Kerala High Court
State Of Kerala vs Jolly Varghese on 26 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
OP(KAT) NO. 116 OF 2019
AGAINST THE ORDER DATED 6-6-2018 IN OA 1111/2016 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
PETITIONERS/PESPONDENTS IN OA :
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HEALTH & FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001.
2 THE DIRECTOR OF HEALTH SERVICES,
DIRECTORATE OF HEALTH SERVICES, GENERAL HOSPITAL,
THIRUVANANTHAPURAM, PIN-695035.
3 THE SUPERINTENDENT, DISTRICT HOSPITAL,
NEDUMANGAD,THIRUVANANTHAPURAM,PIN-695 541.
BY SR.GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY.
RESPONDENT/APPLICANT IN OA :
JOLLY VARGHESE, AGED 46 YEARS, W/O KIRAN KUMAR,
HEAD NURSE, DISTRICT HOSPITAL, NEDUMANGAD,
THIRUVANANTHAPURAM, PIN-695541.
RESIDING AT 'MJM HOUSE',NO.E/18(PNRA),
SREEKRISHNA LANE,KOWDIAR.P.O,
THIRUVANANTHAPURAM,PIN-695003.
BY ADVS.SRI.T.C.SURESH MENON, SMT.N.SUNANDA,
SRI.P.S.APPU & SRI.A.R.NIMOD.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P (KAT) No.116 of 2019 2
ALEXANDER THOMAS & A.BADHARUDEEN, JJ.
------------------------------------------------
O.P (KAT) No.116 of 2019
(Arising out of the order dated 6-6-2018 in O.A No.1111 of 2016
on the file of KAT, Tvm.)
----------------------------------------------------
Dated this the 26th day of August, 2021
JUDGMENT
ALEXANDER THOMAS, J
Aggrieved by the impugned Annexure A9 order
(undated) issued by the Director of Health Services ordering the
cancellation of the promotion granted to the original applicant to
the post of Head Nurse as per Annexure A8 order dated 27-06-2015,
the original applicant had approached the Kerala Administrative
Tribunal, Thiruvananthapuram Bench by filing the instant Ext.P1
O.A No.1111 of 2016 with the following prayers { See pages 19 & 20 of the
paper book } :
(i) To set aside Annexure A9 order of the 2nd respondents
(ii) To direct the 2nd respondent to consider Annexure A10
representation
of the applicant within a time frame.
(iii) To grant such other reliefs as this Hon'ble Tribunal
deems fit and
proper in the nature and circumstances of the case.
(iv) Award the cost of the proceedings from the respondents."
2. The Tribunal after hearing both sides has rendered the
impugned Ext.P7 final order dated 6-6-2018 allowing the main
pleas of the applicant by holding that the ground for cancellation of
promotion that, the applicant was substantively promoted to the
higher category during the time when she had availed leave without
allowances (LWA), is factually wrong and that in essence what was
granted to the applicant as per Annexure A2 was only a placement
as Staff Nurse Grade I consequent to the bifurcation of the previous
category of post of Staff Nurse as Staff Nurse Grade I and Staff
Nurse Grade II, and that what was involved as per Annexure A2 was
not a substantial promotion, but only placement of the applicant
going by her seniority. The Tribunal has held that it is only when a
person is promoted to vacancies which was arisen during the time
when he/she is on leave without allowances that the promotion is
barred, and that in the instant case, such a scenario has not
occurred, etc. Hence, after consideration of the merits of the matter,
the Tribunal has quashed the impugned Annexure A9 order
regarding the cancellation of promotion of the applicant to the next
higher category post of Head Nurse, and has declared that the
applicant is entitled to continue as Head Nurse on the strength of
Annexue A8 order, etc. It is this verdict of the Tribunal at Ext.P7
that this is under challenge in this O.P (KAT) at the instance of the
State of Kerala and the Director of Health Services.
3. Heard Sri.Saigi Jacob Palatty, the learned Senior
Government Pleader appearing for the petitioners in the
O.P/respondents in O.A before the Tribunal and Sri.T.C.Suresh
Menon, the learned counsel appearing for the respondent in the
O.P/sole applicant in O.A before the Tribunal.
