Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 31ST DAY OF JULY 2023 / 9TH SRAVANA, 1945 OP(KAT) NO. 387 OF 2022 AGAINST THE ORDER/JUDGMENTOA 1314/2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONER/S: 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, STATUE, THIRUVANANTHAPURAM, PIN - 695001 2 THE DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE P.O,THIRUVANANTHAPURAM, PIN - 695011 BY ADV GOVERNMENT PLEADER RESPONDENT/S:
1 DR.CHANCY.U AGED 35 YEARS, W/O KALESH DIVAKAR, THOPPIL VEEDU, THAZHAMEL, ANCHAL, KOLLAM, , PRESENTLY RESIDING AT EG29, MANKAVIL, ELITE GARDENS, PONGUMMOODU, THIRUVANANTHAPURAM, WORKING AS ASSISTANT PROFESSOR, DEPARTMENT OF COMMUNITY DENTISTRY, GOVERNMENT DENTAL COLLEGE, VANDANAM, ALAP[PUZHA,, PIN - 2 DR. SMITHA LECTURER, DEPARTMENT OF PROSTHODONTICS, GOVERNMENT DENTAL COLLEGE, THIRUVANANTHAPURAM, PIN - 695011 BY ADVS. G.SIVASANKAR P.NANDAKUMAR UTHARA A.S C.UNNIKRISHNAN (KOLLAM)(K/864/1994) ANANDA PADMANABHAN(K/597/2017) VIVEK NAIR P.(K/1216/2021) VIJAYKRISHNAN S. MENON(K/001627/2019) SRI. SAIGI JACOB PALATTY-SR. GP
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 31.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ALEXANDER THOMAS & C. JAYACHANDRAN, JJ. ================== OP(KAT) No.387/2022 (Arising out of the order dated 27.08.2019 in OA No.1314/2019 of the KAT, Thiruvananthapuram) ================== Dated this the 31st day of July, 2023
JUDGMENT
ALEXANDER THOMAS, J This Original Petition is directed against the impugned Ext.P8 final order rendered on 27.08.2019 by the Kerala Administrative Tribunal, Thiruvananthapuram Bench in OA No.1314/2019. The petitioners herein are respondents 1 & 2 in the OA. R1 herein is the Original Applicant and R2 herein is R3 in the OA.
2. Heard Sri.Saigi Jacob Palatty, learned Senior Government
Pleader appearing for the petitioners, Sri. C.Unnikrishnan, learned Counsel appearing for R1 herein and Sri.P.Nandakumar, learned Counsel appearing for R2 herein.
3. The prayers in the instant Ext.P1 Original Application, OA No.1314/2019 are as follows:
“(i) To stay the operation and implementation of Annexure A2 and A3 orders to the extent it affects the applicant, till the disposal of the OA and permit her to continue in the present station at Government Dental College Thiruvnanthapuram, until further orders.
(ii) Even if at the time of filing the OA, the applicant is technically relieved, even then to retain her in the present station as Assistant Professor in Community Dentistry at Government OP(KAT) No.387/2022 - : 2 :- Dental College Thiruvananthapuram, until further orders.
(iii) Such other orders this Tribunal deems fit and proper in the facts and circumstances of the case.”
