High Court of KeralaDivision Bench2020-02-03Dismissed

OP(KAT) No.293 of 2017

Case / Petition Number:OP(KAT) No.293 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
V. G. Arun
Judgment Date: 2020-02-03
Court Decision / Holding: The Original Petition is dismissed; the Tribunal’s order upholding the appointment of the third respondent as Publication Assistant is sustained; costs awarded to respondents.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Shiju K.G.

Respondents

Secretary to Government, Health and Family Department, Government Secretariat, Thiruvananthapuram
Director of Health Services, General Hospital Junction, Thiruvananthapuram
Haripreetha A.L., Public Assistant, DHS, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• V. V. Nandagopal Nambiar

Counsels for Respondents

• Government Pleader (for R1-R2)
• Sri K.T. Shyamkumar

Case Synopsis & Summary

The petitioner in OP(KAT) No.293 of 2017 challenges a Kerala Administrative Tribunal order that upheld the selection of the third respondent as Publication Assistant in the Health and Family Department. Shiju K.G., the applicant, contends that the third respondent, a Laboratory Technician Grade-I, is a feeder category with a higher pay scale, and that appointing him to Publication Assistant cannot amount to a promotion. He also argues that the State treated the appointment as a by-transfer rather than a promotion, contrary to the Government Orders governing the promotion to the Publication Assistant post. Annexure A1 fixes the qualifications and method of appointment to the Publication Assistant, showing it as a promotion post, with Annexures A2–A5 introducing modifications that allegedly allowed Junior Health Inspector Grade-I to compete for the post, effectively altering the notification after recruitment had begun. The petitioner asserts that such deviations, if permissible, undermine the recruitment process and the notified feeder qualifications. The respondents contend the appointment is a promotion, and the higher pay arises from time-scale financial up-gradation granted for stagnation after 22 years of service, not a demotion. The High Court agrees with the Tribunal, holding that Publication Assistant is promoted from the stated feeder categories and that post-notification circulars did not alter the promotion’s essential nature. It concludes there is no demotion, and pay fixation must follow the promoted post with protection. The petition is dismissed with costs.

Provisions of Law Cited

Tarsem Singh v. State of Punjab, (1994) 5 SCC 392Udayan v. Kerala Agro Machinery Corporation Ltd., (2011) 3 KLT 952 (FB)K. Manusree v. State of Andhra Pradesh, (2008) 3 SCC 512

Legal Doctrines & Maxims

Promotion vs demotion doctrine (distinction emphasized in Tarsem Singh)
By-transfer versus promotion - not a demotion where promotion arises from prescribed feeder categories
Pay fixation and pay protection on promotion; stagnation up-gradation concept

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that the third respondent, a Laboratory Technician Grade-I, is not a promotion to Publication Assistant as he already holds a higher pay scale in the feeder category. Annexure A1 fixes a promotion route; Annexures A2–A5 allegedly modify feeder categories after recruitment began, which cannot be permitted. He relies on Tarsem Singh to argue demotion would result if the pay/scenario is treated as a downgrade. He further contends that by-transfer terminology was used to mischaracterize promotion and sought quashing of the Tribunal’s order.

