Kerala High Court
Chandravathi. M vs The State Of Kerala on 26 May, 2017
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 11TH DAY OF OCTOBER 2017/19TH ASWINA, 1939
OP(KAT).No. 342 of 2017 (Z)
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AGAINST THE ORDER/JUDGMENT IN OA(EKM) 1243/2016 of KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 26-05-2017
PETITIONER/APPLICANT:
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CHANDRAVATHI. M
W/O ASHOKAN, AGED 49 YEARS,
AKSHAYA, PALATHAYI ROAD,
KADAVATHUR P.O,
KANNUR-670676.
BY ADVS.SRI.T.T.MUHAMOOD
SRI.V.E.ABDUL GAFOOR
SRI.A.MOHAMMED SAVAD
SRI.C.Y.VINOD KUMAR
RESPONDENT/RESPONDENTS:
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1. THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO
GOVT. HEALTH & FAMILY WELFARE (C) DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001
2. THE DIRECTOR OF HEALTH SERVICES,
DIRECTORATE OF HEALTH SERVICES,
VANCHIYOOR P.O
THIRUVANANTHPAURAM - 695035
3. DISTRICT MEDICAL OFFICER
OFFICE OF THE DISTRICT MEDICAL OFFICER,
KANNUR-671001.
BY GOVERNMENT PLEADER SHRI P.N. SANTHOSH
THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 11-10-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT).No. 342 of 2017 (Z)
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APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION NO. O.A (EKM)-
1243/16 FILED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE
TRIBUNAL.
EXHIBIT P2 TRUE COPY OF THE ORDER IN OA (EKM)/ 1243/16 PASSED BY
THE KERALA ADMINISTRATIVE TRIBUNAL.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 21/6/2007 FILED BY
THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE G.O(Rt)No.946/2007/H&FWD DATED
17.03.2007.
RESPONDENT(S)' EXHIBITS NIL
/TRUE COPY/
P.S TO JUDGE.
(CASE REPORTABLE)
P.R. RAMACHANDRA MENON
&
SHIRCY V, JJ.
..............................................................................
O.P(KAT)No.342 of 2017
.........................................................................
Dated this the 11th October, 2017
JUDGMENT
P.R. Ramachandra Menon, J.
Non-regularisation in service of a person who has served the Department, though on a provisional basis under Rule 9(a)(i) of Part II, KS & SSR, continuing from 20.12.1989 till 25.01.2001 is brought up for consideration of this Court, referring to the litigation launched by the petitioner in the year 2001 itself and the time lag on the part of the Government in considering the claim with proper application of mind.
2. At the outset, we have to mention that we are aware of the limited relief which could be granted in a claim for regularisation, which cannot be given as a matter of right, especially after the dictum laid down by the Apex Court in 2006 (4) SCC 1 (Secretary, State of Karnataka and others vs. Umadevi and ors). But some benefit has been given by the O.P(KAT)No.342 of 2017 2 Apex Court in paragraph 53 of the said verdict, to the deserving and eligible lot. The question to be considered is whether the petitioner comes within the purview of such exception, as a beneficiary. This made us to go into the facts and figures to have an effective adjudication of the issue.
3. Heard the learned counsel for the petitioner as well as the learned Sr. Government Pleader appearing for the State.
4. There is no dispute to the fact that the petitioner, on attaining the qualification to be appointed as Jr. Public Health Nurse Gr.II, came to be selected and appointed as Jr.Public Health Nurse Gr.II under Rules 9(a)(i) of Part II, KS & SSR on 20.12.1989. She was permitted to continue in the post uninterruptedly till 25.01.2001, when she was sent out, referring to the availability of P.S.C hands. This was sought to be challenged by the petitioner by filing O.P.3025 of 2001 before this Court, which was disposed of as per judgment dated 04.06.2003, relegating the petitioner to approach the Government and in turn, directing the Government to have the same considered in O.P(KAT)No.342 of 2017 3 accordance with law.
5. It remains a fact that the Government took more than 4 years to consider the matter and the claim was rejected, which led to further litigations. When the matter came up for consideration before this Court on 15.09.2017, instruction was called for from the part of the Government. The order dated 17.03.2007, whereby the petitioner's representation was stated as rejected, was directed to be produced by the petitioner, which in turn has been produced as Ext.P4 along with the I.A.1750 of 2017. It is said that the petitioner had submitted a representation before the Hon'ble Minister as well, even after Ext.P4 and that file Number was assigned and the matter was pursued accordingly. The continuous service of the petitioner was also conceded from the Directorate, as borne by Annexure A2 dated 24.02.2016. The claim was virtually recommended, as per the said proceedings addressed to the Secretary of the said Department, pointing out that appropriate decision could be taken by the Government as a matter of policy, in view of the O.P(KAT)No.342 of 2017 4 particular facts and circumstances.
6. Despite the admitted facts and the recommendation given, the application came to be rejected as per Annexure A3 dated 11.03.2016, referring to one of the representations filed by her, which was not a dated one. This made the petitioner to approach the Tribunal by filing O.A. No.1243 of 2016, seeking for appropriate reliefs, also pointing out that the Government, pursuant to the declaratory judgment passed by the Apex Court in Umadevi's case (cited supra) had already regularised the service of several persons like the petitioner herein, despite the fact that such persons were having only much lesser service (even with 5 years of service); whereas the petitioner had been serving the Government for more than 10 years. The benefit flowing from Annexure A4 dated 13.07.2005 was sought for, before the Tribunal. However, relying on the verdict passed by the Apex Court in Umadevi's case, the Tribunal declined interference as per Ext.P2 order, which forms the subject matter of challenge in this Original Petition.
O.P(KAT)No.342 of 2017 5
7. It may be true that the petitioner may have to cross various technical hurdles, especially with regard to the challenge, if any, in respect of Ext.P4, which was passed by the Government way back on 17.03.2007. It is however to be noted that, the grievance was sought to be pursued by the petitioner well within time; having had approached this Court by filing OP.3025 of 2001 (in the year 2001 itself), when she was terminated from the service. As per the judgment dated 04.06.2003, the claim was directed to be considered by the Government. For such consideration, the Government took nearly 4 years, by passing Ext.P4 order on 17.03.2007. By that time, the law had been made clear by the Apex Court, as per the decision in Umadevi's case (cited supra) and the Government itself had considered the case of several persons in similar circumstances and had passed Annexure A4 order dated 13.07.2005 extending the benefit to such persons, even those who were having only 5 years of service, but lesser than 10 years; though the Apex Court had ordered the benefit to be given only in respect of persons who O.P(KAT)No.342 of 2017 6 were having more than 10 years, which the petitioner had satisfied as on the date of termination of service.
8. The primary question to be considered is whether the direction given by this Court as per the judgment dated 04.06.2003 has been properly complied with by the Government, while passing Ext.P4. It is true that the said order as such is not subjected to challenge in this O.P. But, could it be treated as a valid order in the eye of law; more so when the purpose of the direction given by this Court was to consider and pass a speaking order. Though the factual position is referred to therein, absolutely no justification is discernible from the said order as to the reason for rejection, despite the service rendered by the petitioner for more than 10 years, especially when the Apex Court had made it clear that the benefit could be granted in respect of persons, who were having 10 years or more and further when such benefit had already been extended by the Government to persons having much lesser number of years of service, as borne by Annexure A4. As such, the order passed by O.P(KAT)No.342 of 2017 7 the Government after four years of passing the verdict by this Court in O.P.3025 of 2001 is not liable to be treated as a speaking order or a valid order, to hold that the issue was finalised in proper manner.
9. The learned Government Pleader submits that the benefit given by the Government to persons covered by Annexure A4 were the persons, who had already approached the Apex Court by way of various proceedings. But the question is whether such benefit could be or should be restricted to persons, who had approached the Supreme Court? The verdict passed by the Apex Court in Umadevi's case (cited supra)is a declaratory judgment and as such, the benefit flowing from a declaratory judgment is liable to be extended to other similarly situated persons, without compelling or driving them to raise litigations before any court of law. The Government being the model employer, who had considered the matter and extended such benefits even to less meritorious persons like the persons mentioned in Annexure A4, ought to have considered the O.P(KAT)No.342 of 2017 8 grievance of the petitioner, who launched the grievance with regard to the cause of action way back in 2001 itself, which was directed to be considered by this Court as per the judgment dated 04.06.2003; at least while passing Ext.P4 order on 17.03.2007. This Court finds support as to the extension of benefits to similarly situated persons, from the ruling rendered by the Apex Court in Ashwani Kumar and others v. State of Bihar and others (1997(2) SCC 1). In the said circumstance, we find that this is a case where the matter requires to be considered afresh by the Government, invoking the power vested with the Government under Rule 39 of part II KS & SSR, based on the undisputed credentials of the petitioner, irrespective of her age factor.
10. In the said circumstance, we declare that Ext.P4 is not a proper or valid order to be given effect to and we set aside the same and declare that the case of the petitioner requires to be reconsidered, as above. This is more so, since the appointment of the petitioner was based on the qualification possessed by her O.P(KAT)No.342 of 2017 9 and further that it was not a back door appointment, that too, when there is no dispute that she was occupying a slot against the sanctioned vacancies. The matter shall be reconsidered by the Government and a speaking order shall be passed, after affording an opportunity of hearing to the petitioner, at the earliest, at any rate, within three months from the date of receipt of a copy of the judgment. The matter stands disposed of accordingly.
P.R. RAMACHANDRA MENON, JUDGE SHIRCY V, JUDGE lk