IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WP(C).No. 3886 of 2008(K) ------------------------- PETITIONER(S): ------------------ DR.ABHILASH.B., PRIMROSE, T.C.48/462(V), KALLATTUMUKKU, MANACAUD P.O., TRIVANDRUM. BY ADV. SRI.THOMAS ABRAHAM RESPONDENT(S): ------------------- 1. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM. 3. DIRECTOR OF MEDICAL EDUCATION, DME'S OFFICE MEDICAL COLLEGE P.O., TRIVANDRUM. 4. DAVID THARAKAN.K.R., KALLARACKAL, 5, ASWATHY BHAVAN, AMBALATHARA, POONTHURA P.O., TRIVANDRUM. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON 03/12/2008 DELIVERED THE FOLLOWING: WPC NO.3886/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE NOTIFICATION DT 31.7.07 PUBLISHED BY PSC. EXT.P2: TRUE COPY OF THE RANKED LIST. EXT.P3: TRUE COPY OF THE APPOINTMENT CHART PUBLISHED BY THE PSC. EXT.P4: TRUE COPY OF THE REPRESENTATION DT 28.1.2008 SUBMITTED BEFORE THE 1ST RESPONDENT. EXTS.OF R4 EXT.R4(a): TRUE COPY OF ANNEXURE TO G.O.(P) NO.145/2000/H&FWD DT 16.6.2000. EXT.R4(b): TRUE COPY OF G.O.(MS) NO.09/2005/H&FWD DT 10.1.2005. EXT.R4(c): TRUE COPY OF ORDER NO.G4/18305(2)/07(DME) DT. 6.2.2008 ISSUED BY THE 3RD RESPONDENT. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. ============== W.P.(C) NO. 3886 OF 2008 (K) ==================== Dated this the 3rd day of December, 2008 J U D G M E N T The prayer in this writ petition is to quash Ext.P3 to the extent it proposes to appoint the 4th respondent against the second vacancy in the post of Senior Lecturer, Oral and Maxilo Facial Surgery. Petitioner also seeks a direction requiring the 1st respondent to advise the petitioner against the second turn for Ezhava Community. 2. Facts of the case are that the Government of Kerala issued GO (P) No. 145/2000 H&FWD dated 16/6/2000 ordering that in the Medical Colleges and Dental Colleges in the State, hereafter recruitment will be made to the Senior Lecturer post in the scale of Rs.10000-15200 only, and that qualification will be Post Graduate degree in the respective discipline. The said order also provided that only in case Post Graduates are not available, recruitment will be made to the post of Lecturers and that the existing Lecturers with Post Graduation will be re-designated as Senior Lecturers. The order also provided that Lecturers without Post Graduation will be granted the scale of pay of Rs.12000-18300 on completion of 10 years of Physical teaching experience and that they will not be eligible for any further promotion until they acquire Post Graduation in the respective WPC 3886/08 (K) :2 : discipline. This order provided separate scales of pay for the posts of Lecturer and also Senior Lecturer. 3. Subsequently, the Government issued Ext.R4(b) order dated 10/1/2005, fixing qualification and method of appointment for the post of Senior Lecturer and Lecturer of Medical, Dental and Pharmacy Colleges. In so far as Senior Lecturer in the Scale of pay of 10000-15200 are concerned, the method of recruitment is direct recruitment through PSC and qualification prescribed is Post Graduate Degree in the respective discipline. In so far as Lecturer in the scale of pay of Rs.8000-13500 is concerned, the method prescribed was direct recruitment through PSC and the qualification prescribed was MBBS/BDS. 4. In pursuance to Ext.R4(b) referred to above, vacancies of Senior Lecturers in Oral and Maxilo Facial Surgery were reported to the PSC and Ext.P1 notification was issued. In Ext.P1, it was also provided that in the absence of adequate number of Post Graduates being not available, those having Basic Degree (BDS) will be considered against the post of Lecturer. Even according to the counter affidavit filed by the Public Service Commission, the post of Lecturer was retained in the rule purely nominally (as a fall back clause) in case Post Graduates are not available in any particular discipline. WPC 3886/08 (K) :3 : 5. In pursuance to Ext.P1, applications were received and PSC submits that there were sufficient number of Post Graduates and therefore ranked list of Senior Lecturers was finalised on 26/12/2007, a copy of which is Ext.P2. Since sufficient Post Graduates were available, ranked list of Lecturers was not prepared. Petitioner, belonging to Ezhava Community was included at Rank No.9. According to the petitioner, since recruitment to the post of Senior Lecturer, a newly created post, was conducted for the first time, fresh communal rotation has to start and the second turn in the roster should be filled up by advising him, as he belongs to Ezhava Community. However, against the second turn, Rank No.2, the 4th respondent herein, was advised and that led the petitioner to file this writ petition, seeking the prayers mentioned earlier. 6. Justification offered by the PSC in its counter affidavit is that in the previous selection to the post of Lecturer, ranked list was cancelled w.e.f. 6/10/06 and at that time, the rotation stood at MRI 33 OC with MRI 32 SC (TPO) and MRI 31 OC (NJD) pending to be satisfied. It is stated that these pending turns cannot be satisfied in the forceable future if fresh rotation is started, treating the selection to the post of Senior Lecturer as “de novo”. According to the PSC, it was taking into consideration these aspects, it was decided that rotation for the post of Senior Lecturer to be WPC 3886/08 (K) :4 : made in continuation to that of Lecturer in the concerned branch. On that basis, rotation to the post of Senior Lecturer started at MRI 34 E after satisfying the NJD turn. In the counter affidavit, the appropriation of the vacancies have been explained in the following manner. Number of vacancies: 1 NJD (Lecturer) + 1 fresh (Sr.Lecturer) MRI 31 OC (NJD satisfied) Dain C Pearl (R-1) fresh rotation starts from MRI 34 E MRI 34 E TPO to keep 50% rule MRI 35 OC David Tarakan K.R. (R-2) 7. PSC therefore submits that as per the Government orders, the post of Senior Lecturer is “in effect a re-designation of the post of Lecturer with Post Graduation fixed as qualification, according to the norms of the Medical Council of India”. 