Dr. George Philip vs Government Of India
2024 Latest Caselaw 4367 Ker

Kerala High Court

Dr. George Philip vs Government Of India on 6 February, 2024

Author: A.Muhamed Mustaque

Bench: A.Muhamed Mustaque

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                 &

        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

   TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945

                       OP (CAT) NO.4 OF 2024

PETITIONER:


         DR. GEORGE PHILIP, AGED 76 YEARS,
         S/O.LATE VARKEY PHILIP, EX -SCIENTIFIC OFFICER,
         PLASMA PHYSICS/LASER TECHNOLOGY DIVISION BARC,
         TROMBAY, MUMBAI, HAVING PERMANENT ADDRESS @
         PANICKASSERIL- KRISHNAPURAM, ALLEPPEY DISTRICT,
         KERALA STATE, PIN - 690533.
         BY ADV.DR.GEORGE PHILIP,(Party-In-Person)




RESPONDENTS:


    1     GOVERNMENT OF INDIA, REPRESENTED BY SECRETARY TO
          GOVERNMENT OF INDIA, DEPARTMENT OF ATOMIC ENERGY
          ANUSHAKTHI BHAVAN CSM MARG-MUMBAI, PIN - 400039.
    2     THE DIRECTOR, DEPARTMENT OF ATOMIC ENERGY, BHABHA
          ATOMIC RESEARCH CENTRE, TROMBAY, MUMBAI, PIN -
          400085.
          BY SRI.K.S.PRENJITH KUMAR, CGC



THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 05.02.2024, THE
COURT ON 06.02.2024 DELIVERED THE FOLLOWING:
 OP(CAT) 4/2024

                                      -:2:-




         A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.

             -----------------------------------------
                        O.P.(CAT).No.4/2024

             -----------------------------------------


             Dated this the 6th day of February, 2024

                           JUDGMENT

A.Muhamed Mustaque, J.

The petitioner was the applicant before the Central

Administrative Tribunal (CAT). He approached CAT as he was

claiming service pension and medical benefit under a scheme. His

claim for medical benefit is allowed. However, he was not granted

pension as he did not have 10 years of qualifying service to

become eligible to withdraw pension. The petitioner submitted

that he entered into the service of the Baba Atomic Research

Centre (BARC) as a trainee on 1/8/1973. On completion of

training, he was appointed as a Scientific Officer under the

BARC on 1/8/1974. The petitioner obtained admission for Ph.D. OP(CAT) 4/2024

programme in Canada in the year 1982. It seems, initially he

was granted leave for two years. Thereafter, in the year 1985,

disciplinary proceedings were initiated on the ground of overstay

of leave. The petitioner rejoined the service in the year

1986. He was served with an order of suspension. Thereafter,

based on disciplinary enquiry, he was removed from service on

18/12/1990. This was challenged before CAT. Based on the

direction of the Tribunal, penalty of removal was reconsidered

by BARC and converted the penalty as a compulsory retirement

with effect from 18/12/1990. This order of compulsory retirement

was passed on 31/3/1996. This order was questioned before the

CAT. CAT allowed the challenge and ordered

reinstatement. Thereafter, this Court also affirmed the order

and ordered reinstatement. Ultimately, the matter reached the

Apex Court. The Apex Court set aside the orders of this Court

and the Tribunal and affirmed the order of compulsory retirement

with effect from 18/12/1990, as per the order in Civil Appeal

No.4998/2006 dated 16/11/2006. If the order of compulsory

retirement has become final, the petitioner will not be eligible

to claim pension as he has less than 10 years of qualifying OP(CAT) 4/2024

service. The petitioner's argument is that the order of

compulsory retirement was passed on 31/3/1996, giving effect to

it from an anterior date i.e., from 18/12/1990 is bad in

law. According to him, if the order of compulsory retirement is

given a prospective effect, he will be eligible for pension as

he will have more than 10 years of service.

