MAYA MATHEW Vs. SECRETARY

JUDGEMENT

(1.) The appellant is the petitioner in WP (C) No. 28716 of 2003. The writ petition was filed challenging Ext. P7 order issued by the Director of Homeopathy declining salary and allowances to the appellant with effect from the date on which she was notionally promoted to the category of Non - Cadre Medical Officer. By judgment delivered on 09/07/2009 the learned Single Judge dismissed the writ petition. Hence this writ appeal.

(2.) The appellant entered service as Pharmacist in the Homeopathy Department on 28/05/1999. As per the Special Rules, appointment to the post of Medical Officer is to be made; (1) by direct recruitment; (2) by transfer from the category of Nurse (Homeopathy); (3) by transfer from the category of Pharmacist (Homeopathy); and (4) by transfer from the category of Clerk (Homeopathy). The appointments are to be made in the ratio 5:1:1:1 between appointment by direct recruitment, appointment by transfer from the category of Nurse (Homeopathy), appointment by transfer from the category of Pharmacist (Homeopathy) and appointment by transfer from the category of Clerk (Homeopathy). After the appellant entered service as Pharmacist, the Government by letter dated 09/08/2000 accorded sanction to make temporary promotions of qualified Pharmacists, Nurses and Clerks to the post of Medical Officer applying the prescribed ratio against the then existing 59 vacancies pending regular appointment in terms of the Special Rules. Thereupon seven Pharmacists, one Nurse and one Clerk were temporarily promoted and posted as Medical Officer, Homeopathy, in the scale of pay of Rs.6675-10550, by P1 order dated 10/08/2000 issued by the Director of Homeopathy. The Government had in the meanwhile issued Ext. P2 order dated 07/08/2000 according sanction for upgrading 25 posts of Pharmacists in the scale of pay of Rs.5000-8150 and to re - designate them as Non - Cadre Medical Officers. Thereupon, 23 Pharmacists, who were junior to the seven Pharmacists temporarily promoted as Medical Officer, Homeopathy by Ext. P1 order dated 10/08/2000, were re - designated as Non - Cadre Medical Officers in the scale of pay of Rs.5000-8150 by Ext. P3 order dated 19/10/2000.

(3.) While matters stood thus, five among the persons temporarily promoted to the category of Medical Officer by Ext. P1 order, moved this Court by filing OP No. 9081 of 2002. In that writ petition they claimed regular promotion against vacancies that had arisen between 1996 and 1999. The Government resisted the said writ petition contending inter alia that regular promotions could not be effected during the said period in view of an order of stay passed by this Court in another writ petition, that new special rules have come into force with effect from 12/04/1999 and therefore the claim of the petitioners in OP No. 9081 of 2002 for promotion to the category of Medical Officer could not be considered during the period in question. In fact the Government conceded in paragraph 7 of the counter affidavit filed in OP No. 9081 of 2002 that the petitioners in that original petition ought to have been promoted against vacancies that arose during the period from 1996 to 1999 had there been no order of stay from this Court. The defence set out by the Government in the said writ petition was that the petitioners therein cannot claim promotion against vacancies that arose during the period from 1996 to 1999 as a new set of special rules have come into force with effect from 12/04/1999. The said contention was overruled holding that the entitlement of the petitioners in OP No. 9081 of 2002 for promotion has to be decided with reference to the date of occurrence of the vacancies in the light of the rules then in force. In that view of the matter this Court disposed of OP No. 9081 of 2002 by Ext. P4 judgment delivered on 03/09/2002 with a direction to the Director of Homeopathy to consider the claim of the petitioners in that writ petition for regular promotion to the category of Medical Officer against vacancies that existed between 1996 and 1999 in the light of the special rules then in force governing such promotion. This Court further directed that such consideration shall be done taking into account the seniority of the incumbent in the feeder category and even if a senior hand had not approached this Court, his claim should not be overlooked.