P DEVAKI Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant / petitioner contends that the third respondent was not even qualified to be appointed as a Nursing Superintendent, much less for promotion to the next higher post of Assistant Director; because she did not have 10 months training which has been made essential in terms of Ext. P1 Special Rules applicable for candidates recruited under Special Recruitment for members of Scheduled Castes and Scheduled Tribes. He also submitted that when the third respondent was further promoted as Assistant Director, she had not even completed the period of probation nor acquired the obligatory test prescribed in that regard. As per R.28(a)(i) of the General Rules in Part II of the Kerala State and Subordinate Services Rules, 1958, no one shall be granted promotion unless she has satisfactorily completed the period of probation. When she came to know about it, she represented; but was not acted upon in time. It was in the above circumstances, she approached this Court seeking promotion as Assistant Director in preference to the 3rd respondent and consequential seniority. But the learned Single Judge was of the view that there was delay and laches on the part of the appellant, though it was found that she was the rightful claimant. Therefore, this appeal.

(2.) Going by the dates of appointment, the third respondent was senior as she joined duty on 28/01/1995 and the appellant joined duty on 24/08/1995. The third respondent was given relaxation from the requirement of qualification in Ext. P1, only by Ext. R3(a) dt. 21/04/1999, though with retrospective effect. That, it is illegal is the first contention of the appellant. We are not moved by that, because the third respondent was admittedly a B.Sc. degree holder in nursing and it is discernable from the explanatory note in Ext. R3(a) that though she was selected and sent for training, she had not been admitted for that training as she did possess a higher qualification than for which the training was intended. Accordingly, she was duly appointed as Nursing Superintendent as if a fully qualified hand. Therefore, at this distance of time, it is not fair to undertake an enquiry with reference to Ext. P1 in its strict sense, as to whether the third respondent was fully qualified for the post for being appointed on 28/01/1995. Therefore, we hold that she was duly qualified for such appointment as Nursing Superintendent on the strength of the possession of B.Sc. degree qualification in nursing, which was subsequently prescribed as per R3(a), as substitute qualification for the training prescribed in Ext. P1. Therefore, the first contention of the appellant is not sustainable.

(3.) The second contention of the appellant is that, even if she had been so duly qualified for appointment as Nursing Superintendent on 28/01/1995, she could not have been promoted to the next higher post of Assistant Director against the vacancy that had occurred on 01/07/1997, as she had not acquired the obligatory test qualification and had not satisfactorily completed the probation. She successfully completed the probation and the probation was declared only on 02/01/1999 on her acquisition of the obligatory test qualification in that regard on 01/01/1999, as is revealed from Ext. R3(e) order dated 29/04/2000. Therefore, her promotion was opposed to R.28(a)(i). On the other hand, according to the appellant, she joined duty on 24/08/1995 and completed probation on 24/08/1997, though declared later; but even earlier than that of the third respondent. Therefore, she being the first among the two, becoming eligible first for promotion to the post of Assistant Director, she ought to have been promoted, it is contended by the appellant.