8. The 4th respondent, the person who has been appointed also has filed a counter affidavit. He is also supporting the case canvassed by the PSC and contends that as Senior Lecturer is only a re-designation of the post of Lecturers, rotation had to be worked out by the PSC continuing from the turn fixed after satisfying the unsatisfied terms of the previous ranked list, cancelled on 6/10/2006. He has produced as Ext.R4(c), the order dated 6/2/2008, appointing him as Senior Lecturer. 9. From the above facts, it is evident that if the post of Senior WPC 3886/08 (K) :5 : Lecturer is treated as one newly created, the rotation has to start afresh. On the other hand, if it is only a case of re-designation, the rotation can continue where it stood at the time when the previous ranked list was cancelled on 6/10/206. 10. Therefore, what is required to be decided is whether the post of Senior Lecturer is newly created one or not. While the 4th respondent vehemently canvassed that it is only a re-designation of the existing post of Lecturer, PSC does not in so many words say so. However, PSC's anxiety seems to be that unless this is considered as a case of re- designation, it will be difficult for them to satisfy the unsatisfied turns of the previous roster. They therefore contended that this has to be considered as “in effect a re-designation”. 11. Having considered the facts as available, I am inclined to agree with the counsel for the petitioner that this is a case of creation of a post and not re-designation as contended by the respondents. A reading of Exts. R4(a) and R4(b) would show that in line with the specifications of the Medical Council of India, the Government of Kerala ordered that henceforth “appointments will only be made to the post of Senior Lecturer post”. Post Graduation has been fixed as the qualification and a higher scale of pay of Rs.10,000-15,200 also has been fixed. The order also WPC 3886/08 (K) :6 : shows that the existing Lecturers with Post Graduation will be re- designated as Senior Lecturers in the new scale of pay. From Clause (c) it can be seen that Lecturers will not be eligible for promotion until they acquire Post Graduation. It was in pursuance to this order that Ext.R4(b) was issued by the Government of Kerala, which says that “accordingly, the following orders fixing the qualification and method of appointment of Senior Lecturer and Lecturer of Medical, Dental and Pharmacy Colleges are issued with immediate effect”. Thus designation of the new post is different, scale of pay is higher, qualification is superior and by Ext.R4(b), method of recruitment also has been specified. Therefore, it is fairly clear that this is a case of creation of a new post of Senior Lecturer. Once I accept that it is a case of creation of post, as a necessary consequence, rotation has to start afresh and there cannot be any continuation. 12. Counsel for the PSC contended that they had to treat the post of Senior Lecturer as redesignated post of Lecturer for the reason that but for this course, they would not have been in a position to compensate the unsatisfied turns in the previous roster maintained for the post of Lecturer. He also referred me to Rule 15 of KS & SSR and contended that if a candidate belonging to a particular community is not available, they are bound to follow the procedure laid down therein. While the legal position WPC 3886/08 (K) :7 : as set out in Rule 15 of KS & SSR is as contended by the counsel, in my view when a new post is created by the appointing authority, only for the sake of making up the unsatisfied reservation turns, it is impermissible for the PSC to treat such creation of posts as one of re designation. If the appointing authority has chosen to create a new post, that decision of the appointing authority is binding on the PSC and it is not for the PSC to find out ways and means to treat the new post, as one of re designation. 13. Even otherwise, the anxiety of the PSC for compensating the unsatisfied turns, can only be in relation to the post of Lecturer, which post even now continues though by virtue of a fall back clause in the recruitment rules. Therefore, even if there is any short fall, PSC can make good such short fall, in the category of Lecturer, as and when the PSC resorts to the fall back clause in the recruitment rule and appoint Lecturers. For this limited purpose, PSC can even continue the old roster and make appropriation in that roster. 14. Therefore, there is no substance in the contention raised by the PSC that the post of Senior Lecturer has to be considered as in effect re designation. 15. Since I have found that Senior Lecturer is a newly created post and not re designation of the existing post of Lecturer, the PSC has to WPC 3886/08 (K) :8 : start operating a fresh roster and advice candidates from the select list on that basis. PSC and the 4th respondent both had no case that if the roster is to start afresh, the advice of the 4th respondent is not erroneous. Therefore, as a necessary consequence of my finding that the post is a newly created one, advice of the 4th respondent is erroneous. The advice of the 4th respondent and his appointment will necessarily stand set aside. PSC shall, advise candidates from Ext.P2 ranked list, in the light of the observations made herein above. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp