Kerala High Court
The Honourable Mr.Justice ... vs Petitioners/ on 18 August, 2016
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
THURSDAY, THE 30TH DAY OF NOVEMBER 2017 / 9TH AGRAHAYANA, 1939
OP(KAT).No. 434 of 2017
AGAINST THE ORDER IN OA(EK 530/2015 of KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 18-08-2016
PETITIONERS/RESPONDENTS 1 TO 3 IN OA
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 SECRETARY TO GOVERNMENT
HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
3 DIRECTOR OF MEDICAL EDUCATION
GOVERNMENT OF KERALA, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM.
BY GOVERNMENT PLEADER SRI P.N. SANTHOSH
RESPONDENT(S)/APPLICANT & 4TH RESPONDENT IN OA:
1. DR.SINDHU K. BHASKARAN
D/O FORMER CHIEF JUSTICE, THE LATE K. BHASKARAN,
PROFESSOR OF PATHOLOGY (UNDER ORDERS OF REVERSION),
GOVERNMENT MEDICAL COLLEGE, MANJERI, MALAPPURAM
DISTRICT-676121 RESIDING AT SINDHOOR, GOLF LINK
ROAD CHEVAYOOR P.O.,
2. DR.S.SANKAR
PROFESSOR, DEPARTMENT OF APPLIED NUTRITION,
GOVERNMENT MEDICAL COLLEGE, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION
ON 30-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No. 434 of 2017 (Z)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1: TRUE COPY OF THE ORIGINAL APPLICATION FILED BY
IST RESPONDENT ALONG WITH ANNEXURES.
EXHIBIT P2: TRUE COPY OF THE REPLY STATEMENT FILED BY THE
PETITIONERS.
EXHIBIT P3: TRUE COPY OF THE REPLY STATEMENT FILED BY THE
2ND RESPONDENT HEREIN.
EXHIBIT P4: TRUE COPY OF THE ORDER IN OA(EKM) NO.530/2015
DATED 18.8.2016 PASSED BY THE KERALA
ADMINISTRATIVE TRIBUNAL, ERNAKULAM.
Respondents exdts: nil
ks.
true copy
P.S. TO JUDGE
P. R. RAMACHANDRA MENON & SHIRCY V.,JJ.
==============================
O.P.(KAT) No. 434 of 2017
==============================
Dated this the 30th day of November, 2017
JUDGMENT
P.R. Ramachandra Menon, J.
Respondents in O.A (EKM) No. 530/2015 of the Kerala Administrative Tribunal (Ernakulam Bench) are the petitioners before this Court. The challenge is against Ext.P4 order whereby the O.A. filed by the 1st respondent/applicant was allowed, setting aside the orders passed by the Department, to the contrary, which were detrimental to the rights and interest of the applicant.
2. Heard the learned Government Pleader at length.
3. The sequence of events reveals that the 1st respondent/applicant was working as an Associate Professor of Pathology in the Government Medical College, Kozhikode, in the Medical Education Service. As per Annexure-A1 dated 11.04.2014, she was promoted as Professor on regular basis OPKAT 434/2017 2 and posted as such in the Government Medical College, Manjeri. This was in respect of a deputation vacancy, pursuant to the deputation of the 2nd respondent herein, who was holding the post of Professor. Later, Annexure-A4 order was passed on 21.01.2015 reverting the applicant to the post of Associate Professor, so as to facilitate the 2nd respondent herein, who was working as the Director of Priyadarshini Institute of Para Medical Sciences, Thiruananthapuram, to join the post of Professor. It is to be noted that the 2nd respondent did not join the post of Professor in the Government Medical College, Manjeri, pursuant to Annexure-A4 and he was permitted to join duty with effect from 23.05.2015 as Professor in the Department of Applied Nutrition, Government Medical College at Thiruvananthapuram, as borne by Annexures-A5 & A6. The post of Professor in the Govt. Medical College, Manjeri was lying vacant as shown in the records. According to the Department, the applicant was regularly promoted to the OPKAT 434/2017 3 post of Professor, when clear vacancy arose as evident from Annexure-A11 dated 03.07.2015. Since the 2nd respondent did not join duty as Professor, pursuant to Annexure-A4, in the Government Medical College at Manjeri and he was permitted to discharge the duties as Professor in the Department of applied Nutrition, Government Medical College, Thiruvananthapuram, the applicant contended that the period of six months between AnnexureS-A4 and A11, conferring the status only as an 'Associate Professor' to her was not correct or sustainable; who moved the Tribunal by filing the O.A. with the following prayers:
"i) To declare that the reversion of the applicant ordered as per Annexure A-4 G.O,. dated 21.1.2015 without notice and without affording reasonable opportunity of being heard as mandated by Article 311(2) of the Constitution of India is unconstitutional, void and inoperative and further to declare that the reversion ordered as per Annexure A-4 GO dated 21.01.2015 did not take effect by reason of the 4th respondent not joining the post of Professor, Pathology, Government Medical College, Manjeri pursuant to Annexure-
A4 GO and the applicant continues to be holding the post of Professor, Pathology, Medical College, Manjeri as evidenced OPKAT 434/2017 4 by Annexure-A7 because of her reversion did not come into effect;
ii) to call for the records leading to Annexure-A4 G.O. dated 21.01.2015 and to set aside the same to the extent it reverted the applicant to the post of Associate Professor from the post of Professor, Pathology, Government Medical College, Manjeri;
iii) to call for the records leading to Annexure-A5 GO dated 22.05.2015 and to set aside the same to the extent it directs that the post of Professor, Department of Pathology at Government Medical College, Manjeri will remain open till the 4th respondent joins the post which amounts to creating a lien in favour of the 4th respondent against the particular post of Professor of Pathology, Government Medical College, Manjeri and reserving the post to him which is impermissible under law;
iv) to issue appropriate direction or order directing the respondents 1 to 3 to allow the applicant to continue in the post of Professor of Pathology, Government Medical College, Manjeri without regard to her technical reversion ordered as per Annexure-A4 GO dated 21.01.2015 which have not come into effect by reason of non-joining of the 4th respondent to that post within the minimum period or extended period if any and to disburse her pay and allowances admissible to the post of Professor of Pathology without regard to her reversion ordered in Annexure-A4 GO which did not take effect immediately and at any rate, within a time-frame that may be fixed by this Hon'ble OPKAT 434/2017 5 Tribunal;
v) to issue appropriate direction or order directing the respondents 1 to 3 not to disturb the applicant from the post of Professor of Pathology, Government Medical College, Manjeri before competition of the minimum period of service fixed in Annexure-A8 GO dated 29.04.2015.
vi) to call for the records leading to Annexure A-11 GO dated 03.07.2015 and to set aside the same to the extent it treated the applicant as Associate Professor on reversion and promoting her as Professor on regular basis based on a non-existent premise;
vii) to issue appropriate direction or order directing the respondents to treat the applicant as continuing in the post of Professor without regard to Annexure A-4 GO dated 21.01.2015 and Annexure A-11 GO dated 03.07.2015 and to grant all service benefits to the applicant including pay and allowances admissible in the post of Professor from the date of her initial appointment as Professor as per Annexure A-1 GO dated 11.04.2014 and to declare her probation in the post of Professor expeditiously and at any rate, within a time-frame that may be fixed by this Hon'ble Tribunal,
viii) to issue appropriate direction or order which this Hon'ble Tribunal deems fit, just and proper in the circumstances of the case; and
ix) to allow the above O.A.with the cost to the applicant."
4. The claim was sought to be resisted by the Department by filing reply statement. After hearing both OPKAT 434/2017 6 the sides, the Tribunal arrived at a finding, as per Ext.P4, that actual reversion had not taken place, though ordered as per Annexure -A4, and that the 2nd respondent herein had joined duty as Professor in the Government Medical College, Thiruvananthapuram. In other words, Annexure-A4 reversion was not at all necessitated, by virtue of which, the applicant could have continued as Professor, pursuant to Annexure-A1 order in the Government Medical College at Manjeri. It was accordingly, that the O.A.was allowed, which, in turn is under challenge in this Original Petition.
5. After hearing the learned Government Pleader at length, this Court finds that no tenable ground to call for interference is made out, especially in the light of the undisputed facts and sequence of events. The Department was very well aware that, pursuant to Annexure A4, the 2nd respondent had to join duty at the Government Medical College, Manjeri, which admittedly had not taken place and quite strangely, the 2nd respondent was permitted to join OPKAT 434/2017 7 duty as Professor in the Department of Applied Nutrition, Government Medical College, Thiruvnanthapuram as per Annexure-A6. This is a conscious exercise by the competent authority, permitting the 2nd respondent to work in Thiruananthapuram, virtually to the effect that the post at Manjeri was never to be occupied by the said respondent. In other words, by virtue of such a course, the reversion of the applicant was not all necessitated and she could have continued as Professor at Manjeri, pursuant to Annexure-A1. In the said circumstances, there is no rationale on the part of the Department in treating the period between Annexure- A4 and A11, conferring the status only as an 'Associate Professor' to the applicant; which has been rightly interdicted by the Tribunal as per Ext.P4. We do not find any merit in the Original Petition.
6. That apart, Ext.P4 verdict was passed by the Tribunal more than one year back, i.e. on 18.8.2016. The challenge, if at all any, had to be raised by the aggrieved OPKAT 434/2017 8 party within a reasonable time. Even by the farthest stretch of imagination, can it ever be held that the proceedings now sought to be pursued by the Government/Department, after one year of passing Ext.P4 is within such reasonable limit. The Original Petition fails on this ground as well. Interference is declined. Original Petition is dismissed, both on merit and on delay.
Sd/-
P. R. RAMACHANDRA MENON JUDGE Sd/-
SHIRCY V. JUDGE ks.
True copy
P.S. To Judge
OPKAT 434/2017 9
OPKAT 434/2017 10