IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18823 of 2008(N)
1. DR.P.K. SANTHAKUMARI, SUPERINTENDENT
... Petitioner
Vs
1. STATE OF KERLA, REP. BY SECRETARY TO
... Respondent
2. THE DIRECTOR, OFFICE OF THE
3. DR.R. SREEKUMAR, PROFESSOR & HEAD OF
For Petitioner :SRI.K.SUBASH CHANDRA BOSE
For Respondent :SRI.ELVIN PETER P.J.
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :18/09/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.C. No 18823 of 2008
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Dated this the 18th September 2008
JUDGMENT
The prayer in this writ petition is to quash Ext. P10 and to
direct the first respondent to follow Ext.P9 recommendation for
posting Superintendent in the Government Ayurveda College,
Thiruvananthapuram.
2. Briefly noted, the facts of the case are that, the petitioner
and the third respondent are governed by Ext.P5, the Rules for
the Kerala State Ayurveda Medical Education (Teaching) Services,
2007 (hereinafter referred to as the Special Rules, for short). As
far as service details of the petitioner are concerned, the petitioner
commenced service as Tutor on 21.12.1981 and was promoted as
Reader on 01.01.1998 and thereafter by Ext. P3 she was promoted
as Professor with effect from 18.12.2001. In so far as the third
respondent is concerned, he commenced service as Tutor on
17.08.1989 and has been promoted as Professor with effect from
25.10.2005.
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3. The Superintendents of Hospitals attached to Ayurveda
Colleges are posted as per Note 5 to Rule 3 of the Special Rules,
which reads as follows:
“5. Willing Professor from the Departments attached to
Hospital will be appointed as Superintendent of the hospital
attached to the Ayurveda College, Thiruvananthapuram,
Trippunithura and Kannur and Readers as Resident Medical
Officers. They will perform the responsibilties of
Superintendents/Resident Medical Officers in addition to the
normal duties in their Departments concerned. In speciality
hospitals such as the Ayurveda College Hospital for Women
and Children, Poojappura etc. Professors specialized in the
concerned branches will be considered for appointment as
Superintendents.”
In terms of the Note, by Ext. P6, willingness was invited from
Professors for posting as Superintendent of Ayurveda College
Hospital, Thiruvananthapuram. In the meantime, on the retirement
of the then Superintendent of Government Ayurveda College
Hospital, Thiruvananthapuram, by Ext. P7, the petitioner was put in
charge of that post as well.
4. It would appear that the petitioner, third respondent and yet
WPC 18823/08 3
another person had expressed their willingness in response to Ext.
P6. On receipt of the willingness from Professors, by Ext. P9, the
second respondent informed the first respondent the details of the
three willing Professors which included both the petitioner and the
third respondent. The second respondent further stated in Ext. P9
as follows:
“As only one can be appointed as Superintendent, Government
Ayurveda College Hospital, Thiruvananthapuram, Dr P.K.
Santhakumari (Senior) who is the seniormost among the three
applicants may be appointed as Superintendent, Government
Ayurveda College Hospital, Thiruvananthapuram.”
However, the first respondent issued Ext. P10 order dated
20.06.2008, posting the third respondent as Superintendent of the
Government Ayurveda College Hospital, Thiruvananthapuram and it
is challenging Ext. P10 this writ petition has been filed.
5. Counsel for the petitioner would submit that petitioner is the
seniormost among the three Professors who had expressed their
willingness in response to Ext. P6. It is contended that the Special
Rules do not contain any particular method to be followed in the
WPC 18823/08 4
matter of posting of Superintendents and that in the past, such
postings have been made following seniority of willing candidates
accepting the recommendation made in that behalf by the Director
concerned. In support of the above, learned counsel for the
petitioner would refer me to Exts. P11 to P15, documents obtained
by invoking the provisions of the Right to Information Act.
6. In the counter affidavit has been filed by the first
respondent, it is conceded that all the applicants were eligible for
posting as Superintendents. It is stated that the first respondent,
after carefully considering the willingness expressed by the
Professors, appointed the third respondent, giving due regard to his
efficiency and skills. It is also stated that seniority is not the
criterion for posting as Superintendent and that the Government
have examined the records and assessed the ability of the persons
who had expressed their willingness to be posted as Superintendent.