4. The respondent herein/original applicant had entered
service as Staff Nurse under the Director of Health Services on
11-09-1996 as referred to in Annexure A1 order and her probation
was also declared as per Annexrue A1 order dated 30-09-2000 with
effect from 24-09-1998. While holding the post of Staff Nurse, the
applicant had availed LWA for the period from 29-03-2005 upto 13-
09-2012 and she had rejoined duty after completion of her LWA on
14-09-2012. Earlier, there was only a single category of post in the
cadre of Staff Nurse. Later when the applicant had proceeded on
LWA, the Government authorities had passed orders bifurcating the
post of Staff Nurse as Staff Nurse Grade I and Staff Nurse Grade II.
It appears that the ratio to be maintained in these two grades was
1: 1. From a reading of Annexure A2, it is seen that incumbents in
the final seniority list of Staff Nurse from Rank No.1 upto Rank
No.3459 were ordered to be provisionally promoted as Staff Nurse
Grade I in this scale of pay of Rs.8,390-13,270 and the remaining
incumbents in the said seniority list of Staff Nurse were ordered to
hold the post of Staff Nurse Grade II. What exactly was the scale of
pay of unbifurcated post of Staff Nurse prior to bifurcation, and as
to the scale of pay of bifurcated posts of Staff Nurse Grade I and
Staff Nurse Grade II are not discernible from the pleadings and
materials on record. However, Annexure A2 would not indicate that
the scale of pay given to the post of Staff Nurse Grade I was
Rs.8,390-13,270. Though, the applicant was on LWA at the time
when Annexure A2 dated 10-11-2008 was issued, it appears that
since the original applicant was included as Rank No.1149 in the
said seniority list of unbifurcated category of Staff Nurse, she was
duly included in Annexure A2 dated 10-11-2008 for the purpose of
provisional promotion to the category of Staff Nurse Grade I in the
scale of pay of Rs.8,390-13,270. Further, in para 2 of Annexure A2,
it is clearly stipulated that in the case of Staff Nurse Grade II, who
are on Leave Without Allowances but promoted by mistake to the
cadre of Staff Nurse Grade I, the promotions will stand
automatically cancelled and the the District Medical Officer of
Health shall report such cases to the office of the Health Services
immediately, etc. It is later that the original applicant had rejoined
duty on 14-09-2012. After the applicant had rejoined duty on 14-09-
2012, it appears that she was permitted to join duty as Staff Nurse
Grade I, pursuant to Annexure A2 order dated 10-11-2008. Later,
she was also promoted to the next higher category of Head Nurse as
per Annexure A8 order dated 25-06-2015. Subsequently, the
respondents in the O.A have taken stand that the promotion granted
to the applicant as per Annexure A2 order dated 10-11-2008 to the
post of Staff Nurse Grade I, was a mistake since Annexure A2 order
was passed on 10-11-2008 at the time when she was on LWA. That,
in view of the (provision) contained in Rule 4 of Appendix XII A of
Part I KSR, in the case of officers who have completed probation
and are granted LWA, then in such cases, for and during the
currency of the period of such leave, the officers shall lose all service
benefits such as the earning of leave, including half pay leave,
pension, gratuity, increment etc and also promotion chances as may
occur with reference to their seniority in the posts from which they
proceeded on leave. They shall also lose seniority in the higher
grade/grades with reference to their juniors who might have
promoted to such grades before they joined duty, etc. By placing
reliance on the provisions contained in Rule 4 of Appendix XII A, of
Part I KSR, the departmental authorities have taken the view that
the promotion granted to the applicant to the post of Staff Nurse
Grade I as per Annexure A2 order dated 10-11-2008 was a mistake
inasmuch as the applicant was then on LWA, and consequently her
promotion as Head Nurse as per Annexure A8 was also a mistake,
since, the initial promotion as Staff Nurse Grade I was not correct,
etc. On this basis, without affording any reasonable opportunity of
being beard to the original applicant, the Director of Health Services
has issued the impugned Annexure A9 order ordering the
cancellation of the promotion granted to the applicant as Head
Nurse as per Annexure A8 and as reverted the applicant to the post
of Staff Nurse Grade I. It is this promotion cancellation order at
Annexure A9 that was challenged by the applicant by filing the
above O.A before the Tribunal. The Tribunal, after hearing both
sides has allowed the pleas of the applicant after considering the
merits of the case.
