M.M.HAKKIM SHERIFF Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner had joined as Junior Laboratory Assistant in the Health and Family Welfare Department pursuant to his recruitment by the Kerala Public Service Commission on 8.1.1990. The petitioner was thereafter promoted to the post of Medical Record Librarian Grade II by order dated 22.10.1991 and took charge in the promoted post on 24.10.1991. Thereafter, the petitioner was promoted to the post of Medical Record Librarian Grade I by order dated 16.6.1997, and his probation in the promoted post was declared with effect from 16.6.1998. The next promotion from the post of Medical Record Librarian Grade-I is to the post of Medical Record Superintendent. According to the petitioner, 5 vacancies in the cadre of Medical Record Superintendent arose in 2003 and 2004. For the purpose of effecting promotions to the vacant posts, DPC was convened on 18.7.2007 and 4.3.2008 and the petitioner's name was included in the field of choice, but his name did not figure in the select list published on 14.3.2008. According to the petitioner, the respondents 5 and 6 who are juniors were preferred by the DPC for promotion on the ground that they had, acquired the Medical Record Training (Technician) course of 6 months duration conducted by the Central Government at JIPMER, which was an essential qualification for promotion to the post of Medical Records Superintendent. Respondents 5 and 6 had acquired the training qualification at JIPMER by 3.6.2004. The specific complaint of the petitioner is against the deputation of respondents 5 and 6 for Medical Record (Technician) Course, overlooking his claim for training based on his seniority. The only reason for not deputing him for the training, as revealed from Ext.P1, was want of a substitute in the post of Medical Record Librarian Grade-I, at the Calicut Medical College, where the petitioner was working during that time. The petitioner alleges that he was discriminated against, inasmuch as four persons deputed for training that year was from the Medical College Thiruvananthapuram and in their case, the department was not concerned about the availability of substitutes. Though, the petitioner submitted a representation, complaining about the deliberate denial of opportunity to undergo training based on his seniority and the consequent loss of promotion to the post of Medical Record Superintendent, the Government rejected the representation by Ext P5 in Annexure-A2.

(2.) Being aggrieved, the petitioner filed W.P (C) No. 38045 of 2010 before this Court seeking to quash Exts P1 and P5 and for the issue of writ of mandamus directing respondents 1 and 2, to promote and appoint the petitioner to the post of Medical Record Superintendent, w.e.f 1.6.2003, and to grant all consequential benefits. The Writ Petition filed on 20.10.2010 was transferred to the Kerala Administrative Tribunal on its Constitution and renumbered as T.A.No. 22 of 2015. When the Tribunal took up the Transferred Application for hearing on 7.12.2016 it was brought to the notice of the Tribunal that the counsel who was appearing for the petitioner had relinquished his vakalath long back. There was no representation for the petitioner and the Government Pleader, on instructions, submitted that the petitioner had been promoted to the post of Medical Record Superintendent during the pendency of the application before the Tribunal. Since the main prayer in the Transferred Application was to promote the petitioner as Medical Records Superintendent, the Tribunal closed the application in view of the submission made by the Government Pleader.

(3.) According to the petitioner, his earlier Counsel having relinquished vakalath, he had entrusted T.A.No.22 of 2015 along with two other cases before the Tribunal with a new Counsel. But due to an inadvertent omission at the counsel's office, vakalath was not filed in T.A.No.22 of 2015. Pointing out these facts on 27.9.2018 the petitioner filed M.A.No.2041 of 2018 along with M.A.No.2040 of 2018, after condoning the delay in filing the restoration application. Those Miscellaneous Applications were dismissed as not pressed since the petitioner was advised that his remedy is to file a Review Application against the order of the Tribunal. Thereupon, the petitioner filed Review Application along with Miscellaneous Application (M.A.No.2517 of 2018) seeking to condone the delay of 685 days in filing the Review Application. By order dated 26.11.2018, the Tribunal dismissed the application for condonation of delay, based on the decision of the Apex Court in Union of India and others Vs. Chitra Lekha Chakraborty (Civil Appeal No.6213 of 2008) wherein the Apex Court had held that since the time limit for filing Review Application has been specified in the Rules of Procedure of the Tribunal and since the Limitation Act is not made applicable, the Tribunal does not have the power to condone the delay. Consequent to the dismissal of the petition for condonation of delay, the Tribunal dismissed the Review Application also. This Original Petition is filed aggrieved by the order dated 7.12.2016 in T.A No.22 of 2015 and order dated 26.11.2018 in M.A.No.2517 of 2018 and R.A. (unnumbered) ...2018 .