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Sudhakaran vs State Of Kerala on 3 December, 2008

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Kerala High Court
Sarasan, R, Ud Clerk, Medical ... vs State Of Kerala Represented By ... on 29 June, 2010

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 4599 of 2010(Y)

1. SARASAN, R, UD CLERK, MEDICAL COLLEGE ... Petitioner

2. AJITHKUMAR K.K. UD CLERK,

3. NASAR METHAR M.K,

4. INDUKALADHARAN NAIR, K.R.,

5. SATHEESH KUMAR,

6. BINU ABRAHAM, UD CLERK, MEDICAL COLLEGE Vs

1. STATE OF KERALA REPRESENTED BY SECRETARY ... Respondent

2. DIRECTOR OF MEDICAL EDUCAITON,

For Petitioner :SMT.P.V.ASHA

For Respondent :SRI.MILLU DANDAPANI

The Hon'ble MR. Justice ANTONY DOMINIC

Dated :29/06/2010

O R D E R

ANTONY DOMINIC, J.

================

W.P.(C) NOs. 4599, 12381 & 14091 OF 2010 ==============================

Dated this the 29th day of June, 2010

J U D G M E N T

The rival claims for seniority among two sets of employees of the Department of Medical Education is what arises for consideration in these writ petitions.

2. By Ext.P2 order in WP(C) No.4599/10, Dual Control System was abolished by the Government of Kerala. Pursuant to the said order, by order dated 25/10/08 (Ext.P1 in WP(C) No.14091/10) ministerial staff, nurses, paramedical staff including last grade staff under the establishment of Director of Health Services and working in the Medical Education Department were to be brought under the administrative control of the Director of Medical Education subject to the employees filing option in accordance with the rules of option incorporated in the said order. Appendix 1 of the said order provides the rules for filing option by the staff of the Director of Health Services (DHS for short) on abolition of Dual Control System. Clause 8 of Appendix 1 provided that "the seniority of the staff opted to Department of Medical Education will be maintained as per Rules 27(a)and 27(c) of Part II WPC NOs. 4599, 12381 & 14091 OF 2010 :2 :

KS & SSR".

3. Petitioners in WP(C) NO.4599/10 are employees, who had exercised option to come over to the Department of Medical Education Service (DME for short). They filed WP(C)No.4599/10 claiming that once they opt for DME and are absorbed in the DME, they are entitled to retain their existing seniority in terms of Clause 8 of Appendix 1 of Ext.P1 referred to above.

4. During the pendency of that writ petition, by order dated 31/3/2010, (Ext.P2 in WP(C) No.14091/10), promotions were effected to the post of Junior Superintendent and Upper Division Clerks in the DME. Subsequently, by order dated 6/4/2010, (Ext.P4 in WP(C) No.14091/10), Ext.P2 order was cancelled on the ground that the inter se seniority list of employees of the DME and those who have opted to come over to DME were not finalised. Still later, by order dated 24/4/2010, (Ext.P5 in WP(C) No.14091/10), the Government clarified Ext.P1 referred to above in the following terms: In the circumstances stated above, it is clarified that the seniority of staff of Health Service Department in the categories of Medical Education Department to which they have been absorbed by exercising the option as per the Government Order second cited has to be WPC NOs. 4599, 12381 & 14091 OF 2010 :3 :

reckoned as per Rule 27(a) and 27(c) of Part II KS&SSR ie as per the date of order of promotion in the case of promotees and as per the date of first effective advice in the case of direct recruits (entry cadre) in the respective categories in Health Service Department.

5. It was thereupon that WP(C) No.12381/10 and 14091/10 were filed by persons, who were employees of the DME. According to them, on exercising option and coming over to DME, the optees should rank junior most in seniority, and therefore, the clarification as contained in Ext.P5 referred to above is illegal. Therefore, the only question that arises is whether the optees of DHS who have come over to DME are entitled to retain their seniority for their prior service in DHS.

6. In my view, the issue can be answered with reference to Clause 8 of Appendix I of Ext.P1 order dated 25/10/2008, which provides that seniority of staff opted to Department of Medical Education will be maintained as per Rule 27(a) and Rule 27(c) of Part II KS & SSR. This precisely is what is reiterated in Ext.P5 and this order does not introduce anything which is not provided in Ext.P1. Clause 8 of Appendix 1 of Ext.P1 is also not under challenge in WP(C) Nos.12381/10 or 14091/10. If that be so, necessarily, optees like the petitioners in WP(C) No.4599/10 and WPC NOs. 4599, 12381 & 14091 OF 2010 :4 :

the additional party respondents in WP(C) No.14091/2010 are entitled to seniority for their prior services under the DHS in terms of Rules 27(a) and (c) of Part II KS&SSR.

7. Learned senior counsel appearing for the petitioners in WP(C) No.14091/10 and 12381/10 relied on the Apex Court judgment in Sudhakaran v. State of Kerala (2006(2)KLT 817 (SC) to contend that, on exercising option and coming over to the Directorate of Medical Education, the optees should rank junior most. However, a reading of the judgment shows that, in that judgment, the Apex Court was concerned with the claim of seniority of inter district transferees which is governed by the Proviso to Rule 27(a), which says that on request based inter district transfer, the transferee will be junior most in the transferred unit. Therefore, the said judgment has no application to the facts of this case.

8. The other grievance raised in WP(C) Nos.12381/10 and 14091/10 is that until the seniority is settled by drawing up an inter se seniority list, further promotions should not be effected. In the counter affidavit filed by the State in WP(C) No.4599/10, it has been stated thus:-

WPC NOs. 4599, 12381 & 14091 OF 2010 :5 :

The process of shifting of staff have not been completed so far. Promotions to the post of Junior Superintendents can be made after preparing seniority list of Upper Division Clerks including the U.D. Clerks shifted from Health Services. Only after preparing seniority list of U.D. Clerks the eligibility of the petitioners for promotion can be ascertained. Therefore, this grievance of the petitioners have been addressed by the Government itself.

9. In view of the above, the challenge against Ext.P5 order referred to above dated 24/4/2010 raised in WP(C) Nos.12381/10 and 14091/2010 will stand repelled. The claim of the petitioners in WP(C) No.4599/10 for maintaining seniority for their service prior to exercising option, is upheld, in view of Clause 8 of Appendix 1 of Ext.P1 Government Order dated 25/10/2008 and Ext.P5 dated 24.4.2010 referred to above. The Directorate of Medical Education is directed to finalise the inter se seniority list of the optees and the existing employees of the Department in accordance with law and as expeditiously as possible. WP(C) Nos. 12381/2010 and 14091/2010 are dismissed and WP(C) No.4599/2010 is disposed of.

ANTONY DOMINIC, JUDGE

Rp