Yet another reason stated is that third respondent is having service
of more than five years and continuity of service is one of the
criterion that weighed with the Government. Proceeding further it is
stated that the second respondent has sent Ext. P9
recommendation without considering Ext.P5 Special Rules and
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that any recommendation of the Director is not contemplated by the
Special Rules. It is also the case of the first respondent that first
respondent is not bound to act on the recommendation which has
been made without assessing the comparative merit and ability of
the persons eligible to be posted as Superintendent. It is on these
reasons that the first respondent is seeking to justify Ext. P10 order
posting the third respondent as Superintendent.
7. Third respondent has also filed counter affidavit seeking to
sustain Ext P10 and supporting the stand taken by the first
respondent in its counter affidavit.
8. Learned Government Pleader and the counsel for the third
respondent would contend for the position that it is not seniority
which is relevant in the posting as Superintendents but it is the
ability and competence of the person concerned which is relevant.
Although it is not raised in the counter affidavit, it is also contended
that going by Rule 60 (a) of Part I K.S.R the petitioner had attained
the age of superannuation on 31.08.2008, but is continuing in
service till the end of the academic year on the strength of Rule 60
(c). It is stated that such continuance only entitles her to continue
as Professor in the teaching faculty and not for anything further. In
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effect, what is argued is that the post is a selection post and that
during the period subsequent to 31.08.2008 the petitioner cannot
aspire to be posted as Superintendent of the hospital and should
give way for her junior.
9. I shall first deal with the contention relying on Rule 60 (a)
and (c), Part I, K.S.R. In so far as the plea now raised relying on
Rule 60 (c) of Part I K.S.R is concerned, I should confess my inability
to accept the same for more reasons than one. As rightly pointed
out by the counsel for the respondents, as per the Special Rules
posting as Superintendent is not a case of promotion. However, so
long as the petitioner continues as Professor, whether it be on the
strength of Rule 60 (c) or otherwise, in my view, except those
benefits which are expressly denied to her by terms of the Rules
itself, she is entitled to all other benefits. If that be so, I cannot find
anything in the Rule denying the benefit of posting as
Superintendent.
10. That apart, it is also to be noted that Ext. P10 order by
which the third respondent was posted as Superintendent, was
issued on 20.06.2008 which is much prior to 31.08.2008, the date
on which the petitioner had attained the age of superannuation going
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by Rule 60(a). This court is examining the correctness of Ext. P10
and therefore the eligibility of the petitioner and third respondent is
required to be assessed as on the date of Ext. P10, viz.,20.06.2008.
If that be so, the argument now raised relying on Rule 60(c), which is
also not raised in the counter affidavits filed by respondents 1 and
3, is devoid of any substance.
11. Now what remains is whether seniority of the Professors
has to be accepted as the basis for posting. A reading of the Special
Rules would show that apart from stating that posting is to be made
from among willing Professors, there is no indication in the Special
Rules with regard to the process to be adopted in choosing and
posting one among the willing Professors. In such a case, I feel,
what is relevant to be examined is the yardstick that has been
adopted by the first respondent in the past when the post was filled
up on different occasion. This is seen disclosed to the petitioner as
per Exts. P11 to P15 which have been produced along with the reply
affidavit filed by the petitioner.
12. Ext. P11 is a query raised by the petitioner in which she
has raised a specific question as to whether on earlier occasions
when Superintendents were posted, seniority of the willing
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Professors has been overlooked. This has been answered by the
Public Information Officer, Directorate of Ayurveda Medical
Education by his reply dated 21.08.2008 in Ext. P11, stating that-
13. Ext. P12 is a letter dated 24.09.1999 from the Principal of
Government Ayurveda College, Thiruvananthapuram addressed to
the first respondent, in which, in so far as the posting of
Superintendent is concerned, the following recommendation is
made.
“Superintendents:
As per guidelines Para No.13 willingness from the
Professors of Clinical Department may be considered for the
posting of Superintendent in the Collegiate Hospital.
Dr P.S. Syamalakumari, Professor of Kayachikitsa and Dr
K. Krishnankutty Nair, Professor of Agadathanthra have
submitted their willingness for the post of Superintendent,
Ayurveda College Hospital, Trivandrum. Among them Dr P.S.
Syamalakumari is the senior hand. Hence Dr P.S.
Syamalakumari, Professor of Kayachikitsa, Government
Ayurveda College, Trivandrum may be appointed as the
Superintendent of Government Ayurveda College, Trivandrum.”
It is revealed from the Government order dated 17.11.1999 that
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accepting the above recommendation Dr P.S. Syamalakumari was
posted as Superintendent of Government Ayurveda College Hospital,
Thiruvananthapuram.
14. Similarly, Ext. P13 is yet another recommendation of the
Principal of the College recommending that the duties of the
Superintendent, Ayurveda College, Tripunithura be entrusted to the
seniormost Professor working in that hospital. It is stated that Dr C.
Retnakaran is the seniormost Professor working in the Government
Ayurveda College hospital, Tripunithura and that he be appointed as
Superintendent. This recommendation was accepted and by G.O
dated 17.01.2001, Sri C. Retnakaran, the seniormost Professor, has
been posted as Superintendent of Government Ayurveda College
hospital, Tripunithura.
15. Similar recommendation has been made in Ext. P14 dated
18.05.2001, recommending that M.R. Vasudevan Nair, the
seniormost among the Professors in the Ayurveda College hospital,
Thiruvananthapuram be posted as Superintendent of that hospital.
That was also accepted and as per G.O dated 27.06.2001 posting
has been effected.
16. From these documents, it is therefore evident that the
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consistent practice hitherto followed was based on the
recommendation made by the Principal/Director Government has
been making postings of Superintendent and that too following the
seniority of the Professors who have expressed their willingness to
be posted. In the counter affidavit filed by the first respondent,
there is absolutely no justification offered for departing from this
settled precedent that has been followed for several years. The
contention that Rules do not contemplate a recommendation from
the second respondent and that the posting is based on selection,
are all against facts as disclosed above. The remaining length of
service of the third respondent, is also not seen taken as a criterion
in the past and is now adopted only to justify Ext.P10. In this context,
it also needs to be noticed that there is no case in the counter
affidavit of the first respondent that the petitioner is unsuitable to be
posted as Superintendent of the hospital. In view of all these, in my
view, seniority has to be the basis and if so, Ext. P10 order posting
the third respondent cannot be sustained.
17. For these reasons, I quash Ext. P10 and direct that the
petitioner shall be posted as Superintendent of Government
Ayurveda College hospital, Thiruvananthapuram as expeditiously as
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possible, at any rate within two weeks from the date of production of
a copy of this judgment.
The writ petition is allowed as above.
Sd/-
ANTONY DOMINIC
Judge
18/09/2008
en
[true copy]
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Appendix
Petitioner’s exhibits:
Ext.P1 – True copy of the third page of her S.S.L.C Book
Ext.P2 – True copy of combined seniority list of teaching staff of
Govt Ayurveda Colleges, the Thiruvananthapuram, Tripunithura and
Kannur on 1.1.1998
Ext.P3 – True copy of order promoting petitioner and others tothe
post of Professor dated 18.12.2001
Ext.P4 – True copy of order appointing the third respondent dated
26.10.2005
Ext.P5 – True copy of Special Rules for the Kerala State Ayurveda
Medical Education (Teaching) Services dated 4.8.2007
Ext.P6 – True copy of Circular dated 22.04.2008
Ext.P7 – True copy of order dated 28.4.2008
Ext.P8 – True copy of order dated 22.5.2008
Ext.P9 – True copy of letter dated 2.6.2008 forwarded from the office
of the second respondent.
Ext.P10 – True copy of order dated 20.06.2008 forwarded from the
office of the second respondent.
Ext.P11 – True copy of the letter and the information received from
the Ayurvedic Education Department
Ext.P12 – True copy of letter and the information received from the
Ayurvedic Education Department
Ext.P13 – True copy of recommendation of principal dated
24.09.1999 and the appointment made by the first respondent on
17.11.1999
Ext.P14 – True copy of the letter seeking the ratification of Govt in
posting seniormost professor as Superintendent by the Director
dated 18.5.2001 and the ratification order issued by the first
respondent on 27.6.2001
Ext.P15- True copy of recommendation of Director dated 30.5.2005
and the appointment made by the first respondent on 20.09.2005
Ext.P16 – True copy of order dated 31.5.2008 issued by the first
respondent.
Respondent's exhibis: Nil
[true copy]
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