IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
OP(KAT).No.245 OF 2020
AGAINST THE ORDER IN OA (EKM) 1934/2018 DATED 28-11-2018 OF KERALA
ADMINISTRATIVE TRIBUNAL, (ADDITIONAL BENCH AT ERNAKULAM)
PETITIONER/APPLICANT:
ANOOP KRISHNA K.P
AGED 37 YEARS
S/O.KRISHNAN, LAB ATTENDER,
GOVERNMENT HOMOEO MEDICAL COLLEGE,
KARAPARAMBA, KOZHIKODE-673 010(RESIDING AT
KOLLANKANDIPURAYIL HOUSE,
P.O.NANMINDA KOZHIKODE DISTRICT-673 613)
BY ADVS.
SRI.V.A.MUHAMMED
SMT.P.A.JENZIA
RESPONDENTS/RESPONDNETS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
AYUSH DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE PRINCIPAL AND CONTROLLING OFFICER
GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE,
IRANIMUTTOM, P.O.MANACAUD, ATTUKAL,
THIRUVANANTHAPURAM-695 009.
3 THE SUPERINTENDENT
GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE,
KARAPARAMBA, KOZHIKODE-673 010.
4 THE PRINCIPAL
GOVERNMENT HOMOEO MEDICAL COLLEGE,
KARAPARAMBA, KOZHIKODE-673 010.
5 THE KERALA PUBLIC SERVICE COMMISSION
OP(KAT).No.245 OF 2020 & Conn.Case
2
PATTOM PALACE, THIRUVANANTHAPURAM-695 004,
REP BY ITS SECRETARY.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 07.01.2021, ALONG WITH OP(KAT).220/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No.245 OF 2020 & Conn.Case
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
OP(KAT).No.220 OF 2020
AGAINST THE ORDER IN UNNUMBERED O.A.(EKM) NO./2020 DATED 14.02.2020 OF THE
KERALA ADMINISTRATIVE TRIBUNAL (ADDITIONAL BENCH AT ERNAKULAM)
PETITIONER/APPLICANT:
ANOOP KRISHNA.K.P
AGED 37 YEARS
SON OF KRISHNAN, LAB ATTENDER, GOVERNMENT HOMOEO
MEDICAL COLLEGE, KARAPARAMBA, KOZHIKODE 673 010
(RESIDING AT KOLLANKANDIPURAYIL HOUSE, P.O
NANMINDA, KOZHIKODE DISTRICT 673 613)
BY ADVS.
SRI.V.A.MUHAMMED
SMT.P.A.JENZIA
RESPONDENTS/RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM 695 001
2 THE PRINCIPAL AND CONTROLLING OFFICER,
GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE,
IRANIMUTTOM, P.O MANACAUD, ATTUKAL,
THIRUVANANTHAPURAM 695 009
3 THE SUPERINTENDENT ,
GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE,
KARAPARAMBA, KOZHIKODE 673 010
4 THE PRINCIPAL,
GOVERNMENT HOMEO MEDICAL COLLEGE,
KARAPARAMBA, KOZHIKODE 673 010
5 THE KERALA PUBLIC SERVICE COMMISSION,
OP(KAT).No.245 OF 2020 & Conn.Case
4
PATTOM PALACE, THIRUVANANTHAPURAM 695 004
REPRESENTED BY ITS SECRETARY.
6 SRI. KARTHIKEYAN,
PHARMACIST GRADE II, GOVERNMENT HOMEO MEDICAL
COLLEGE, KARAPARAMBA, KOZHIKODE 673 010
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 07.01.2021, ALONG WITH OP(KAT).245/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No.245 OF 2020 & Conn.Case
5
ALEXANDER THOMAS & T.R.RAVI, JJ.
======================= O.P.(KAT) Nos. 245 & 220 2020 ======================= Dated this the 07th day of January, 2021 COMMON JUDGMENT ALEXANDER THOMAS, J.
Since these petitions are inter related this Court disposing of these cases on the basis of this common judgment.
O.P.(KAT) No.245/2020 arises out of the impugned judgment dated 28.11.2018, rendered by the Kerala Administrative Tribunal in O.A(EKM) No.19.34/2018 filed by the petitioner herein. The case of the petitioner/applicant is that he is presently working as a lab attender in the Government Homeo Medical College, Kozhikode, and he has successfully completed the certificate course in Pharmacy (Homeo) and he is eligible for promotion to the post of Pharmacist and that vacancies are indeed available and existing in the Homeopathic Medical Service, and that he should be consider for either regular promotion or at least provisional/temporary promotion to the existing vacancy of Pharmacist in the said service. The petitioner is a lab attender in the Homeopathic Medical College Service and presently OP(KAT).No.245 OF 2020 & Conn.Case 6 continuing in that post in the Government Homeopathic Medical College, Kozhikode, and further that he is eligible for promotion to the next post of Pharmacist (Homeo) in the Homeopathic Medical College Service. Further that the petitioner is eligible and entitled for promotion either on regular basis or at least on provisional/temporary basis to the available vacancy of Pharmacist (Homeo), in the Homeopathic Medical College Service in respect of the vacancies available in the Government Homeopathic Medical College, Kozhikode. The claim of the petitioner for such promotion was rejected, which was impugned before the Tribunal. The Tribunal has dismissed the O.A.(EKM) No.1934/2018, filed by the petitioner, in view of the submission made by the learned Government Pleader, that in pursuant to the issuance of advice memo by the Public Service Commission the vacancy in respect of post in question has already been filed up by appointing the advise candidate, and as of now no further vacancies are available in the Department for the promotion of the petitioner herein. In that regard, it is pointed out that Public Service Commission had also submitted before the Tribunal, (as can be seen from page 3 of the impugned judgment of the Tribunal in O.A.(EKM)No.1934/2018), that a rank list was in existed for the OP(KAT).No.245 OF 2020 & Conn.Case 7 post of Pharmacist in Homeopathic Medical Services in Kozhikode District will came into force from 27.01.2016, and that the vacancies was reported to the PSC on 12.10.2017, pursuant to which advice memo had been issued to the candidate with rank No.2 in the above rank list etc. In the light of these submissions the Tribunal has dismissed the O.A.(EKM)No.1934/2018 as per the impugned final order dated 28.11.2018.
2. Later, the petitioner had filed application under the Right to Information Act, before the Government Homeopathic Medical College, Thiruvananthapuram. Further that applicant much later had submitted letter dated 05.06.2018 (produced as Annexure A9 in O.P.(KAT) No.220 of 2020 before the Government Homeopathic Medical College, Thiruvananthapuram, who is stated to be the controlling officer of the service in question, specifically queried as to the details of the Public Service Commission's selection process for the post of Pharmacist (Homeo) in the Government Homeopathic Medical College Service, as per question No.5 thereof to which query an answer has been given as per letter dated 06.07.2018 (produced as Annexure A9 in OP(KAT) No.220/2019) whereby the said controlling officer of the service in question has specifically answered that the last OP(KAT).No.245 OF 2020 & Conn.Case 8 rank list for the post of Pharmacist (Homeo) of the Government Homeopathic Service was finalised by the Public Service Commission on 11.10.2000. Further that the petitioner could also reliably learn that there is in fact a vacancy for the post of Pharmacist (Homeo) in the Government Homeopathic Medical College Service at Kozhikode, and the said existing vacancy is now utilized by making appointment on daily wages basis. Hence the petitioner would urged that the very basis of the dismissal of O.A. (EKM)No.1934/2018 by the Tribunal is not legally tenable and correct and that the said adverse order was issued against the petitioner only on the basis of the patently wrong factual submissions made by the above said respondents in the O.A.
3. Further it appears that the petitioner has thereafter filed an unnumbered O.A. in the year 2020 before the Kerala Administrative Tribunal, seeking for directions for his promotion as Pharmacist (Homeo) in the Government Homeopathic Medical College, Kozhikode, and the same has been now dismissed by the Tribunal, as per the impugned order dated 14.02.2020, which is impugned as Ext.P1 in the subsequently filed O.P.(KAT) No.220/2020. The Tribunal as per the impugned order rendered on 14.02.2020 has dismissed the latter order on the ground that, OP(KAT).No.245 OF 2020 & Conn.Case 9 identical sought by the applicant in respect of the very same issue in question has already been dismissed by the Tribunal as per the final order dated 28.11.2018 in O.A.(EKM) No.1934/2018, that the petitioner cannot successively challenge the very same matter by filing yet another original application after having suffered an adverse order in the first original application filed by him.
4. After hearing both sides, this Court is of the considered view that the final order rendered by the Tribunal on 14.02.2020 dismissing the latter original application cannot be successfully challenged.
5. After considering the facts and circumstances of this cases, we are of the view that the Tribunal cannot at any rate be faulted for having passed the final impugned order on 14.02.2020, dismissing the latter O.A. (impugned in O.P.(KAT)No.220/2020) for the reasons stated therein. This is for the simple reason that the petitioner has admittedly suffered an adverse verdict in the first O.A., as can been seen from the final order dated 28.11.2018 in O.A.(EKM) No.1934/2018 which is impugned in O.P. (KAT)No.254/2020. Therefore, the petitioner cannot file the second O.A seeking the same reliefs. We are not now entering into OP(KAT).No.245 OF 2020 & Conn.Case 10 the issue as to whether the above said contention raised by the petitioner that the adverse order passed by the Tribunal in the first O.A. on 28.11.2018 on the basis of allegedly factually false submissions made by the respondents in the first O.A. That is a matter on which the petitioner will have to approach the Tribunal in the manner known to law.
6. Assuming that the above said contentions of a party like the petitioner/applicant that the first adverse order was rendered by the Tribunal on basis of allegedly factually wrong submissions made by the respondents then the remedy of the petitioner/applicant is to approach the Tribunal by filing a review application along with a delay condonation application, and explaining the reasons for the delay and also establishing in the review application to challenge the impugned final order dated 28.11.2018 in O.A(EKM)No.1934/2018, and also explain as to how the factual submissions made by the respondents, which lead to the dismissal of the first O.A. are wrong etc. It may not be right and proper for us to entertain the present petition on merits to ascertain the correctness or otherwise in the above said factual submissions, since it is for the petitioner to approach the Tribunal for redressal of any such grievances in regard to the allegedly OP(KAT).No.245 OF 2020 & Conn.Case 11 factually wrong submissions said to have been made by the respondents which led to the dismissal of the O.A.
7. The learned counsel appearing for the petitioner submits that this Court may modify the impugned order dated 14.02.2020 rendered by the Tribunal dismissing the second O.A., by ordering that the said second O.A. will stand dismissed as withdrawn with liberty to the petitioner to file review application as against the final order in the first O.A.
We feel that the said limited plea of the petitioner could be entertained. Accordingly, it is ordered that the impugned order dated 14.02.2020, rendered by the Tribunal dismissing the second O.A. (as per Ext.P1 in O.P.(KAT) No.220/2020) will stand set aside, and it is ordered that latter O.A will stand dismissed as withdrawn with liberty to the petitioner to file review application as against the final order in the first O.A.
We make it clear that we have not entered into the merits of the controversy in any manner and all what we have ordered is that it for the petitioner to seek review of the final order rendered by the Tribunal in the first O.A., if he has a case that the impugned final order in the first O.A. was rendered on the basis of OP(KAT).No.245 OF 2020 & Conn.Case 12 factually wrong submissions allegedly said to have been made by the respondents.
With these observations and directions, and with said liberty, O.P.(KAT) No.220/2020 will stand dismissed as infructuous and O.P.(KAT)No.245/2020 will stand disposed of Sd/-
ALEXANDER THOMAS JUDGE Sd/-
T.R.RAVI JUDGE VPK OP(KAT).No.245 OF 2020 & Conn.Case 13 APPENDIX OF OP(KAT) 245/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER IN O.A(EKM) NO.1934/2018 DATED 18/11/2018 OF THE KERALA ADMINISTRATIVE TRIBUNAL(ADDL.BENCH AT ERNAKULAM) EXHIBIT P2 TRUE COPY OF THE ORIGINAL APPLICATION. EXHIBIT P-2 (A-1) TRUE COY OF THE CERTIFICATE IN PHARMACH(HOMEO) OF THE PETITIONER DATED 7/12/2016 ISSUED BY THE CHAIRMAN, BOARD OF EXAMINATIONS ON CCP(HOMEO).
