Kerala High Court
Dr. Retnakaran C vs State Of Kerala on 10 October, 2024
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W.P.(C) No.37230 of 2017
2024:KER:75660
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
WP(C) NO. 37230 OF 2017
PETITIONER:
DR. RETNAKARAN C
MANGALATH, PUTHIYAKAVU,
TRIPUNITHURA, ERNAKULAM DISTRICT.
BY ADV.
SRI.B.S.SIVAJI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE SECRETARY
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
3 THE SECRETARY
PUBLIC ADMINISTRATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
4 THE SECRETARY
FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
5 THE REGISTRAR
KERALA UNIVERSITY OF HEALTH SCIENCES,
MEDICAL COLLEGE CAMPUS, MUAMKUNNATH KAVU,
THRISSUR - 680 553.
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W.P.(C) No.37230 of 2017
2024:KER:75660
BY ADVS.
SRI.P.SREEKUMAR - SC
SMT.K.B.SONY - GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 10.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.P.(C) No.37230 of 2017
2024:KER:75660
C.R.
HARISANKAR V. MENON, J.
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W.P.(C) No.37230 of 2017
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Dated this the 10th day of October, 2024
JUDGMENT
The petitioner was working with the Government of Kerala as Director of Ayurveda Medical Education, and he retired on superannuation during 2009. Subsequent to such superannuation, the petitioner points out that, by Ext.P1 order dated 19.04.2010 issued by the Chancellor, Kerala University of Health Sciences (hereinafter referred to as the "KUHS" for brevity), the petitioner was appointed as the Pro-Vice Chancellor (hereinafter referred to as the "PVC" for short). A reference to Ext.P1 shows that, it is a notification issued with reference to the provisions under Section 11 (1) of the KUHS Ordinance, 2010, by which the Chancellor was pleased to appoint the petitioner herein as the PVC for a period of five years.
2. The petitioner points out that, subsequent to the said appointment, Ext.P2 was issued on 07.06.2010, by which the pay of the petitioner stood fixed in the scale of Rs.37,400-67,000 with effect from 05.05.2010. The petitioner had no dispute about the 4 W.P.(C) No.37230 of 2017 2024:KER:75660 fixation at Ext.P2. Later, Ext.P3 order dated 24.07.2012 was issued by the respondent University, by which the appointment of the petitioner as above was deemed to be with reference to the provisions of Rule 100 Part III KSR, on account of which the pay was fixed with reference to the last drawn pay as on the date of retirement, adding thereto the basic pension and also taking into account the re-employment pay. It is only the net pay that became payable pursuant to Ext.P3, after reducing the amount of pension.
3. Against Ext.P3 issued as above, the petitioner filed various representations at Exts.P4 to P6, pointing out that the appointment of the petitioner was not a "re-appointment" and was only a case of "appointment", and therefore, there was no requirement for making any reference to the provisions under Rule 100 of Part III KSR.
4. The said representations by the petitioner stood disposed of by the 1st respondent as per Ext.P7 Government Order dated 09.10.2015. In the said Order, the Government referred to the stand of the 5th respondent herein, to the effect that the appointment of the petitioner was not a case of re-employment and therefore, Rule 100 of Part III KSR would not apply. However, 5 W.P.(C) No.37230 of 2017 2024:KER:75660 the Government ultimately found that the appointment of the petitioner after his retirement from Government service as Director of Ayurveda Medical Education is only an "appointment", which is to be treated as a case of "re-employment", and therefore, the pay has to be fixed accordingly.
5. It is in the above circumstances that the captioned writ petition is filed by the petitioner.
6. A counter affidavit dated 06.06.2019 is filed in the matter, making reference to the provisions under which the appointment has been effected as above, as also the relevant provisions of the KSR.
7. I have heard Sri.Sivaji B.S., the learned counsel for the petitioner, Smt.K.B.Sony, the learned Government Pleader for respondents 1 to 4 and Sri.P.Sreekumar, learned Senior Counsel for the 5th respondent.
8. The learned counsel for the petitioner, Sri.Sivaji, would contend that;
i. The appointment of the petitioner is pursuant to the order at Ext.P1. A reading of Ext.P1 would show that, it is only a case of "appointment". There is no reference to any "re-employment" of the petitioner. 6 W.P.(C) No.37230 of 2017
2024:KER:75660 ii. The learned counsel also refers to Ext.P8, the information obtained by the petitioner under the provisions of the Right to Information Act, to contend that when the dispute arose, the Government in the relevant files has referred to the stand of the 5th respondent as also the various stakeholders, and in paragraph 22 of the note, it has been found that the case of appointment of the petitioner is not one of "re-employment" and therefore the provisions under Rule 100 of Part III KSR is not applicable.
9. Smt.K.B.Sony, the learned Government Pleader, on the other hand, points out that;
i. The case of the petitioner can only be considered as a case of "re-employment".
ii. She points out that, admittedly, since the petitioner was working with the Government, the case of the petitioner can only be a case of "re-employment"
after his retirement from the service.
iii. She relies on the judgment of a Division Bench of this Court in W.A.No.1459 of 2019 dated 29.01.2020 7 W.P.(C) No.37230 of 2017 2024:KER:75660 in support of the above submissions.
10. The learned Senior Counsel, Sri.P.Sreekumar, would contend that;
i. The petitioner was appointed as the PVC under the powers under Section 11(1) of the KUHS Act. He would point out with reference to the provisions under Section 11(1) of the said Act that the statute only visualises a case of "appointment". ii. With reference to the judgment of a Division Bench of this Court relied on by the learned Government Pleader, the Senior Counsel would point out that the said judgment is not applicable to the facts and circumstances of the case, since in the case considered by a Division Bench of this Court, there was a separate order by which the order of appointment of the Vice Chancellor was stated to be a case of appointment against "re-employment". He points out that, insofar as there is no such separate order issued in the case at hand, the appointment of the petitioner is not attracting the rigours under Rule 100 of Part III KSR. He would also make reference 8 W.P.(C) No.37230 of 2017 2024:KER:75660 to the provisions under Rule 92 of Part III KSR and submit that whenever the Government wanted to treat the employment of a retired pensioner as a case of "re-employment", the provisions visualise a separate order to be issued and insofar as it is not issued, there is no question of treating the appointment of the petitioner as a case of "re- employment". He would also refer to the latter portion of Rule 92 to contend that, in the employment order itself, the conditions of service with reference to Rule 100 have to be incorporated, and such an order is lacking in the present case. iii. Essentially, the learned Senior Counsel supports the case of the petitioner.
11. I have considered the respective submissions made as above, as well as the connected records.
12. The dispute in this writ petition is only as regards the appointment of the petitioner as the PVC of the KUHS. The petitioner points out that his appointment was not with reference to his earlier employment in the Government service and therefore, Rule 100 will not get attracted. But subsequently, 9 W.P.(C) No.37230 of 2017 2024:KER:75660 the University took a U-turn by issuing Ext.P3, on the basis of certain queries raised from the side of the Government. By Ext.P3, after applying the provisions under Rule 100 of Part III KSR, the petitioner's pay was fixed, on account of which his pension stood reduced. It is the correctness or otherwise of Ext.P3, that is called in question in this writ petition. This Court also notices that when representations were made before the Government, the Government came out with Ext.P7, wherein also the petitioner's appointment is treated as a case of "re- employment".