We cannot interfere in this matter as the Hon'ble Supreme

Court affirmed the order of compulsory retirement with effect

from the anterior date. If we give any direction, that will

amount to reopening of concluded proceedings. Absolutely, there

is no merit in this matter. Accordingly, the original petition

is dismissed.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

SHOBA ANNAMMA EAPEN, JUDGE ms OP(CAT) 4/2024

APPENDIX OF OP (CAT) 4/2024

PETITIONER'S ANNEXURES:

ANNEXURE-A A TRUE COPY OF THE ORDER DATED 30.03.1989 BY WHICH SUSPENSION OF THE PETITIONER HEREIN/APPLICANT WAS REVOKED BY THE 1ST RESPONDENT.

ANNEXURE SET-I A1-A19 A COMPILATION OF TRUE COPIES OF ANNEXURES TO O.A. NO. 141/2020 ANNEXURE SET-I ANNEXURES A1- A19.

ANNEXURE SET-II A20- A COMPILATION OF TRUE COPIES OF ANNEXURES TO A24 O.A. NO. 141/2020 SET-II ANNEXURES A20-A24, WITH A LEGIBLE COPY FOR A19.

ANNEXURE-B A TRUE COPY OF AN UNDERTAKING DEMANDED FROM THE PETITIONER HEREIN BEFORE AVAILING EOL BY THE RESPONDENTS (1&2) FOR GRANTING EOL FOR HIGHER STUDY UNDER THE COMMONWEALTH SCHOLARSHIP IN VIOLATION OF THEIR AGREEMENT WITH THE MINISTRY OF EDUCATION & CULTURE.

ANNEXURE-C (SERIES) THE TRUE COPIES OF A SET OF DOCUMENTS REVEALING THAT THE 2ND RESPONDENT HAD GIVEN A FIRM UNDERTAKING TO THE MINISTRY OF EDUCATION WHILE FORWARDING THE APPLICATION THROUGH THE PROPER CHANNEL AND BEFORE THE SELECTION INTERVIEW FOR COMMONWEALTH SCHOLARSHIP , WHICH ENTITLED THE PETITIONER HEREIN TO HAVE LEGITIMATE EXPECTATION FOR LEAVE & LEAVE EXTENSION AND ESTABLISH THAT OVERSTAY WAS "NOT WILLFUL". ANNEXURE SET-III A25- A COMPILATION OF TRUE COPIES OF ANNEXURES TO A41 O.A. NO. 141/2020 SET-III ANNEXURES A25-A41. ANNEXURE-D TRUE COPIES OF AN EXTRACT FROM EMPLOYMENT NEWS , NOTIFICATION BY THE COMMONWEALTH SCHOLARSHIP ADMINISTRATION, ABOUT THE OBJECTIVES OF THE SCHOLARSHIP, LETTER SENT BY THE DIRECTOR OF RESEARCH /GRADUATE STUDIES TO THE MINISTER OF EDUCATION ETC. EXPRESSING THE UNIVERSITY'S CONCERNS ABOUT LEAVE DENIAL FOR COMPLETION OF STUDY AFTER ALLOWING TO ACCEPT THE SCHOLARSHIP. ANNEXURE SET-IV A42- A COMPILATION OF TRUE COPIES OF ANNEXURES TO A50 O.A. NO. 141/2020 SET-IV ANNEXURES A42-A50. ANNEXURE-E NOTIFICATION SHOWING WHEN SUSPENSION WILL BE UNJUSTIFIED AND GUIDELINES FOR PLACING UNDER SUSPENSION.

ANNEXURE SET-V A51- A COMPILATION OF TRUE COPIES OF ANNEXURES TO A56 O.A. NO. 141/2020 SET-V ANNEXURES A51-A56. OP(CAT) 4/2024

ANNEXURE SET-VI A57- A COMPILATION OF TRUE COPIES OF ANNEXURES TO A76 O.A. NO. 141/2020 SET-VI ANNEXURES A57-A76 A TRUE COPY OF ANNEXURE-A57 IS INCLUDED IN ANNEXURE SET VI ALSO.

ANNEXURE-F A TRUE COPY OF THE DEGREE OF MASTER OF ENGINEERING AWARDED TO THE PETITIONER BY THE UNIVERSITY OF ALBERTA.

ANNEXURE-G A TRUE COPY OF THE HOSPITAL REPORT ABOUT THE ACCIDENT INVOLVING HIGH VOLTAGE ELECTRIC SHOCK MET WITH BY THE PETITIONER HEREIN.

