S.M SHAFEEK v. Director of Medical Education, Directorate of Medical Education and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940** **OP(KAT).No. 329 of 2018** **AGAINST THE ORDER/JUDGMENT IN OA 2206/2017 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 1.12.2017** ## **PETITIONER/S:** **S.M SHAFEEK AGED 52 YEARS S/O SRI SAINUDEEN, RADIOGRAPHER -GRADE 1(HIGHER GRADE), DEPARTMENT OF RADIO DIAGNOSIS, MEDICAL COLLEGE HOSPITAL, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM 695011, RESIDING AT HOUSE NO 3, KAILAS GARDEN, SREEKARIYAM P.O, THIRUVANANTHAPUARM 695017** **BY ADVS. SRI.S.V.RAJAN SRI.A.N.PREMLAL SMT.C.S.KARTHIKA SMT.M.A.SULFIA SHIBI. K.P. S. SANTHY SUNIL C.KUTTAPPAN** ## **RESPONDENT/S:** **1 DIRECOR OF MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O, THIRUVANANTHAPUARM 695011, KERALA STATE,** **2 STATE OF KERALA, REP.BY THE SECRETARY, HEALTH AND FAMILY WELFARE(B) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM695001,KERALA STATE,PIN-695 014.** ## **OTHER PRESENT:** **GP-SRI ANTONY MUKKATH.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 29.10.2018 A/W OP(KAT) 369/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 OP(KAT).Nos 329 of 2018 ## **JUDGMENT** ## **C.T.RAVIKUMAR,J.** The captioned Original Petitions arise from a common order passed by the Kerala Administrative Tribunal dated 1.12.2017 respectively in OA 2206/2017 and OA 2201/2017. The unsuccessful applicants therein are the petitioners in these original petitions. They were originally recruited in the Directorate of Health Services (DHS for short) as X-Ray Technicians Grade-II. While working so they were promoted as X-Ray Technicians Grade-I in DHS. Pursuant to the abolition of the dual control system in Medical Education Department as per G.O dated 25.10.2008 the applicants and similarly situated persons were granted option either to be retained in the Medical Health Services or come over to Medical Education Department. The petitioners in both the Original Petitions exercised their options to come over to the Directorate of Medical Education (DME for short). Consequently, both of them were appointed in the Directorate of Medical Education as Radiographer Grade-II as there is no post of X-Ray Technician in the Medical Education Department. Pursuant to their appointment in DME, their seniority among the category of Radiographers were ordered to be reckoned with reference to the date of their appointment to the post of X- Ray Technician Grade-II in the light of the provisions under Rule 27 (c) of Part II KS & SSR. The Government passed Annexure A10 (Ext.P9 in TA 2418/2012) order dated 3.9.2011 pursuant to the judgment dated 3 OP(KAT).Nos 329 of 2018 27.5.2011 in WP(C) 13507/2011. As per Annexure A10 Government had laid down the guidelines for reckoning seniority of Radiographers and X- Ray Technicians who joined in the Medical Education Department from the Health Services. In the said G.O dated 3.9.2011 it was ordered thus: Radiographers in service under the Medical Education Services will be senior to the X-Ray Technicians who opted to the Medical Education Services and will be senior to even the X-Ray Technician Grade I. 2. Aggrieved by the principles laid down in the matter of reckoning fixation of seniority of X-Ray Technicians opted to come over to Medical Education Services from DHS, the petitioners in both the Original Petitions approached this Court by filing WP(C) 25074/2011. Subsequent to the constitution of the Kerala Administrative Tribunal the said writ petition was transferred to Administrative Tribunal and was renumbered as T.A No.2418/2012. The said Transfer Application was considered and dismissed by the Tribunal as per Annexure A11 order in Ext.P2 on 17.12.2012. The Tribunal held that Ext P9, marked as such in TA 2418/2012, governing the provisions for fixation of seniority among Radiographers in the DME as valid. Aggrieved by Annexure A11 order, the petitioners filed OP(KAT) 15/2016 before this Court. As per Annexure A12 this Court dismissed the Original Petition carrying challenge against the order in T.A 2418/2012. Subsequently, Annexure A30 combined final seniority list of Radiographers Grade I and Grade II in Medical Education Department as on 31.12.2012 was published. It is challenging the said final combined seniority list the petitioner in OP(KAT) 329/2018 filed OA 4 OP(KAT).Nos 329 of 2018 2206/2017 and the petitioner in OP(KAT) 369/2018 filed OA 2201/2017. The said Original Applications were jointly heard and as noticed hereinbefore, they were dismissed as per common order dated 1.12.2017. It is in the said circumstances that the above mentioned Original Petitions have been filed. 