Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 79 (KER)

K. I. MUTHUKOYA v. COCHIN PORT TRUST

2017-01-11

P.V.ASHA

body2017
JUDGMENT : The grievance of the petitioner is against Ext.P6 order by which ad hoc promotion was granted to the 5th respondent as Deputy Chief Medical Officer (GD) simultaneously posting the additional 6th respondent who was working as Deputy Chief Medical Officer (GD) as Deputy Chief Medical Officer (Specialist). 2. The petitioner is a Senior Medical Officer (Specialist), and rank no. 1 in that category, as seen from Ext.P13 seniority list. He joined as an Assistant Medical Officer on 27.08.1991 under the first respondent. He acquired Post Graduate Diploma in Public Health in the year 2005. He was promoted as Senior Medical Officer (General Duty) on 18.04.2011. Thereafter, he was promoted as Senior Medical Officer (Specialist) as per Ext.P3 order dated 12.09.2013. 3. The 5th respondent joined as Assistant Medical Officer under the 1st respondent on 08.03.1999. She was thereafter promoted as Senior Medical Officer (GD) as on 12.09.2013, i.e. on the same day when petitioner was promoted as Senior Medical Officer (Specialist). 4. The next promotion from the post of Senior Medical Officer (Specialist) is to that of Deputy Chief Medical Officer (Specialist). The promotions are governed by Ext.P9 Recruitment Rules. Deputy Chief Medical Officer (Specialist) comes under serial No.3 (b), at the same time, the Deputy CMO (GD) is coming under serial No.3(a). Both are selection posts. The method of appointment to the post of Deputy CMO (Specialist) and Deputy CMO (General Duty) is as follows: Dy.Chief Medical Officer (Specialist) Selection Essential:- (i) MBBS degree from a recognized university (ii) A post graduate medical degree in the specified speciality form a recognized university (iii) Post qualification experience of 7 years in a reputed hospital, in the relevant fied of specialization By promotion failing which by absorption/ deputation , failing both by direct recruitment Promotion from Senior Medical Officer (Specialist) in the scale of pay of Rs.10750- 16750 with 4 years regular service in the grade failing which Senior Medical Officer (General duty) with post graduate qualification in the relevant filed and 4 years regular service in the grade. Absorption/deputation will be of officers holding analogous posts or holding the post of Senior Medical Officer (Specialist) in the scale of pay of Rs.10750-16750 with 4 years regular service in the grade in a Major Port Trust. Absorption/deputation will be of officers holding analogous posts or holding the post of Senior Medical Officer (Specialist) in the scale of pay of Rs.10750-16750 with 4 years regular service in the grade in a Major Port Trust. Dy.Chief Medical Officer (General duty) Selection Essential:- (i) MBBS degree from a recognized university or for Dy.Chief Medical Officer (Dental), BDS degree of a recognized university. (ii) 9 years experience in a hospital, after completion of internship of one year. Desirable:- A post graduate medical degree from a recognized university. By promotion failing which by absorption/deputation, failing both by direct recruitment Promotion from Senior Medical Officer (G.D) in the scale of pay of Rs.10750-16750 with 4 years regular service in the grade failing which Senior Medical Officer (G.D) with 2 years regular service in the scale of pay of Rs.10750-16750 with post and combined regular service of 9 years in the scale of pay of Rs.9100-15100 and 10750-16750. Absorption/deputation will be of officers holding analogous posts or feeder post with 4 years experience in the grade in a Major Port Trust. 5. Therefore the petitioner's case is that being the Senior Medical Officer (Specialist) he was entitled to be considered and promoted against the vacancy of Deputy CMO (Specialist) which was lying vacant. Since the scale of pay of Senior Medical Officer (General Duty) as well as the Senior Medical Officer (Specialist) are one and the same, according to him he has got 4 years regular service in that grade. But without considering his claim, the first respondent issued Ext.P6 order granting ad hoc promotion to the 5th respondent as Deputy CMO (GD) and for that purpose shifted of Dr.Roy Thomas, the regular incumbent in that post, against the vacant post of Deputy CMO (Specialist). Petitioner points out that the 5th respondent is not having any post graduate qualification and hence she is not qualified for promotion as Deputy CMO (Specialist) and therefore the vacancy existing in that post is filled up by shifting the 6th respondent. The petitioner submits that on account of this illegality, his promotion chances are permanently blocked. Under these circumstances, he filed this writ petition. 