ANNEXURE SET-VII A77- A COMPILATION OF TRUE COPIES OF ANNEXURES TO A97(B) O.A. NO. 141/2020 SET-VII ANNEXURES A77-A97(B). EXHIBIT P10 A COMPILATION OF LANDMARK JUDGMENTS CITED IN SETTING OUT GROUNDS IN O.A. NO. 141/2020. ANNEXURE-H A TRUE COPY OF THE NOTIFICATION ISSUED BY THE DEPARTMENT OF ATOMIC ENERGY ABOUT THE PRE- APPOINTMENT TRAINING SCHOOL PROGRAMME FOR SCIENTIFIC OFFICERS.

EXHIBIT P24 A TRUE COPY OF THE NOTIFICATION ISSUED BY THE DEPARTMENT OF ATOMIC ENERGY ABOUT THE PRE- APPOINTMENT TRAINING SCHOOL PROGRAMME FOR SCIENTIFIC OFFICERS.

ANNEXURE-I GOVT. OF INDIA NOTIFICATION ABOUT PRE-

APPOINTMENT TO BE TREATED AS QUALIFYING SERVICE

-EMERGING FROM A BENEFICIAL LEGISLATION. ANNEXURE-J A TRUE COPY OF THE DECLARATION GIVEN TO THE HON'BLE HIGH COURT OF KERALA BY THE COUNSEL WHO REPRESENTED THE PETITIONER HEREIN AFTER HE REMAINED ABSENT FROM THE HON'BLE COURT WHEN THE CASE CAME UP FOR HEARING AND SO THE DECISION WAS TAKEN AFTER AN EX-PARTE HEARING. EXHIBIT P25 GOVT. OF INDIA NOTIFICATION ABOUT PRE-

APPOINTMENT TO BE TREATED AS QUALIFYING SERVICE

-EMERGING FROM A BENEFICIAL LEGISLATION. EXHIBIT P26 A TRUE COPY OF THE DECLARATION GIVEN TO THE HON'BLE HIGH COURT OF KERALA BY THE COUNSEL WHO REPRESENTED THE PETITIONER HEREIN AFTER HE REMAINED ABSENT FROM THE HON'BLE COURT WHEN THE CASE CAME UP FOR HEARING AND SO THE DECISION WAS TAKEN AFTER AN EX-PARTE HEARING. ANNEXURE-K A TRUE COPY OF THE MEDICAL REPORT SHOWING THAT THE PETITIONER HEREIN WAS ADMITTED IN CCU DUE TO CARDIAC DISEASE AND HE IS ADVISED TO UNDERGO CORONARY ANGIOGRAM (CAG) BECAUSE OF STRESS INDUCED ANGINA AND ISCHEMIA.

ANNEXURE-L A TRUE COPY OF THE NOTIFICATION SHOWING THE DELEGATION OF POWERS TO THE LEAVE SANCTIONING OP(CAT) 4/2024

AUTHORITY TO SANCTION TO GRANT EOL FOR HIGHER STUDY, WITHOUT FURTHER ORDERS.

EXHIBIT P27 A TRUE COPY OF THE MEDICAL REPORT SHOWING THAT THE PETITIONER HEREIN WAS ADMITTED IN CCU DUE TO CARDIAC DISEASE AND HE IS ADVISED TO UNDERGO CORONARY ANGIOGRAM (CAG) BECAUSE OF STRESS INDUCED ANGINA AND ISCHEMIA.

EXHIBIT P1 A TRUE COPY OF THJE CERTIFIED COPY OF THE JUDGMENT DATED 22.08.2023 IN O.A. NO.141 OF 2020 BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL-ERNAKULAM BENCH.

EXHIBIT P28 A TRUE COPY OF THE NOTIFICATION SHOWING THE DELEGATION OF POWERS TO THE LEAVE SANCTIONING AUTHORITY TO SANCTION TO GRANT EOL FOR HIGHER STUDY, WITHOUT FURTHER ORDERS.