Contentions of Respondents

The respondents contend that the third respondent’s appointment as Publication Assistant is a promotion from the feeder categories, with higher pay justified by stagnation up-gradation after 22 years of service. Circulars modifying feeder categories did not alter the promotional nature or the essential process of recruitment; deviations, if any, were not to be treated as demotion. The Tribunal’s approach is correct and should be upheld; therefore, the petition should be dismissed with costs.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Tarsem Singh v. State of Punjab	(1994) 5 SCC 392	Distinguished	Court distinguishes Tarsem Singh to hold that the present case does not involve a demotion in the conventional sense; thus, the Tarsem Singh principle is not directly applicable.
Udayan v. Kerala Agro Machinery Corporation Ltd.	(2011) 3 KLT 952 (FB)	Positive	Court relies on Udayan to argue that recruitment cannot deviate from notified qualifications; the deviation post-notification is treated as not permissible.
K. Manusree v. State of Andhra Pradesh	(2008) 3 SCC 512	Mentioned Only	Referenced in context of deviations after initial notification; not a central basis for the decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941** ## **O.P(KAT).No.293 OF 2017(Z)** **AGAINST THE ORDER IN O.A.2120/2015 DATED 03.03.2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** |||**SHIJU K.G.,**| |---|---|---| |||**JUNIOR HEALTH INSPECTOR GR.II,**| |||**PRIMARY HEALTH CENTRE, VELOM,**| |||**KURICHAKAM P.O., KOZHIKODE - 673 508.**| |||**BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR**| |**RESPONDENT/S**<br>**:**||| |**1**||**THE SECRETARY TO GOVERNMENT,**| |||**HEALTH AND FAMILY DEPARTMENT,**| |||**GOVERNMENT SECRETARIAT,**| |||**THIRUVANANTHAPURAM - 695 001.**| |**2**||**THE DIRECTOR OF HEALTH SERVICES,**| |||**GENERAL HOSPITAL JUNCTION,**| |||**THIRUVANANTHAPURAM - 695 035.**| |**3**||**HARIPREETHA A.L.,**| |||**PUBLIC ASSISTANT, DIRECTOR OF HEALTH SERVICES,**| |||**GENERAL HOSPITAL JUNCTION,**| |||**THIRUVANANTHAPURAM - 695 035.**| **R1-R2 BY GOVERNMENT PLEADER R3 BY ADV. SRI.K.T.SHYAMKUMAR** ## **OTHER PRESENT:** ## **SR.GP SRI.ANTONY MUKKATH** **THIS ORIGINAL PETITION (KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD ON 03.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **OP(KAT) No.293 of 2017** **==> picture [322 x 71] intentionally omitted <==** ## **JUDGMENT** ## **K.Vinod Chandran,J.** **The petitioner challenges the order of the Tribunal upholding the selection of the 3[rd] respondent to the post of Publication Assistant. The learned Counsel for the petitioner Sri.V.V.Nandagopal Nambiar argued that the 3[rd] respondent was in the post of Laboratory Technician Grade-I, which was higher to the feeder category of posts for promotion to the post of Publication Assistant. The appointment to a post with a lower pay is not a promotion as has been held by the Hon'ble Supreme Court in** _**Tarsem Singh v. State of Punjab [(1994) 5 SCC 392**_ **]. It is also pointed out that the specific contention of the State in its affidavits filed before the Tribunal was that the appointment of the 3[rd] respondent was a 'by-transfer' appointment as distinguished from a promotion. The Government Orders specifically provided for promotion from the feeder category to the post of Publication Assistant. Annexure A1 Government Order specified the qualifications and the mode of appointment to the post of Publication** **- 3 -** **OP(KAT) No.293 of 2017** **Assistant, which clearly indicates it to be a promotion. Annexures A2 to A5 Circulars attempted change of the same, which is not permissible when a selection has commenced. Reliance is placed on the decision in** _**Udayan v. Kerala Agro Machinery Corporation Ltd. [2011 (3) KLT 952 (F.B.)**_ **] to argue that the recruiting agency cannot deviate from the qualifications prescribed in the notification for purpose of recruitment or the manner in which the recruitment has to be made. Insofar as the deviation having been made after the initial notification issued as per a Circular produced at Annexure A3, the learned Counsel relies on the decision in** _**K.Manusree v. State of A.P. [(2008) 3 SCC 512**_ **].** **2. Learned Counsel Sri.K.T.Shyamkumar appears for the 3[rd] respondent and contends that the appointment was only a promotion and the higher pay scale which the 3[rd] respondent was drawing was only by reason of the time grade financial up-gradation granted for reason of stagnation, on completion of 22 years from initial entry into service.** **3. We see from Annexure A1 that the post of Publication Assistant is a promotion post from the specified categories in the Health Service Department. The specified categories were Family Planning Health Assistant, Health Assistant, Basic Health Worker and Laboratory** **- 4 -** **OP(KAT) No.293 of 2017** **Technician. Only in the absence of candidates from such categories could there could be a selection made by direct recruitment. Annexure A2 provided a modification only with respect to the first three categories, which was commonly shown as 'Junior Health Inspector Grade-II'. Laboratory Technician as was there in the original notification continued as such. Here pertinently we notice that insofar as the Laboratory Technician's post is concerned, there was no grade specified.