DINESHAN Vs. GOVERNMENT OF KERALA

JUDGEMENT

(1.) The appellant was the writ petitioner. The respondents herein were the respondents in the Writ Petition. This appeal throws up a legal conundrum as to whether a person appointed after three years from the date of advice by the Public Service Commission (for short 'P.S.C.'), for the reason that he was facing disciplinary proceedings, could claim seniority with effect from the date of advice, as provided under Rule 27(c) of the Kerala State and Subordinate Services Rules (for short 'K.S. & S.S.R.').

(2.) The brief facts of the case are the following:

(3.) In the meantime, the appellant was advised for appointment by the P.S.C. on 3.2.1997, to the post of Lecturer in Genito-Urinary Surgery in the Medical Education Department. Because of the pendency of the disciplinary proceedings against him, he was not appointed. Later, after the culmination of the proceedings as per the final order Ext.P3, he was appointed by order dated 25.10.2000 and he joined duty. The persons, who were advised and appointed after 1999, to the post of Lecturer in Genito-Urinary Surgery, completed their period of probation and three of them were promoted to the post of Assistant Professor. The same is evident from Ext.P8 list published by the Departmental Promotion Committee (for short 'DPC'). The present Writ Petition was filed by him on 29.6.2000, claiming appointment on the basis of advice of the P.S.C. During the pendency of the Writ Petition, as mentioned earlier, he was appointed on 25.10.2000. Later, the Writ Petition was amended, challenging Ext.P8 DPC list and also claiming promotion in preference to the persons included in the said list. The P.S.C. filed a counter affidavit. The contesting party respondents also filed counter affidavits. The learned Single Judge, after hearing both sides, dismissed the Writ Petition. The learned Judge took the view that till the date of Ext.P3, the appellant was in service as Lecturer in Surgery. Only after removal from service, he could have been considered for appointment. As a Government servant, he cannot simultaneously hold two posts. In that view of the matter, the Writ Petition was dismissed. Challenging the said decision of the learned Single Judge, this Writ Appeal is preferred.