Dr. Asha Arjunan v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941** ## **WP(C).No.28630 of 2018** ## **PETITIONER:** **DR.ASHA ARJUNAN MD, DNB AGED 46 YEARS W/O. ARJUNAN, ASSOCIATE PROFESSOR,RADIATION ONCOLOGY, REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM 695 011. CURRENTLY RESIDING ATUSHES, NO. 13, TILAK NAGAR, PAROTTUKONAM, NALANCHIRA P.O, THIRUVANANTHAPURAM 695 015.** **BY ADV. SMT.SURYA BINOY** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY ADDITIONAL CHIEF SECRETARY,**| ||**DEPARTMENT OF HEALTH AND FAMILY WELFARE,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695**| ||**001.**| |**2**|**THE DIRECTOR,**| ||**REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O,**| ||**THIRUVANANTHAPURAM-695 011**| |**3**|**ADDITIONAL DIRECTOR (ACADEMIC) AND CONVENER OF**| ||**SENIOR STAFF SELECTION COMMITTEE,**| ||**REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O,**| ||**THIRUVANANTHAPURAM 695 011.**| |**4**|**DR.RAMDAS.K.,**| ||**HEAD OF DIVISION, RADIATION ONCOLOGY, REGIONAL**| ||**CANCER CENTRE, THIRUVANANTHAPURAM- 695011.**| W.P.(C).Nos.28630/18 2 **5 DR.KAINICKAL.C.T., ADDITIONAL PROFESSOR, RADIATION ONCOLOGY, REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM-695 011** **BY ADVS.** **GOVERNMENT PLEADER SRI.ATHUL SHAJI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).Nos.28630/18 3 ## **JUDGMENT** 1.The petitioner had entered service as Lecturer in Radiation Therapy in the Regional Cancer Centre on 21.2.2006. She was promoted as Assistant Professor on 21.2.2009 and as Associate Professor on 21.02.2013. The petitioner submits that her promotion to the cadre of Additional Professor in Radiation Oncology was due on 21.02.2017. The criteria for promotion is on the basis of evaluation as specified in Part II(B) of RCC Service Rules. It is stated that the rules provide that the merit and seniority, ability, efficiency, previous work assessment reports, dedication and excellence in clinical work, original contributions in research, conduct and organisational ability are the parameters to be considered for promotion. It is submitted that Exhibit P4 notification was issued calling for applications for promotion to the cadre of Additional Professor. The petitioner submitted her application and an interview was conducted on 12-5-2018 by the Selection Committee, which the petitioner attended. It is stated that Exhibit P5 letter dated 21-5-2018 was served on the petitioner declining her W.P.(C).Nos.28630/18 4 claim for promotion on the ground of “lack of concepts of processes in patient care and grossly inadequate research and publication record”. 2. The learned counsel for the petitioner submits that the Confidential Reports of the petitioner for the period under review, that is from March 2013 to February 2017 would have to be taken into account to reach such a conclusion. It is stated that with regard to the years 2015, 2016 and 2017, the Confidential Reports prepared by the Head Of Department had shown the petitioner as having fared extremely well in all parameters. However, it is stated that the said records had been misplaced by the respondents and the petitioner had been required to re-submit the Confidential Report forms for the years 2015, 2016 and 2017. The petitioner had resubmitted the forms. But the Confidential Reports were prepared by the fourth respondent who was not the Head of the Department at the relevant time. It is stated that the Confidential Reports prepared by a person, who was not the Head of the department, had been relied upon to deny the W.P.(C).Nos.28630/18 5 petitioner's claim for promotion and that too, without putting the petitioner on notice of the adverse entries in the same. The learned counsel for the petitioner submits that the reliance placed on the Confidential Reports prepared by the fourth respondent, who was not the Head of the Department at the relevant time and who had no knowledge of the performance of the petitioner and the action of the respondents in not putting her notice of the adverse entries in the Confidential Reports completely vitiates the selection process. The learned counsel places reliance of the decision of the Apex Court in **Dev Dutt v. Union of India and others** [AIR 2008 SC 2513] to contend that the non-appraisal of the adverse entries in the Confidential Reports and the the non-granting of the opportunity to the petitioner to submit a representation as against the same vitiates the preparation of the Confidential Reports. It is further contended that the reconstituted Confidential Reports should not have been considered at all. 3.A detailed counter affidavit has been placed on record by the respondents. It is contended that the petitioner had been W.P.