3. Various contentions were raised by the petitioners to mount challenge against the common order dated 1.12.2017 passed in OA Nos 2206 and 2201 of 2017. However, the question is whether this Court consider those contentions on merits. A perusal of the impugned order would reveal that the Tribunal had arrived at the finding that those contentions which were raised before the Tribunal are barred by the principles of res judicata. Earlier, the petitioners herein in the captioned Original Petitions had jointly filed a writ petition before this court and the same was later transferred to the Tribunal upon its constitution and renumbered as TA 2418/2012. The Tribunal made a comparison of the pleadings in the said Transfer Application as also in OA Nos 2206 and 2201 of 2017. It has also considered the prayers made in the said Transfer Application as also in the Original Applications. Upon such consideration it was found that virtually the same pleadings which were ultimately decided against them were raised in the above mentioned Original Applications. It is a fact that as against the decision of the Tribunal in the first round of litigation viz., in TA 2418/2012 , the petitioners had approached this Court by filing OP(KAT) 15/2016. This 5 OP(KAT).Nos 329 of 2018 Court as per judgment dated 10.6.2016 dismissed the said Original Petition and confirmed the order passed by the Tribunal in TA 2418/2012. As held by the Tribunal a comparison of pleadings of the petitioners in OA Nos 2206 and 2201 of 2017 and the pleadings in TA 2418/2012 as also the reliefs sought for would reveal that the Tribunal had rightly arrived at the conclusion that the pleadings in the said Original Applications and the Transfer Application were one and the same. Virtually, the attempt on the part of the petitioners is to get re-decided their status pursuant to their transfer based their option and the consequential posting to DME from DHS. They were working as X-Ray Technician Grade-I at the time of exercise of their option. Upon posting them as Radiographer based on their option, their seniority was decided in terms of Ext P9 (Annexure A10) Government Order. Their attempt to get reversal of the order in TA 2418/2012 had failed as in view of the dismissal of OP (KAT) No.15/2016. Thus, evidently their seniority was fixed with reference to the date of their advice as X-Ray Technician Grade-II in terms of Rule 27 (c) of Part II of KS & SSR. Annexure A30 was also prepared based on the said principles and taking into account the seniority of the incumbents in Radiographer Grade -I and II. In fact, it is the combined seniority list of Radiographer Grade-I and II in DME. Therefore, it is evident that there occurred no fresh cause of action for the petitioners to approach the Tribunal by filing the aforementioned Original Applications. In this context, it is relevant to refer to a decision of the Hon'ble Apex Court 6 OP(KAT).Nos 329 of 2018 ## reported in **State of W.B vs Hemant Kumar Bhattacharjee & Ors (AIR** **1966 SC 1065)** . The Apex Court held that a wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher Tribunals or other procedure like review which the law provides. There is no case for the petitioners that subsequent to Annexure A11 order which got merged in Annexure A12 judgment they pursued with their challenge and got reversed the decision in Annexure A12. Annexure A12 was also not reviewed. When that be so, the Tribunal is justified in holding that the contentions of the petitioners are barred by the principles of res judicata. The petitioners cannot be permitted to reagitate the question which was already concluded by a binding decision. In short, it is assigning such reasons that the Tribunal declined to interfere with Annexure A30 and dismissed the Original Applications. Since the decision of the Tribunal is founded on sound principles and is not infected with any illegality we do not find any reason to interfere with the impugned common order dated 1.12.2017 passed by the Tribunal in OA Nos 2206 and 2201 of 2017. In the result, both the Original Petitions are liable to be dismissed. 4. The petitioners have filed I.A No.1 /2018 both in OP(KAT) Nos 329 and 369 of 2018. The petitioners filed the said I.A with prayer to accept certain additional documents. These documents were in existence at the time of filing of the respective Original Applications. They are not pertaining to any subsequent arguments. Even otherwise, in view of the 7 OP(KAT).Nos 329 of 2018 factual position obtained in these cases we are of the considered view that the correctness of the decision of the Tribunal cannot be tested in the light of documents which were not at all produced before the Tribunal. In the said circumstances, the Interlocutory Applications in both the Original Petitions are dismissed. In the result, both the Original Petitions are dismissed. **Sd/C.T.RAVIKUMAR JUDGE Sd/A.M.BABU** Sks/31.10.2018 **JUDGE** 8 OP(KAT).Nos 329 of 2018 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE IMPUGNED ORDER OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL DATED 01.12.2017 IN OA.NO.2206/2017.** **EXHIBIT P2 TRUE COPY OF THE ORIGINAL APPLICATION DATED 9.11.2017 FILED BY THE PETITIONER IN O.A.NO.2206/2017 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL ALONG WITH ITS ANNEXURES.**