INTERLOCUTORY INTERLOCUTORY APPLICATION SEEKING LEAVE TO APPLICATION SUBMIT ADDITIONAL DOCUMENTS FILED UNDER RULE 154 OF THE HIGH COURT RULES.

EXHIBIT P2 A TRUE COPY OF THE ORIGINAL APPLICATION O.A. NO. 180/00141/2020.

EXHIBIT P3 A TRUE COPY OF THE REPLY STTEMENT FILED BY THE RESPONDENTS IN O.A. NO. 141/2020.

EXHIBIT P4 A TRUE COPY OF THE REJOINDER TO THE REPLY STATEMENTS BY THE RESPONDENTS FILED BY THE APPLICANT IN O.A. NO. 141/2020.

EXHIBIT P5 A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT ON BEHALF OF THE RESPONDENTS IN O.A. NO.

EXHIBIT P6 A TRUE COPY OF THE MISCELLANEOUS APPLICATION M.A. NO. 72/2021 IN O.A. NO.141/2020 FILED BY THE APPLICANT IN O.A. NO. 141/2020.

EXHIBIT P7 A TRUE COPY OF THE OBJECTIONS TO MISCELLANEOUS APPLICATION FILED ON BEHALF OF THE RESPONDENTS IN O.A. NO. 141/2020.

EXHIBIT P8 A COMPILATION OF TRUE COPIES OF ANNEXURES TO O.A. NO. 141/2020 ANNEXURE SET-I ANNEXURES A1- A19 EXHIBIT P9 A COMPILATION OF TRUE COPIES OF ANNEXURES TO O.A. NO. 141/2020 SET-II ANNEXURES A20-A24, WITH A LEGIBLE COPY FOR A19.

EXHIBIT P10 A COMPILATION OF TRUE COPIES OF ANNEXURES TO O.A. NO. 141/2020 SET-III ANNEXURES A25-A41. EXHIBIT P11 A COMPILATION OF TRUE COPIES OF ANNEXURES TO O.A. NO. 141/2020 SET-IV ANNEXURES A42-A50. EXHIBIT P12 A COMPILATION OF TRUE COPIES OF ANNEXURES TO O.A. NO. 141/2020 SET-V ANNEXURES A51-A56. EXHIBIT P13 A COMPILATION OF TRUE COPIES OF ANNEXURES TO O.A. NO. 141/2020 SET-VI ANNEXURES A57-A76. OP(CAT) 4/2024

EXHIBIT P14 A COMPILATION OF TRUE COPIES OF ANNEXURES TO O.A. NO. 141/2020 SET-VI ANNEXURES A77-A97(B). EXHIBIT P15 A COMPILATION OF CONTENTIONS/OBJECTIONS RAISED IN O.A. NO. 141/2020 BY THE CONTESTING RESPONDENTS EXHIBIT P16 A COMPILATION OF MANIFEST ILLEGALITIES IN ADMIISTRATIVE DECISIONS & ORDERS BY THE CONTESTING RESPONDENTS EVIDENT IN THE DOCUMENTS SUBMITTED IN O.A. NO. 141/2020.

EXHIBIT P17 A COMPILATION OF LANDMARK JUDGMENTS CITED IN SETTING OUT GROUNDS IN O.A. NO. 141/2020. EXHIBIT P18 A COMPILATION OF GROUNDS SET OUT IN O.A. NO.141/2020 BY THE PETITIONER HEREIN/APPLICANT IN O.A. EXHIBIT P19 WHY O.A. 141/2020 DESERVES TO BE ALLOWED WITH MERIT.

EXHIBIT P20 A COMPILATION OF RELIEF(S) PRAYED FOR IN O.A. 141/2020 BY THE APPLICANT.

EXHIBIT P21 A TRUE COPY OF THE ARGUMENT NOTE FILED ON BEHALF OF THE CONTESTING RESPONDENTS BY THEIR COUNSEL.

EXHIBIT P22 A TRUE COPY OF THE ARGUMENT NOTE REFERENCE BOOK FILED BY THE PETITIONER HEREIN/APPLICANT IN O.A. NO. 141/2020.

EXHIBIT P23 INDEX OF ANNEXURES A CATEGORYWISE COMPILATION.