Kerala High Court
Dr.N.Harihara Iyer vs State Of Kerala on 19 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
WP(C).No.25111 OF 2019(L)
PETITIONER:
DR.N.HARIHARA IYER,
AGED 51 YEARS,
S/O.N.NEELAKANTA IYER, LECTURER,
DEPARTMENT OF ORGANON OF MEDICINE,
DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE,
CHOTTANKIKKARA, ERNAKULAM.
(RESIDING AT VAISHNAV, POONITHURA.P.O., ERNAKULAM.)
BY ADVS.
SRI.C.UNNIKRISHNAN (KOLLAM)
SRI.JOHNSON GOMEZ
SMT.A.V.INDIRA
SMT. JANE MARIA TOMY
SRI.D.JAYAKRISHNAN
SRI.S.BIJU (KIZHAKKANELA)
GAYATHRI.V.NAIR
LIYA ELZA ALEX
KARISHMA JOJO
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
AYUSH DEPARTMENT, SECRETARIAT, TRIVANDRUM.
2 PRINCIPAL AND CONTROLLING OFFICER,
GOVT. HOMEOPATHIC MEDICAL COLLEGE, TRIVANDRUM.
3 STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
FINANCE DEPARTMENT SECRETARIAT, TRIVANDRUM- 6895001.
IA IMPLEADED AS ADDL. 3RD RESPONDENT AS PER ORDER
DATED. 24.10.2019 IN IA NO.1/2019.
R1, R3 BY SRI B HARISH KUMAR, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.25111 OF 2019 -2-
JUDGMENT
Dated this the 19th day of January 2021
Through the instant writ petition, the petitioner, has
laid challenge to Exts.P5 & P8 whereby he has been
reverted from the post of Lecturer to Tutor and recovery of
excess payment of salary has been ordered.
2. Petitioner acquired the post graduation i.e.,
M.D.Homeopathy from Govt.Homeopathic Medical College,
Calicut on 07.04.2010. It is a qualification for getting
career advancement scheme as Lecturer as per the
Government Order dated 20.03.2001, Ext.P1. Petitioner
submitted an application for promotion which was
considered and was promoted vide order dated
13.01.2011, Ext.P2 with effect from 07.04.2010.
3. Learned counsel appearing on behalf of the
petitioner submits that the pay of the petitioner was also
fixed in the scale of Rs.15,600 - 39,100 with AGP of
Rs.8,000/- with effect from 07.04.2010 as Lecturer.
Petitioner was entitled to be considered for promotion to
the post of Associate Professor having after completing
eight years of service as on 07.04.2018 and accordingly
submitted an application, but to the utter surprise of the
petitioner, without complying with the principles of natural
justice or putting him to any show cause notice, vide
impugned order Ext.P5, he has been reverted as Tutor in
the pay scale of Rs.15,600-39,100 + 7000 AGP with effect
from 07.04.2010 and vide Ext.P8, excess salary was sought
to be recovered and therefore, urged this Court for setting
aside the order purely on the ground of non compliance of
the principles of natural justice.
4. On the other hand, learned counsel for the 3rd
respondent opposed the writ petition on the ground that as
per the Kerala State Homeopathic Medical College Service
Rules, 2001, a B.H.M.S. Degree holder can get an
appointment as Tutor whereas the basic qualification for
AICTE Scale in the Tutor post is Post Graduation,
therefore, for obtaining career advancement as Lecturer
under AICTE one is required to have a post-graduate
degree and five years of teaching experience as Tutor.
Petitioner obtained Post Graduation only on 07.04.2010
and thus would be placed AICTE scale of Rs.10,000 -
15,200. Petitioner joined the service on 01.01.1999 as
Tutor as he had not obtained Post Graduation at the
relevant time, but was given a State scale of pay. However,
on completion of his Post Graduation in 2010, he became
eligible to be placed in AICTE pay scale as Tutor, but
instead of that he was given career advancement
promotion as Lecturer in the pay scale of Rs.12,000 -
18,300 instead of Rs.10,000 - 15200 by misinterpreting the
Government Order dated 20.03.2001 and this was in the
knowledge of the petitioner and therefore no case of
affording an opportunity of hearing arose.
5. Having heard counsel for the parties and
appraised the paper books, I am of the view that the reply
aforementioned though has been controverted, even if
there is a misinterpretation of the Government Order on
behalf of the respondent, petitioner having acquired the
benefit, but rule of law envisage compliance natural justice
but on perusal of Ext.P5 do not reveal any compliance ie.,
before reverting to the post of Tutor, from the post of
Lecturer, any opportunity of hearing was afforded.
Department is legitimately expected to comply such
procedure even if the previous order of promotion was on
account of some error or misinterpretation. Consequent
action of recovery of excess payment of salary vide Ext.P8
is also not sustainable. Accordingly, Exts.P5 and P8 are set
aside. Writ petition is allowed. However, this would not
preclude respondents in taking action against the
petitioner if required. They are permitted to pass an order,
in accordance with law, that is by affording an opportunity
of hearing.
This writ petition stands allowed on the above
mentioned grounds.
Sd/-
AMIT RAWAL
JUDGE
vv
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE GOVT. ORDER DATED
20.3.2001.
EXHIBIT P2 A TRUE COPY OF THE ORDER DATED
13.1.2011 GRANTING PROMOTION TO THE
PETITIONER.
EXHIBIT P3 A TRUE COPY OF THE RELEVANT PAGES OF
GOVT. ORDER DATED 20.10.2012.
EXHIBIT P4 A TRUE COPY OF APPLICATION DATED
12.6.2018 SUBMITTED BY THE PETITIONER.
EXHIBIT P5 A TRUE COPY OF THE GOVT. ORDER DATED
27.5.2019.
EXHIBIT P6 A TRUE COPY OF THE GOVT. ORDER DATED
13.1.2012.
EXHIBIT P7 A TRUE COPY OF THE REPRESENTATION DATED
26.6.2019 SUBMITTED BY THE PETITIONER.
EXHIBIT P8 A TRUE COPY OF THE LETTER ISSUED BY THE
FIRST RESPONDENT.
