists who had been redesignated as Non Cadre Medical Officer by Ext.P3 order dated 19-10-2000. As a result of Ext.P5 order five out of the 23 Pharmacists who were redesignated as Non Cadre Medical Officers became Medical Officers. Thereupon by Ext.P6 order dated 21-5-2003, the Director of Homeopathy upgraded the post of Pharmacist held by five persons including the appellant as Non Cadre Medical Officer. Accordingly, the appellant who was then working as W.A.No.1840 of 2009 -:5:- Pharmacist was redesignated as Non Cadre Medical Officer. 5. After Ext.P6 order was passed, the appellant submitted Ext.P8 representation dated 20-6-2003 before the Director of Homeopathy claiming upgradation with effect from 7-8-2000. Such a claim was made on the basis that five of the incumbents who were upgraded by Ext.P3 order dated 19-10-2000 with effect from 7-8-2000 were regularly promoted by Ext.P5 order dated 23-10-2002 with effect from 20-2-1999 and therefore the appellant and others should have been upgraded to the post of Pharmacist held by the beneficiaries of Ext.P5 order, with effect from 7.8.2000 with all attendant benefits. The second respondent rejected the said claim and communicated his decision to the appellant by Ext.P7 letter dated 31-7-2003 on the ground that the duties of Pharmacists and Non Cadre Medical Officer are different and that the appellant who was working as Pharmacist till the date of Ext.P6 cannot be given the scale of pay of Non Cadre Medical Officer as she had not discharged duty as Non Cadre Medical Officer. The instant writ petition was thereupon filed challenging Ext.P7 and seeking the following reliefs:- i) a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P7 and quash the same. ii) a writ of mandamus or any other appropriate W.A.No.1840 of 2009 -:6:- writ, order or direction directing the respondent to effect promotion to the post of non cadre medical officers to the petitioner from 7.8.2000 and to sanction salary and other monetary benefits from the above date. 6. The respondents resisted the writ petition by filing a counter affidavit. It was contended that as the appellant had not actually officiated as Non Cadre Medical Officer till she was promoted to that category on 21.5.2003, she has no right to claim the salary applicable to the category of Non Cadre Medical Officer. Reliance was placed on rule 23(a) of Part I KSR to contend that the appellant can draw pay and allowances attached to the post held by her only with effect from the date she assumed duty in that post. 7. The learned single Judge considered the rival contentions and held that by virtue of her seniority and in view of Ext.P4 judgment of this Court and Ext.P5 order of the Director of Health Services the appellant is entitled to have the post of Pharmacist held by her upgraded to the category of Non Cadre Medical Officer with effect from 7.8.2000. The learned single Judge however, held that the appellant will not be entitled to monetary benefits with effect from that date and that she can claim salary and allowances in the category of Non Cadre Medical Officer only from the date of Ext.P6 order, W.A.No.1840 of 2009 -:7:- ie. 21.5.2003. The appellant has aggrieved by the decision of the learned single Judge to the extent it denies her salary and allowances with effect from 7.8.2000 in the category of Non Cadre Medical Officer, filed this writ appeal. 8. We heard Sri.Raju Joseph, learned counsel appearing for the appellant and Sri.Benny Gervasis, learned Government Pleader appearing for the respondents. We have also gone through the pleadings and the materials on record. The learned single Judge has in the judgment under challenge accepted the claim of the appellant for the post of Non Cadre Medical Officer with effect from 7.8.2000. The respondents have not challenged the decision of the learned single Judge. In such circumstances we have to proceed on the basis that the appellant is entitled to be treated as a Non Cadre Medical Officer with effect from 7.8.2000. The post of Non Cadre Medical Officer was created by Ext.P2 Government order dated 7.8.2000. The said order was issued in view of the fact that as on that date there were 25 qualified Homeo Doctors who had been recruited as Pharmacists in the Homeopathy Department. The appellant who entered service as Pharmacist on 28.5.1999 was one such Pharmacist. It was taking note of the fact that 25 Pharmacists are qualified to be appointed as Homeo Doctors that the Government decided to upgrade W.A.No.1840 of 2009 -:8:- 25 Pharmacists as Non Cadre Medical Officers