(C).Nos.28630/18 6 considered for promotion to the post of Additional Professor in Radiation Oncology by the Senior Staff Selection Committee. It is stated that all eligible persons who had completed 4 years of service as Associate Professor are liable to be considered for promotion in terms of the service rules. It is stated that a personal interview is mandatory and the Committee would examine the Self-Assessment Forms/Confidential Reports of the assessment period, publication in peer reviewed journals and the performance in the Flexible Complementing Promotion Scheme interview. It is further contented in paragraph 10 as follows:- “10. All the averments made in paragraph No.10 are incorrect and hence denied.. The 4th respondent is the Head of the Department in which the petitioner is working. Therefore, the 4th respondent is the authorized person to sign the Performance Appraisal Form, in short PAF. A blank PAF for the period from 2015 to 2017 was handed over to the petitioner by the 2nd respondent's office on 03/01/2018. The 4th respondent was HOD at that time even though he was not holding the post of HOD pertaining to that period. Since he is the HOD at present, he is duly authorized to sign the PAF. This was also not stated as a reason for denial of promotion. As stated above the reason stated by the Senior Staff Selection Committee was "lack of concepts of processes in the Patient Care Grossly inadequate research and publication record” W.P.(C).Nos.28630/18 7 4.It is contended by the learned counsel for the respondents that the petitioner has seen the Confidential Reports for the years 2015, 2016 and 2017 and has signed the same and that as such she cannot plead ignorance of the contents of the same. It is submitted that the Staff Selection Committee has considered all the relevant aspects of the matter and that the the case of the petitioner that she had been denied promotion only on the basis of the Confidential Reports prepared by an officer who was not the Head of Department at the relevant time is therefore not relevant. It is contended that the Confidential Reports for the years 2015, 2016 and 2017 were not the only parameters on which the promotion had been denied to the petitioner. 5. I have considered the contentions advanced in detail. The petitioner has raised a specific ground that the Confidential Reports, which had been prepared by the Head of the Department at the relevant time with regard to the years 2015, 2016 and 2017 had been misplaced by the respondents and the petitioner had been required to submit fresh Self- W.P.(C).Nos.28630/18 8 Appraisal Forms for the years 2015, 2016 and 2017 in January 2018. This aspect is admitted by the respondents in their counter affidavit at paragraph 10 as extracted above. It is contended by the learned counsel for the petitioner that the Confidential Reports were re-constituted by the fourth respondent who was not the Head of the Department at the relevant time. Exhibits P5(c),(d) and (e) would show that the petitioner's communication skills and patient interaction has been given a 'B' grade even in the Confidential Reports prepared by the fourth respondent. However, in respect of some other parameters the petitioner has been granted 'C' and one 'D' grade. The petitioner contends that she was not put on notice of the adverse grades and was not given an opportunity to make a representation against the same. The main ground of challenge raised by the petitioner is with regard to the improper preparation of the Confidential Reports by an officer who was not the Head of the Department at the relevant period and it is contended that reports could not have been relied upon by the respondents to deny promotion to the petitioner. W.P.(C).Nos.28630/18 9 6. On a consideration of the pleadings placed on record and the arguments raised, I am of the opinion that the ground raised by the petitioner that promotion has been denied relying on the Confidential Reports for assessing the patient care concepts and research and publications appear to be tenable. It is not disputed before me that it was the fourth respondent who had prepared the Confidential Reports with regard to the years 2015, 2016 and 2017 in respect of the petitioner. The petitioner seems to have raised objection with regard to the consideration of her claim for promotion before the Director pointing out this specific aspect as well. The reliance on the Confidential Reports prepared by an officer who was not the Head of the Department who would have no direct knowledge of the performance of the petitioner for the period in question, was completely unsustainable, and as such, those reports could not have been relied upon to deny promotion to the petitioner. In the above view of the matter, I am of the opinion that the rejection of the claim of the petitioner for promotion, which was on consideration of the improperly 10 W.P.