Jolly Mathew vs State Of Kerala
2021 Latest Caselaw 15949 Ker

                        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                         THE HONOURABLE MR. JUSTICE AMIT RAWAL
                              ND
                MONDAY, THE 2    DAY OF AUGUST 2021 / 11TH SRAVANA, 1943

                                 WP(C) NO. 4380 OF 2019

PETITIONER/S:
                JOLLY MATHEW
                AGED 66 YEARS
                W/O MATHEW VETTIANGAL, PEARL HILLS, T.C.11/1613(1), CHARACHIRA,
                KOWDIAR.P.O, THIRUVANANTHAPURAM 695 003.

                BY ADVS.
                D.KISHORE
                MINI GOPINATH
                MEERA GOPINATH
                R.MURALEEKRISHNAN (MALAKKARA)


RESPONDENT/S:

     1          STATE OF KERALA
                REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
                HEALTH AND FAMILY WELFARE(C) DEPARTMENT, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM 695001.

     2          THE STATE INSTITUTE OF MEDICAL EDUCATION AND TECHNOLOGY(SI-MET)
                REPRESENTED BY ITS DIRECTOR, PALLIMUKKU, PETTAH.P.O,
                THIRUVANANTHAPURAM 695 024.

     3          THE DIRECTOR
                STATE INSTITUTE OF MEDICAL EDUCATION AND TECHNOLOGY(SI-MET),
                PALLIMUKKU, PETTAH.P.O, THIRUVANANTHAPURAM 695 024.

     4          THE GOVERNING BODY
                STATE INSTITUTE OF MEDICAL EDUCATION AND TECHNOLOGY(SI-MET)
                REPRESENTED BY ITS CHAIRMAN, PALLIMUKKU, PETTAH.P.O,
                THIRUVANANTHAPURAM-695 024.

     5          THE KERALA STATE HUMAN RIGHTS COMMISSION
                REPRESENTED BY ITS REGISTRAR, TURBO PLUS TOWER, PMG JUNCTION,
                THIRUVANANTHAPURAM 695 033.

                BY ADVS.
                SRI.LAL K.JOSEPH
                SRI.A.A.ZIYAD RAHMAN


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2021, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 4380 OF 2019

                                     2




                            JUDGMENT

It is a classic case where the proceedings of the Syndicate, as

reflected in Ext.P7 dated 20.5.2016 misinterpreted by denying the

salary to the petitioner for the period 25.5.2014 to 1.1.2016.

2. Succinctly, the facts are, that the petitioner, with effect

from 2.12.2011, was, on contract basis, appointed as a Registrar

for a period of one year which was extended vide Ext.P2.

Respondent SI-MET is an autonomous Society established to

promote the Medical education and Research in the State and

registered under the Travancore Cochin Literary, Scientific and

Charitable Societies Registration Act, 1955. The 8 th Governing

body on 17.2.2011 decided to take up the issue regarding the

creation of post of Registrar and also decided to enhance the pay

scale of Registrar to Rs.25,000/-. The 9 th Government body held

on 9.5.2011 requested the Special Secretary Health to take up the

issue with the Finance Department and till then the said post was

decided to be continued on temporary basis as the said post was WP(C) NO. 4380 OF 2019

included in the Article of Association of SI-MET. The petitioner

joined SI-MET, as Registrar, on 2.12.2011. Proposal was sent to

the Government for approval of the said post on 26.4.2012. The

12th Governing Body Meeting on 8.11.2012 agreed to extend the

period of contract of the petitioner for a further period of one year

i.e.from 1.12.2012.

3. Learned counsel for the petitioner submitted that as per

proceedings dated 14.8.2014 sanction was accorded for the

extension of term of appointment of the petitioner as Registrar

from 1.12.2013 to 24.5.2014, evident from Ext.P2. Sanction was

accorded for the drawal of Rs. 1,44,355/- as salary of the Registrar.

On 10.8.2015 a request was submitted by the petitioner before the

4th respondent to extend the period of contract. However on

1.1.2016, his appointment was terminated. Salary with effect from

25.5.2014 to 1.1.2016 was not paid. Attention of this Court was

drawn to the proceedings dated 20.5.2016, Ext.P7, wherein after

detailed deliberation, in respect of a case of one Mathew Jose as

well as petitioner, Jolly Mathew, it was decided that the post of the

Registrar could not be approved awaiting govt decision but the WP(C) NO. 4380 OF 2019

petitioner was allowed to continue as the Registrar SI-MET for

approval of the post and payment of the salary. It was also

noticed that since the Government had not granted the approval,

the services were terminated with effect from 1.1.2016 and

payment of salary was to be considered in the next General body of

the meeting. Vide communication dated 23.5.2018, Ext.P13,

petitioner was informed that the Governing Body declined the

request of the petitioner to disburse the salary from 25.5.2014 to

1.1.2016 on the ground that the aforementioned period was not

decided to be regularized. The aforementioned decision basically

was passed in terms of the judgment dated 16.11.2017 in W.P.(C)

No.33064 of 2017.

4. It was next submitted that the petitioner had discharged

the duties of Registrar as per the orders of the Governing body.

There would have been a force in denying the salary, had the

petitioner forcefully continued to discharge the duty of Registrar.

The proceedings dated 23.5.2018 noticing all the previous

proceedings, is a testimony to that.

5. On the other hand, learned counsel for the respondent WP(C) NO. 4380 OF 2019

opposed the aforementioned prayer on the premise that creation of

the post of the Registrar was not approved by the Government.

The petitioner unauthorizedly continued the work as Registrar

from 25.5.2014 to 1.1.2016 rightly so, the salary was not been

disbursed.

6. I have heard the learned counsel for the parties and

appraised the paper book. The facts as noticed above are not in

dispute. To counter the arguments of the respondent as he preyed

for dismissal of the writ petition, it would be expedient to extract

the proceedings dated 20.5.2016, Ext.P7.

PROCEEDINGS OF THE DIRECTOR, SI-MET, THIRUVANANTHAPURAM Present: Prof. Salomey George

Sub: SI-MET-Estt-Appointment against the post Registrar- Inspection report of Finance (Inspection -NT-G) Department Government direction complied with-termination appointment- orders issued

Read:

1. G.O (Ms) 85/2011/H&FWD dated 07/02/2011

2. Government Lr 13979/C3/2010/H&FWD dated 29/03/2011

3. Government letter No. 53733/C3/2013/H&FWD dated 21/01/2014

4. Decision on item No. 13 of the meeting Governing Body SI-

MET held on 24/05/2016 WP(C) NO. 4380 OF 2019

5. Decision on item No. of the 16th meeting of Governing Body of SI-MET held on 01/01/2016.

6. Govt Letter No. 53733/C 3/2013/H&FWD dated 15/04/2016

ORDER NO. E/2423(a)/2009/SI-MET DATED 20/05/2016

The 5th Governing Body meeting SI-MET held on 24/12/2009 decided create post of 'Registrar' subject approval of Government and pointed Sri.Mathew Jose K, Additional Secretary (Retd) against the post Registrar, SI-MET on contract for period of one year, with consolidated pay of Rs.15000/- p.m. The 8 th Governing Body meeting of ST-MET held on 17/02/2011 decided enhance the salary of Sri. Mathew Jose K, Registrar from Rs.15000/-p.m to Rs.25000/- p.m with prospective effect.

Though the post of Registrar was included the proposal for creation of posts sent to Government as per letter No. B/845/2010/SI-MET dated 09/07/2010, post Registrar' was not created per G.O (MS) No. 85/2011/H&FWD dated 07/02/2011. It was also ordered in the same Government order that posts (Regular/ Permanent / Deputation/ Temporary/ Provisional/ Contract /Daily Wage /Casual) shall be created SI-MET without the approval of Government and no appointment created posts.

Subsequently Government informed vide Lr No. 13979/C3/2010/H&FWD dated 29/03/2011 have declined the proposal for the post of Registrar.

The 9th Governing Body meeting held on 09/05/2011 noted that the post of Registrar is included in the byelaws of SI-MET itself. It necessary create post with qualification and method of appointment proposed before the Government. The Chairperson directed Spl. Secretary-(Health) i/c to take up the matter again with Finance Department and get the post creation approved. Till then the post of Registrar will continue in SI-MET on temporary basis, as it is a statutory post per the Article SI-MET'. Accordingly Shri. Mathew Jose continued as Registrar SI-MET.

Smt. Jolly Mathew, Addl. Secretary (Retd) Government Secretariat (Vettiangal, Pearl Hills T.C 11/1613(1), Charachira, Kawadiar P.O, Thiruvananthapuram) has been appointed as Registrar, SI-MET in WP(C) NO. 4380 OF 2019

the place of Sri. Mathew Jose K on contract basis a year 02/12/2011.

The 11th Governing Body meeting held on 09/01/2012 as per item No. 14, directed Director SI-MET to send proposal to Government for approval appointment Smt. Jolly Mathew in the Registrar post in SI-MET. In this regard a proposal for creation of post of Registrar was again sent to Government vide Lr. No. E/2423(a)/2009/SI-MET dated 26/04/2012 and the same was not sanctioned so far.

The 12th Governing Body meeting of SI-MET held 08/11/2012 as per decision No.44, agreed to extend the contract appointment of Smt, Jolly Mathew, Registrar, SI-MET for a period of one year from 01/12/2012 on the same terms and conditions.

In the mean time Government vide letter 6896/C3/2013/H&FWD dated 04/03/2013 directed to place the matter regarding the post Registrar before Governing Body again for reconsideration. The next Governing Body meeting ie., 13 th Meeting of Governing Body was held on 24/05/2014

Government, as per read 3d paper forwarded report of Finance (Inspection Wing) Department for report. Among other things, it was pointed out that creation of posts in G.O (Ms) 85/2011/H&FWD dated 07/02/2011 are subject to the conditions mentioned therein.

Finance Inspection Wing also remarked that, since the appointment of Registrar is against the order issued vide letter 13979/C3/2010/H&FWD dated 29/03/2011, immediate measures should be taken by Administrative Department to terminate service of Smt. Jolly Mathew from the post Registrar take steps abolish the with immediate effect. The Finance Inspection Wing also pointed out that the appointment of Registrar was against the orders contained in G.O (Ms) 85/2011/H&FWD dated 07/02/2011.

The issue was placed as item No. 13 of the 13th Meeting of Governing Body of SI-MET held on 24/05/2014. The G.B decided as follows:

WP(C) NO. 4380 OF 2019

I. to send proposal to Government regarding on the existence of post of Registrar which was declined by the Government and continuing as per Governing Body decision.

ii.ratified the action of the Director in allowing Smt. Jolly Mathew to continue in the post of Registrar from 01/12/2013 to the date Governing Body on 24/05/2014

iii. The issue on renewal of contract of Smt.Jolly Mathew, Restirar of SI-MET for a further period of one year from the date of 13 th Governing Body has discussed in detail with reference to the earlier decisions Government directions and report of Finance inspection Wing and it was decided that the post of Registrar cannot be continued.

Director was authorized to examine the feasibility to merge the post of Administrative Officer and Registrar to take up with Government which post (Administrative Officer/ Registrar) to be retained in SI-MET since there is only one sanctioned post- Administrative Officer. This will done by the department with the concurrence of the Finance Department. In this regard detailed proposal was sent to Government vide this office letter of even No. dated 18/08/2015

Awaiting decision from Government and further decision by Governing Body, Smt. Jolly mathew was allowed to continue as Registrar in SI-MET.

In the 14th Governing Body meeting of SI-MET held on 21/08/2014 and 15th Governing Body meeting of SI-MET held on 19.8.2015 the agenda regarding the post of Registrar was included but said item was postponed.

An agenda note has been placed before the 16 th Governing Body meeting of SI-MET held on 01/01/2016, for taking decision on the following matters (i) for the creation of the post of Registrar (ii) to ratify the action of the Director in allowing Smt. Jolly Mathew to continue in the post of Registrar up to the date of Governing Body on 01/01/2016 (iii) on the request of Smt. Jolly Mathew, Registrar of SI-MET for the extension of her contract appointment for a further period of one year from the date of Governing Body. But the Governing Body deferred the item, pending decision of Government. Smt. Jolly Mathew, Registrar was not attending WP(C) NO. 4380 OF 2019

office from 02/01/2016 onwards.