in the scale of pay of Rs.5000-8150. In Ext.P2 Government order it was stipulated that such Pharmacists who are upgraded as Non Cadre Medical Officers will be allowed to continue where they are working, that they are authorised only to assist the Medical Officer and that they shall continue to perform the duties and functions as Pharmacist at the same time. It was ordered that their absorption into regular service will be as envisaged in the special rules, that as long as they work as Non Cadre Medical Officers they would not be entitled to any time bound grade promotion or seniority among Medical Officers, although their time bound promotion in the original post of Pharmacist will be protected. The Government also ordered that they will continue to perform the duties and functions as Pharmacists. 9. Pursuant to Ext.P2 order, 23 Pharmacists were upgraded as Non Cadre Medical Officers. Later six among them were regularly promoted as Medical Officers with retrospective effect by Ext.P5 order dated 23.10.2002. Thereupon the appellant and four others were upgraded as Non Cadre Medical Officers. The 23 persons who were upgraded as Non Cadre Medical Officers were upgraded with effect from 7.8.2000, namely the date of Ext.P2 Government order, which permitted such upgradation. The vacancy of Non Cadre Medical W.A.No.1840 of 2009 -:9:- Officers against which the appellant was accommodated arose when six out of the 23 Pharmacists who were upgraded as Non Cadre Medical Officers were regularly promoted as Medical Officers with retrospective effect, namely, with effect from 14.7.1998 and 20.2.1999. Such orders happened to be passed pursuant to the directions issued by this Court in Ext.P4 judgment. Therefore, as noticed by the learned single Judge, the Pharmacists promoted as Non Cadre Medical Officers by Ext.P6 order became eligible for upgradation as Non Cadre Medical Officers with effect from 7.8.2000. Then the short question is whether the appellant can claim salary and allowances in the category of Non Cadre Medical Officer with effect from that date. The respondents resisted the claim of the appellant on the ground that the duties and functions of Pharmacist and Non Cadre Medical Officer are different. Relying on rule 23(a) of Part I KSR it was contended that the appellant can draw salary and allowances in the category of Non Cadre Medical Officer only with effect from the date on which she assumed duty in that post. 10. In Ext.P2 Government order by which 25 posts of Pharmacists were upgraded as Non Cadre Medical Officers, it is stipulated as follows:- “They will be allowed to continue where they are W.A.No.1840 of 2009 -:10:- working and are authorised only to assist the regular Medical Officer and should continue to perform the duties and functions as Pharmacists at the same time.” In Ext.P3 order by which 23 Pharmacists were upgraded as Non Cadre Medical Officers it is stipulated that the Non Cadre Medical Officers should continue to perform the duties of Pharmacists and that in the absence of the Medical Officer and on other occasions as and when directed by the Medical Officer they are permitted to examine patients and to prescribe medicines. It was further stipulated that they should not display a name board indicating that they are Medical Officers and that they should abide by the directions issued by the Medical Officer, who is the head of office. 11. Rule 23(c) of Part I KSR, which was in force at the point of time when Ext.P6 order was issued (Rule 23(c) was deleted with effect from 1-3-2007) reads as follows:- “23(c) Promotions which do not involve a change of duties shall have effect from the date of the vacancy which occasions the promotion.” While the learned counsel for the appellant contends that the promotion of the appellant as Non Cadre Medical Officer does not involve change of duty and therefore it shall have effect from the date W.A.No.1840 of 2009 -:11:- on which the vacancy arose, the learned Government Pleader contends that there is change of duty and therefore, rule 23(a) alone can apply. As noticed earlier it is evident from Ext.P2 order that Non Cadre Medical Officers should continue to perform the duties and functions as Pharmacists. They are only required to assist the regular Medical Officers. Ext.P2 Government order does not stipulate that in the absence of the Medical Officer they should discharge the duties of the Medical Officer. However, when Ext.P3 order was issued in implementation of Ext.P2, the Director of Homeopathy directed that in the absence of the Medical Officer and on other occasions on his directions, Non Cadre Medical Officers can examine patients and prescribe medicines. He however, directed that a name board describing the Non Cadre Medical Officer as the Medical Officer should not be displayed. In our opinion on the terms of Ext.P3 it cannot be said that it is the duty of Non Cadre Medical Officers to examine patients and to prescribe medicines and therefore there is change in duty. First of all the Director of Homeopathy could not have issued a direction which runs counter to the stipulations in Ext.P2 Government order which permitted upgradation of the post of Pharmacist as Non Cadre Medical Officer. Further Ext.P3 does not mandate that all Non Cadre Medical Officers should examine patients and prescribe W.A.No.1840 of 2009 -:12:- medicines. By Ext.P3 the Director of Homeopathy had only permitted the Non Cadre Medical Officers to examine patients and prescribe medicines when the Medical Officer is absent. They can also examine patients and prescribe medicines when directed by the Medical Officer also. The said stipulation in Ext.P3, according to us, is only a permissive sanction and cannot be termed as a part of the duty of Non Cadre Medical Officers. Ext.P2 Government order states in express terms that they are authorised only to assist the Medical Officer and shall continue to perform the duties and functions as Pharmacists. In such circumstances we are not persuaded to hold that the upgradation of the post of Pharmacist as Non Cadre Medical Officer involves a change of duty. A Division Bench of this Court has in Sucheendran.M.K. v. State of Kerala and others, 2005 KHC 926 held applying rule 23 (c) of Part I, KSR, that promotions which do not involve change of duties should be given effect from the date on which the vacancy arose. As a result of Ext.P5 order the appellant became eligible for promotion as Non Cadre Medical Officer with effect from 7.8.2000. The mere fact that there was delay on the part of the respondents in issuing Ext.P5 order cannot disentitle the appellant to claim promotion from that date. In view of our finding that the upgradation of the post of Pharmacist does not involve a change of W.A.No.1840 of 2009 -:13:- duty and as a vacancy of Non Cadre Medical Officer was in existence as on 7-8-2000, we are of the opinion that the appellant is entitled to salary and allowances in the category of Non Cadre Medical Officer with effect from that date. 12. Further we notice that by Ext.P5, five out of the 23 Pharmacists who were initially upgraded as Non Cadre Medical Officers were regularly promoted as Medical Officers with effect from 14.7.1998 and 20.2.1999 without any limitation on their right to receive emoluments in the promoted post. It was in the place of the five Non Cadre Medical Officers who were thus regularly promoted as Medical Officers with retrospective effect from 1998 and 1999 that the appellant and four others were promoted as Non Cadre Medical Officers by Ext.P6 order dated 21.5.2003. The scale of pay of Non Cadre Medical Officer is Rs.5000-8150; while the scale of pay of Medical Officer is Rs.6675-10550. As a result, five Non Cadre Medical Officers who were promoted with retrospective effect from 1998 and 1999 as Medical Officers will be drawing salary in a higher scale of pay. It cannot therefore, be said that during the same period more than the permissible number of persons will have to be given salary in the scale of pay of Non Cadre Medical Officers. If the Non Cadre Medical Officers, who were retrospectively promoted as Medical W.A.No.1840 of 2009 -:14:- Officers with effect from various dates are entitled to salary and allowances in the scale of pay of Medical Officer with retrospective effect, even though they had not performed the duties of Medical Officer, we see no reason why the appellant who is similarly placed should be denied the same. In the result we allow the writ appeal, modify the judgment of the learned single Judge, quash Ext.P7 and declare that the appellant is entitled to salary and allowances in the category of Non Cadre Medical Officer with effect from 7.8.2000. The respondents shall, within two months from the date on which the appellant produces a certified copy of this judgment before the second respondent, disburse the monetary benefits on that basis to the appellant. J.CHELAMESWAR, Chief Justice P.N.RAVINDRAN, Judge. ahg. J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. --------------------------- W.A.No.1840 of 2009 ---------------------------- JUDGMENT 10th August, 2010