(C).Nos.28630/18 prepared Confidential Reports as well, was completely unjustified. - 7.In the above view of the matter, I am of the opinion that Exhibit P5 cannot be sustained. Ext.P5 is, therefore set aside. There will be a direction to the respondents to reconsider the claim of the petitioner for promotion to the post of Additional Professor for the period in question as has been considered in Exhibit P5, taking note of Exhibit P5(a) and (b) Confidential Reports and after following the due procedure as provided in the the service rules. The reconsideration of the petitioner's claim for promotion shall be done within a period of one month from the date of receipt of a copy of judgment. The writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj W.P.(C).Nos.28630/18 11 ## **APPENDIX OF WP(C) 28630/2018** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 21-04-2009 PROMOTING THE PETITIONER AS ASSISTANT PROFESSOR FROM THE POST OF LECTURER (NO. 5239/ADMN.1/2009/RCC) EXHIBIT P2 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 27-01-2014 PROMOTING THE PETITIONER AS ASSOCIATE PROFESSOR FROM THE POST OF ASSISTANT PROFESSOR (NO. 1908/ADMN.1/2014/RCC) EXHIBIT P3 TRUE COPY OF THE ORDER NO. 2030/ADMN.1/2012/RCC DATED 24-12-2012 OF THE 2ND RESPONDENT PERTAINING TO THE FLEXIBLE COMPLEMENTING PROMOTION (FCP) OF ACADEMIC STAFF AND PROCEDURE FOR GRANTING PROMOTION EXHIBIT P4 TRUE COPY OF THE NOTIFICATION NO. 1908/ADMN. 1/2018/RCC DATED 25-04-2018 PERTAINING TO THE FLEXIBLE COMPLEMENTING PROMOTION (FCP) ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER EXHIBIT P5 A TRUE COPY OF THE LETTER NO. RCC/378/2018-ADMN.1 DATED 21-05-2018 INTIMATING THE DENIAL OF PROMOTION TO THE PETITIONER TO THE POST OF ADDITIONAL PROFESSOR IN RADIATION ONCOLOGY ISSUED BY THE 2ND RESPONDENT EXHIBIT P5 A TRUE COPY OF THE PETITIONER'S CONFIDENTIAL REPORTS FOR THE YEARS 2013. EXHIBIT P5 B TRUE COPY OF THE PETITIONER'S CONFIDENTIAL REPORTS FOR THE YEARS 2014. EXHIBIT P5 C TRUE COPY OF THE PETITIONER'S CONFIDENTIAL REPORTS FOR THE YEARS 2015.** W.P.(C).Nos.28630/18 12 - **EXHIBIT P5 D TRUE COPY OF THE PETITIONER'S CONFIDENTIAL REPORTS FOR THE YEARS 2016.** - **EXHIBIT P5 E TRUE COPY OF THE PETITIONER'S CONFIDENTIAL REPORTS FOR THE YEARS 2017 WITHOUT ANNEXURE.** - **EXHIBIT P5 F THE RELEVANT PAGES OF THE SERVICES RULES PERTAINING TO THE REGIONAL CANCER CENTRE.** - **EXHIBIT P6** - **TRUE COPY OF THE RELEVANT PAGES OF THE SENIORITY LIST OF RCC STAFF INCLUDING MEDICAL FACULTY OF RCC, THIRUVANANTHAPURAM DATED NIL.** - **EXHIBIT P7 A TRUE COPY OF THE REPRESENTATION DATED 26.07.2018 SUBMITTED BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P8 A TRUE COPY OF THE LETTER DATED 23.05.2018 SUBMITTED BY THE PETITIONER TO THE ADMINISTRATIVE OFFICER RCC, THIRUVANANTHAPURAM.** - **EXHIBIT P9** - **A TRUE COPY OF THE REMINDER DATED 06.06.2018 SUBMITTED BY THE PETITIONER TO THE ADMINISTRATIVE OFFICER RCC, THIRUVANANTHAPURAM.** - **EXHIBIT P10** - **A TRUE COPY OF THE LETTER DATED 18.05.2018 SUBMITTED BY THE PETITIONER TO THE PUBLIC INFORMATION OFFICER RCC, THIRUVANANTHAPURAM.** - **EXHIBIT P11** - **A TRUE COPY OF THE REPLY DATED 16.06.2018 RECEIVED FROM THE ADMINISTRATIVE OFFICER & PUBLIC INFORMATION OFFICER RCC TO THE PETITIONER.** W.P.(C).Nos.28630/18 13 **EXHIBIT P12** **A TRUE COPY OF THE MINUTES OF THE SENIOR STAFF SELECTION COMMITTEE HELD ON 12.05.2018 AT THE RCC DATED 19.07.2018.** **EXHIBIT P13** - **A COPY OF THE LIST OF CANDIDATES WHO WERE GRANTED FLEXIBLE COMPLEMENTING PROMOTION (FCP) AS ADDITIONAL PROFESSOR AS PER SENIOR STAFF SELECTION COMMITTEE MEETING HELD ON 11.05.2018 & 12.05.2018 DATED NIL.** **EXHIBIT P14** **A TRUE COPY OF THE PUBLICATION RECORDS AND THE BRIEF BIO-DATA OF DR.KURIEN CHERIAN DATED 07.05.2018.** - **RESPONDENT'S EXHIBITS:** **EXHIBIT R2 A** TRUE COPY OF THE DECISION OF THE GOVERNING BODY DATED 27.08.2002. - **EXHIBIT R2 B** TRUE COPY OF THE CIRCULAR NO.2030/2002/ADMIN.I/RCC DATED 22.10.2002. **EXHIBIT R2 C** TRUE COPY OF THE DULY SIGNED ASSESSMENT FORM DATED 12.05.2018 BY THE SENIOR STAFF SELECTION COMMITTEE. True copy PS to Judge