5. The main contention urged by the learned Senior
Government Pleader appearing for the petitioners herein is to the
effect that the reasoning of the Tribunal to the effect that what was
granted to the applicant as per Annexure A2 dated 10-11-2008 was
not in substance a promotion, but was only a placement as Staff
Nurse Grade I only on the basis of her seniority in the unbifurcated
category of Staff Nurse, is factually and legally wrong. That, what
was in substance granted to the applicant as per Annexure A2 order
was a promotion to the newly created post of Staff Nurse Grade II,
which is in a higher scale of pay and that being so, in substance it
was a promotion and hence such a promotion was barred in the case
of the applicant in view of the mandated provisions contained in
Rule 4 of Appendix XII A of KSR Part I, and so the view taken by the
Department in Annexure A9 ordering the cancellation of the
promotion granted to the applicant as Head Nurse is correct
inasmuch as, the very initial promotion granted to the applicant in
the category of Staff Nurse Grade I was wrong.
6. Per contra, Sri.T.C.Suresh Menon, the learned counsel
appearing for the respondent in the O.P(KAT)/sole applicant in the
O.A would contend that in pith and substance what was granted to
the applicant in Annexure A2 was only a placement as Staff Nurse
Grade I, which was purely on the basis of her undisputed seniority
position. It is urged by the learned counsel appearing for the
original applicant that prior to the bifurcation there is only a single
category of the post viz. Staff Nurse. Thereafter, the Government
issued orders bifurcating the said post as Grade I & Grade II and
that in the ratio of 1 :1 . Further, it was also ordered that based on
the cadre strength and the internal ratio so fixed, it was ordered by
the Government in the Department that the incumbents in the
unbifurcated category of Staff Nurse who were having seniority
positions from Rank No.1 to Rank No.1349 in the seniority list of
Staff Nurse, will be placed as Staff Nurse Grade I and the remaining
incumbents will be placed as Staff Nurse Grade II. If this bifurcation
which was done as per Annexure A2 dated 10-11-2008, was done
even as on the day on which the applicant had proceeded on LWA,
the position would not have been different and she would have been
entitled to be placed as Staff Nurse Grade I going by her undisputed
seniority. Further that, Rule 4 of Appendix XII A does not lead to
forfeiture of seniority in the category of post from which the
incumbent proceeds on LWA, and what is barred is only promotion
as against vacancies which may occur when the incumbents is on
promotion to the next higher category post as against vacancies
which occurred during the currency of the LWA period. That by
virtue of Rule 4 Appendix XII A, qualified juniors of the incumbent
can be promoted as against vacancies in the higher category which
occurred during the period on which incumbent is on LWA, and the
moment when he/she returns back to duty after availing the LWA,
the said incumbent will have to be considered for promotion to the
next higher category as against vacancies which will arise on or after
the date on which he/she rejoins duty. So also, if there are any
vacancies which have arisen in the next higher category post before
the incumbent had proceeded on leave, the right of the said
incumbent to be considered for promotion as against such vacancies
are also not lost. Hence, Sri.T.C.Suresh Menon, the learned counsel
appearing for the original applicant would strongly urge and
contend that if the bifurcation was done even as on the day on which
the applicant had proceeded on leave, then also she could have been
entitled to be placed as Staff Nurse Grade I going by her undisputed
seniority position. Merely because the bifurcation was done at a
time with the incumbent was on LWA, will not result in the lose of
her right to be placed as Staff Nurse Grade I in the facts and
circumstances of this case. Hence, the main case of the original
applicant is that in pith and substance, what was done in Annexure
A2 was not substantial promotion, but only a placement going by
the admitted seniority position.
7. The learned Senior Government Pleader would endeavor
to counter this plea, on the submission that a reading of Annexure
A2 would indicate that the order therein was not merely a
placement, but a promotion to a higher category of post as the
applicant was ordered to be placed in the post of Staff Nurse Grade
I, which was placed in the higher scale of pay of Rs.8,390-13,270.