13. However, a reference to the various notes from the Government files obtained by the petitioner, produced as Ext.P8 in this writ petition shows that when the dispute arose in the above fashion, the Government had obtained clarifications in that regard from the University as well as various stakeholders. The stand of the University is recorded specifically in Ext.P8, under note No.15, as under;
"15. Reports from the Registrar, KUHS states that his appointment is not a re-employment and hence do not comes under Rule 100 KSR Part III. Further, as per the Kerala University of Health Sciences Ordinance 2009(25/09), and 7/2010, the pay and allowances admissible to PVC as well as 10 W.P.(C) No.37230 of 2017 2024:KER:75660 the terms and conditions of his service shall be such as may be determined by Govt. His pay and allowances was fixed in the scale of pay of Rs.37,400-67,000+ Academic grade pay of Rs.12,000/- with a Special allowance of 4,000, as per the G.O(Ms)420/2009/H&, FWD. Dated 8.12.2009, and also taking cognizance of the KSR provisions, applicable to re- employment of service pensioners (Rule 100 KSR Part III.)"
Thus, the employer - the University has specifically pointed out before the Government that the petitioner was taken into service of the University as a case of a fresh appointment and not as a case of re-employment. When the employer itself took such a stand, there was no requirement for the Government to have taken a different stand, especially when the Government never issued a fresh additional order, treating the appointment of the petitioner as a case of "re-employment". In this juncture, a reference to Ext.P7 order would also be beneficial. In Ext.P7, in the 2nd paragraph, the Government has recorded the stand of the University as under;
"In pursuance of the above, Dr. Retnakaran vide representation read as 4th paper above has stated that his appointment as Pro Vice Chancellor was not under the purview of Rule 100, Part III KSRs as it was not re-employment. Hence it was requested to give clarification on the norms for applying KSR Part III Rule 100. The Registrar, Kerala University of Health Sciences has also reported that the appointment of 11 W.P.(C) No.37230 of 2017 2024:KER:75660 Dr. Retnakaran was not re employment and hence Rule 100 of KSRs is not applicable here."
Therefore, the Government was aware of the stand of the employer when it issued Ext.P7. The Chancellor who issued Ext.P1 has specifically pointed out through the Registrar before the Government that the petitioner was absorbed as the PVC, as a case of "employment" alone and not as a case of "re-employment".
14. Further, this Court also notices the fact that it is only in Ext.P7 for the first time that the Government notices that the petitioner's appointment is to be considered as a case of "re-employment". However, Ext.P7 was issued in 2015, when the dispute arose. The petitioner joined the service as the PVC in the year 2010. Therefore, the appointment of the petitioner and the status of the appointment has to be considered with reference to the appointment order issued during 2010. In Ext.P1 notification, the appointment of the petitioner is not as a case of "re- employment".
15. In E.Sreedharan v. Union of India and Others [2009 (107) DRJ 27], the High Court of Delhi had occasion to consider an almost identical situation. There, the petitioner who retired as a Member (Engineering), Railway Board, from the Indian 12 W.P.(C) No.37230 of 2017 2024:KER:75660 Railways, was appointed as the Chairman-cum-Managing Director of Konkan Railways. The question arose as to whether, from the pay in the said appointment as Chairman-cum-Managing Director of Konkan Railways, the pension received by him could be deducted. Considering the above, the Delhi High Court found as under;
"27. The petitioner superannuated from the Railways as the Technical Member of the Railway Board. Admittedly, he was not given extension of service as he had not continued as a Member of the Railway Board. For re-employment, the employment should be on the same post or similar post in the same Department or in the same channel of promotion. This cannot be disputed that Konkan Railway Corporation, whose Memorandum of Association is on the record of the case, is a distinct legally entity. The Chairman-cum-Managing Director of such an independent Corporation cannot be termed equivalent to a Member of the Railway Board in the present facts and circumstances nor can such a post be treated as similar. In any case, if the Appointment Committee of the Cabinet had to 're-employ' the petitioner as a Chairman-cum- Managing Director of Konkan Railway, they would have specified that the petitioner is 're-employed' as the Chairman- cum-Managing Director of the Konkan Railway Corporation in their order dated 30th October, 1990. The said order of the Appointment Committee of the Cabinet use the word 'appointment' and even the Ministry of Railways in its order dated 30th October, 1990 issued pursuant to the decision of 13 W.P.(C) No.37230 of 2017 2024:KER:75660 the Appointments Committee of the Cabinet used the word "appointment". The committee which is the apex body for approval of appointments would not use 'Appointment' when they were allegedly approving 'Re-employment."
The above findings are applicable to the facts and circumstances of the case in hand. The appointment of the petitioner was not as a case of "re-employment" as found by the respondents.
16. The judgment cited by the learned Government Pleader in W.A.No.1459 of 2019 is now to be taken into account. A reference to the said judgment would show that the facts are specifically recorded in paragraph 2, as under;
"Petitioner while working as Professor and Head of Department of Agronomy, College of Agriculture, Vellayani applied for voluntary retirement 9 months prior to attaining the age of superannuation. By Ext.P1 notification dated 11/8/2011, the Chancellor of University appointed the petitioner as Vice Chancellor of the University of Calicut for a period of four years from the date of assumption of office. The terms and conditions of service had been specifically stated in a letter dated 16/5/2012 (Ext.P2). In the said letter, it was specifically mentioned that the petitioner will be on re- employment from F.N of 12/8/2011 subject to sanctioning of voluntary retirement from his parent institution and that he will be entitled for salary as per UGC Scheme. Clause (xiii) of the terms and conditions further indicated that in respect of any other matter, provisions of Kerala Service Rules shall 14 W.P.(C) No.37230 of 2017 2024:KER:75660 apply."
Thus, a reference to the said facts recorded by the learned Division Bench of this Court in the decision cited above, would show that there was a separate proceeding issued from the side of the employer - University, to the effect that the petitioner therein was appointed as the Vice Chancellor as a case of "re-employment". However, there is no such separate order issued in the case at hand. The first of the proceedings, wherein the petitioner's appointment is shown as a case of re-employment is Ext.P7 issued in 2015, as noticed earlier. The learned counsel for the petitioner also points out that Ext.P7 has been issued after the petitioner demitted the office after his appointment by Ext.P1, which was for a period of five years. Therefore, under no stretch of imagination, Ext.P7 issued can be considered for the purpose of applying the provisions under Rule 100 of Part III KSR.
17. In such circumstances, I am of the view that the judgment relied on from the side of the learned Government Pleader would have no bearing on the facts and circumstances of the case at hand.
18. Resultantly, I am of the opinion that the petitioner is entitled to succeed.
15W.P.(C) No.37230 of 2017
2024:KER:75660 Therefore, this writ petition would stand allowed by setting aside Exts.P3 and P7 orders issued by 5th and 2nd respondents, respectively. There will be a further direction to the respondents to extend all consequential benefits to the petitioner as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment.
Sd/-
HARISANKAR V. MENON JUDGE anm 16 W.P.(C) No.37230 of 2017 2024:KER:75660 APPENDIX OF WP(C) 37230/2017 PETITIONER EXHIBITS EXHIBIT P1. TRUE COPY OF THE APPOINTMENT ORDER NO.GS5-889/2010 DATED 19/4.2010 ISSUED TO THE PETITIONER.
EXHIBIT P2. TRUE COPY OF THE ORDER NO.57/2010/ADMN DATED 7.6.2010 FIXING THE PAY DUE TO THE PETITIONER.
EXHIBIT P3. TRUE COPY OF THE ORDER NO.60/2012/ADMN DATED 24.7.2012 ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P4. TRUE COPY OF THE REQUEST DATED 9.10.2012 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT.
EXHIBIT P5. TRUE COPY OF THE REQUEST DATED 10.3.2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P6. TRUE COPY OF THE REQUEST DATED 14.8.2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P7. TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT).NO.3312/2015/H&FWD DATED 9.10.2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8. TRUE COPY OF FILES GIVEN TO THE PETITIONER AS PER LETTER NO.18922/B1/2015/H&FWD DATED 19.12.2015 UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT P9. TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 1ST RESPONDENT ON 28.2.2016 BY THE PETITIONER.