RADHAKRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONERS have filed this Original petition for a writ of certiorari quashing Ext. P7 order of the second respondent and to direct respondents 1 and 2 to forbear from giving effect to Ext. P7 order. First petitioner is now working as Radiographer Grade II in the Department of radiodiagnosis, Medical College, thiruvananthapuram. He entered service in the Health Services Department as x-ray Technician on 23. 11. 1981 on the advice of the Kerala Public Service commission. First petitioner is a B. Sc. Degree holder. He passed Radiological assistants Course conducted by the Medical College, thiruvananthapuram. The minimum qualification for admission to the said course was a pass in the Pre-degree examination with Physics, Chemistry and Biology as its optional subject as is seen from the prospectus Ext. P1. It was a full-time course of two years' duration. The first petitioner has completed the said course. He was temporarily appointed as Radiographer Grade II, and thus posted in the General Hospital , Ernakulam, as per Ext. P2. Thereafter, he was transferred to the Medical College Hospital , Kottayam and later transferred to the Department of Medical Education. He was again posted to Medical College , Thiruvananthapuram by Ext. P3. He joined the Medical College on 1. 8. 1988. The second petitioner being a member of the scheduled caste community was appointed by the Director of Medical Education as Radiographer Grade II in the Medical College , Thiruvananthapuram under Ext. P4. Later he was posted to Priyadersini Institute of Para Medical Sciences, Medical College, Thiruvananthapuram. The seniority list of Radiographers Grade I & Grade II was published by the director of Medical Education. In the said list, the first petitioner was assigned rank No. 16 and the second petitioner was assigned rank No. 26. Ext. P5 is the seniority list. Respondents 3 to 10 are functioning as Technicians radiology Grade II and X-ray Technicians in the Medica l Colleg e , Thiruvananthapuram, S. A. T. Hospita l and Dental College . They were advised by the Kerala public Service Commission as X-ray Technician on 3. 7. 1986. Respondents 9 and 10 were advised for appointment in the year 1988 as X-ray Technicians. PETITIONERS' complaint is that by G. O. dated 4. 9. 1992 the Government redesignated the posts of X-ray Technicians Grade II, Technicians Grade II Radiology and Radiologists in the Medical Colleges in the State as Radiographer Grade II on a scale of pay of Rs. 950-1450. It is mentioned in the said order that the seniority mentioned in the said unified post will be refixed on the basis of the date of advice by the Kerala Public Service Commission. In the case of direct recruits and date of joining duty in the case of employees who join the Medical Education Service on transfer basis. Ext. P7 is the order. PETITIONERS are highly aggrieved by this order, as according to them, they were appointed as Radiographers Grade II while respondents were appointed as X-ray Technicians and hence Ext. P7 is illegal as it was prepared without considering the seniority of Radiographers grade II now working in the Department. Hence the petitioners pray for quashing ext. P. 7. 2. Respondents 3 to 9 filed a counter affidavit, stating that X-ray technicians Grade II and Technicians Grade II Radiology were redesignated as radiographer Grade II. Ext. P7 has been done to integrate the post of X-ray technicians Grade II and Technicians Grade II Radiology. When three posts were integrated, for deciding seniority, the date of effective advice by the Public service Commission is determined as the relevant criterion. This is the commonly accepted principle in the matter of integration and hence the challenge against Ext. P7 is unsustainable. It is also contended that till 1. 7. 1988, the salary of Radiographer Grade II, Technicians Grade II Radiology and X-ray Technicians were the same viz. , 700-1140. For appointment to the post of X-ray Technicians by direct recruitment, the qualifications prescribed are the same as that of Radiographer Grade II. Radiographer Grade II, Technicians Grade ii Radiology and X-ray Technicians are having the same duties and responsibilities. In the above circumstances, the Director of Medical Education made recommendation to the Government to redesignate the post of Technicians grade II and X-ray Technicians Grade II in the Medical Education Department as radiographer Grade II. Along with the counter-affidavit, the respondents produced three documents. Exts. R3 (a), R3 (b) and R3 (c ). According to them, the seniority list prepared is in order. 3. Learned counsel for the respondents invited my attention to the decision of the Supreme Court in Shiba Kumar Dutta v. Union of india 1997 I CLR 831, where the Supreme Court held, "nomenclature and fitment is one of executive policy of the Government. Unless the sanction is arbitrary or there is invidious discrimination between persons similarly situated, doing same type of work, it would be difficult for the courts to go into the question of equation of posts or fitment into a particular scale of pay. They must be left to be decided by expert Committees and Government. The courts cannot go into them and evaluate the job criteria and scales of pay prescribed for each category. "* This decision is not applicable to the facts of this case. In this case, persons who were holding higher posts were equated with posts holding lower scale of pay and persons holding higher scale of pay were placed as juniors to the petitioners. Learned counsel for the respondents also placed another decision of the Supreme Court reported in State of U. P. v. J. P. Chaurasia. In that case, there was equation of two posts, which were appeared to be of the same post, but there is difference in degrees in the performance of duties. In that case the question was whether two posts are equal and should carry equal pay. The Court held, that equation of post or equation of pay must be left to the executive government and the expert bodies like Pay Commission and the Court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration. This decision is also not applicable to the facts of this case, as the petitioners have no objection with regard to the equation of posts. They are only concerned about their seniority. Here Ext. P7 order is found to have been made causing great injustice to the petitioners. 4. PETITIONERS who were working as Radiographers Grade-II were enjoying the scale of pay of Rs. 950-1590, as on the date of 1993 Pay commission Report. This is evident from Page No. 56 of the report. Their pay was subsequently raised to Rs. 1200-2040. But Technicians Grade-II Radiology and X-ray Technicians were enjoying the scale of pay of Rs. 905-1490 in the year 1993. This would go to show that Technicians Grade-II Radiology were enjoying a higher time-scale. Learned counsel for the petitioners Mr. Premjit Nagendran invited my attention to the general duties of Radiographers Grade-II and X-ray technicians. In para 10 of the petition, it is stated that Radiographers grade-II shall be in immediate charge of the equipments under them and shall be responsible for overall maintenance and efficient and careful handling of X-ray equipments handed over duly to them. Regarding the duties of X-ray Technicians, it is stated that X-ray Technicians shall generally assist the Radiographers in the routine duties. They should help in keeping X-ray Unit clean and efficient and shall report in writing any defects noticed. Thus, it is seen that the duties and responsibilities of officers holding these two posts are different. X-ray Technicians who are assisting Radiographers were holding inferior status in the year 1993. Thereafter, there was integration of the three posts, for which the petitioners have no objection. PETITIONERS' only complain about their seniority. They were placed below the respondents, who were originally appointed in the lower time-scale post. PETITIONERS who were enjoying higher time-scale should not be placed below the persons holding lower time-scale post during equation of posts. If that is done, persons who were holding higher time-scale of pay will be put to hardships. Therefore, Ext. P7 directing fixation of seniority on the basis of the date of advice cannot be said to be legal. Technicians Grade-II ought to have been given seniority in the category of Radiographer Grade-II with effect from the date of impugned order viz. , 4. 9. 1992. When integration is allowed, persons holding inferior posts should be placed below the last person holding the higher time-scale post. Therefore, ext. P7 order is illegal as it violates the principles of natural justice. In the result, the Original Petition is allowed and Ext. P7 regarding the mode of fixation of seniority of the unified post is set aside. Respondents 1 and 2 are directed to refix seniority in the fight of the observations made above. PETITIONERS shall also be given opportunity to present their case. Government may refix the seniority of the petitioners within six months from the date of receipt of a copy of this judgment. There will be no order as to costs. . .