8. This plea is strongly rebutted by Sri.T.C.Suresh Kumar,
the learned counsel appearing for the original applicant.
9. At the outset, we should caution ourselves and note that
the entire pleadings and materials on record in this case are
conspicuously absent as regards the crucial aspect as to what exactly
was the scale of pay of the unbifurcated post of Staff Nurse, prior to
the bifurcation and also what was the scale of pay of the bifurcated
category of post of Staff Nurse Grade II after the bifurcation. All
what is available is that the scale of pay of the post of Staff Nurse
Grade I consequent to the bifurcation was Rs.8,390-13,270. Hence,
we are handicapped to adjudicate on this crucial aspect of the
matter as to whether in pith and substance, what was effectuated as
per Annexure A2 was only a placement on the basis of the
undisputed seniority position or whether in substance it was a
promotion to a higher category of post which was ordered during
the currency of the LWA period of the original applicant.
10. However, one thing is stark and clear and the same is
that the respondents in the O.A have blatantly violated the
elementary canons of natural justice inasmuch as Annexure A9
order of cancellation of promotion was ordered without affording
any reasonable opportunity of being heard to the original applicant.
Hence, on that sole ground of blatant violation of principles of
natural justice, the impugned order at Annexure A9 would require
judicial interdiction in exercise of the powers of judicial review. To
the extent, the Tribunal was fully right in quashing Annexure A9
order. However, we are of the view that the Tribunal need not have
entered into the merits of the issue inasmuch as, some of the crucial
aspects are lacking in the pleadings and materials on record. Hence,
we are inclined to hold that the impugned decision of the Tribunal
at Ext.P7 to the extent it has quashed the impugned Annexure A9 of
cancellation of promotion is correct and proper solely on the ground
of blatant violation of the principles of natural justice and fairness.
However, as indicated hereinabove, the Tribunal should not have
entered into the merits of the controversy in view of the paucity of
pleadings, and should have remitted the matter to the competent
authority (Director of Health Services) to decide on the matter
afresh after affording reasonable opportunity of being heard to the
applicant.
11. Accordingly, it is ordered that Annexure A9 order will
stand quashed. However, the matter in relation thereto will stand
remitted to the Director of Health Services for consideration and
decision afresh. To obviate any further delay in the matter, the
petitioner may give detailed written submission in the matter to
high-light her contentions as to why her promotion as Head Nurse
as per Annexure A8 and also the previous appointment as Staff
Nurse Grade I was legally correct and proper, etc. It is open to the
original applicant to place all contentions available in law in that
regard.
12. The representation in this matter may be submitted by
the applicant before the Director of Health Services without any
further delay at any rate within a period of one month from the date
notified for receiving a certified copy of this judgment. The said
representation may also be accompanied by a certified copy of this
judgment. Thereafter, the Director of Health Services will afford
reasonable opportunity to be heard to the original applicant and
then will advert to the specific contention of the applicant that what
was afforded to the applicant as per Annexure A2 order dated 10-11-
2018 was only a placement as in the Staff Nurse Grade I going by
her indisputable seniority position and then in substance it was not
a promotion, etc. The Director of Health Services shall also deal
with all other contentions that may be raised by the applicant. The
original applicant shall also be afforded reasonable opportunity of
being heard either in person or through her authorized
representative/ counsel if any, of her choice. Thereafter, the
Director of Health Services will pass orders in the matter without
much delay, preferably within an outer time limit of three months
from the date of submission of the said representation.
We make it clear that we have not entered into the merits of
the controversy in any manner and we have quashed Annexure A9
only on the ground of blatant violation of principles in natural
justice and fairness. The orders and directions of the Tribunal at
Ext.P7 will stand modified and substituted as above.
With these observations and directions, the above O.P will
stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A. BADHARUDEEN, JUDGE
amk
APPENDIX
PETITIONERS' EXHIBITS :
EXHIBIT P1 A TRUE COPY OF THE O.A.NO.1111/2016
ALONG WITH ANNEXURE A1 TO A10 BEFORE
THE HONOURABLE KERALA ADMINISTRATIVE
TRIBUNAL.