EXHIBIT P-2 (A-2) TRUE COPY OF THE BOND EXECUTED BETWEEN THE 3RD RESPONDENT AND THE PETITIONER (ANNEXURE VIII) DATED 8/9/2015.
EXHIBIT P-2 (A-3) TRUE COY OF THE ORDER IN O.A (EKM) NO.952/2018 DATED 12/4/18 OF THE TRIBUNAL (ADDL.BENCH AT ERNAKULAM).
EXHIBIT P-2 (A-4) TRUE COPY OF THE ORDER NO.161/E2/2013/GHMCT DATED 1/6/2018 OF THE 2ND RESPONDENT.
EXHIBIT P-2 (A-5) TRUE COPY OF THE ORDER NO.5266/E2/2016/GHMCT DATED 11/7/2017 OF THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE M.A (EKM) NO.2199/2018 IN OA(EKM) NO.1934/2018 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL(ADDL.BENCH). EXHIBIT P3(A-6) TRUE COPY OF THE ORDER IN OA (EKM)NO.1930/2016 DATED 21/6/2017 OF THE TRIBUNAL(ADDL.BENCH AT ERNAKULAM).
OP(KAT).No.245 OF 2020 & Conn.Case 14 APPENDIX OF OP(KAT) 220/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER IN UNNUMBERED O.A (EKM) NO..../2020 DATED 14-02-2020 OF THE KERALA ADMINISTRATIVE TRIBUNAL (ADDL. BENCH AT ERNAKULAM) EXHIBIT P2 TRUE COPY OF THE ORIGINAL APPLICATION EXHIBIT P-2(A-1) TRUE COPY OF THE CERTIFICATE IN PHARMACY (HOMEO) F THE PETITIONER DATED 07-12-2016 ISSUED BY THE CHAIRMAN, BOARD OF EXAMINATIONS ON CCP (HOMEO) EXHIBIT P-2(A-2) TRUE COPY OF THE BOND EXECUTED BETWEEN THE 3RD RESPONDENT AND THE PETITIONER (ANNEXURE VIII) DATED 08-09-2015 EXHIBIT P-2(A-3) TRUE COPY OF THE ORDER IN O.A (EKM) NO.
952/2018 DATED 12-04-2018 OF THE TRIBUNAL (ADDL. BENCH AT EERNAKULAM) EXHIBIT P-2(A4) TRUE COPY OF THE ORDER NO.
161/E2/2013/GHMCT DATED 01-06-2018 OF THE 2ND RESPONDENT EXHIBIT P-2(A-5) TRUE COPY OF THE ORDER IN OA(EKM) NO.
1930/2016 DATED 21-06-2017 OF THE HON'BLE TRIBUNAL (ADDITIONAL BENCH AT ERNAKULAM) EXHIBIT P-2 (A-6) TRUE COPY OF THE ORDER NO. 5266/E2/ 2016/GHMCT DATED 11-07-2017 OF THE 2ND RESPONDENT EXHIBIT P-2(A-7) TRUE COPY OF THE ORDER IN O.A (EKM) NO.
1934/2018 DATED 28-11-2018 OF THE TRIBUNAL (ADDL. BENCH AT ERENAKULAM) EXHIBIT P-2(A-8) TRUE COPY OF THE ORDER NO.
1473/E2/1996/GHMCT DATED 14-03-2019 OF THE 2ND RESPONDENT.
EXHIBIT P-2(A-9) TRUE COPY OF THE APPLICATION FILED UNDER RIGHT TO INFORMATION ACT BY SMT. SINSHA T.M DATED 05-06-2018 EXHIBIT P-2(A-9) (A) TRUE COPY OF THE INFORMATION NO. 2825/RTI-
05/18/GHMCT DATED 06-07-2018 OF THE SENIOR OP(KAT).No.245 OF 2020 & Conn.Case 15 SUPERINTENDENT AND STATE PUBLIC INFORMATION OFFICER, GOVT. HOMEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM.