IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18131 of 2008(H)
1. DR.LAILA RANI VIJAYARAGHAVAN
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. CONVENER, DEPARTMENTAL PROMOTION
3. DIRECTOR OF MEDICAL EDUCATION,
4. DR.P.P.SATHI, PROFESSOR OF PATHOLOGY,
5. DR.RAJEEVAN.K., ASSOCIATE PROFESSOR,
6. DR.SUPRIYA.N.K., PROFESSOR OF
7. DR.RAMANI K.S., ASSOCIATE PROFESSOR,
8. DR.MATHEW C.F., ASSOCIATE PROFESSOR,
9. DR.SANKAR.S., ASSOCIATE PROFESSOR,
10. DR.SANTHA SADASIVAN, ASSOCIATE PROFESSOR
For Petitioner :SRI.PIRAPPANCODE V.SREEDHARAN NAIR
For Respondent :SRI.S.JAYAKRISHNAN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :12/08/2009
O R D E R
S. SIRI JAGAN, J
...............................................
W.P(C) Nos. 35532 of 2007
& 18131 of 2008
.................................................
Dated this the 12th day of August, 2009
J U D G M E N T
The petitioner in these two writ petitions are the same.
She is challenging the select list for promotion to the posts of
Professor and Assistant Professor in the department of Pathology
in Medical College Service of the Government of Kerala. Prior to
entering the Department of Pathology the petitioner had service
in the Department of Blood Bank. Petitioner’s grievance is that
for the purpose of seniority and promotion, the service of the
petitioner in the blood bank is not being counted. According to
the petitioner, several other persons who had shifted from one
department to another had been given benefit to the service in
the earlier department for the purpose of seniority and
promotion. The petitioner earlier approached this court by filing
WP(C) No. 5005 of 2003 and obtained Ext.P15 judgment to
consider the representation filed by the petitioner in that regard.
In compliance with that judgment, the Government has passed
Ext.P16, again rejecting the claim of the petitioner on the ground
W.P(C) Nos. 35532 of 2007
& 18131 of 20089 -2-
that the recruitments to blood bank and department of Pathology
are by different Public Service Commission selections and
therefore service in the two departments cannot be added
together for the purpose of seniority and promotion in one
department. Regarding the contention of the petitioner that
some other persons were given such benefit, the Government
rejected the same stating that the Government finds it unhealthy
to go after precedence and hence finds no valid reason to allow
the request. Petitioner submits that this stand of the
Government is discriminatory and violative of the rights of the
petitioner. Petitioner therefore seeks the following reliefs:
“WP(C)No. 35532 of 2007
i) issue a writ of certiorari of any other appropriate
writ, order or direction calling for the records leading to
Exts.P16, P20 and P21 and quash them.
ii) issue a writ of mandamus or any other
appropriate writ, order or direction commanding the
respondents 1 to 3 to reckon the service rendered by the
petitioner between 29.8.1988 and 10.4.1990 in the
Department of Blood Bank towards her qualifying service
for the purpose of seniority and promotion and all other
service benefits in the Department of Pathology and grant
her all consequential benefits as if Ext.P16 were never
issued at all.
iii) issue a writ of mandamus or any other
appropriate writ, order or direction commanding the 2nd
respondent to pass orders on Ext.P22.
iv) issue a writ of mandamus or any other
W.P(C) Nos. 35532 of 2007
& 18131 of 20089 -3-
appropriate writ, order or direction commanding the
respondents 1 and 2 to review Exts.P20 and P21 by
placing the petitioner above respondents 4 and 5 therein
(in category of Professor) and promote her as such with
effect from 12.6.2007 with all consequential benefits.
v) issue a writ of mandamus or any other
appropriate writ, order or direction commanding the 1st
respondent to suitably modify Exts.P11, P18 and P19 by
giving credit to the petitioner’s service in the Department
of Blood Bank.”
” W.P(C) No. 18131 of 2008
I) issue a writ of certiorari of any other appropriate
writ, order or direction calling for the records leading to
Exts.P16, P20, P21 and P23 and quash them.
ii) issue a writ of mandamus or any other
appropriate writ, order or direction commanding the
respondents 1 to 3 to reckon the service rendered by the
petitioner between 29.8.1988 and 10.4.1990 in the
Department of Blood Bank towards her qualifying service
for the purpose of seniority and promotion and all other
service benefits in the Department of Pathology and grant
her all consequential benefits as if Ext.P16 were never
issued at all.
iii) issue a writ of mandamus or any other
appropriate writ, order or direction commanding the 2nd
respondent to pass orders on Exts.P22 and P24.
iv) issue a writ of mandamus or any other
appropriate writ, order or direction commanding the
respondents 1 and 2 to review Exts.P20, P21 and P23 by
placing the petitioner above respondents 4 to 10 therein
(in the category of Professor) and promote her as such
with effect from 12.6.2007 with all consequential benefits.
v) issue a writ of mandamus or any other
appropriate writ, order or direction commanding the 1st
respondents to suitably modify Exts.P11, P18 and P19 by
giving credit to the petitioner’s service in the Department
of Blood Bank.”
W.P(C) Nos. 35532 of 2007
& 18131 of 20089 -4-
2. Petitioner relies on the decision of the Supreme Court in
Principal King George’s Medical College, Lucknow v. Dr.
Vishan Kumar Agarwal and another 1984(1) SCC 416 in
which the Supreme Court held that when some persons have
been given relaxation in the matter of qualifications for
admission to MD course such relaxation cannot be denied to the
petitioner in that case. The counsel for the petitioner also
submits that relying on this judgment this court has also taken a
similar view in University Grant Commission v. Rajesh
2008(4) KLT 223.
3. A counter affidavit has been filed by the 1st respondent
wherein the stand taken is that the department of the blood bank
and the Pathology department are two separate water tight
departments and seniority in one department cannot be
reckoned by adding service of the person in the department in
which he/she previously worked. It is submitted that selections
to the two departments are separate and the PSC publishes
separate rank lists for such selections.
4. I have considered the rival contentions in detail.
5. It is settled law that a person who enters service in one
W.P(C) Nos. 35532 of 2007
& 18131 of 20089 -5-
department after undergoing a selection process, later
undergoes another selection process and joins another
department, for the purpose of seniority and promotion in the
latter department the service in the former would not be
counted. In fact even in inter departmental transfers a person
who gets transfer to the new department has to forgo his
seniority in the erstwhile department. That is so even in the case
of inter district transfers. Therefore, if the contention of the
petitioner is accepted as law, that would cause havoc to the
entire service law on the subject of seniority and promotion and
it would effect the service conditions of Government employees
in every department. The fact that the Government earlier
illegally gave such benefits to some other persons is no ground
for giving the petitioner also the benefit of the very same
illegality. In this connection I note the contention of the learned
Government Pleader that such benefits were given at a time
when the two departments were not strictly considered as water
tight departments, although he admits that at that time also
selection to the two departments were by separate rank list of
the PSC. I am not prepared to lay down as a proposition of law
W.P(C) Nos. 35532 of 2007
& 18131 of 20089 -6-
that the petitioner is entitled to the benefit, she is seeking now.
For the above said reasons, I am of opinion that the decision
relied upon by the petitioner is clearly distinguishable on facts.
The decision of the Supreme Court in Agarwal’s case (supra) was
in a case where the Supreme Court found that a particular
condition in the eligibility criteria was not invariably insisted
upon by the University or by the College and they did not
consider those conditions as mandatory. In the decision in
Rajesh’s case also what was in contemplation was grant of
relaxation from UGC qualification when qualifications were
relaxed for another candidate. The Division Bench held that
such relaxation should not be denied to the petitioner in that
case. I am of opinion that there the court was considering the
power of relaxation and here there is no question of any
relaxation at all. Therefore the facts of those cases are clearly
distinguishable on facts. I am satisfied that the petitioner is not
entitled to the reliefs prayed for despite the fact that earlier
other persons were given benefit of such an illegality.
6. I am disturbed to find that many cases are coming
before me, particularly in respect of matters under the Kerala
W.P(C) Nos. 35532 of 2007
& 18131 of 20089 -7-
Education Rules, and service matters wherein the Government
gives illegal benefits to certain teachers by passing orders or
circulars and when those orders or circulars are sited by another
petitioner they simply take the stand that the earlier decision is
incorrect. That would show the disinclination of the Government
to go by the Rule of law. The Government should not forget that
we are still living in a country ruled by rule of law and if they
flout law in the case of some individuals and refuse to follow the
same in respect of others, that would ultimately result in
anarchy. It should be prevented at all costs. Therefore the
Government would do well to see that at least in future, they
refrain from giving benefits against rules in individual cases
illegally. With the solemn hope that wisdom would dawn on the
Government at least now, I dismiss these writ petitions.
S. SIRI JAGAN, JUDGE
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