** **4. Annexures A3 and A4 were subsequent Circulars said to have been issued by the Department, again calling for applications to the post of Publication Assistant, which brought in certain modifications. The modification brought in was insofar as enabling Junior Health Inspector Grade-I also to compete for the post. If at all the deviation insofar as feeder category is concerned, is put against the Department, it can only dis-entitle a Junior Health Inspector Grade-I to apply for the post. Insofar as Laboratory Technician is concerned, without reference to the grade, the post was a feeder category to the post of Publication Assistant. The entitlement of the 3[rd] respondent, a Laboratory Technician Grade-I, to apply for promotion to the post of Publication Assistant is** **- 5 -** **OP(KAT) No.293 of 2017** **sustainable even from the original Government Order at Annexure A1. We, hence, agree with the order of the Tribunal.** **5. The petitioner has a further contention insofar as the State having given the term 'by-transfer' appointment in the reply statement. We have to notice that by-transfer selections are alternatively referred to for promotions and also for appointment in an equivalent post with differing duties; but, however, on the same time scale of pay. The term 'by-transfer' is often used when in-service candidates are considered for selection within the Department itself. We do not think that the terminology used by the Government in its affidavit would deviate from the fact that it is a promotion which is granted on appointment to the post of Publication Assistant. As far as the higher pay scale entitled, the same is on the basis of the financial up-gradation to the higher scale for reason of stagnation for 22 years in the entry post. This is not a situation contemplated in** _**Tarsem Singh**_ **and, hence, we do not think that there is demotion of a person from the post of Laboratory Technician Grade-I to that of Publication Assistant. A person continuing in a higher pay scale for reason of the financial up-gradation will have to be fixed** **OP(KAT) No.293 of 2017 - 6 -** **in the pay scale applicable to the promoted post in accordance with the rules of fixation ensuring protection of the pay drawn.** **For all the above reasons, we do not find any reason to cause interference to the order of the Tribunal. The Original Petition (KAT) would stand dismissed, leaving the parties to suffer their respective costs.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** **vku/-** **- 7 -** **OP(KAT) No.293 of 2017** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1. TRUE COPY OF ORDER DATED 03.03.2017 IN O.A.NO.2120/2015.** - **EXHIBIT P2. TRUE COPY OF OA NO.2120/2015 SUBMITTED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, AT THIRUVANANTHAPURAM.** - **ANNEXURE A1 TRUE COPY OF GO(MS) NO. 310/69/HD DATED 05/11/69 FIXING THE QUALIFICATION AND METHOD OF APPOINTMENT TO THE POST OF PUBLIC ASSISTANT.** - **ANNEXURE A2 TRUE COPY OF GO(MS) NO. 93/2014/H&FWD DATED 05/03/2014 AMENDING THE ORDERS OF ANNEXURE I.** - **ANNEXURE A3 CIRCULAR DATED 10/03/2014 OF THE 2ND RESPONDENT.** - **ANNEXURE A4 CIRCULAR DATED 13/03/2014 OF THE 2ND RESPONDENT.** - **ANNEXURE A5 MODIFIED CIRCULAR DATED 22/07/2014 OF THE 2ND RESPONDENT.** - **ANNEXURE A6 PROCEEDINGS DATED 03/06/2014 OF THE 2ND RESPONDENT APPOINTING 3RD RESPONDENT AS PUBLICATION ASSISTANT.** - **ANNEXURE A7 PROCEEDINGS DATED 23/11/2011 OF THE DISTRICT MEDICAL OFFICER OF HEALTH, THIRUVANANTHAPURAM.** - **ANNEXURE A8 LETTER NO.ED3.60979/14/DHS DATED 23/09/2014 OF PUBLIC INFORMATION OFFICER, OFFICE OF THE DHS.** - **ANNEXURE A9 GO(RT) NO.2587/2015/H&FWD DATED 07/08/2015 OF THE 1ST RESPONDENT REJECTING THE APPEAL PETITION OF THE APPLICANT.** - **EXHIBIT P3. TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT IN O.A.NO.2120/2015.** **- 8 -** **OP(KAT) No.293 of 2017** - **ANNEXURE R1(A) TRUE COPY OF GO(MS)NO.93/2014/H&FWD DATED 05/03/2014.** - **ANNEXURE R1(B) TRUE COPY OF JUDGMENT DATED 01/10/2010 IN WPC NO.15357/2009.** - **ANNEXURE R1(C) TRUE COPY OF GO(RT) NO. 2587/2015/H&FWD DATED 07/08/2015.** - **ANNEXURE R1(D) TRUE COPY OF CIRCULAR NO.ED 3-44536/11/DHS DATED 10/03/2014.** - **ANNEXURE R1(E) TRUE COPY OF LETTER NO.33415/H2/2014/H&FWD DATED 18/07/2014.** - **EXHIBIT P4. TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 2ND RESPONDENT IN O.A.NO.2120/2015.** - **ANNEXURE R2(A) TRUE COPY OF THE JUDGMENT IN WPC NO.15357/2009.** - **ANNEXURE R2(B) TRUE COPY OF THE CIRCULAR NO.ED3/44536/11/DIRECTOR OF HEALTH SERVICE DATED 10/03/2014.** - **EXHIBIT P5. TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 3RD RESPONDENT IN O.A.NO.2120/2015.** - **ANNEXURE R3(A) TRUE COPY OF ORDER IN OA NO.414/2012. ANNEXURE R3(B) TRUE COPY OF ORDER IN WPC NO.15367/2009(L). EXHIBIT P6. TRUE COPY OF THE REJOINDER DATED 31.08.2016 FILED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, AT THIRUVANANTHAPURAM IN O.A.NO.2120/2015.** - **ANNEXURE A10 TRUE COPY OF JUDGMENT DATED 03/06/2014 IN OA NO.976/2014 THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL.** - **ANNEXURE A11 TRUE COPY OF JUDGMENT REPORTED IN CDJ 1994 SC 953 OF THE HON'BLE SUPREME COURT.** - **ANNEXURE A12 TRUE COPY F THE JUDGMENT DATED 16/06/2014 IN WA NO.223/2010 OF THE HON'BLE HIGH COURT OF KERALA.** **- 9 -** **OP(KAT) No.293 of 2017** |**EXHIBIT P7**|**TRUE COPY OF THE QUESTIONNAIRE**| |---|---| ||**DATED 02/11/2017 SUBMITTED TO THE**| ||**OFFICE OF THE 2ND RESPONDENT**| |**EXHIBIT P8**|**TRUE COPY OF THE INFORMAITON**| ||**DATED 27/01/2018 PROVIDED FROM THE**| ||**OFFICE OF THE 2ND RESPONDENT**| |**EXHIBIT P9**|**TRUE COPY OF THE ORDER**| ||**NO.G.O(MS) 95/2019/H&FWD DATED 02/07/2019.**| ||**[TRUE COPY]**|