O.P.(KAT) No.334 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 22[ND] DAY OF DECEMBER 2021 / 1ST POUSHA, 1943** ## **OP(KAT) NO. 334 OF 2020** **AGAINST THE ORDER DATED 17.01.2020 IN OA (EKM) NO.1803/2017 ON THE FILE OF THE KAT, THIRUVANANTHAPURAM (ADDITIIONAL BENCH AT ERNAKULAM)** ## **PETITIONERS/RESPONDENTS 1 AND 2 IN O.A :** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE (AYUSH) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 PRINCIPAL AND CONTROLLING OFFICER, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, IRANIMUTTOM, MANACAUD P.O., THIRUVANANTHAPURAM-695 009.** **BY ADV GOVERNMENT PLEADER** ## **RESPONDENT/APPLICANT & RESPONDENTS 3 TO 6 IN O.A.:** - **1 DR.GEETHA JOSE,W/O.K.J.JAMES, PROFESSOR & HEAD OF THE DEPARTMENT, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, CALICUT-673 010, RESIDING AT KARUKAPARAMBIL, KARAPARAMBHU P.O., KOZHIKODE-673 010.** - **2 DR.P.SUNILRAJ,PROFESSOR, DEPARTMENT OF PHARMACY, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM-695 011.** - **3 DR.M.JEMINI,PROFESSOR, DEPARTMENT OF PRACTICE OF MEDICINE, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM-695 011.** - **4 DR.ABDUL HAMEED,PROFESSOR, DEPARTMENT OF PRACTICE OF MEDICINE, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, KOZHIKODE-673 008.** - **5 DR.P.KRISHNAN,PROFESSOR, DEPARTMENT OF PHARMACY, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, KOZHIKODE-673 008.** - **BY ADVS.SRI.P.NANDAKUMAR, KISHOR B.,SMT.AMRUTHA SANJEEV** ## **OTHER PRESENT:** **SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 23.11.2021, THE COURT ON 22.12.2021 DELIVERED THE FOLLOWING:** ## **O.P.(KAT) No.334 of 2020 2** ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **.................................................................** ## **O.P.(KAT) No.334 of 2020** _[Arising out of the impugned order dated 17.01.2020 in O.A.(EKM) No.1803 of 2017 on the file of the KAT, EKM Bench]_ ## **.................................................................** Dated this the 22[nd] day of December, 2021 ## **JUDGMENT** ## **Viju Abraham, J.** The first respondent herein has instituted Ext.P1 O.A. (EKM) No 1803 of 2017 before the Kerala Administrative Tribunal, Thiruvananthapuram (Addl. Bench at Ernakulam) with the following prayers: _1. The seniority list, published by Annexure A6 be cancelled and direct the respondents 1 and 2 to formulate a new seniority list according to the Advice Seniority._ _2. The respondents 3 to 6 are directed to be removed from the seniority list as they stand ineligible even to the post of Professors._ _3. To allow such other directions and orders."_ ## 2. The Tribunal after hearing both sides have rendered Ext. P4 final order dated 17.01.2020, which is impugned in the present Original Petition, directing respondents 1 and 2 in the O.A. to prepare a seniority list of officers afresh based on the date of first effective advice after following all the prescribed procedures and to effect promotions to a higher post on the basis of the revised seniority list which shall be published within 4 months from the date of receipt of a certified copy of ## **O.P.(KAT) No.334 of 2020 3** the order with a consequential direction to the first respondent to consider the claim of the applicant for promotion to higher post in accordance with revised seniority list so prepared, and pass appropriate orders after placing the matter before the Departmental Promotion Committee within 2 months therefrom. 3. When the present OP (KAT) was pending consideration the 1st respondent/applicant in O.A. filed a petition as I.A. No. 2 of 2021 contending that DPC is scheduled to be held without revising the seniority list as directed by the Tribunal and sought for a direction to the 1st petitioner/1st respondent in the O.A., State of Kerala, to consider her case also for promotion to the post of Principal in accordance with advice seniority, in the next DPC to be convened. This Court by interim order dated 26.03.2021 directed to keep in abeyance the promotion to the post of Principal in the Homeopathic Medical College Service pursuant to any DPC process but made it clear that the interim order will not preclude the competent authority of the State Government or the department concerned in effecting provisional or temporary promotions under Rule 31 (a) (i) of Part II KS & SSR to the post of Principal in Homeopathic Medical Colleges or to permit temporary appointees to continue on such temporary/provisional basis. 4. The 1st respondent/applicant in the O.A. is working as professor ## **O.P.(KAT) No.334 of 2020 4** and head of the Department of Obstetrics and Gynecology, in Govt. Homeopathic Medical College, Calicut. She was originally appointed as a Tutor as per the advice of PSC dated 29.06.1989 and entered service as Tutor in the Department of Obstetrics and Gynecology on 18.07.1989. The 3rd respondent in the O.A. entered service on 19.09.1994 in the Department of Pharmacy, the 4th respondent entered service on 25.11.1993, the 5th respondent on 23.10.1996 in the Department of Practice of Medicine, and the 6th respondent on 04.07.1996 in the Department of Pharmacy in different Homeopathic Colleges in Kerala and therefore the 1st respondent contended that respondents 2 to 5 in the O.P are her juniors. 5. It is further contended by the 1st respondent that as per the Special Rules for Government Homeopathic Medical Colleges, there are 5 categories of posts (1) Principal (2) Professor (3) Reader (4) Lecturer, and (5) Tutor. As per Special Rules, the teaching experience required for promotion to the post of Lecturer is 3 years teaching experience in the feeder category of Tutor, for Reader 4 years teaching experience as Lecturer and for Professor 3 years teaching experience as Reader. It is further contended that there are 12 departments in various subjects in each of the Government Homeopathic Medical Colleges but there are PG courses only in four subjects i.e., in Organon of Medicine and Philosophy, ## **O.P.(KAT) No.334 of 2020 5** Materia Medica, Repertorisation and in Practice of Medicine. In the Department of Pharmacy, the existing post of Reader was upgraded as Professor on 18.12.2007. The 2nd respondent who was appointed as Tutor on 19.09.1994 was promoted as Lecturer on 10.06.2005. He was thereafter directly promoted as Professor on 05.04.2010. The 3rd respondent who was appointed as Tutor on 25.11.1993 was promoted as Lecturer on 02.02.2000. She was thereafter directly promoted as Professor on 15.11.2010. The 4th respondent who was appointed as Tutor on 23.10.1996 was promoted as Lecturer on 21.11.2001 and was thereafter directly promoted as Professor on 16.11.2010. The 5th respondent who was appointed as Tutor on 04.07.1996 was promoted as Lecturer on 21.06.2005 and thereafter was directly promoted as Professor on 23.12.2010. At the same time, the 1st respondent was promoted as Lecturer only on 16.08.1997, as Reader as 21.06.2011, and as Professor on 30.10.2014. 1st respondent has two PG Degrees in Materia Medica and Organon of Medicine and Philosophy. A post of Reader in the Department of Obstetrics and Gynecology was created in Government Homeopathic Medical College, Kozhikode on 06.06.2005, and the post of Professor was created only on 20.06.2011. When the senior to the 1st respondent was promoted as Professor, in the consequential vacancy, the 1st respondent was promoted as Reader on 21.06.2011, and thereafter by ## **O.P.(KAT) No.334 of 2020 6** Annexure-A10 order dated 31.10.2014 the 1st respondent was promoted to the post of Professor. Therefore, junior hands like respondents 2 to 5 could steal a march over the 1st respondent purely on fortuitous circumstances like earlier creation of posts of Reader and Professor in their departments. The 1st respondent/applicant approached the Government by filing Annexures A7 to A9 representations to redress her grievances. Finally as per Annexure A10 order dated 30.10.2014 she was promoted to the post of professor. The grievance of the first respondent/applicant is that respondents 3 to 6 who are very junior to her were all granted seniority overlooking her preferential claim. In the said circumstance Annexure A11 representation was submitted by her on 30.03.2017 requesting to consider her for promotion to the post of Principal reckoning seniority of candidates on the basis of date of advice to the service. In view of nonconsideration of her claim, the 1st respondent/applicant approached the Tribunal by challenging Annexure A6 draft seniority list of professors in the department as on 01.05.2011, mainly contending that the name shown in the said list as serial numbers 5 to 9 are far juniors to her and sought for a further direction to prepare a new seniority list based on the first effective date of advice. 6. The 1st petitioner who was the 1st respondent in O.A. filed a detailed reply statement before the Tribunal mainly contending that as ## **O.P.(KAT) No.334 of 2020 7** per the existing Special Rule the feeder category to the post of Professor is Reader. Therefore promotion to the post of Professor can be effected only from the category of Reader. In the absence of qualified hands in Reader post, the posts can be filled by direct recruitment. But in the case of respondents 3 to 6 they were promoted as Professor from the category of Lecturer. As per the G.O.(Ms) No.150/2007/H&FWD dated 29.06.2007 Government has upgraded two posts of Reader each in the Department of Pharmacy and Practice of Medicine. Hence there was no Reader post at the time of promotion of these doctors as Professor. If there is no post of Reader no one can be promoted to another cadre jumping to a higher cadre if there is no provision in the Special Rules. Hence the matter was re-examined by Government and those persons were reverted to the post of Lecturer and then promoted as Reader and Professor in consultation with Finance Department and P&AR Department but the said action was challenged by those persons before the Court and the matter is now pending consideration. It is also contended that as per the existing Special Rules for teaching staff in the Homeopathic Medical Education, promotion to the post of Principal is done from the seniority list of Professors in various departments. Promotion to the post of Principal should be done only by reckoning the seniority of the Professors. It is true that as per the Kerala State and ## **O.P.(KAT) No.334 of 2020 8** Subordinate Service Rules, 1958 the seniority of a candidate depends on the date of advice to the service. However once a candidate is posted in a particular department, his seniority/promotions thereafter will be considered only departmental-wise. Since the feeder category to the post of Principal is Professor, all senior most professors of various departments will be considered together. That is common seniority of Professors can be considered only on the basis of the date of promotion to the post of Professors and not the date of entry cadre or date of advice of PSC. The 2nd appellant who is the 2nd respondent in the OA also filed a statement almost in similar line with the statement of the 1st respondent. 7. The Tribunal after considering the rival contention of the parties allowed the O.A as per Ext. P4 order dated 17.01.2020 following the dictum laid down by the Apex Court in _**State of Andhra Pradesh v. Dr. M. Ramachandra Rao [1990 (3) SCC 590]**_ and directed the respondents 1 and 2 therein to prepare a fresh seniority list based on the date of 1st effective advice. 8. It is aggrieved by Ext. P4 final order of the Tribunal in the said O.A., that respondents 1 & 2 have instituted the above Original Petition under Articles 226 & 227 of the Constitution of India seeking to set aside Ext.P4 Order dated 17.01.2020 in OA No. No 1803 of 2017 before the ## **O.P.(KAT) No.334 of 2020 9** Kerala Administrative Tribunal, Thiruvananthapuram (Addl. Bench at Ernakulam). It is contended by petitioner that the Tribunal went wrong in passing Ext P4 order overlooking the fact that seniority can be reckoned only on the basis of joining in a particular department and that common seniority will arise only after the promotion to the cadre of professor until then seniority will be reckoned departmental wise. It was also contended that promotions can be given only against the sanctioned posts and as the staff pattern is not common in all Departments and some departments do not have a post of professor. As per existing Special Rules for teaching staff in Homeopathic medical Education, promotion to the post of Principal should be done only by reckoning the seniority of professors. Even though, as per Kerala State and Subordinate Service Rules 1958 the seniority of a candidate depend on the date of advice to the service, but when a candidate is posted to a particular department, the seniority/promotions thereafter will be considered only department wise. It was also contended that since the feeder category to the post of principal is professor, all senior most professors of various departments will be considered together and the seniority among professors can be considered only on the basis of the date of promotion to the post of professors and not on the date of entry cadre or date of advice by PSC. As per Rule 4 of the Special Rules for the teaching staff of Homeopathic ## **O.P.