4. We are now told that the original applicant had already
challenged the very same verdict of the Tribunal at Ext.P8 herein by filing OP(KAT) No.406/2019 and the Division Bench of this Court has rendered judgment dated 30.10.2019 disposing of the said OP holding that there are no grounds to interfere with the well reasoned orders of the Tribunal and that consequently, the Original Petition is dismissed. Various other findings and observations have been made by the Division Bench in the judgment in OP(KAT) No.406/2019 filed at the instance of the Original Applicant herein/R1 herein. We suggested to both sides, that in view of the said judgment in OP(KAT) No.406/2019, nothing may survive in this matter and the present OP can be closed in the light of the judgment of the Division Bench of this Court in OP(KAT) No.406/2019. No one appeared to have any serious objection to the said suggestion made by this Court. Even otherwise, on merits we are convinced that the said course of action would be the proper option. Accordingly, it is ordered that the findings and observations made by this Court in the judgment dated 30.10.2019 in OP(KAT) No.406/2019 will regulate this case as well. For the purpose OP(KAT) No.387/2022
- : 3 :-
of clarity it is ordered that the Registry will attach a copy of judgment
dated 30.10.2019 rendered by the Division Bench of this Court in OP(KAT) No. 406/2019 as a separate Annexure to this judgment. No other orders and directions are called for. With these observations and directions, the above Original Petition will stand disposed of. sd/- ALEXANDER THOMAS, JUDGE sd/- C. JAYACHANDRAN, JUDGE Nsd
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, OP(KAT).No.406 OF 2019 AGAINST THE ORDER IN OA 1314/2019 DATED 27-08-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONER/S:
DR.CHANCY U AGED 35 YEARS W/O. KALESH DIVAKAR, THOPPIL VEEDU, THAZHAMEL, ANCHAL, KOLLAM - 691306. (PRESENTLY RESIDING AT EG29, MANKAVIL, ELITE GARDENS, PONGUMMOODU, THIRUVANANTHAPURAM - 695 011), WORKING AS ASSISTANT PROFESSOR, DEPARTMENT OF COMMUNITY DENTISTRY, GOVERNMENT DENTAL COLLEGE, THIRUVANANTHAPURAM - 695011), WORKING AS ASSISTANT PROFESSOR, DEPARTMENT OF COMMUNITY DENTISTRY, GOVERNMENT DENTAL COLLEGE, THIRUVANANTHAPURAM - 695011, (UPON ORDERS OF TRANSFER TO GOVERNMENT DENTAL COLLEGE, VANDANAM), ALAPPUZHA, KERALA - 688 005. BY ADV. SRI.M.S.RADHAKRISHNAN NAIR
RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, STATUE, THIRUVANANTHAPURAM, KERALA - 695 001. 2 THE DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE P. O., THIRUVANANTHAPURAM, KERALA - 695 011.
3 DR. SMITHA LECTURER, GOVERNMENT DENTAL COLLEGE, THIRUVANANTHAPURAM - 695 011, (UPON ORDERS OF APPOINTMENT AS LECTURER IN PROSTHODONTICS BY SHIFTING THE POST OF ASSISTANT PROFESSOR IN COMMUNITY DENTISTRY, GOVERNMENT DENTAL COLLEGE, THIRUVANANTHAPURAM - 695 011, KERALA . R1-2 BY GOVERNMENT PLEADER R3 BY ADV. SRI.P.NANDAKUMAR R3 BY ADV. SRI.S.ANEESH R3 BY ADV. SMT.AMRUTHA SANJEEV
OTHER PRESENT: SR.GP SRI.ANTONY MUKKATH THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 30.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
V.G.ARUN, J.
The petitioner was the applicant before the Kerala Administrative Tribunal in O.A.No.1314 of 2019. She has filed this original petition, aggrieved by the dismissal of her original application by Ext.P5 order. The following is a brief narration of the facts in the original application:- The applicant had entered service under the Directorate
of Medical Education as Assistant Professor in Community Dentistry on 1.3.2018. Her initial appointment was at the Government Dental College, Alappuzha. After joining at Alappuzha, the applicant requested for transfer to the Government Dental College, Thiruvananthapuram, where a vacancy existed in the post of Lecturer in Community Dentistry. The applicant's request was accepted and she was
transferred to Thiruvananthapuram under Annexure A1 order
dated 18.8.2018. The third respondent was appointed as Lecturer in Community Dentistry on 31.03.2010 at the Government Dental College, Thiruvananthapuram. After joining service, the third respondent acquired Post Graduate
qualification in Prosthodontics. By Annexure R3(a) dated 30.3.2017, the Government accorded sanction for appointment of 17 Lecturers in the Government
Medical/Dental Colleges, as Assistant Professors in those Departments in which they had acquired Post Graduation. Based on the order, the third respondent was posted as Assistant Professor in the Department of Prosthodontics at the
Government Dental College, Kottayam. Annexure R3(a) order
was challenged by the candidates included in the rank list of Assistant Professors in Dentistry published by the Public Service Commission. The challenge was necessitated since the appointments of the third respondent and similarly situated Lecturers, as Assistant Professors, based on the subject in which they had acquired Post Graduation, would adversely affect the chance of appointment of the rank listed
candidates. The main ground of challenge was that on acquisition of Post Graduate Degree, the Lecturers in Community Dentistry and other disciplines could be re- designated and posted as Assistant Professors only in their parent Departments. It was contended that the vacancies reported to the PSC cannot be filled up by any method other than appointment of rank listed candidates. The challenge before the Kerala Administrative Tribunal in O.A.No.856 of
2017 and connected cases was successful. The Tribunal held
that the 17 Lecturers posted as Assistant Professors in various Departments based on their Post Graduate qualification were liable to be reverted as Lecturers and posted in their parent department. The order of the Tribunal was challenged by the third respondent and others in O.P.(KAT) No.115 of 2018 and
connected cases. By Annexure 5 Judgment, the original petitions were dismissed, subject to the modification with respect to the direction for immediate reversion of the Lecturers to the parent Departments. It was directed that the Lecturers should be allowed to continue in the present post till they are substituted by appointees from a duly drawn PSC list. It was also made clear that Annexure A5 judgment will not stand in the way of the Government from creating supernumerary posts to accommodate the Lecturers, without affecting the prospects of the PSC hands.