On examining the Inspection report of the Finance Department, the Government vide letter No. 53733/C3/2013/H&FWD dated 15/04/2016 have directed among other things, to terminate Smt. Jolly Mathew who was appointed as Registrar without the permission of the Government from the post and to place the matter of sanctioning of salary to Smt. Jolly Mathew for the period she worked, before the next meeting of the Governing Body for taking a suitable decision.

In the circumstances, the appointment of Smt. Jolly Mathew as Registrar, SI-MET Directorate is terminated w.e.f. the A.N of 01/01/2016 as per the directions contained in Government Letter No. 53733/C3/2013/H&FWD dated 15/04/2016. The sanctioning of salary of Smt. Jolly Mathew, Registrar for the period from 25/05/2014 to 01/01/2016 will be placed before the next Governing Body meeting for taking a suitable decision.

From the perusal of the aforementioned proceedings

extracted above, following facts have emerged:

Petitioner was permitted to continue awaiting, the decision

from the Government, as Registrar in SI-MET and her services

were terminated with effect from 1.1.2016. Had the petitioner

forcefully or unauthorizedly worked, respondents would have

brought to the notice of the higher authorities regarding the same

or should have issued a notice to the petitioner putting a caveat

regarding the salary. No such material is on record in support of

the aforementioned contention. There is no denial to the fact that

the petitioner continued to discharge the function and duties of WP(C) NO. 4380 OF 2019

Registrar with effect from 25.5.2014 to 1.1.2016. Governing body

cannot shy away from making the payment of the salary for the

aforementioned period, in the absence of approval of the post.

There was no fault of the petitioner in discharging duties of the

Registrar as he was acting, in obedience to the decision referred to

above. The writ petition is allowed. Ext.P13 is quashed. The

respondents are directed to release the salary of the petitioner

with effect from 25.5.2014 to 1.1.2016 along with interest @ 6%

P.A.within a period of two months from the date of receipt of a

certified copy of the judgment.

SD/-

sab                                           AMIT RAWAL

                                                JUDGE
 WP(C) NO. 4380 OF 2019




                         APPENDIX OF WP(C) 4380/2019

PETITIONER EXHIBITS

EXHIBIT P1                TRUE COPY OF THE G.O.(P) NO.168/2008/H&FWD
                          DATED 23.5.2008 OF THE IST RESPONDENT.

EXHIBIT P2                TRUE COPY OF THE PROCEEDINGS

NO.E/2423A/2009/SI-MET DATED 14.8.2014 OF THE 3RD RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE ORDER NO.F/375/2014-SI-MET DATED 19.9.2014 OF THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 10.8.2015 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 1.4.2016 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER.

EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS NO.53733/C3/2013/H&FWD DATED 21.7.2016 OF THE IST RESPONDENT.

EXHIBIT P6 ENGLISH TRANSLATION OF EXHIBIT P6.

EXHIBIT P7 TRUE COPY OF THE ORDER NO.E2423A/2009/SI-MET DATED 20.5.2016 OF THE 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE PETITION DATED 8.12.2016 SUBMITTED BY THE PETITIONER BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION.

EXHIBIT P9 TRUE COPY OF THE REPORT DATED 16.2.2017 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION.

EXHIBIT P10 TRUE COY OF THE ORDER DATED 20.9.2017 IN HRMP NO.12433/2016 OF THE KERALA STATE HUMAN WP(C) NO. 4380 OF 2019

RIGHTS COMMISSION.

EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 16.11.2017 IN WPC 33064/2017 OF THIS HONOURABLE COURT.

EXHIBIT P12 TRUE COPY OF THE PROCEEDINGS NO.C3/523/2017/H&FWD DATED 18.5.2018 OF THE IST RESPONDENT.

EXHIBIT P13 TRUE COPY OF THE PROCEEDINGS NO.E-

2423(A)/2009/SI-MET DATED 23.5.2018 OF THE 3RD RESPONDENT.

EXHIBIT P14 TRUE COPY OF THE REVIEW PETITION DATED 20.6.2018 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS 1 AND 3.

EXHIBIT P15 TRUE COPY OF THE PROCEEDINGS NO.C3/152/2018/H&FWD DATED 27.9.2018 OF THE IST RESPONDENT.