(KAT) No.334 of 2020 10** Medical Education, the method of appointment to the post of Principal is by promotion from the post of Professors and the qualification for the post is, a Postgraduate Degree in Homeopathy in any subject recognized by the Central Council of Homeopathy and included in the Second Schedule of Homeopathy Central Council Act 59 of 1973. Once a candidate is posted in a particular department his/her seniority/promotions there will be considered only departmental wise. As per Special Rules, appointment to the post of Principal by promotion shall be made from a select list prepared from a combined list of Professors of various departments of the Homeopathic Medical Colleges on the basis of merit cum seniority. The seniority in the cadre of Professor can only be considered for the promotion to the post of Principal. In the above circumstances, it is difficult to prepare a seniority list of officers afresh for giving promotion to higher posts without considering department seniority but only on the basis of their dates of first effective advice. If a seniority list is prepared on the basis of the date of first advice and give promotion to the post of Principal accordingly, it will become a precedent to the rest of similar institutions across the State and that may collapse the existing promotional rules and working atmosphere of many institutions. Therefore, the direction of the Tribunal will have far reaching consequences and it will result in bad precedence ## **O.P.(KAT) No.334 of 2020 11** and indirectly aggregate the chances of corruption therefore the direction of the Tribunal is liable to be interfered with. 9. Heard Shri. B. Unnikrishna Kaimal, learned Senior Govt. Pleader for the petitioner, Shri. P. Nandakumar, learned counsel appearing for the first respondent and also Shri. B. Kishore, learned counsel appearing for the 2nd respondent. 10. Shri. P. Nandakumar, the learned counsel for the 1st respondent relying on Rule 27 (a) of Part II KS & SSR contended that seniority of a person in service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade. Since the 1st respondent is the senior most incumbent as she was advised as Tutor on 29.06.1989, whereas respondents 2 to 5 were advised only on 26.08.1994, 01.11.1993, 23.07.1996, and 20.06.1996 respectively. Respondents 2 to 5 were directly promoted as Professors from the post of Lecturers, in violation of the Special Rules. Only after being promoted as Reader, promotion to the post of Professor can be made. Therefore, the promotions given to Respondents 2 to 5 as Professors are illegal. Promotions being given to various incumbents in other departments are not known to those working in different departments. Therefore, such persons working in other departments will ## **O.P.(KAT) No.334 of 2020 12** not get a chance to object to such illegal promotions. Since the acceleration of promotion to higher posts in one department may differ from other departments, incumbents who get promotions on fortuitous circumstances cannot have a better claim than the senior hands working in other departments for promotion to the post of Principal and Controlling Officer. Therefore, for promotions to the post of Principal and Controlling Officer, the advise seniority of Professors in the feeder category consisting of all departments has to be reckoned for promotion to the post of Principal and Controlling Officer. In support of the same, he relies on the judgment of the Apex Court in _**Dr. M. Ramachandra Rao**_ 's case (supra), and contended that the Apex Court was considering Rule 33 (a) of AP Subordinate Service Rules which is a verbatim reproduction of Rule 27 (a) of Part II KS & SSR and held in para 16 and 17 of the judgment as follows: “ _16. Rule 33(a) of the A.P. Subordinate Service Rules provides that seniority of a person in service, class, category or grade shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class category or grade. It seems to us that the seniority in the category of professors in the teaching and non-teaching cadre or in the lower cadre based on speciality wise may not be relevant for preparation of a panel for promotion to the cadre of Additional Director and other equivalent posts in Category I. Equally the service rendered as Deputy Civil Surgeon in Category 5 cannot also be the basis for preparing the panel for consideration. As observed earlier, Deputy Civil Surgeon is a common category in all the branches; Branch I teaching cadre; Branch II non-teaching cadre and Branch III Laboratories. It is a part of the category of Civil Assistant Surgeons, and not cadre post. It is just like selection grade post covering in all 15 per cent of total cadre strength of Civil Assistant Surgeons. The posts are distributed in all the three branches and promotion to the posts depends upon the available_ ## **O.P.