Kerala High Court
The Director Of Medical Education vs Dr.L.Sudha on 15 December, 2008
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY,THE 21ST DAY OF MARCH 2014/30TH PHALGUNA, 1935
WA.No. 2452 of 2009 ( )
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(AGAINST THE JUDGMENT IN OP.NO. 26977/2000 DATED 15-12-2008)
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APPELLANT(S)/RESPONDENTS 1 TO 3 IN THE OP:
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1. THE DIRECTOR OF MEDICAL EDUCATION,
KERALA STATE, TRIVANDRUM.
2. THE GOVERNMENT OF KERALA, REP. BY
ITS CHIEF SECRETARY, SECRETARIAT,TRIVANDRUM.
3. THE CONVENOR, DEPARTMENTAL PROMOTION
COMMITTEE (HIGHER) FOR DENTAL COLLEGES,
HEALTH AND FAMILY WELFARE DEPARTMENT,
SECRETARIAT,TRIVANDRUM.
BY SR GOVERNMENT PLEADER SRI.VIJU THOMAS
RESPONDENT(S)/PETITIONER & RESPONDENTS 4 & 5 IN THE O.P :
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1. DR.L.SUDHA, ASST. PROFESSOR,
ORAL & MAXILLOFACIAL SURGERY,DENTAL COLLEGE,
TRIVANDRUM.
2. DR.C.R.GEETHA, NOW ASSOCIATE PROFESSOR,
ORAL & MAXILLOFACIAL SURGERY,DENTAL COLLEGE,
TRIVANDRUM.
3. DR.K.GEORGE VARGHESE, NOW ASSOCIATE PROFESSOR,
ORAL & MAXILLOFACIAL SURGERY,
DENTAL COLLEGE, KOTTAYAM.
R1 BY ADV. SRI.PREMJIT NAGENDRAN
R3 BY ADV. SRI.K.JAGADEESACHANDRAN NAIR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD
ON 21-03-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
THOTTATHIL B.RADHAKRISHNAN
& A.MUHAMED MUSTAQUE, JJ.
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W.A.No.2452 of 2009
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Dated this the 21st day of March, 2014
J U D G M E N T
Thottathil B.Radhakrishnan, J.
Heard.
2. This writ appeal by the Government of Kerala is against the judgment of the learned single Judge directing the Departmental Promotion Committee to review Ext.P10 select list for promotion in the Department of Dentistry. Exts.P12 and P17 promotions are also ordered to be reviewed.
3. While the thrust of consideration at the hands of the learned single Judge appears to be as to whether the writ petitioner was entitled to have her experience at the A.B.Shetty Memorial Institute of Dental Sciences, Mangalore counted as experience for the purpose of promotion, in our view, the crucial issue appears to be different even if experience in another institution could be counted as noticed by the learned single Judge. The fact of the matter remains that the petitioner had availed leave without allowance from the State Government service to take up employment at the A.B.Shetty Memorial Institute of Dental Sciences, Mangalore. Initially, that W.A.No.2452/2009 -:2:- was for a period of three years; that was again extended for a further period of three years and again for a still further period of three years i.e. upto 15/03/1999. The leave so availed are referable only to Appendix XIIA of Part-I Kerala Service Rules which provides rules for the grant of leave without allowances for taking up employment abroad or within India. One of the terms of such leave is that the Officers, for, and during the currency of, the period of leave, shall lose all service benefits formulated in Rule 4 of those rules, and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. The vacancies to which promotions have now been made are against vacancies which arose while the petitioner was enjoying leave without allowances in terms of Appendix-XIIA. This means that she could never have brought this in the zone of consideration, whatever be the quality and length of experience gained by her, while working in the A.B.Shetty Memorial Institute of Dental Sciences, Mangalore. The date of occurrence of vacancy is cardinal since the method of appointment is by promotion. Departmental Promotion Committee should not have considered the petitioner for vacancy that arose when she was not in service, but employed elsewhere, in terms of W.A.No.2452/2009 -:3:- Appendix-XIIA of Part-I, Kerala Service Rules. For these reasons, the judgment of the learned single Judge is not sustainable. This appeal, therefore, succeeds.
In the result, this appeal is allowed. The impugned judgment is vacated and the writ petition is dismissed. No costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN, JUDGE Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms