Kerala High Court
State Of Kerala vs Sheeba S on 16 November, 2016
Author: V Shircy
Bench: P.R.Ramachandra Menon, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY, THE 23RD DAY OF AUGUST 2017/1ST BHADRA, 1939
OP(KAT).No. 74 of 2017 (Z)
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AGAINST THE ORDER/JUDGMENT IN OA (EKM)1005/2015 of KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 16-11-2016
PETITIONERS/RESPONDENTS IN O.A.:
---------------------------------
1. STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
KERALA.695 001.
2. THE DIRECTOR OF HEALTH SERVICES
DIRECTORATE OF HEALTH SERVICES,
THIRUVANANTHAPURAM, KERALA-695 001.
3. DISTRICT MEDICAL OFFICER (HEALTH)
KOZHIKODE DISTRICT HOSPITAL,
KOZHIKODE, KERALA.673 001.
BY SR. GOVERNMENT PLEADER SRI. T. RAJASEKHARAN NAIR
RESPONDENT/APPLICANT IN O.A.:
--------------------------------
SHEEBA S
PUBLIC HEALTH NURSE (ON MEDICAL LEAVE),
TALUK HOSPITAL, FEROKE, KOZHIKODE,
KERALA-673 631.
R1 BY ADV. SMT.K.P.GEETHA MANI
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 28.07.2017,, THE COURT ON 23-08-2017 DELIVERED THE
FOLLOWING:
OP(KAT).No. 74 of 2017 (Z)
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 A TRUE COPY OF THE AMENDED O.A.(EKM) NO. 1005/15 ALONG
WITH ANNEXURES.
EXHIBIT P2 PHOTOCOPY OF THE REPLY STATEMENT OF THE 2ND RESPONDENT
IN O.A.
EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 16.11.2016 IN O.A.(EKM)
NO.1005/2015.
RESPONDENT(S)' EXHIBITS
-----------------------
NIL
KS.
TRUE COPY
P.S. TO JUDGE
P.R. RAMACHANDRA MENON
&
SHIRCY V., JJ.
==============================
O.P.(KAT) No.74 of 2017
==============================
Dated this the 23rd day of August, 2017
JUDGMENT
Shircy V., J.
Correctness and sustainability of Ext.P3 verdict restoring the seniority of the applicant/respondent as Public Health Grade-I and directing the Director of Health Service to implement the order of promotion as Public Health Nurse is under challenge.
2. We heard the learned Government Pleader appearing for the petitioners/Government and the learned counsel for the respondent.
3. The sequence of events reveal that the applicant was appointed as Junior Public Health Nurse Grade-II on 30.12.1992 as advised by the Public Service Commission (for short 'PSC'). Her probation was declared with effect OPKAT74/2017 2 from 17.01.1995. Her initial appointment was at Thiruvananthapuram District. On the basis of Annexure-A2 Government Order, she was transferred to Idukki at her request by Annexure A1 on 16.08.1996. She was promoted as Junior Public Health Nurse Grade-I on 01.02.1999. While working at Idukki District, she was transferred to Ernakulam on 01.03.2001 without loss of seniority. Thereafter, she was promoted as Public Health Nurse by Annexure-A3 and posted at Community Health Centre, Balussery in Kozhikode District. While so, by Annexure-A4 dated 28.05.2014, her seniority was re-assigned by placing her in Rank No. 2134- A between (2134) Smt.Jayalakshmi and (2135) Smt. Latha. The reason stated for loss of seniority is her inter-district transfer from Thiruvananthapuram to Idukki and then to Ernakulam. The applicant challenged Annexure-A4 by filing Annexure-A6 appeal. While Annexure-A6 was pending, as per Annexure A7 dated 21.02.2015 she was reverted as Junior Public Health Nurse Grade-I with a direction to OPKAT74/2017 3 recover the excess salary received in the promotion post. She challenged the said order in O.A. No.363/2015 before the Tribunal. The same was disposed of by Annexure A8. The relevant portion of the order reads as follows:
"3. Since the applicant has already moved the appellate authority, it is unnecessary for us to go into the validity of Annexure A5. If the reversion of the applicant is stayed by us, another eligible person as per the seniority list will be denied promotion. Whenever a reversion order is challenged, the applicants and even counsel proceed on the footing that the reversion order must be stayed pending consideration of the challenge against it. But by ordering stay, the next person standing in the queue for promotion suffer irreparable injury. The injury of the applicant can be redressed, if she finally succeeds in the appeal. So the prayer of the applicant for staying Annexure A7, pending consideration of Annexure A6 by the Government, is declined to safeguard the interest of person eligible for promotion in the place of the applicant. But it is ordered that in case the applicant succeeds in the appeal and her reversion is found to be unjustified, she shall be given all service benefits, including arrears of salary for the period she was reverted.
4. Further, we notice that the production in Annexure A5 to recover the excess salary paid to the OPKAT74/2017 4 applicant is untenable. She was promoted by the competent authority. She officiated in the promoted post and drew salary. Even if subsequently it is found that her turn for promotion did not arise and therefore her promotion is cancelled, she is not bound to repay the excess salary received. Therefore the direction in Annexure A7 to repay the excess salary received by her in the post of Public Health Nurse is quashed."
Thereafter, the order in O.A.No. 363/2015 was challenged before this Court in OP (KAT)No.106/2015 by the applicant apprehending reversion from the post of Public Health Nurse. This Court observed that the learned Tribunal had granted all rights of the applicant in the order impugned and there is no infirmity or jurisdictional error in the order. Hence, the O.P. was dismissed without any further direction. After disposal of OP (KAT) No. 106/2015, by Annexure-A11 she was reverted as Junior Public Health Nurse Grade-I and seniority was re-assigned as 2134(A) as she had availed inter district transfer twice in her total service. By Annexure-A12, her appeal( Annexure-A6) was rejected by OPKAT74/2017 5 the Government. Hence she filed the O.A. before the Tribunal with the following prayers:
''i) To call for the records leading to Annexures A5, A7, A10, A11 and A12 orders and set aside the same.
ii) To issue a direction commanding the 2nd respondent to permit the applicant to rejoin as Public Health Nurse.
iii) To declare that the applicant is entitled to hold and continue in the promoted post of Public Health Nurse.
iv) To declare that the applicant is entitled to enjoy the settled seniority which has not been disputed for the last 24 years, and
v) To pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case."
4. Annexure-A14 dated 15.05.2007 is the combined seniority rank list of ANMs/JPHN Gr.II in the Health Services Department for the period from 28.04.1975 to 30.01.1994 and the order of final retrospective promotion to the cadre of ANMs/Jr.PHN Gr.1. By this order, the Department rectified the omissions occurred in the OPKAT74/2017 6 earlier order and ratio promotion to JPHN was revised to 2:1 from 5:1 with effect from 01.09.1985. Clause (d) of Annexure A-14 reads as follows:
"The seniority of those incumbents who have secured Inter District transfer for more than one District in the same categories will be counted with effect from the last appointment (Inter District transfer/New PSC Appointment)"
5. In this revised final seniority list of LHW/ANM/JPHN Gr.I, the rank of the applicant is 2881 and the date assigned for promotion to Gr.I is the date of declaration of her probation (17.01.1995).
6. She joined service as JPHN Gr.II on 30.12.1992 and probation was declared with effect from 17.01.1995. She was transferred to Idukki by virtue of Annexure A2 G.O. only on 16.08.1996, i.e. after declaration of her probation. She was promoted as JPHN Gr.1 on 01.02.1999. Thereafter, she was given retrospective promotion from the date of probation,when combined seniority list of ANMS/JPHN Gr.11 OPKAT74/2017 7 was prepared on 15.05.2007 and so she was treated as provisionally promoted to the post of JPHN Gr.I. The contention of the Government/Department is that seniority has to be applied as per proviso to Rule 27 Part II KSR which says that "provided that the seniority of persons on mutual or inter-unit or inter-departmental transfer from one unit to another within the same department or from one department to another, as the case may be, on requests from such persons shall be determined with reference to the date of their joining duty in the new unit or department."
7. Placing reliance on Rule 27 of Part II KS & KSR, the Department/Government contended that Annexure A2 will not entitle her for any privilege to restore her service at Thiruvananthapuram and her seniority has to be reckoned only from 08.02.2001, the date of her transfer to Ernakulam and that Annexure A12 was issued rectifying the bona fide mistake crept in Annexure A14. But this cannot be a justifiable reason to tamper with the promotion granted in OPKAT74/2017 8 the year 2007 by Annexure A14. There can be no dispute that ratio promotion with retrospective effect was implemented by reckoning her seniority from the date of declaration of probation, by placing her in rank No. 2881 in the list attached to Annexure A14. The Tribunal accepting the contentions of the applicant directed to restore her seniority as Junior Public Health Nurse Gr.I by setting aside Annexures A5, A7, A10 and A11, mainly for the reason that the effect of retrospective promotion cannot be called back by treating her as Gr.11 on her transfer to Idukki, otherwise retrospective promotion has no effect. Of-course, in Annexure A2 order, it is not specifically mentioned that the relaxation given to the beneficiaries will not be a criteria while granting promotion to the higher post. But here by Annexure A14, ratio promotion was made with retrospective effect on the basis of Judgments in certain Writ Petitions (referred in Annexure A14) filed by some employees and the applicant and was given promotion as JPHN Gr.1 reckoning OPKAT74/2017 9 the date of declaration of her probation (17.01. 1995) where as her transfer to Idukki by virtue of Annexure A2 was on 16.08.1996 and promotion as Gr.1 on 01.02.1999. It is also discernible from Annexure A14 that the administrative delay/ omissions occurred for no fault of the employees was rectified by giving ratio promotion. In fact, Annexure A14 was intended to remove the anomaly. A special benefit or privilege granted to the employee cannot be taken away or denied or disturbed by subsequent orders and she cannot be pushed down from the post by an order in the year 2016 where her seniority was reckoned in the year 2007. Hence, we find absolutely no justification to interfere with the order under challenge. The Tribunal has directed the Department/Government to restore her seniority as per Annexure A14 and implement the order of promotion as Public Health Nurse within a period of one month from the date of receipt of a copy of the order.
In such circumstances, the order of the Tribunal is OPKAT74/2017 10 upheld and the O.P is dismissed restoring her seniority as per Annexure-A14. Annexure-A12 is set aside. The Government/Department shall implement the order of promotion as Public Health Nurse within one month from the date of receipt of a copy of this judgment and post her in a suitable place.
Sd/-
P.R. RAMACHANDRA MENON JUDGE Sd/-
ks SHIRCY V.
JUDGE