2. In view of the filing of the original applications before the Tribunal by the rank listed candidates, the post of Lecturer in Community Dentistry at the Government Dental College, Thiruvananathapuram, from which the third
respondent was transferred and posted as Assistant Professor, Prosthodontics at the Government Dental College, Kottayam, was kept vacant, awaiting the outcome of the cases. In the event of the Tribunal allowing the original applications and setting aside Annexure A3, the third respondent was to be reverted to the post of Lecturer at Thiruvananthapuram. It was to this vacant post of Lecturer that the applicant requested for transfer, which was allowed as per Annexure A1. Consequently, the applicant, though an Assistant Professor,
was accommodated in the post of Lecturer at
Thiruvananthapuram. Pursuant to the order of the Tribunal, as affirmed by this Court under Annexure A5 judgment, the third respondent had to be reverted to the post of Lecturer in Community Dentistry at Thiruvananthapuram, for which purpose, the applicant, who was accommodated in that post, had to be sent back to Alappuzha. It was in such circumstances
that Annexure A2 order of transfer was issued. Thereafter, the Government, as per Annexure A3, directed to transfer the posts of Lecturer in the Department of Community Dentistry at Thiruvananthapuram and Kozhikode Government Dental Colleges to the Department of Prosthodontics and to appoint the third respondent and one Doctor Shony. S. Mohan in those shifted posts. The applicant approached the Tribunal aggrieved by her transfer and the shifting of the post of Lecturer in Community Dentistry to the Department of Prosthodontics.
3. In the original application, the applicant had sought the following reliefs:- “1. To quash Annexure A7.
2. Direct the respondents to issue orders granting pension to the applicant.
3. To grant such other relief as this Honourable Tribunal may deem fit to grant in the circumstances of the case.
4. To award to the applicant cost of this proceedings.”
4. The respondents countered the contentions in the
original application on the ground that the applicant, who is an Assistant Professor in Community Dentistry, is in no way affected by the shifting of the post of Lecturer in Community Dentistry to the Department of Prosthodontics. It was contended that the post of Lecturer at the Government Dental College, Thiruvananthapuram was kept vacant, awaiting the result of the original applications pending before the Tribunal
and that it was on her request, that the applicant was temporarily accommodated to that vacant post. It was hence contended that the applicant had no vested right to continue in the post of Lecturer and that her transfer was only in implementation of the direction of the Tribunal and this Court to revert the third respondent and other Lecturers to their
parent Departments. The official respondents further contended that shifting of posts and creation of supernumerary posts are the prerogative of the Government in exercise of its administrative powers and that the applicant cannot have any say in the matter.
5. The contentions of the respondents found favour with the Tribunal. In Ext.P5 judgment it was held that the transfer of the applicant was the consequence of Annexure A5
judgment and that the applicant, who is an Assistant Professor
in Community Dentistry cannot have any grievance against the shifting of the post of Lecturer in that Department. The Tribunal found that the question as to whether the shifting of posts would come within the ambit of the modification in Annexure A5 judgment or whether the action falls within the inherent power of the Government are pending adjudication in O.A.Nos.722 & 1358 of 2019 and hence, those question were left open. The challenge against Annexures A2 and A3 was therefore repelled. The Tribunal made it clear that
rejection of the challenge against Annexures A2 and A3 will not stand in the way of the second respondent considering the request of the applicant for a posting at Thiruvananthapuram on compassionate grounds.
6. In this original petition the contentions raised
before the Tribunal are reiterated. The learned counsel for the petitioner contended that the shifting of the post of Lecturer in Community Dentistry to the Department of Prosthodontics and appointment of the third respondent in the shifted post is with the deliberate intention of circumventing the directions contained in the common order of the Tribunal, as affirmed by
Annexure A5 judgment. It is contended that the third respondent ought to have been reverted and posted at the Government Dental College, Kottayam, where he was working and not at Thiruvananthapuram. That, if such course of action was followed, the petitioner could have continued at Thiruvananthapuram.
7. The learned Government Pleader and the learned
Counsel for the third respondent refuted the contentions and submitted that the petitioner had no right to continue in the post of Lecturer in Community Dentistry and that it was the absolute prerogative of the Government to take decisions regarding shifting of posts and creation of supernumerary posts.
8. We are unable to accept the contentions urged on behalf of the petitioner. It is an undisputed fact that the petitioner, an Assistant Professor, was accommodated in the
post of Lecturer in Community Dentistry at Thiruvananthapuram, in the vacancy that was kept unfilled consequent to the posting of the third respondent as Assistant Professor at Kottayam. It cannot also be disputed that the third respondent was liable to be reverted as Lecturer
pursuant to the order of the Tribunal in O.A.No.115 of 2018 and connected cases, as affirmed by Annexure 5 judgment. Such reversion could only be to the post of Lecturer in the parent Department of the third respondent, namely the Department of Communal Dentistry at Thiruvananthapuram. On such reversion, the petitioner, who was occupying the post, was liable to be transferred. The cause of action, if any, for the petitioner is confined to her transfer and it is not for the petitioner to question the action of the Government in having shifted the post of Lecturer in Community Dentistry to the Department of Prosthodontics and the posting of the third respondent to that shifted post. Even otherwise, as rightly
held by the Tribunal, the decision regarding shifting of posts
and creation of supernumerary posts are matters within the administrative domain of the Government. Moreover, the legality of the decision to shift the post is pending consideration in other original applications. In such circumstances, we find no reason to interfere with the well reasoned order of the Tribunal. Consequently, the original petition is dismissed. No order as to costs. Sd/- K.VINOD CHANDRAN JUDGE Sd/- V.G.ARUN JUDGE Scl/30.10 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE O.A.NO.1314/19 ALONG WITH ANNEXURES.
EXHIBIT P1 (A1) TRUE COPY OF THE ORDER
NO.E1/3137/2018/GDCT DATED 18.8.2018 ISSUED BY THE PRINCIPAL, GOVERNMENT DENTAL COLLEGE, THIRUVANANTHAPURAM
EXHIBIT P1 (A2) TRUE COPY OF THE ORDER
NO.G4/10980/2017/DME DATED 29.6.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P1 (A3) TRUE COPY OF THE G.O.(RT) NO.1528/2019/H AND FWD DATED 26.6.2019. EXHIBIT P1 (A4) TRUE COPY OF THE ORDER IN OA (EKM) 23.1.2018 ISSUED BY THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P1 (A5) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT IN O.P.(KAT) 8.3.2019. EXHIBIT P1 (A6) TRUE COPY OF AN INFORMATION RECEIVED UNDER RTI ACT DATED 1.1.2018 BEARING NO.K2/42350/2017/DME IN THE NAME OF VIPIN BHASKAR K. EXHIBIT P1 (A7) TRUE COPY OF THE G.O.(P) NO.3/2017/P AND ARD DATED 25.2.2017. EXHIBIT P1 (A8) TRUE COPY OF THE MRI SCAN REPORT ISSUED BY DESINGANAD MRI SCAN AND RESEARCH CENTRE, KOLLAM DATED 18.4.2019 IN THE NAME OF THE APPLICANT. EXHIBIT P2 TRUE COPY OF THE REPLY FILED BY THE SECOND RESPONDENT IN THE O.A.WITH ANNEXURE. EXHIBIT P2 R2(a) TRUE COPY OF THE G.O.(P) NO.425/2009/H AND FWD DATED 14.12.2009. EXHIBIT P3 TRUE COPY OF THE REPLY FILED BY THE 3RD RESPONDENT IN THE O.A. WITH ANNEXURES. EXHIBIT P3 R3 (a) TRUE COPY OF THE G.O.(MS) NO.46/2017/H AND FWD DATED 30.3.2017 EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN THE O.A.WITH ANNEXURES. EXHIBIT P4 (A9) TRUE COPY OF THE REQUEST DATED 2.5.2018 SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT.