EXHIBIT P2 A TRUE COPY OF THE INTERIM ORDER DATED
24.05.2016
EXHIBIT P3 A TRUE COPY OF THE REPLY STATEMENT
FILED ON BEHALF OF THE SECOND
RESPONDENT IN THE ORIGINAL APPLICATION
DATED 14.12.2016 ALONG WITH ANNEXURE
R2(A)
EXHIBIT P4 A TRUE COPY OF THE MISECELLANEOUS
APPLICATION FOR RECEIVING ANNEXURES
DATED 20.02.2017 FILED BY THE APPLICANT
IN THE ORIGINAL APPLICATION.
EXHIBIT P5 A TRUE COPY OF THE REJOINDER ALONG WITH
ANNEXURE A11 DATED 03.04.2017 FILED BY
THE APPLICANT IN THE ORIGINAL
APPLICATION.
EXHIBIT P6 A TRUE COPY OF THE MISCELLANEOUS
APPLICATION FOR PRODUCTION OF DOCUMENTS
ALONG WITH MA1, MA2 & MA3 DATED
28.05.2018 FILED BY THE APPLICANT IN
THE ORIGINAL APPLICATION.
EXHIBIT P7 A TRUE COPY OF THE FINAL ORDER OF THE
HON'BLE KERALA ADMINISTRATIVE TRIBUNAL
DATED 06.06.2018.
ANNEXURE A1 TRUE COPY OF ORDER NO.A5-
19533/2000/DMOH DATED 30-09-2000 ISSUED
BY THE 2ND RESPONDENT.
ANNEXURE A2 A TRUE COPY OF THE ORDER
NO.EE5/63646/2007/DHS DATED 10-11-2008
ANNEXURE A2(A) THE RELEVANT PAGE OF HTE SENIORITY LIST
BEARING THE APPLICANTS RANK NO.1145
ANNEXURE A3 A TRUE COPY OF HTE G.O(RT)
NO.918/2005/H&FWD DATED 29-3-2005
ANNEXURE A4 A TRUE COPY OF THE GO(RT)
NO.1970/2010/H&FWD DATED 14-05-2010.
ANNEXURE A5 A TRUE COPY OF THE REQUEST LETTER OF
THE APPLICANT DATED 3-4-2012 TO THE
DMO, THIRUVANANTHAPURAM.
ANNEXURE A6 A TRUE COPY OF THE ORDER NO.EE1-
68814/12/DHS DATED 3-10-2012.
ANNEXURE A7 A TRUE COPY OF THE ORDER
NO.EE5/29643/13 DATED 12-06-2014 OF THE
2ND RESPONDENT.
ANNEXURE A8 A TRUE COPY OF THE ORDER NO.EE5-
29543/13/DHS DATED 25-06-2015 OF THE
2ND RESPONDENT.
ANNEXURE A9 A TRUE COPY OF THE ORDER NO.EE5-
60080/15 UNDATED OF THE 2ND RESPONDENT.
ANNEXURE A10 A TRUE COPY OF THE REPRESENTATION OF
THE APPLICANT DATED 13-05-2016
ADDRESSED TO THE 2ND RESPONDENT.
ANNEXURE A 11 A TRUE COPY OF THE APPLICATION FOR
PROMOTION TO THE CADRE OF STAFF NURSE
GRADE I.
ANNEXURE MA1 THE TRUE COPY OF THE REPRESENTATION OF
THE APPLICANT ADDRESSED TO THE FIRST
RESPONDENT.
ANNEXURE MA1(A) COVERING LETTER OF ANNEXURE MA1.
ANNEXURE MA1 A TRUE COPY OF THE ORDER
NO.EE5/57779/11/DHS DATED 5-8-2013.
ANNEXURE MA2 A TRUE COPY OF THE ORDER NO.ES3-
36758/2015/DHS DATED 20-09-2016.
ANNEXURE MA3 A TRUE COPY OF THE ORDER
NO.EE1/33000/2013/DHS DATED 13-12-2013.
