IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 12603 of 2003(A)
1. DR. SOBHA SUNDARESWARAN, ASSOCIATE
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. THE DIRECTOR OF MEDICAL EDUCATION,
3. THE PRINCIPAL MEDICAL COLLEGE, CALICUT.
For Petitioner :SRI.M.P.SREEKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :14/11/2008
O R D E R
S.SIRI JAGAN, J
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O.P. No.12603 of 2003
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Dated this the 14th day of November, 2008.
J U D G M E N T
The petitioner started service as a Tutor in Dental College
in the Medical Education Service on 2.6.1984. The
Government issued Ext.P2 order, which has modified by Ext.P3
order, whereby teachers of Medical, Dental and Pharmaceutical
Science Colleges were given benefit of Time Bound Grade
Promotions. By Ext.P4 order dated 1.2.1999, the petitioner was
given Time Bound Cadre Promotion as Assistant Professor with
effect from 21.8.1990 with monetory benefits from 1.4.1995.
Later on by Ext.P5 order dated 11.10.1999 the petitioner was
given the next Time Bound Cadre Promotion as Associate
Professor with effect from 29.10.1998. Further by Ext.P6 order
dated 6.11.1999 the petitioner was promoted as Assistant
Professor on regular basis. However, by Ext.P7 order, Ext.P5
order granting Time Bound Cadre Promotion as Associate
Professor with effect from 29.10.1998 was canceled on the
ground that the petitioner did not have five years of physical
teaching experience which is an eligibility condition for Time
Bound Cadre Promotion as Associate Professor as per Ext.P3
O.P. No.12603 of 2003 – 2 –
Government Order. The petitioner filed the original petition
challenging Ext.P7. Subsequently by an interim order in I.A.
13716/2003 this Court directed the petitioner to file a
representation in this regard, with a further direction to the
Government to consider that representation and pass
appropriate orders thereon by order dated 18.3.2004.
Consequent upon that order, the petitioner filed Ext.P9
representation and Ext.P10 order dated 19.1.2005 was passed
by the Government again confirming Ext.P7 order. The
petitioner therefore amended the original petition including a
challenge against Ext.P10 order also. The petitioner’s
contention is that in Ext.P3, Government have stipulated that
from 1.4.1990 onwards all promotions would be Time Bound
Cadre Promotions and when the incumbent is given further
cadre promotions or he/she ceases to hold the post, the same
would be downgraded, subject to the condition that the total
staff strength of the department remains the same. That being
so, according to the petitioner, as per clause 2(2) of Ext.P3 for
becoming eligible for Time Bound Cadre Promotion as
Associate Professor what is required is only eight years
physical teaching experience as Assistant Professor or 14 years
of total service as lecturer and Assistant Professor put together
O.P. No.12603 of 2003 – 3 –
out of which 5 years of service shall be as Assistant Professor.
According to the petitioner by virtue of Ext.P4 the petitioner
had service as lecturer with effect from 2.6.1984 and as
Assistant Professor with effect from 21.8.1990. Therefore as
on 29.10.1998 the petitioner had 22 years of service as lecturer
and assistant professor put together and 8 years of service as
Assistant Professor which would satisfy eligibility conditions
for Time Bound Cadre Promotion as Associate Professor with
effect from 29.10.1998. That being so, according to the
petitioner Ext.P5 order granting Time Bound Cadre Promotion
to the petitioner with effect from 29.10.1998 is perfectly in
accordance with Ext.P3 Government order which governs the
eligibility conditions for Time Bound Cadre Promotion as
Associate Professor. Therefore, the petitioner submits that
Exta.P7 and P10 orders canceling Ext.P5 are unsustainable.
2. A counter affidavit has been filed by the 1st respondent.
Their case is that in order to become eligible for Time Bound
Cadre Promotion as Associate Professor an Assistant Professor,
should put in minimum 5 years of physical teaching experience
in addition to total service of 14 years as lecturer and Associate
Professor put together. The petitioner does not possess 5 years
of physical teaching experience as Assistant Professor, as on
O.P. No.12603 of 2003 – 4 –
29.10.1998 she having been promoted as Assistant Professor
only on 6.11.1999 and joined duty on 9.11.1999. The 1st
respondent therefore supports Exts.P7 and P10 orders.
3. I have considered the rival contentions in detail.
4. Paragraph 4 of Ext.P3 reads thus:
“From 1.4.1990, all promotion will be cadre
promotions. In the case of those who do not have any
promotion posts the posts will be upgraded for the purpose
and will be downgraded as and when the existing
incumbents vacate the post, subject to the condition that
the total staff strength in the Department remains the
same.”
By virtue of the above said provision vacancy based promotions
have been dispensed with, substituting the same with cadre
promotion. Once a lecturer become eligible for Time Bound
Cadre Promotion as Assistant Professor, the post held by that
lecturer itself would be upgraded as post of Assistant Professor
and as and when he/she either leaves service or gets further
promoted that post would again be downgraded as lecturer. In
the same way when an Assistant Professor becomes eligible for
Time Bound Cadre Promotion as Associate Professor, the post
of Assistant Professor held by that person itself would be
upgraded as post of Associate Professor and as and when that
Associate Professor leaves service or gets further promoted,
that post would again downgraded, so that the total staff
strength of the department remains the same. Consequently
O.P. No.12603 of 2003 – 5 –
there would not be any need for promotions based on
vacancies.
5. Originally the Time Bound Cadre Promotions were
governed by Ext.P2. The provision for Time Bound Cadre
Promotion as Associate Professor is contained in clause 1(b) of
Ext.P2 which reads thus:
“1. (b) Asst. Professors with 8 years of teaching
experience (Physical) and those who have put in 14 years of
total service as Lecturer and Asst. Professor, put together,
will be promoted as Associate Professor in the scale of pay
of Rs. 3700-5700/-”
However, by Ext.P3, Ext.P2 order was modified to read the
provision for Time Bound Cadre Promotion as Assistant
Professor thus in clause 2(2) of Ext.P3:
“The Assistant Professors with 8 years of teaching
experience (Physical) or those who have put in 14 years of
total service as Lecturers and Asst. Professor put together,
out of which 5 years of service shall be that of Assistant
Professor will be promoted as Associate Professor in the
scale of pay of Rs. 3700-5700 provided the total strength of
all categories in each Department remains the same.”
6. Obviously the word “AND” used clause 1(b) of Ext.P2
was a mistake. That was corrected by clause 2(2) of Ext.P3
making it “OR”. Therefore the eligibility requirements for
Time Bound Cadre Promotion as Associate Professor was either
8 years of teaching experience (Physical) as Assistant Professor
or 14 years of total service as lecturer and Assistant Professor
put together out of which 5 years of service shall be that of
O.P. No.12603 of 2003 – 6 –
Assistant Professor. It is important to note that the language
used in the 1st limb of clause 2(2) and the 2nd limb thereof in
Ext.P3 are distinct and separate. In the 1st limb the words used
are “teaching experience (Physical)” whereas in the 2nd limb
the word used is “service”. That would lead to the irresistible
conclusion that while issuing Ext.P3, the Government wanted
to distinguish between teaching experience (Physical) and
service. In this case, although the petitioner did not have 5
years physical teaching experience as Assistant Professor as on
29.10.1998, the petitioner did have total 22 years of service as
lecturer and Assistant Professor put together, out of which 8
years of service were as Assistant Professor. Therefore the
reasoning in Exts.P7 and P10 that for becoming eligible for
Time Bound Cadre Promotion as Associate Professor the
incumbents should have 5 years of Physical teaching
experience as Assistant Professor is clearly not warranted by
Ext.P3 which governs the issue. When by Ext.P3 all promotions
were made cadre promotions vacancy based promotions have
no relevance. This is abundantly clear from the provisions in
Clause 4 of Ext.P3. As such Ext.P6 cannot be pressed into
service to hold that the petitioner became an Assistant
Professor only on 9.11.1999. Therefore I am of opinion that
O.P. No.12603 of 2003 – 7 –
Ext.P5 promotion of the petitioner as is perfectly in accordance
with Ext.P3. Hence Exts.P7 and P10 cancelling Ext.P5 are
unsustainable. Accordingly, Exts.P7 and P10 are quashed and
Ext.P5 restored with consequential reliefs to the petitioner.
The original petition is allowed as above.
S.SIRI JAGAN, JUDGE
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