Kerala High Court

Anoop Krishna K.P vs State Of Kerala on 7 January, 2021

             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

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

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

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

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

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

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

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

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

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.