M.M. Hakkim Sheriff v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941** ## **OP(KAT).No. 39 of 2019** ## **AGAINST THE ORDER IN TA 22/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **M.M.HAKKIM SHERIFF, AGED 55 YEARS S/O.S.M.SHERIFF, MEDICAL RECORD LIBRARIAN GRADE I, MEDICAL COLLEGE HOSPITAL, THRISSUR, KERALA, RESIDING AT THANAL, CHELAVUR P.O., KOZHIKODE-673571. (DURING THE PENDENCY OF THE TA PETITIONER WAS PROMOTED AS MEDICAL RECORD SUPERINTENDENT BY ORDER DATED 5.6.2013 AND PRESENTLY WORKING AT MEDICAL COLLEGE, KOZHIKODE).** ## **BY ADV. SRI.M.SREEKUMAR** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,**| ||**HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2**|**DIRECTOR OF MEDICAL EDUCATION,**| ||**THIRUVANANTHAPURAM-695011, KERALA.**| |**3**|**PRINCIPAL,**| ||**MEDICAL COLLEGE, KOZHIKODE, KERALA-673005.**| |**4**|**SHRI.G.S.RAJENDRAN NAIR,**| ||**ADMINISTRATIVE ASSISTANT, DIRECTORATE MEDICAL**| ||**EDUCATION, THIRUVANANTHAPURAM-695011.**| |**5**|**K.C.INDIRADEVI,**| ||**MEDICAL RECORD SUPERINTENDENT, MEDICAL COLLEGE**| ||**HOSPITAL, THIRUVANANTHAPURAM-695011.**| OP(KAT).No. 39 of 2019 2 **6 D.AJAYALAL, MEDICAL RECORD SUPERINTENDENT, OPTHALMIC HOSPITAL, THIRUVANANTHAPURAM-695035.** BY G.P.SRI.ANTONY MUKKATH **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 4.2.2019, THE COURT ON 10.4.2019 PASSED THE FOLLOWING:** OP(KAT).No. 39 of 2019 3 ## **JUDGMENT** ## **Arun, J.** The petitioner had joined as Junior Laboratory Assistant in the Health and Family Welfare Department pursuant to his recruitment by the Kerala Public Service Commission on 8.1.1990. The petitioner was thereafter promoted to the post of Medical Record Librarian Grade II by order dated 22.10.1991 and took charge in the promoted post on 24.10.1991. Thereafter, the petitioner was promoted to the post of Medical Record Librarian Grade I by order dated 16.6.1997, and his probation in the promoted post was declared with effect from 16.6.1998. The next promotion from the post of Medical Record Librarian Grade-I is to the post of Medical Record Superintendent. According to the petitioner, 5 vacancies in the cadre of Medical Record Superintendent arose in 2003 and 2004. For the purpose of effecting promotions to the vacant posts, DPC was convened on 18.7.2007 and 4.3.2008 and the petitioner's name was included in the field of choice, but his name did not figure in the select list published on 14.3.2008. According to the petitioner, the respondents 5 and 6 who are juniors were preferred by the DPC for promotion on the ground that they had, acquired the Medical Record Training (Technician) course of 6 months duration conducted by the Central Government at JIPMER, which was OP(KAT).No. 39 of 2019 4 an essential qualification for promotion to the post of Medical Records Superintendent. Respondents 5 and 6 had acquired the training qualification at JIPMER by 3.6.2004. The specific complaint of the petitioner is against the deputation of respondents 5 and 6 for Medical Record (Technician) Course, overlooking his claim for training based on his seniority. The only reason for not deputing him for the training, as revealed from Ext.P1, was want of a substitute in the post of Medical Record Librarian Grade-I, at the Calicut Medical College, where the petitioner was working during that time. The petitioner alleges that he was discriminated against, inasmuch as four persons deputed for training that year was from the Medical College Thiruvananthapuram and in their case, the department was not concerned about the availability of substitutes. Though, the petitioner submitted a representation, complaining about the deliberate denial of opportunity to undergo training based on his seniority and the consequent loss of promotion to the post of Medical Record Superintendent, the Government rejected the representation by Ext P5 in Annexure-A2. 2. Being aggrieved, the petitioner filed W.P (C) No. 38045 of 2010 before this Court seeking to quash Exts P1 and P5 and for the issue of writ of mandamus directing respondents 1 and 2, to promote and appoint the petitioner to the post of Medical Record Superintendent, w.e.f 1.6.2003, and to grant all consequential OP(KAT).No. 39 of 2019 5 benefits. The Writ Petition filed on 20.10.2010 was transferred to the Kerala Administrative Tribunal on its Constitution and renumbered as T.A.No. 22 of 2015. When the Tribunal took up the Transferred Application for hearing on 7.12.2016 it was brought to the notice of the Tribunal that the counsel who was appearing for the petitioner had relinquished his vakalath long back. There was no representation for the petitioner and the Government Pleader, on instructions, submitted that the petitioner had been promoted to the post of Medical Record Superintendent during the pendency of the application before the Tribunal. Since the main prayer in the Transferred Application was to promote the petitioner as Medical Records Superintendent, the Tribunal closed the application in view of the submission made by the Government Pleader. 3. According to the petitioner, his earlier Counsel having relinquished vakalath, he had entrusted T.A.No.22 of 2015 along with two other cases before the Tribunal with a new Counsel. But due to an inadvertent omission at the counsel's office, vakalath was not filed in T.A.No.22 of 2015. Pointing out these facts on 27.9.2018 the petitioner filed M.A.No.2041 of 2018 along with M.A.No.2040 of 2018, after condoning the delay in filing the restoration application. Those Miscellaneous Applications were dismissed as not pressed since the petitioner was advised that his remedy is to file a Review OP(KAT).No. 39 of 2019 6 Application against the order of the Tribunal. Thereupon, the petitioner filed Review Application along with Miscellaneous Application (M.A.No.2517 of 2018) seeking to condone the delay of 685 days in filing the Review Application. By order dated 26.11.2018, the Tribunal dismissed the application for condonation of delay, based on the decision of the Apex Court in **Union of India & others v Chitra Lekha Chakraborty (Civil Appeal No.6213 of 2008)** wherein the Apex Court had held that since the time limit for filing Review Application has been specified in the Rules of Procedure of the Tribunal and since the Limitation Act is not made applicable, the Tribunal does not have the power to condone the delay. Consequent to the dismissal of the petition for condonation of delay, the Tribunal dismissed the Review Application also. This Original Petition is filed aggrieved by the order dated 7.12.2016 in T.A No.22 of 2015 and order dated 26.11.2018 in M.A.No.2517 of 2018 and R.A. (unnumbered) …..2018 . 4. Section 22 of the Administrative Tribunal's Act, 1985 empower the Tribunals to regulate its own procedure, guided by the principles of natural justice and subject to the other provisions of the Act and of any Rules made by the Central Government. Section 35 of the Act empowers the Central Government to make rules, subject to the provisions of Section 36, in order to carry out the provisions of the OP(KAT).No. 39 of 2019 7 Act. As per sub section (2)(e) of Section 35, Rules can be made with respect to additional matters in respect of which the Tribunal may exercise the powers of a Civil Court under Clause (i) sub-section (3) of Section 22. Section 36(c) empower the appropriate Government to make rules with respect to any other matter, not being a matter specified in Section 35 in respect of which Rules are required to be made by the appropriate Government. In exercise of the powers conferred under Sections 35 and 36 of the Act, the Central Government had formulated the Kerala Administrative Tribunal (Procedure) Rules, 2010 (herein after called 'the Rules'). Rule 15 deals with the action to be taken by the Tribunal for default of the applicant. As per Rule 15(1), in case of the default of an applicant to appear when the application is called for hearing, the Tribunal may, in its discretion, either dismiss the application for default or hear and decide the matter on merit. Sub-section (2) of Section 15 clothe the Tribunal with power to restore an application dismissed for default, provided an application for restoration is filed within 30 days of dismissal and sufficient cause, to the satisfaction of the Tribunal, is shown by the applicant for his non- appearance on the date when the application was taken up for hearing and dismissed for default. The proviso to Section 15(2) makes it explicit that in cases where the application was disposed of on merit, the decision shall not be reopened except by OP(KAT).No. 39 of 2019 8 way of review. Rule 21 stipulates that no application for review shall be entertained unless it is filed within 30 days from the date of the order of which the review is sought. Therefore, the application for review against Annexure-A3 order ought to have been filed within 30 days of Annexure-A3 order dated 7.12.2016. Instead, the petitioner had filed an application seeking restoration of T.A.No.22 of 2015. Not only was such application maintainable in view of the specific bar under the proviso to Rule 15(2), since Annexure-A3 order was rendered on merits, even that application for restoration was filed with delay of 629 days. After withdrawing the application seeking restoration, the Review Application was filed, this time with delay of 685 days. In such circumstances, the Tribunal was fully justified in dismissing the application for condonation of delay and consequently, the Review Application. As has rightly been held by the Tribunal in Annexure-A9 order an application for review has to be filed within 30 days from the date of the order of which the review is sought. The Limitation Act not having been made applicable, there is no question of condoning the delay. This precisely is what the Hon'ble Supreme Court held in **Union of India & others v Chitra Lekha Chakraborty (Civil Appeal No.6213 of 2008)** . In such circumstances, this Court cannot interfere with the well founded order of the Tribunal, in exercise of review jurisdiction. OP(KAT).No. 39 of 2019 9 5. We also find that the attempt of the petitioner through the Original Application and this Original Petition is to resurrect his claim for seniority based on a mandatory training which he had not, and respondents 3 and 4 had, undergone in the year 2003. The Original Application, filed in the year 2010 with the prayer to promote and appoint the petitioner to the post of Medical Record Superintendent w.e.f 1.6.2003, without challenging the seniority list and without arraying all the affected parties as respondents was liable to be dismissed even otherwise. Moreover, it is an undisputed fact that the petitioner was promoted to the post of Medical Records Superintendent in the year 2013. For all the reasons mentioned above, we find no merit in the Original Petition and accordingly, it is dismissed. Sd/- ## **C.T.RAVIKUMAR JUDGE** Sd/- **V.G.ARUN, JUDGE** cms OP(KAT).No. 39 of 2019 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF OFFICE MEMORANDUM NO.E416607/03/MCC DATED 8.12.2003 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WA NO.1850/09 DATED 8.9.09. EXHIBIT P3 TRUE COPY OF REPRESENTATION DATED 4.12.2009 FILED BY PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 22.12.2009 FILED BY THE PETITIONER. EXHIBIT P5 TRUE COPY OF GO(RT)NO.824/2010/H&FWD DATED 8.3.10.** RESPONDENTS EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms