Kerala High Court
Dr. Neethu M vs State Of Kerala on 21 December, 2023
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
WA NO. 480 OF 2022
WP(C) 27064/2020 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER
DR. NEETHU M.
W/O. M.KIRANLAL, MANI BHAVAN, 12-MURI NAGAR 124, THATTAMALA P.O.,
KOLLAM-691020, PRESENTLY WORKING AS ASSISTANT MANAGER (AH),
REGIONAL SEMEN BANK, CHALAKUDY, KERALA LIVESTOCK
DEVELOPMENT BOARD LTD.
BY ADVS.
M.KIRANLAL
MANU RAMACHANDRAN
R.RAJESH (VARKALA)
T.S.SARATH
SAMEER M NAIR(K/000481/2017)
V.M.VISHNU MOHAN
GEETHU KRISHNAN
HARSHA SUSAN SAM
SABIKH MOHAMMED V.S
RESPONDENTS/RESPONDENTS
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF
ANIMAL HUSBANDRY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 KERALA LIVESTOCK DEVELOPMENT BOARD LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM,
GOKULAM, PATTOM, THIRUVANANTHAPURAM-695001.
3 THE DEPUTY GENERAL MANAGER (BT),
KERALA LIVESTOCK DEVELOPMENT BOARD LTD., MUDAVOOR P.O.,
MUVATTUPUZHA-686669.
BY ADVS.
MILLU DANDAPANI
SMT.SUMATHY DANDAPANI (Sr)- R2 & R4
SRI.V.TEKCHAND-SR.GP
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2023, THE COURT
ON 21.12.2023 DELIVERED THE FOLLOWING:
WA.480 of 2022
2
ANU SIVARAMAN & C.PRATHEEP KUMAR, JJ.
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W.A.480 of 2022 in W.P.(C).27064 of 2020
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Dated this the 21st day of December, 2023
JUDGMENT
C.Pratheep Kumar, J.
1. The appellant who is a Veterinary doctor, preferred this appeal against
the judgment of the learned Single Judge in W.P.(C).27064 of 2022
dated 4.3.2022 dismissing the above writ petition. Pursuant to the
notification issued by the 2nd respondent/Kerala Livestock
Development Board Ltd, she applied for the post of Assistant Manager
(AH) and got selection as such. While joining the service as demanded
by the 2nd respondent, she had executed Ext.P2 bond to serve the
respondent for a period of five years and agreed to pay a sum of
Rs.5,00,000/- in lieu of liquidated damages, in case she leaves the
Board before the expiry of the bond period. While she was working
under the 2nd respondent, she got appointment as Veterinary Surgeon,
Grade-II under Animal Husbandry Department. Ext.P4 representation
dated 2.12.2020 to relieve her from the service of the Board was
declined by the 2nd respondent. Therefore, she approached this Court
by filing the above writ petition seeking a direction to the respondent
WA.480 of 2022
to issue relieving order to enable her to join as Veterinary Surgeon,
Grade-II in the Animal Husbandry Department. As per the order of the
learned Single Judge in the writ petition, the appellant furnished bank
guarantee for an amount of Rs.5,00,000/- on 08.12.2020 and
accordingly relieving order was issued to her and she joined in the
new post. Subsequently the learned Single Judge dismissed the writ
petition on 4.3.2022 and consequently the 2 nd respondent encashed the
bank guarantee for Rs.5,00,000/-. Aggrieved by the above judgment of
the learned Single Judge dismissing the writ petition, she preferred
this appeal raising various contentions.
2. One of the contentions raised by the learned counsel for the appellant
is that in Ext.R2(a) notification issued by the 2 nd respondent, the bond
amount was not mentioned. According to the appellant, the bond
amount for Rs.5,00,000/- fixed by the 2nd respondent is unreasonable.
It was also contended that the appellant was entitled to get the benefit
of Ext.P5 OM. Another contention raised was to the effect that the 2 nd
respondent could recover only the actual loss sustained. Since the 2 nd
respondent has not given any pre-induction training, no damage was
sustained by them. More over, according to the appellant, at the time
of joining service, she had no bargaining power and the said position
was misused by the 2nd respondent.
WA.480 of 2022
3. On the other hand, Sri.V.Tekchand, the learned Senior Government
Pleader and Smt.Sumathy Dandapani, learned Senior counsel
appearing for respondents 2 and 3 vehemently opposed the claim of
the appellant and prayed for dismissing the appeal.
4. Admittedly in the notification for the selection of the Assistant
Manager, the amount of bond was not mentioned though it was
specified that there will be a bond for a period of five years. However,
in Ext.P1 appointment order dated 19.5.2018 issued by the appellant,
it was specifically stated that she should execute an agreement in
stamp paper worth Rs.100/- to serve the Board for a minimum period
of five years on a bonded obligation of Rs.5,00,000/- within a period
of one month from joining duty. In Ext.P1 it was also specified that in
case she leaves the service of the 2nd respondent, she will be liable to
pay the above Rs.5,00,000/- in lieu of liquidated damages.
Subsequently on 2.7.2018, the appellant executed Ext.P2 bond in
stamp paper worth Rs.100/- undertaking to work under the 2 nd
respondent for a minimum period of five years from the date of
joining duty on 28.5.2018 and also undertaking to pay the 2 nd
respondent a sum of Rs.5,00,000/- together with interest thereon in
case she discontinues the service. Since in Exts.P1 and P2 the bond
amount and bond period were specifically noted, the appellant cannot
WA.480 of 2022
now contend that absence of the bond amount in the notification is
relevant in the facts of this case.
5. As revealed from Ext.P2, the appellant joined in the service of the 2 nd
respondent on 28.5.2018. Thereafter, she had executed Ext.P2 bond
only on 2.7.2018, 35 days after joining duty. The appellant who is a
post-graduate in Veterinary Science had executed Ext.P2 bond more
than one month after joining duty, after having enough time to think
and decide and as such, her contention that Ext.P2 was executed at the
time of joining duty as she had no other option does not hold good.
Further, even at the time of executing the bond, her name was there in
the rank list for the post of veterinary surgeon.
6. More over, the employees of the Board have special staff rules and
regulations approved by the government. Regulation 28(5) of the
Kerala Livestock Development Board (Staff Rules and Regulations)
dated 23.11.1994 also provides for execution of bond by all technical
officers of the Board. The above Regulation is binding on the
appellant on joining duty and while executing Ext.P2 bond. However,
the validity of the above Regulation was not challenged by the
appellant in the writ petition. Therefore, now the appellant cannot take
a contention against the provisions in the Regulation.
7. With regard to the contention that even if the appellant leaves the 2 nd
WA.480 of 2022
respondent/Board, there will be no scope for any actual damage to the
Board, was strongly opposed by respondents 2 and 3 in the counter
affidavit as well as in the additional counter affidavit filed. As per
those affidavits, the primary objective of the Board is to provide for
developmental activities in the field of cattle breeding, the production
and supply of frozen semen, procurement and supply of liquid
nitrogen, supply of AI inputs, fodder development, training to farmers,
officials etc. It was also functioning as an implementing agency of
various Central and State government schemes in the state in relation
to cattle's development. It has the best advanced technology for frozen
semen facility in India. For continuing the supply of frozen semen
required for artificial insemination in cattle, the Board has to maintain
A grade for it's semen stations awarded by Central Monitoring Unit
(CMU), a professional body under Government of India.
8. In the affidavits it is further contended that the 2 nd respondent is
maintaining 3 Semen Stations in the State having A grade certification
from CMU. Considering the specialized fields wherein the Board had
been engaged, continuity of experienced professionals in the field is
highly essential. The Board had insisted bonded obligations to severe
the dearth of Veterinary Officers in the Board which has affected the
technical functions adversely. The Veterinary Officers recruited in the
WA.480 of 2022
Board as Assistant Managers (AH), have to associate with the
procurement, up-keeping etc. of Frozen Semen production, and
storage and dispatch in accordance with the minimum standard
protocol designed by the CMU. The technical expertise and
knowledge gained by the Board in the field of Frozen Semen
technology and allied subjects are the result of its decades' long
research and development in the field. It is noticed that fresh
veterinary graduates appointed in the Board used to make the
Institution as a breathing space to them till they gets appointment in
the Government Departments. In order to tide over the situation and
by considering the above facts, the Board of Directors decided to
enhance the amount of liquidated damages to be remitted by the
Assistant Managers consequent to their failure to render a minimum
period of five years service in the Board. It would enable the
candidates, who are actually willing to work in the Board, to join the
service of the Board rather than those who consider it as a stop gap
arrangement prior to departure to other Departments. The amount
fixed by the Board is not based on monetary value of the amount spent
on the training to the employees or expenditure incurred in the
recruitment process, but the loss of technical expertise which is highly
essential to maintain the standards of CMU under the minimum
standard protocol of the Government of India.
WA.480 of 2022
9. The affidavits further contend that the brain drain caused by the
frequent resignations of Assistant Managers would drastically affect
the smooth functioning of the Board. Selection for the post of
Assistant Managers (AH) is also not through the Public Service
Commission (PSC), but through the Centre for Management
Development consisting of technical expertise which is highly
essential to maintain the grading of CMU. For this recruitment process
also huge financial expenditure is incurred. In the case of staff
recruited to posts including Technical Staff through PSC, no such
bond is insisted. The technical functions undertaken by the Board in
Animal Husbandry and Agricultural Wings require frequent
supervision and involvement of expert professionals in the respective
fields. The Board had also provided elaborate training to the appellant
in the field of Semen process and production during the period from
6th to 10th of May, 2019. Thereafter, she was deputed to the training in
sustainable utilization of Indigenous Animal Genetic Resources in
Animal Husbandry, Dairy and Poultry sectors conducted by ICAR -
National Bureau of Animal Genetic Resources, Karnal, Haryana. It
was contended in the affidavit that Ext.P5 OM applies only to bond
executed in the public enterprises owned and controlled by the Central
Government and does not apply to the appellant.
WA.480 of 2022
10.On a perusal of the above averments in the counter affidavits filed by
respondents 2 and 3, it can be seen that the recruitment process for the
selection of Assistant Manager (AH) is not done through the PSC but
through the Centre for Management Development as it requires
technical expertise essential to maintain the grading of CMU under the
minimum standard protocol of the Government of India. To those staff
who are recruited through the PSC, no such bond is insisted. The post
of Assistant Manager (AH) is a Managerial cadre and continuity in
service in such Managerial cadre is necessary for maintaining the
standard of the service rendered by the 2nd respondent. For the said
purpose, they are also giving higher salary than that is given by other
Departments to similarly qualified persons. In the above
circumstances, the contention of the appellant that the respondents
have not sustained any damage due to the resignation of the appellant
before completing the bonded period of five years cannot be accepted.
11.As contended by the learned counsel for the respondents, Ext.P5 OM
is applicable to employees of public enterprises owned and controlled
by the Central Government and who have received training at the cost
of public enterprises alone. In the instant case, the bond has been
obtained not for the mere reason that training was provided to the
employee at the cost of the respondent. The main reason is that
WA.480 of 2022
continuity of service of persons holding technical posts is necessary
for maintaining the standard of the service rendered by the 2nd
respondent. In the above circumstance, the appellant cannot claim any
benefit on the basis of Ext.P5 OM. For the very same reasons, the
decision relied upon by the learned counsel for the appellant in Vijaya
Kumar Anugandula and Ors. v. Dedicated frieght Corridor
Corporation of India Ltd. (MANU /DE/4178/2018) does not apply
to the facts of this case.
12. In paragraph 27 of the judgment in Vijaya Kumar Anugandula and
Ors. (supra), the Delhi High court also considered the scope of
reasonable classification between the employees to whom scientific
and technical training is imparted and to whom such training is not
imparted and held that:
".....It is settled law that reasonable classification is permissible;
however, for a classification to be reasonable, it should have a
nexus with the object of such classification failing which the
classification would fall foul of the equal protection clause of the
Constitution."
13.In the instant case, we are of the considered view that the explanation
offered by the 2nd respondent for imposing such a condition that
considering the nature of the work carried on by them it is necessary to
have continuous service of technical staff for a period of not less than
five years, is a reasonable one.
WA.480 of 2022
14.In the decision in Sispa India Limited v. Manas Pratim Deb
(MANU/DE/6554/2011) relied upon by the learned counsel for the
appellant, the challenge was against the impugned judgment and
decree of the trial court. The appellant contended that they have spent
huge amount for imparting training to the respondent, to justify the
bond to serve the appellant for a period of five years. Further,
according to the appellant, the respondent was taken abroad for the
purpose of imparting training. In paragraph 8 of the above judgment,
the Court specifically found that there is no evidence to prove that any
such training was imparted to the respondent in his trips abroad and
that the trips were basically commercial trips for dealing with the
customers of the appellant abroad. The facts of the above case are
entirely different and the justification given for reasonable
classification is not a convincing one, which is not the case in the
instant case.
15.At the time of arguments it is revealed that prior to the appellant,
several other persons who had joined as Assistant Manager in the
Board also left the service without completing the bond period and
their claims for exonerating them from paying the bond amount was
declined by the Board. Ext.R2(g) is the judgment of a learned Single
Judge of this Court in W.P.(C).26095 of 2009 dated 27.7.2016 in
WA.480 of 2022
which, petitioners 1 to 5 who were working as Assistant Managers
under the 2nd respondent after executing bond for serving the
respondent for a period of five years and failing which to pay
liquidated damages at Rs.2,00,000/-, failed to complete the period
covered by the bond. They have claimed benefit of Exts.P16 and P17
orders by which two such persons were allegedly relieved without
paying the bond amount as they were joining the Animal Husbandry
Department. The above claim of the petitioners therein was opposed
by the Government as well as the Board. As per the counter affidavit
filed by the 3rd respondent, those persons were relieved only after the
bond period. The learned single judge found that the petitioners could
not prove that the persons involved in Ext.P16 or P17 had been
granted the benefit mentioned in those orders. In the above
circumstance, the learned Single Judge dismissed W.P.(C).26095 of
2009 also.
16.From the contentions raised by the parties and also from Ext.R2(g)
judgment, it can be seen that several persons joined as Assistant
Manger (AH) under the 2nd respondent had discontinued their service
when they got other employments, in spite of execution of bond for a
period of five years. It was in the above context the initial bond
amount of Rs.2,00,000/- was enhanced to Rs.5,00,000/- by the Board.
WA.480 of 2022
In spite of that, the persons selected in the post of Assistant Manager
(AH) used to terminate the service under the 2nd respondent. The
appellant could not establish that in any such instance the Board had
exonerated anyone from paying the bond amount. Writ petition filed
by another 5 such persons was dismissed by this court. In the light of
the available evidence, considering the nature of the activities carried
on by the 2nd respondent, their contention that the service of qualified
Veterinary Doctors for a continuous period of five years is necessary
for maintaining the quality of service rendered by them could not be
disbelieved. In the above circumstance, it cannot be held that
insistence for a bond of Rs.5,00,000/- from Assistant Mangers (AH) to
work for a period of not less than five years cannot be said to be
arbitrary or against any principles of law. The learned Single Judge has
considered all the relevant aspects in the impugned judgment. We do
not find any illegality or irregularity in the finding of the learned
Single Judge so as to call for any interference.
17.In the result, this Appeal stands dismissed.
Sd/-
Anu Sivaraman, Judge
Sd/-
C.Pratheep Kumar, Judge
Mrcs/14.12.