EXHIBIT P4 (A10) TRUE COPY OF THE ORDER
NO.G4/34534/2015/DME DATED 31.7.2018. EXHIBIT P4 (A11) TRUE COPY OF THE RELEVANT PAGES OF THE NORMS OF DENTAL COUNCIL OF INDIA DATED 2006 PUBLISHED IN THE GAZETTE OF INDIA, PART III, SECTION 4. EXHIBIT P4 (A11(a) TRUE COPY OF THE COMMUNICATION NO.DE- 214-2015/4616 DATED 7.7.2015, FROM THE DENTAL COUNCIL OF INDIA TO THE PRINCIPALS OF THE INSTITUTIONS.
EXHIBIT P4 (A12) TRUE COPY OF THE G.O.NO.2699/2017/H AND FWD DATED 30.9.17. EXHIBIT P5 TRUE COPY OF THE ORDER OF THE HON'BLE TRIBUNAL DATED 27.8.2019. APPENDIX OF OP(KAT) 387/2022 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE ORDER NO. E1/31 7/2018/GDCT DATED 18.08.2018 Annexure A2 TRUE COPY OF THE ORDER NO. G4/10980/2017/DME DATED 29.06.2019 ISSUED BY THE 2ND RESPONDENT Annexure A3 TRUE COPY OF THE G.O(RT)NO.1528/2019/H & FWD DATED 26.06.2019 Annexure A4 TRUE COPY OF THE ORDER NO.OA(EKM) 731/2017 AND CONNECTED CASES DATED 23.01.2018 ISSUED BY THE KERALA ADMINISTRATIVE TRIBUNAL Annexure A5 TRUE COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT IN OP(KAT) 117/2018 AND CONNECTED CASES DATED 08.03.2019 Annexure A6 TRUE COPY OF AN INFORMATION RECEIVED UNDER RTI ACT DATED 01.01.2018 BEARING NO. K2/42350/2017/DME IN THE NAME OF VIPIN BHASKAR.K , WITH TYPED COPY Annexure A7 TRUE COPY OF THE G.O(P)NO.3/2017/P & ARD DATED 25.05.2017 Annexure A8 TRUE COPY OF THE MRI SCAN REPORT ISSUED BY DESIGNATED MRI SCAN & RESEARCH CENTRE, KOLLAM DATED 18.04.2019 IN THE NAME OF THE APPLICANT Annexure R3(a) TRUE COPY OF G.O(MS)NO.46/2017/H & FWD DATED 30.03.2017 Annexure R2(a) TRUE COPY OF G.O(P)NO.425/2009/H & FWD DATED 14.12.2009 Annexure R2(b) TRUE COPY OF THE ORDER E1/1820/2019/GDCT DATED 01.07.2019 Annexure A9 TRUE COPY OF THE REQUEST DATED 02.05.2018 SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT WITH TYPED COPY Annexure A10 TRUE COPY OF THE ORDER NO. G4/34534/2015/DME DATED 31.07.2018 Annexure A11 TRUE COPY OF THE THE RELEVANT PAGES OF THE NORMS OF DENTAL COUNCIL OF INDIA DATED 2006 PUBLISHED IN THE GAZETTE OF INDIA, PART III SECTION 4 Annexure A11(a) TRUE COPY OF COMMUNICATION NO. DE-214-2015/4616 DATED 07.07.2015, FROM THE DENTAL COUNCIL OF INDIA TO THE PRINCIPALS OF THE INSTITUTIONS Annexure A12 TRUE COPY OF THE G.O (RT)NO.2699/2017/H & FWD DATED 30.9.2017 Exhibit P1 TRUE COPY OF THE OA 1314/2019 Exhibit P2 TRUE COPY OF THE INTERIM ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 02.07.2019 Exhibit P3 TRUE COPY OF THE REPLY STATEMENT FILED THE 3RD RESPONDENT Exhibit P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT Exhibit P5 AFFIDAVIT ALONG WITH THE MA NO. 1616/2019 IN OA1314/2019 TO RECALL THE INTERIM ORDER DATED 02.07.2019 Exhibit P6 TRUE COPY OF THE REJOINDER FILED BY THE 2ND RESPONDENT Exhibit P7 TRUE COPY OF THE MA NO. 1688/2019 IN OA 1314/2019 Exhibit P8 TRUE COPY OF THE IMPUGNED ORDER OF THE TRIBUNAL DATED 27.08.2019 IN OA1314/2019