State Of Kerala, Represented By vs Gireesh Kumar.K, S/O ... on 22 August, 2025

[Cites 5, Cited by 0]

Kerala High Court

State Of Kerala, Represented By vs Gireesh Kumar.K, S/O ... on 22 August, 2025

The respondents in O.A.No.202 of 2019 on the file of the Kerala Administrative Tribunal at Thiruvananthapuram, have filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to quash Ext.P4 order dated 23.09.2022 of the Tribunal in that original application, which was one filed by the respondent herein-applicant seeking an order to set aside Annexure A2 communication dated 06.04.2011 issued by the 1st petitioner herein-State; a declaration that the applicant is entitled for the benefit of deputation with full pay and allowances during the period he underwent B.Sc. Optometry Course from 25.09.2010 to 18.03.2015, overlooking Annexure A3 Government order dated 08.12.2015 granting Leave Without Allowance for the said period under Rule 88 of Part I KSR; and a declaration that the applicant is eligible and entitled to get the period he underwent for higher studies (B.Sc. Optometry) as qualifying service for increments, higher grades and other service benefits as extended to similarly placed incumbents, by way of Annexure A7 Government order dated 30.01.2018.

OP(KAT)No.246 of 2023

2025:KER:64153

2. Going by the averments in O.A.No.202 of 2019, the applicant, while working as Optometrist at the Government Medical College, Thiruvananthapuram, was selected for admission to BSc. Optometry course, under service quota, in the Government Medical College, Thiruvananthapuram, on 24.09.2010, vide Annexure A1 order dated 24.09.2010. Though the applicant submitted a request to grant deputation, the same was rejected. Since several benefits were being denied to the applicant on the ground that he had not submitted leave application for the period of study, he submitted an application for Leave without Allowance, for avoiding a service break, which was granted vide Annexure A3 order dated 08.12.2015, under Rule 88 Part I Kerala Service Rules (KSR), for the period from 25.09.2010 to 18.03.2015. According to the applicant, from the year 2002 onwards deputation for higher studies was being granted with full salary to Doctors, Nurses, Paramedical Staff in the Health Services Department and the Medical Education Department. However, the said benefit was taken away vide Annexure A4 order dated 23.06.2010. Thereafter, deputation benefits were sanctioned to the service quota candidates 5 OP(KAT)No.246 of 2023 2025:KER:64153 undergoing Post Basic B.Sc. Nursing Course, vide Annexure A5 order dated 01.03.2011, which was made absolute vide Annexure A6 order dated 19.08.2016. However, the said benefit is not being granted in the post of Optometrist. In the original application, the applicant pointed out that another similarly placed incumbent, who was erroneously granted deputation benefits, which was later cancelled, submitted a request and the Government issued Annexure A7 order dated 30.01.2018, reckoning the period she underwent the studies (BSc MLT Course) for increments, pension, higher grade, etc.

3. Before the Tribunal, the 1st respondent State (1st petitioner herein) filed Ext.P2 reply statement dated 18.11.2019, opposing the reliefs sought for in O.A.No.202 of 2019. The applicant filed Ext.P3 rejoinder dated 05.10.2020 along with Annexures A8 to A10(a) documents. After considering the rival contentions, the Tribunal by Ext.P4 order dated 23.09.2022 disposed of O.A.No.202 of 2019, by directing the 1st respondent State to pass fresh orders on the request made by the applicant for granting him deputation benefits for the period during which he was undergoing B.Sc. Optometry Course. To enable such 6 OP(KAT)No.246 of 2023 2025:KER:64153 consideration, Annexure A2 communication and the conditions imposed in Annexure A3 order were set aside. By Ext.P4 order, the State is directed to pass orders within a period of three months from the date of receipt of a copy of that order, after affording an opportunity of being heard to the applicant.

4. Feeling aggrieved by Ext.P4 order dated 23.09.2022 of the Tribunal in O.A.No.202 of 2019, the petitioners- respondents are before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

5. On 20.06.2023, when this original petition came up for admission, this Court issued notice before admission to the respondent-applicant, by special messenger, returnable within three days. Paragraphs 2 to 4 of the order dated 20.06.2023 read thus;

"2. It is urged by Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the petitioners in the O.P, that the applicant was earlier granted permission to study B.Sc Optometry course under the service quota in the Government Medical College, Thiruvananthapuram, for the period from 25.09.2010 to 18.03.2015 and his request to grant deputation benefits was rejected, as per Annexure A2 dated 06.04.2011 and the period of study 7 OP(KAT)No.246 of 2023 2025:KER:64153 was later regularized as leave without allowances, as per Annexure A3 order dated 08.12.2015, whereby it was ordered that the period from 25.09.2010 to 18.03.2015, would be utilized for study purpose, for which LWA was allowed, will not count for increment, higher grade, pension and accumulation of Earned Leave. The applicant has not challenged Annexure A3 dated 08.12.2015, even now. After claiming that the deputation benefits was granted to another incumbent much later, as per Annexure A7 order dated 30.01.2018, the petitioner sought that identical treatment should be given to him. The applicant accordingly preferred the instant O.A., wherein the Tribunal has now found as per the impugned Ext.P4 final order dated 23.09.2022, that the denial of deputation benefits to the applicant is not legally sustainable and has set aside Annexure A2 order dated

06.04.2011 and has also set aside the impugned conditions in Annexure A3 dated 08.12.2015, though there was no challenge as against Annexure A3 and has now directed the Government to pass fresh orders, on the request of the applicant in granting him deputation benefits, etc.

3. It is urged that the petitioner was served with the rejection order, as per Annexure A2, as early as on 06.04.2011 and he has filed the instant O.A, only as late as on 04.09.2018 and the Tribunal should have dismissed his claims, solely on account of unexplained delay and laches, etc. Further, the detrimental conditions in Annexure A3, has been set aside, even though there was 8 OP(KAT)No.246 of 2023 2025:KER:64153 no prayer in the O.A, for setting aside the impugned conditions in Annexure A3 therein.

4. After taking note of the above facts, we find a strong prima facie case is made out by the petitioners. Accordingly, it is ordered, in the interest of justice that the operation and enforcement of the impugned verdict rendered by the Tribunal at Ext.P4 on 23.09.2022 in the instant O.A No.202 of 2019, will remain stayed and shall be kept in abeyance."

6. On 07.07.2023, when this original petition came up for consideration, the respondent-applicant entered appearance through counsel. By the order dated 09.08.2023, the interim order granted on 20.06.2023 was extended until further orders and thereafter, by the order dated 08.10.2024, the original petition was admitted on file.

7. We heard arguments of the learned Senior Government Pleader for the petitioners-respondents and the learned counsel for the respondent-applicant.

8. The issue that requires consideration in this original petition is as to whether any interference is warranted on Ext.P4 order dated 23.09.2022 of the Tribunal in O.A.No.202 of 2019.

9. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. 9 OP(KAT)No.246 of 2023

2025:KER:64153 Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

10. In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

11. In Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 10 OP(KAT)No.246 of 2023 2025:KER:64153 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

12. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice 11 OP(KAT)No.246 of 2023 2025:KER:64153 have been flouted.

13. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1] a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law.

14. In view of the law laid down in the decisions referred to supra, the High Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, cannot sit in appeal over the findings recorded by the Administrative Tribunal. The supervisory jurisdiction cannot be exercised to correct all errors in the order of the Administrative Tribunal, 12 OP(KAT)No.246 of 2023 2025:KER:64153 acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order of the Administrative Tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the Administrative Tribunal has committed a manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the Tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.

15. In the instant case, the respondent-applicant filed O.A.No.202 of 2019 before the Kerala Administrative Tribunal seeking an order to set aside Annexure A2 communication dated 06.04.2011 issued by the 1st petitioner State, whereby his request for deputation benefit for undergoing BSc. Optometry course was rejected as the said benefit cannot be granted as per the prevailing rules. It is not in dispute that the deputation benefits originally granted vide G.O.(Rt.)No.2377/2002/H&FWD 13 OP(KAT)No.246 of 2023 2025:KER:64153 dated 03.10.2002 was taken away as per Annexure A4 Government order dated 23.06.2010. A reading of Annexure A4 order dated 23.06.2010 would show that the deputation benefits for higher studies granted to Nurses/Paramedical Staff of the Health Department/Medical Education Department were taken away, since the Government noticed that there is no dearth of hands who are possessing higher qualifications in the Paramedical/Nurses category. Therefore, the Government felt that there is no necessity to allow Nurses and Paramedical Staff of Health Department/Medical Education Department to sanction deputation for study purpose in future. As per Annexure A4 Government order, those who desires to undergo higher studies can undergo the study by availing eligible leave/Leave Without Allowance, as per rules.

16. It is after the issuance of Annexure A4 Government order 23.06.2010 that the respondent-applicant was granted Leave Without Allowance, vide Annexure A3 Government order dated 08.12.2015, for study purpose from 25.09.2010 to 18.03.2015 for completing BSc. Optometry course, under Rule 88 Part I of KSR, on condition that the leave period will not count 14 OP(KAT)No.246 of 2023 2025:KER:64153 for increment, higher grade, pension and accumulation of earned leave. Instead of challenging Annexure A3 order dated 08.12.2015, the respondent-applicant has sought for a declaratory relief that he is entitled to the benefit of deputation with full pay and allowances for the period from 25.09.2010 to 18.03.2015, overlooking Annexure A3 order. When Annexure A3 order dated 08.12.2015 is one issued in terms of Annexure A4 Government order 23.06.2010, the Tribunal went wrong in setting aside Annexure A3 order.

17. The case put forth by the respondent-applicant in O.A.No.202 of 2019 is that even after the issuance of Annexure A4 order dated 23.06.2010, deputation benefits were extended to other Nurses/Paramedical Staff of the Health Department/ Medical Education Department, as evident from Annexure A5 Government order dated 01.03.2011, Annexure A7 Government order dated 30.01.2018, Annexure A8 Government letter dated 19.11.2012, Annexure A9 Government order dated 23.01.2018, Annexure A10 Government order dated 22.09.2009 and Annexure A10(a) Government order dated 05.10.2013. Taking note of the claim made by the respondent-applicant for 15 OP(KAT)No.246 of 2023 2025:KER:64153 deputation benefits placing reliance on the aforesaid Government orders/letters, the Tribunal directed the 1st petitioner State to pass fresh orders on the request of the applicant for granting him deputation benefits for the period during which he had undergone BSc. Optometry course from 25.09.2010 to 18.03.2015. To enable such consideration, the Tribunal set aside Annexure A2 communication dated 06.04.2011 and condition imposed in Annexure A3 Government order dated 08.12.2015. When the condition stipulated in Annexure A3 Government order dated 08.12.2015 is strictly in terms of Annexure A4 Government order dated 23.06.2010, the Tribunal went wrong in setting aside the condition imposed in Annexure A3 Government order dated 08.12.2015. For the very same reason, the Tribunal ought not to have set aside Annexure A2 communication dated 06.04.2011. Therefore, Ext.P4 order dated 23.09.2022 of the Tribunal in O.A.No.202 of 2019 to the extent of interfering with Annexures A2 and A3 cannot be sustained in law and Ext.P4 order to that extent is set aside. Considering the fact that even after the issuance of Annexure A4 Government order dated 26.03.2010, the 1st petitioner State granted deputation benefit 16 OP(KAT)No.246 of 2023 2025:KER:64153 to similarly situated persons, the Tribunal by Ext.P4 order dated 23.09.2022 directed the State to pass fresh orders on the request made by the respondent-applicant for grant of deputation benefit for the period from 25.09.2010 to 18.03.2015, within the time limit stipulated in that order, after affording him an opportunity of being heard. For the reasons stated hereinbefore, we deem it appropriate to modify the said direction of the Tribunal as one directing the 1st respondent State to consider, strictly in accordance with law, the question as to whether the respondent-applicant is entitled for deputation benefits for the said period. A decision in this regard shall be taken, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a certified copy of this judgment.

The original petition is disposed of as above.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE AV 17 OP(KAT)No.246 of 2023 2025:KER:64153 APPENDIX OF OP(KAT) 246/2023 PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE ORDER NO.

E4/10444/2010/TDMCA DATED 24.09.2010 ISSUED BY THE ADMINISTRATIVE OFFICER, T.D. MEDICAL COLLEGE, ALAPPUZHA.

AnnexureA2 THE TRUE COPY OF LETTER BEARING NO.

486/B2/2-11/H&FWD DATED 06.04.2011 ISSUED BY THE 1 ST PETITIONER.

Annexure A3 THE TRUE COPY OF GO(RT)NO. 3946/2015/H&FWD DATED 8-12-2015.

Annexure A4 THE TRUE COPY OF GO(RT)NO. 2469/2010/H&FWD DATED 23.06.2010.

Annexure A5 THE TRUE COPY OF GO(RT)NO. 871/ 2011/H&AMP;FWD DATED 01.03.2011 Annexure A6 THE TRUE COPY OF GO(MS)NO. 174/2016/H&FWD DATED 19.08.2016.

Annexure A7 THE TRUE COPY OF GO(RT)NO. 331/ 2018/DHS DATED 30.01.2018.

Annexure A8 THE TRUE COPY OF LETTER NO.

49482/B2/2012/H&FWD DATED 19.11.2012, ISSUED BY 1 ST PETITIONER TO THE 2 ND PETITIONER.

Annexure A9 THE TRUE COPY OF GO(RT)NO. 244/2018/H&FWD DATED 23.01.2018.

Annexure A10              THE      TRUE       COPY        OF      GO(RT)NO.
                          2718/2009/H&AMP;FWD DATED 22.09.2009.
Annexure A10(a)           THE TRUE COPY OF GO(RT)NO. 3393/2013/H&FWD
                          DATED 05.10.2013.
Exhibit P1                TRUE COPY OF THE O.A NO.202/2019 ALONG WITH
                          ANNEXURES.
Exhibit P2                TRUE COPY OF REPLY STATEMENT FILED ON

26.11.2019 BY THE FIRST PETITIONER HEREIN IN THE ORIGINAL APPLICATION.

Exhibit P3                TRUE   COPY   OF    REJOINDER     FILED   BY  THE
                          RESPONDENT    ON     05.10.2020      ALONG   WITH

ANNEXURES TO THE REPLY STATEMENT OF THE 1 ST PETITIONER.

Exhibit P4 TRUE COPY OF FINAL ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 23.09.2022 IN THE ORIGINAL APPLICATION NO.202/2019.

Unlock Advanced Research with PRISMAI

Kerala High Court