Dr. Shahina Mole S. v. State of Kerala and Others, OP(KAT) No. 52 of 2015 (Z)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 7TH DAY OF JUNE 2016/17TH JYAISHTA, 1938** **OP(KAT).No. 52 of 2015 (Z)** **---------------------------------------** **AGAINST THE ORDER IN OA 173/2015 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 19-02-2015** ## **------------------------------------** ## **PETITIONER(S)/PETITIONER IN O.A:** **-----------------------------------------------------** ## **DR.SHAHINAMOLE.S.,** **ASSOCIATE PROFESSOR, DEPARTMENT OF PRASUTHI AND STREEROGA, GOVERNMENT AYURVEDA COLLEGE HOSPITAL FOR WOMEN AND CHILDREN, GOVERNMENT AYURVEDA COLLEGE, POOJAPPURA, THIRUVANANTHAPURAM - 695 012.** **BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** ## **RESPONDENT(S)/RESPONDENT IN OA:** **---------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE CONVENER, DEPARTMENTAL PROMOTION, COMMITTEE TO PREPARE THE SELECT LIST FOR PROMOTION TO THE POST OF PROFESSOR IN THE GOVERNMENT AYURVEDA COLLEGE (SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **3. THE DIRECTOR OF AYURVEDA MEDICAL EDUCATION, AROGYA BHAVAN, THIRUVANANTHAPURAM - 695 001.** **4. DR.S.PADMAJA DEVI, ASSOCIATE PROFESSOR, DEPARTMENT OF PRASUTHI AND STREEROGA, GOVERNMENT AYURVEDA COLLEGE, KANNUR 670 502.** **5. DR.ASHA SREEDHAR, ASSOCIATE PROFESSOR, DEPARTMENT OF PRASUTHI AND STREEROGA, GOVERNMENT AYURVEDA COLLEGE, THIRUVANANTHAPURAM - 695 012.** **R4 BY ADV. DR.K.P.SATHEESAN (SR.) R4 BY ADV. SRI.M.R.JAYAPRASAD R4 BY ADV. SRI.P.MOHANDAS (ERNAKULAM) R4 BY ADV. SRI.ANOOP.V.NAIR R4 BY ADV. SRI.S.VIBHEESHANAN R4 BY ADV. SRI.N.MANU THAMPI R5 BY ADV. SRI.SUMAN CHAKRAVARTHY R5 BY ADV. SRI.P.C.SASIDHARAN R1 BY ADV. SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL RADDL.6 BY ADV. SMT.M.R.SREELATHA RADDL.6 BY ADV. SRI.K.P.SUDHEER R1 TO R3 BY GOVERNMENT PLEADER SRI.MOHAMMED SAVAD** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 07-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AD** **OP(KAT).No. 52 of 2015 (Z) ---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **------------------------------------EXHIBIT P1: TRUE COPY OF THE O.A 173/2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **EXHIBIT P2: TRUE COPY OF THE ORDER DATED 19/02/2015 IN OA NO.173/2015 OF THE KERALA ADMINISTRIATIVE TRIBUNAL, TRIVANDRUM.** **EXHIBIT P3: TRUE COPY OF G.O(P) NO.4/98/P&ARD DATED 20.01.1998 ISSUED BY THE GOVERNMENT** **EXHIBIT P4: TRUE COPY OF G.O(RT.) 207/2006/H&FWD DATED 20.01.2006** **EXHIBIT P4(A): TRUE COPY OF G.O(RT.) 2794/2010/H&FWD DATED 20.07.2010** **EXHIBIT P5: TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT** **EXHIBIT P6: TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 14.11.2008 AND THE SENIORITY LIST ATTACHED TO THE SAME** **EXHIBIT P7: TRUE COPY OF THE ORDER DATED 14.7.2015 ISSUED BY THE 3RD RESPONDENT DECLARNG PROBATION OF DR.M.P.SREEKALA EXHIBIT P8: TRUE COPY OF G.O(P) NO.573/2012/FIN DATED 16.10.2012** **EXHIBIT P9: TRUE COPY OF THE COMMUNICATION DATED 1.8.2015 WAS SENT BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT** **EXHIBIT P9: TRUE COPY OF COMMUNICATION DATED 17.8.2015 ISSUED BY THE PUBLIC INFORMATION OFFICER** **EXHIBIT P10: TRUE COPY OF NOTE FILE RELATING TO COPY OF THE MINUTES OF THE FILES LEADING TO THE DECISION THAT WAS PROPOSED TO BE TAKEN BY THE 1ST RESPONDENT EXHIBIT P11: TRUE COPY OF G.O(MS) NO.149/2001/(92)/FIN.DATED 23.1.2001 ISSUED BY THE GOVERNMENT** **EXHIBIT P12: TRUE COPY OF G.O(P) NO.573/2012/FIN. DATED 16.10.2012 WITH ENCLOSURE APPENDED TO THE SAME INCLUDING THE FIRMENT TABLES OF DIFFERENT CATEGORIES OF POSTS. EXHIBIT P13: TRUE COPY OF COMMUNICATION DATED 7.7.2015 ISSUED BY THE 1ST RESPONDENT TO THE CENTRAL COUNCIL OF INDIAN MEDICINE** **EXHIBIT P14: TRUE COPY OF COMMUNICATION DATED 26.8.2015 ISSUED BY THE CENTRAL COUNCIL OF INDIAN MEDICINE** - **EXHIBIT P15: TRUE COPY OF ORDER DATED 12.10.2015 ISSUED BY THE 1ST RESPONDENT** ## **OP(KAT).No. 52 of 2015 (Z)** ## **---------------------------------------** **EXHIBIT P16: TRUE