IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 WP(C).No. 28126 of 2005(W) -------------------------- PETITIONER(S): --------------- SANTHAMMA THOMAS, JUNIOR RESEARCH OFFICER, GOVERNMENT ANALYST'S LABORATORY, THIRUVANANTHAPURAM, RESIDING AT CF-6/250, P.T. CHACKO NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. BY ADV. MR. LIJU.V.STEPHEN RESPONDENT(S): --------------- 1. THE PRINCIPAL SECRETARY TO THE GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 4. THE CHIEF GOVERNMENT ANALYST, GOVERNMENT ANALYST'S LAB, THIRUVANANTHAPURAM. 5. GRACY VARGHESE, JUNIOR RESEARCH OFFICER, GOVERNMENT ANALYTICAL LABORATORY, PATTOOR, THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SMT. N. SUDHA DEVI FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SME DAY DELIVERED THE FOLLOWING: WP(C).No. 28126 of 2005(W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE ORDER NO. HLC 5-5262/57/EHD DATED 29.6.1957 EXT.P2 - TRUE COPY OF THE ADVICE MEMO [FILE NO. RIA(5) 24042/87 DATED 5.11.1987 ISSUED TO THE PETITIONER. EXT.P3 - TRUE COPY OF THE ORDER NO. ED4-68158/2000/DHS DATED 22.12.2000. EXT.P4 - TRUE COPY OF THE ORDER G.O.(MS) NO. 36/85/HD DATED 20.2.1985. EXT.P5 - TRUE COPY OF THE ORDER NO. K.DIS (ED4) 9957/03/DHS DATED 21.4.03. EXT.P6 - TRUE COPY OF THE CERTIFICATE DATED 20.11.1998 ISSUED TO THE PETITIONER. EXT.P7 - TRUE COPY OF THE SELECT LIST AS PER G.O.(P) NO. 14/2005/H&FWD DATED 13.1.2005. EXT.P8 - TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 24.5.2005. EXT.P9 - TRUE COPY OF THE LETTER NO. ES5-11614/2005.DHS DATED 2.4.2005. EXT.P10 - TRUE COPY OF THE REPLY LETTER DATED 22.4.2005 FROM THE PETITIONER. EXT.P11 - TRUE COPY OF THE JUDGMENT IN WP(C) NO. 15314/05 DATED 31.5.2005 OF THIS COURT. EXT.P12 - TRUE COPY OF THE ORDER NO. 5605/E2/2005/H&FWD DATED 12.9.2005. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 28126 of 2005 ................................................. Dated this the 17th day of November, 2009 J U D G M E N T The petitioner entered service of the health department of the Government of Kerala as a Techniical Assistant, Grade II in 1983. The qualifications prescribed for appointment as Technical Assistant included the qualification of Diploma in Food Technology. The petitioner possesses first class Post Graduate Diploma in Food Science and Preservation from the University of Madras. The petitioner's said qualification was accepted as qualification prescribed for the post of Technical Assistant Grade II and she was so appointed. The petitioner was promoted as Technical Assistant Grade I in 1991 and as Junior Research Officer on 22.12.2000. Thereafter, there arose a vacancy of Research Officer. The method of appointment to that post was by promotion from among Junior Research Officers. The educational qualification prescribed were the very same qualifications prescribed for the post of Technical Assistant. But the petitioner was not promoted, instead the 5th respondent was promoted. The petitioner challenged the same earlier by filing W.P(C) No. 28126 of 2005 -2- W.P(C) No. 15314 of 2005, in which by Ext.P11 judgment, this court directed the Government to take a decision in the matter, pursuant to which Ext.P12 order has been passed, whereby petitioner's representation was rejected on the ground that petitioner's qualification cannot be regarded as Diploma in Food Technology insofar as the petitioner obtained the said qualifications by attending an one year part time course, whereas the Diploma in Food Technology is of three year duration. The petitioner is challenging Exts.P9 and P12 orders in this regard seeking the following relief: “(i) to issue a writ of certiorari or other appropriate writ direction or order quashing Exts.P9 & P12 and directing the respondents to consider the petitioner's representation and include the petitioner in Ext.P7 select list to the post of Research Officer;” 2. Petitioner's contention is that for appointment to the post of Technical Assistant also, Diploma in food technology was an essential qualification and petitioner was appointed to the post considering the petitioner's qualification as sufficient qualification of Diploma in Food Technology. When the very same qualification is prescribed for research officer also, respondents cannot hold that the petitioner does not have the W.P(C) No. 28126 of 2005 -3- qualification prescribed. Petitioner relies on the decision of Supreme Court in A.N.Shashtri v. State of Punjab and others [AIR 1988 SC 404], in which the Supreme Court held that when a person is promoted as Deputy Director for which post degree was an essential qualification, he cannot be denied promotion as Director on the ground that he had not undergone regular course of study for five years to obtain degree. 3. A counter affidavit has been filed by the 1st respondent supporting the impugned orders. According to the 1st respondent, the petitioner's qualification cannot be regarded as Diploma in Food Technology insofar as the petitioner studied an one year part time course, which cannot be equivalent to Diploma in Food Technology. It is also stated in the counter affidavit that on a comparison of the syllabus for the post of Diploma in Food Technology and that of the petitioner's qualification it was found that there was no similarity between the syllabus prescribed for the two courses. 4. I have considered the rival contentions in detail. 5. I am of opinion that it is too late in the day for the respondents to hold that the petitioner does not possess the W.P(C) No. 28126 of 2005 -4- qualifications prescribed for the post of Research Officer. Admittedly, the very same qualification of Diploma in Food Technology was one of the qualifications prescribed appointment to the post of Technical Assistant Grade II to which post the petitioner was selected and appointed recognising his qualification as sufficient, that too by the PSC. Thereafter, based on the very same qualification, the petitioner obtained two promotions of Technical Assistant Grade II and Junior Research Officer. Thereafter the respondents cannot take the stand that the petitioner's qualification cannot be regarded as equivalent to Diploma in Food Technology. I am satisfied that the decision relied on by the petitioner in A.N. Shashtri's case is an authority for the proposition canvased by the petitioner. 6. In the above circumstances, Exts.P9 and P12 are quashed. It is declared that petitioner did have the qualification of Diploma in Food Technology prescribed for the post of Research Officer also. The petitioner has already retired from service. In the above circumstances, I direct the respondents 1 to 4 to give the petitioner notional promotion as Research Officer from the date when the 5th respondent was promoted to that W.P(C) No. 28126 of 2005 -5- post. Petitioner's retirement benefits shall be re-computed on the basis that she was promoted as Research Officer as directed above from the said date. However, the petitioner need not be paid any monetary benefit arising from such promotion till her date of retirement and such promotion shall only be notional. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE rhs