M.M. Hakim Sheriff Thanal v. Government of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 22ND DAY OF MAY 2014/1ST JYAISHTA, 1936** **WA.No. 1850 of 2009 ( ) IN WP(C).22014/2007** **--------------------------------------------AGAINST THE JUDGMENT IN WP(C) 22014/2007 of HIGH COURT OF KERALA DATED 05-06-2009** **APPELLANT(S)/PETITIONER: ------------------------** **M.M. HAKIM SHERIFF THANAL, CHELAVANNOOR, KOZHIKODE.** **BY ADVS.SRI.B.RAGUNATHAN SRI.R.SRINATH SRI.M.M.LALBIND** **SRI.G.GOPALAKRISHNA PILLAI** ## **RESPONDENT(S)/RESPONDENTS:** **------------------------------------------------** **1. GOVERNMENT OF KERALA AND OTHERS REPRESENTED BY SECRETARY & CHAIRMAN OF, DPC HEALTH & FAMILY WELFARE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** ## **2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM.** ## **3. SMT.K.C.INDIRA DEVI,** - **MEDICAL RECORDS LIBRARIAN GRADE-I MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM.** **4. D.AJAYLAL, MEDICAL RECORDS LIBRARIAN GRADE-I, OPTHALMIC HOSPITAL, MEDICAL COLLEGE THIRUVANANTHAPURAM.** **BY SRI.T.R.RAVI - R3 & 4 GOVERNMENT PLEADER SRI.M.MOHAMMED SHAFI** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ANTONY DOMINIC & ALEXANDER THOMAS, JJ. ================== W.A.No. 1850 of 2009 ================== Dated this the 22[nd] day of May, 2014 J U D G M E N T ## ANTONY DOMINIC, J. The appellant is the petitioner in W.P.(C).No. 22014/2007. The subject matter of the Writ Petition was mainly challenge against Ext.P15 to the extent respondents 3 and 4 were promoted to the post of Medial Record Superintendent. According to the appellant, as on the date of occurrence of vacancy, to which the aforesaid respondents were promoted, he being senior to them in service, was eligible to be promoted having acquired 10 years' experience in Medical Records Library and should have been promoted. This claim has been negatived by the learned Single Judge and therefore this appeal. 2. We heard the learned counsel for the parties and also considered the submissions made. 3. At the outset we shall notice few relevant facts. Based on the advice of the Public Service Commission, the appellant joined the post of Junior Lab Assistant in the Medical College on 8.1.1990. Though respondents 3 and 4 were also advised from the same rank list, they commenced service subsequently and were juniors to the appellant. Subsequently, the appellant having W.A.1850/09 - : 2 :- acquired one year training in the Medical Records Library was promoted to the post of Medical Records Librarian Grade II with effect from 24.10.1991. 4. In 2000, O.P.Nos.29494/2000 and 29744/2000 were filed before this Court contending that in deputing employees for training, which rendered them eligible for the post of Medical Records Librarian Grade II, eligible claimants were overlooked. Those original petitions were disposed of by Ext.P3 judgment and this Court held as follows: “8. Therefore, this Original Petition is allowed. The second respondent shall reconsider the grievance raised by the petitioners. If the contesting respondents were sent for training in the Medical Records Library without giving a chance to their seniors, then their promotion ordered on the ground that they acquired training qualification earlier, cannot be upheld. The juniors can supersede only those seniors who after giving a chance did not avail it and therefore did not acquire the training qualification.” This judgment was confirmed by the Division Bench of this Court in Ext.P4 judgment dismissing W.A.Nos.2328/2002 and 2458/2002. 5. It is to be stated that in O.P.No.29744/2000 respondents 3 and 4 were petitioners 2 and 3 and the appellant was respondent No.3. Later the directions in Exts.P3 and P4 judgments were carried out by issuing Ext.P6 seniority list, where the appellant and respondents 3 and 4 were included at W.A.1850/09 - : 3 :- serial Nos.20, 22 and 24 and the dates of promotion as Medical Records Librarian Grade II were reassigned as 1.2.97, 16.6.97 and 1.1.98 respectively. Further, Ext.P6 also shows that in the post of Medical Records Librarian Grade I, their dates of promotion was fixed as 16.6.97, 22.3.98 and 7.4.98 respectively. 6. Still higher post in the cadre is that of Medical Record Superintendent. Ext.P8 is the Government order prescribing qualifications for the post of Medical Record Superintendent, the relevant portion of which is as follows: - “(i) Pass in S.S.L.C. - (ii) Medical Record Training Course conducted by the Central Government (Six months course) or Medical Record Keeping Course conducted in the Medical College, Trivandrum. or A minimum of 10 years experience in Medical Record Library in a Collegiate Hospital after acquiring (i) above.” According to the appellant, five vacancies in the cadre of Medical Record Superintendent arose with effect from 1.6.2003, 1.7.2003, 1.7.2003, 1.4.2004 and 1.4.2004 respectively. It is stated that applications were invited for deputing candidates for Medical Records Training Course conducted by the Central Government and that among others, the appellant and respondents 3 and 4 applied for deputation. It is stated that while the application submitted by the appellant, who was then W.A.1850/09 - : 4 :- working at Medical College, Calicut, was rejected for want of substitute, among others, respondents 3 and 4, his juniors, were deputed for such training. On the basis of the qualification thus acquired by them along with others, respondents 3 and 4 were promoted to the post of Medical Record Superintendent as per Ext.P15 order dated 31.3.2008. It is this promotion of his juniors which was challenged before the learned Single Judge. 7. The learned counsel for the appellant contended that though the date of his promotion as Medical Records Librarian Grade II was reassigned by Ext.P6, he still having worked in that category from 24.10.1991, had acquired 10 years' experience prescribed in Ext.P8, as on the date of occurrence of five vacancies in the category of Medical Record Superintendent and therefore the promotion given to respondents 3 and 4, his admitted juniors, is illegal. The second contention raised was that the deputation of respondents 3 and 4 for Medical Record Training Course for the period from 1.4.2004 to 30.6.2004, ignoring his superior claim was also illegal. On these grounds, the learned counsel for the appellant contended that the promotion given to respondents 3 and 4 being illegal, the learned Single Judge erred in negativing his claims. W.A.1850/09 - : 5 :- 8. The first question is whether the contention that the appellant is entitled to have his experience in Medical Records Librarian reckoned from 24.10.1991 is tenable. As we have already stated, in Ext.P3 judgment, which was confirmed by the Division Bench in Ext.P4, this Court has already held that if the contesting respondents therein were sent for training in the Medical Records Library without giving a chance to their seniors, then their promotion ordered on the ground that they had acquired training qualification earlier cannot be upheld. It was in pursuance of this judgment that the date of promotion given to the appellant, who is a party to the case, as Medical Records Librarian Grade II was reassigned with effect from 1.2.1997. This is evident from Ext.P6 seniority list. Ext.P6 has also attained finality. In other words, by the above process, it has been found that the deputation of the appellant for training in the Medical Records Library was illegal and therefore his promotion with effect from 24.10.1991 was set aside by Ext.P3 and he was given promotion only with effect from 1.2.1997. This therefore means that any experience gained by the appellant prior to 1.2.1997 is consequent on the illegal prior deputation and that his promotion thereafter is only with effect from W.A.1850/09 - : 6 :- 1.2.1997 and experience gained prior to that cannot be taken advantage at this distance of time. 9. The learned counsel for the appellant, however, relied on the provisions to Rule 10A(b) of the KS&SSR and also the judgments of this Court in **K.K.Marakkar v. Kerala Public Service Commission** reported in [1987 (1) KLT 84] and **Purushothaman Thampi v. Director of Training** , reported in [1988(1) Short Note Page No.2, case No.4], where it was held that provisional service can be taken into account for the purpose of reckoning qualification and experience. However, the experience mentioned in Rule 10A(b) relied on and the provisional service and the experience considered by this Court in the aforementioned two judgments can only be service rendered and experience gained consequent on legal appointment and not otherwise. Therefore, the principles laid down in these judgments cannot be of any assistance to the appellant. If that be so, the experience of the appellant prior to 1.2.1997 could not have been reckoned and if so, as on the date of occurrence of five vacancies in the category of Medical Record Superintendent, the appellant did not have the ten years experience prescribed in Ext.P8 Government order. W.A.1850/09 - : 7 :- 10. The second contention raised is that while deputing candidates for Medical Record Training Course for six months, the claim of the appellant, who too had applied for deputation, was illegally overlooked. As we have already stated, though the appellant had also applied to be deputed, his application was rejected for want of substitute and it was accordingly respondents 3 and 4 were deputed for training. 11. We are informed that pursuant to the direction of the learned Single Judge, the Secretary to Government considered the matter and the order passed rejecting the claim of the appellant is again challenged before the Kerala Administrative Tribunal. Therefore, we refrain ourselves from examining that issue. In the result, we do not find any reason to interfere with the judgment of the learned Single Judge. Accordingly, the appeal is dismissed. **==> picture [239 x 29] intentionally omitted <==** Sd/sdk+ ALEXANDER THOMAS , JUDGE ///True copy/// P.S. to Judge