(KAT) No.334 of 2020 13** _vacancies in every branch._ _17. Furthermore, Rule 2 does not expressly exclude the service in Class II Cadre for preparing panel for consideration for promotion to posts with which we are concerned. We also consider that it would be unreasonable and unjust to exclude the service and overlook the vertical seniority in the substantive cadre to which everyone was selected by the Public Service Commission. In medical profession there are specialities and specialities, but it is generally accepted that they are not of equal importance or utility. However, the promotions are allowed on the basis of the respective specialities and the availability of promotional vacancies in such specialities. A junior with relatively less important speciality may be fortunate enough to get quick promotion than his senior with a different speciality. We are of the opinion that the juniors who get accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancies in such speciality should not be allowed to march over their seniors for appointment to administrative posts. Any advantage gained by juniors on such fortuitous circumstances of having some speciality and promotion should not impair the rights of their seniors for promotion to posts where speciality or teaching experience is not called for. The seniority determined in order of speciality should not therefore be the basis for promotion to administrative posts. Any rule providing for the contrary may be vulnerable to attack on the ground of arbitrariness.”_ 11. In view of the categorical declaration by the Apex Court as above, that too considering a Rule which is exactly identically worded as Rule 27 (a) of Part II KS & SSR and taking note of the fact that the specialities involved in this case are also broadly similar to the case decided by the Apex Court in _**Dr.M.Ramachandra Roa's case**_ supra, we strongly prima facie, feel that the Tribunal was right in holding that seniority should be determined based on the date of first effective advice in the entry level post. Even though the Tribunal after holding so directed to prepare a seniority list afresh, we feel that all these aspects including the dictum laid down by the Apex Court as above and its applicability to the Special Rules are to be considered by the 1st petitioner Government. **O.P.(KAT) No.334 of 2020 14** Therefore, there will be a direction to the 1st petitioner Government to take a final decision in the matter in the light of the decision of the Apex Court in _**Ramachandra Rao**_ 's case (supra) within a period of 4 months from the date of receipt of a copy of this judgment. In view of the fact that the 1st respondent/applicant is due to retire in April 2022, there will be a direction to the 1st petitioner to grant promotion to the 1[st] respondent/applicant in the O.A at least on a temporary/provisional basis as per Rule 31 (a) (i) of Part II KS & SSR to the post of Principal in Homeopathic Medical Colleges, evaluating the seniority on the basis of her initial date of advise by PSC as ordered by the Apex Court as above, till the exercise as directed above is completed by the Government. With the abovesaid observations and directions, the Original Petition is disposed of. sd/- ## **ALEXANDER THOMAS** **JUDGE** sd/- **VIJU ABRAHAM JUDGE** pm ## **O.P.(KAT) No.334 of 2020 15** ## **APPENDIX OF OP(KAT) 334/2020** ## PETITIONERS ANNEXURES |ANNEXURE A1|TRUE COPY OF THE GAZETTE NOTIFICATION| |---|---| ||REGARDING THE PROVISIONAL DEPARTMENT WISE| ||SENIORITY LIST OF THE TEACHING STAFF AS ON| ||22.07.1999.| |ANNEXURE A2|TRUE COPY OF THE ORDER OF THE GOVERNMENT| ||DATED 04.08.1997.| |ANNEXURE A3|TRUE COPY OF THE KERALA STATE HOMEOPATHIC| ||MEDICAL COLLEGE SERVICE RULES 2001.| |ANNEXURE A4|TRUE COPY OF THE REPRESENTATION GIVEN BY| ||THE PETITIONER TO THE GOVERNMENT DATE| ||12.08.2008.| |ANNEXURE A5|TRUE COPY OF THE NOTIFICATION DATED| ||18.06.2011.| |ANNEXURE A6|TRUE COPY OF THE PROVISIONAL DRAFT LIST OF| ||SENIORITY OF PROFESSORS DATED 07.05.2011.| |ANNEXURE A7|TRUE COPY OF THE COMPLAINT GIVEN BY THE| ||PETITIONER TO THE CHIEF MINISTER DATED| ||06.08.2013.| |ANNEXURE A8|TRUE COPY OF THE COMPLAINT DATED| ||27.01.2014 GIVEN TO THE GOVERNMENT.| |ANNEXURE A9|TRUE COPY OF THE COMPLAINT TO THE MINISTRY| ||OF HEALTH AND FAMILY WELFARE DATED| ||27.02.2014.| |ANNEXURE A10|TRUE COPY OF THE ORDER DATED 30.10.2014.| |ANNEXURE A11|TRUE COPY OF THE REPRESENTATION GIVEN BY| ||THE PETITIONER AND ANOTHER SENIOR MOST| ||DATED 30.03.2017.| |ANNEXURE A12|TRUE COPY OF THE POSTAL RECEIPTS DATED| ||30.03.2017 OF SENDING EXHIBIT P11| ## **O.P.(KAT) No.334 of 2020 16** REPRESENTATION. ANNEXURE A13 TRUE COPY OF THE ANSWER UNDER RIGHT TO INFORMATION ACT DATED 07.08.2013. EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION (EKM) 1803/2017. EXHIBIT P2 REPLY STATEMENT FILED ON BEHALF OF 1ST RESPONDENT IN OA. EXHIBIT P3 REPLY STATEMENT FILED ON BEHALF OF THE 2ND RESPONDENT IN OA EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17.01.2020. // true copy// PA to Judge