COPY OF NOTIFICATION DATED 27.4.1999 ISSUED BY THE UNIVERSITY OF CALICUT IN THE KERALA GAZETTE** - **EXHIBIT P17: TRUE COPY OF NOTIFICATION DATED 25.7.2001 ISSUED BY THE CALICUT UNIVERSITY** - **EXHIBIT P18: TRUE COPY OF G.O(RT) NO.3327/2001/H&FWD DATED 18.12.2001 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P19: TRUE COPY OF G.O(RT) NO.2244/08/H&FWD DATED 28.06.2008 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P20: TRUE COPY OF G.O(RT)4488/2010/H&FWD DATED 15.11.2010 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P21: TRUE COPY OF G.O(RT) 2244/08/H&FWD DATED 28.06.2008 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P22: TRUE COPY OF G.O(RT) 3387/2009/H&FWD DATED 20.11.09 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P23: TRUE COPY OF G.O(RT) 3661/08/H&FWD DATED 5.11.2008 ISSUED BY THE 1ST RESPONDENT** **RESPONDENT(S)' EXHIBITS ----------------------------------------** **EXHIBIT R5(A): TRUE COPY OF THE JUDGMENT IN W.A.NO.408/2008 DATED 18.2.2008** **EXHIBIT R5(B): TRUE COPY OF THE LETTER DATED 29.03.1996** **EXHIBIT R6(A): TRUE COPY OF ORDER DATED 16.12.2014 IN O.A.NO.2252 OF 2014 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **EXHIBIT R4(A):TRUE COPY OF THE PROPOSAL FORWARDED by the DIRECTOR, AYURVEDA MEDICAL EDUCATION TO THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT DATED 2.3.2016** **//TRUE COPY//** **P.A. TO JUDGE** **AD** ## **P.R.RAMACHANDRA MENON & ANIL K NARENDRAN, JJ** ## **---------------------------------------** ## **O.P (KAT) No. 52 of 2015** **---------------------------------------Dated this the 7[th] day of June, 2016** ## **JUDGMENT** ## P.R.RAMACHANDRA MENON,J The issue involved in this case is mainly with regard to the grievance of the petitioner, with reference to her better credentials over and above the respondents 4 and 5, to get promotion to the post of Professor in the Department of 'Prasuthi and Streeroga'. 2. As to the sequence of events, it is to be noted that the petitioner was working as Associate Professor in the Department of 'Prasuthi and Streeroga' and is an aspirant for the promotion to the next higher post of Professor. A vacancy arose in the cadre of Professor on 26.09.2014. The petitioner came to know that steps were being pursued to consider the claim of respondents 4 and 5, who, were admittedly seniors to her, but were lacking the requisite experience to have a _O.P (KAT) No. 52 of 2015 2_ promotion and posting as a Professor (10 years' experience after acquiring the Post graduate Degree). In the said circumstances, the matter was sought to be looked into by filing representation as Annexure-A3. Apprehending adverse steps, the petitioner was constrained to move the Tribunal by filing OA No.173/2015. The matter was considered by the Tribunal and the OA was disposed of as per Ext.P2 order dated 19.02.2015, directing the DPC to have the issue considered and finalised within three months from the date of receipt of a copy of the order. This in turn is under challenge in this OP. 3. Heard Mr.Elvin Peter P.J the learned counsel for the petitioner, the learned Government Pleader appearing for the respondents no.1 to 3, Dr.K.P.Satheesan the learned Senior Counsel appearing for the 4[th] respondent, Mr.P.C.Sasidharan, the learned Standing Counsel for the PSC and Sri.Suman Chakravarthy for the respondent no.5. _O.P (KAT) No. 52 of 2015_ _3_ 4. When the matter had come for consideration before this Court on 03.03.2015, the OP was admitted, also passing an interim order. As per the above order, the interim relief sought for to cause the representation preferred by the petitioner to be considered was granted. The respondents were directed to complete the pleadings. Despite granting several adjournments, the pleadings were not completed and in such circumstance, another interim order came to be passed on 10.09.2015; whereby, it was made clear that _**“no further promotion shall be made in the meantime”.**_ It is seen that the pleadings are now complete. The 4[th] respondent has filed an I.A to vacate the interim order. 