6. The petitioner submits that on account of this illegality, his promotion chances are permanently blocked. Under these circumstances, he filed this writ petition. 6. According to respondents 1 to 4, appointment to the post of Deputy CMO (GD) is to be made by selection from among Senior Medical Officer (GD), in accordance with Ext.P9 recruitment rules i.e., on the basis of assessment of suitability from among candidates available in the zone of consideration by virtue of seniority. According to them, the Departmental Promotion Committee considered the Medical Officers in the zone of consideration for promotion to the post of Deputy CMO (GD) including the petitioner as well as the 5th respondent. According to them, as per the orders in force on promotion to selection posts and on Annual Performance Appraisal Report, promotions are made on the basis of the grading given in the confidential reports. It is stated that the remarks with respect to the 5th respondent in her confidential reports were 'very good' and 'excellent' over the last 5 years whereas the remarks in respect of petitioner were only 'good'. Accordingly, it is stated that considering the experience in treating patients also, the 5th respondent who was having the total grading higher than all the other candidates was found suitable for promotion to a senior level post like Deputy CMO. The 5th respondent was having a score of 38 whereas the petitioner was given the score of 29 only. In paragraph 12, it is stated that promotion to the post of CMO General Duty has been made in terms of as per the recommendations given by the Ministry in Ext.R1(a) letter dated 06.02.2004, which provides for appointments in specialist posts from among Medical Officers possessing requisite qualifications and experience irrespective of their seniority. It is further stated that ad hoc appointments can be made in cases of necessity and such appointment is only for a period not exceeding one year or till a new panel is recommended. According to them, the Department Promotion Committee recommended to grant ad hoc promotion to the most efficient and suitable officer subject to fulfilling qualification, experience and grading in CR for the preceding 5 years. Accordingly the promotion granted to the 5th respondent was in accordance with law. However, nothing is stated regarding the posting of Dr.Roy Thomas, who was working as Deputy CMO (GD), as Deputy CMO (Specialist). 7. Accordingly the promotion granted to the 5th respondent was in accordance with law. However, nothing is stated regarding the posting of Dr.Roy Thomas, who was working as Deputy CMO (GD), as Deputy CMO (Specialist). 7. The 5th respondent has filed a counter affidavit stating that she was entrusted additional administrative functions of Deputy CMO ever since she took charge as Senior Medical Officer, in the year 2013. She has produced the documents relating to the entrustment of additional charge to her as per Exts.R5(a) and (b). She has produced the certificate of commendation received from the first respondent towards her outstanding performance in discharge of official duties. It is her further case that the post of Chief Medical Officer which is the Head of Department has been lying vacant in the Medical Department of Port and there was nobody to apply for the post, though it was notified twice. Similarly, the post of 2 Senior Deputy CMO posts were also lying vacant, one Specialist and one General Duty for want of eligible qualified hands. Similarly there was one post of Deputy CMO (GD) and one post of Deputy CMO (Specialist). According to the 5th respondent, she was fully qualified for promotion as Deputy CMO (GD) which is a selection post and on the basis of gradings given to her she is fully qualified and there is nothing wrong with her promotion as per Ext.P6. 8. Petitioner has filed a reply affidavit disputing the contentions raised by the respondents. According to the petitioner, he was graded with good and very good for the preceding 5 years and all the years throughout. 9. Heard the learned counsel for the petitioner, the learned Standing Counsel and the learned counsel for the 5th respondent. Even though notice is seen served on the additional 6th respondent, there is no appearance for the 6th respondent. 10. The grievance of the petitioner is against the filling up of vacancy of the Deputy CMO (Specialist) by shifting the additional 6th respondent, from the post of Deputy CMO (General Duty) whereby his promotion chances are deprived of permanently. 11. According to the counter affidavit, the petitioner as well as the 5th respondent and several other officers were considered for promotion to the posts of Deputy CMO (GD) and on basis of the grading 5th respondent was granted promotion. 11. According to the counter affidavit, the petitioner as well as the 5th respondent and several other officers were considered for promotion to the posts of Deputy CMO (GD) and on basis of the grading 5th respondent was granted promotion. But grievance of the petitioner is not directly against the promotion made to the post of Deputy CMO (GD). On the other hand it is against the filling up of the vacancy of Deputy CMO (Specialist). As per the Cochin Port Trust Recruitment Seniority and Promotion Regulations, 2010, relevant portion of which is produced as Ext P9, the method of appointment to the category of Deputy CMO (Specialist) is by promotion failing which by absorption/deputation failing which by direct recruitment. In this case the additional 6th respondent has been posted against the vacancy of Deputy CMO (Specialist) in order to create a vacancy in the post of Deputy CMO (General Duty) for granting promotion to the 5th respondent. The counter affidavit is silent about the filling up of the vacancy of Deputy CMO(Specialist) by posting the additional 6th respondent. Being the senior most Senior Medical Officer (Specialist) with post Graduate Qualification, he was entitled to be considered for promotion to the post. But the respondents did not consider him for promotion and did not take any action to fill up the vacancy in accordance with the recruitment rules. Thus he was unlawfully deprived of his legitimate opportunity for promotion in accordance with Ext P9 rules, on account of the shifting of Additional 6th respondent from the post of Deputy CMO(General Duty) to the vacant post of Deputy CMO(Specialist). As per Ext P9 recruitment Rules, the method of appointment prescribed for the post of Deputy CMO(Specialist) which is sl.no.3(b), is by promotion of Senior Medical Officer (Specialist) in the scale of pay of Rs.10750-16750 "with 4 years of regular service in the grade", failing which from Senior Medical Officer (General Duty) with Post Graduate qualification in the relevant field and 4 years regular service in the grade. As far as the petitioner is concerned, he was in the grade of Rs.10750-16750, which is the scale of pay of Senior Medical Officer (General Duty) ever since 18.4.2011, on his promotion as Senior Medical Officer and he is having Post Graduate qualification. As far as the petitioner is concerned, he was in the grade of Rs.10750-16750, which is the scale of pay of Senior Medical Officer (General Duty) ever since 18.4.2011, on his promotion as Senior Medical Officer and he is having Post Graduate qualification. Hence he was fully qualified for promotion to the said post, at the time when the DPC met and ad hoc promotion was made. At any rate there is no provision for filling up the vacancy by posting the Deputy CMO(General Duty). Therefore it is clear that the vacancy of Deputy CMO (Specialist) is filled contrary to the recruitment rule Ext P9. It is also evident that the additional 6th respondent was shifted to the vacant post of Deputy CMO (Specialist) in order to create a vacancy of Deputy CMO (General Duty). Therefore the DPC did not consider the case of the Medical Officers for appointment to the post of Deputy CMO (Specialist). 12. Even though, the respondents have relied on Ext R1 (a) letter dated 6/2/2004 asserting that promotions of Medial Officers in the General Duty can be made on the basis of inter- se seniority of all officers irrespective of their qualifications and that posts in Specialist categories can be filled up by medical Officers with requisite qualification and experience, no provision is pointed out which allows shifting or interchange of posts for filling up the vacancies in Specialist categories. If at all the vacancy was kept unfilled all these years for want of qualified hands, there was no reason for resorting to direct recruitment. Ext.R1(a) letter issued in the year 2004 cannot have any application when the field is occupied by the recruitment rule Ext.P9. Therefore, in the absence of any provision in the recruitment rules for filling up the vacancy of Deputy CMO (Specialist) by posting the Deputy CMO (General Duty), the posting given to the additional 6th respondent as per Ext.P6 is unsustainable. Under the above circumstances, even though the 5th respondent is found to have superior grading and qualification as stated in the counter affidavit, her appointment, which was after creating the vacancy by way of an illegal shifting of the additional 6th respondent, also becomes unsustainable. Hence I quash Ext.P6. Respondents are free to fill up the vacancy of Deputy CMO (Specialist) in accordance with Ext.P9 recruitment rules to the extent indicated above. The writ petition is allowed.