5. Pursuant to the interim order dated 03.03.2015, the representation preferred by the petitioner was considered by the Government and an order was passed on 12.10.2015, which obviously is not favourable to the petitioner. This made the petitioner to file a petition for amendment, so as to have the said order (Ext.P15) also to be challenged in this Original Petition. _O.P (KAT) No. 52 of 2015 4_ The said relief is vehemently opposed by the contesting respondents, contenting that, if at all the petitioner is aggrieved of Ext.P15, the remedy is to challenge it by way of appropriate proceedings before the KAT and not before this Court. The amendment petition has not been allowed so far. 6. The learned counsel for the petitioner points out that the factual position cannot be disputed by the respondents 4 and 5 that they will be satisfying 10 years' experience only if their service prior to acquisition of the Post Graduate Degree is also reckoned, which is not permissible in law. Reliance is sought to be made on Rule 10(ab) of Part II KS and SSR, which stipulates that, unless it is separately mentioned the special rules, the experience which is gathered only after acquiring the relevant qualification can be considered. This aspect was never considered by the concerned authorities and hence the grievance. The submission made by the learned counsel appearing for the 5[th] respondent is that the said provision is having no application to the case in hand, as it _5_ _O.P (KAT) No. 52 of 2015_ is applicable only in the case of direct recruitment and not for the purpose of promotion. 7. The learned counsel for the petitioner points out that the interpretation now sought to be given by the Government with regard to the requisite experience is not correct, in so far as, by virtue of the relevant regulations, out of the total 10 years' experience, 5 years shall be in the cadre of Assistant Professor. The regulation was originally published in 'Hindi' and when it came to be translated to English, there occurred an inadvertent mistake, whereby the 5 years' experience in the cadre of Assistant Professor came to be translated as and shown as ' that of 'Associate Professor . The legal position stands declared by this Court as per the decision reported in **2014 (2) KHC 674 Vanaraj v. Santhanpara Grama Panchayath, Idukki and Others** to the effect that, if at all there is a conflict involving a translation, the original version has to be given the preference. Going by the same, the requisite experience as mentioned in 'Hindi' has to be followed and if so,. the respondents 4 and 5 are _O.P (KAT) No. 52 of 2015 6_ not entitled to be considered whereas the requirement is fully satisfied by the petitioner. 8. The learned counsel for the 5[th] respondent however submits that the idea and understanding of the petitioner is wrong and misconceived. It is pointed out that, much after the regulations, the special rules came to be amended in the year 2007, whereby it is stipulated that, out of the 10 years' experience, 5 years could be in the post of Reader or Assistant Professor. It is pointed out that the 4[th] and 5[th] respondents do satisfy the said requirement. 9. In view of the disputed question of fact, it is for the DPC to consider the 'plus or minus points' involved, with reference to the relevant rules and regulations as applicable to the post in question and untrammeled by the observations of the Government in Ext.P15 Government Order bearing No.111884/Áß2/2015/¦µÕ dated 12.10.2015. The proceedings as above shall be finalised at the earliest at any rate within 'three months' from the date of receipt of a copy of this judgment. All contentions are left open _O.P (KAT) No. 52 of 2015 7_ and it will be open to the aggrieved parties to have it challenged before the appropriate forum, if the out turns to be detrimental to their rights and interests. The OP(KAT) is disposed of. Sd/- **P.R.RAMACHANDRA MENON, JUDGE** **Sd/-** **ANIL K NARENDRAN, JUDGE** AD