Kerala High Court
State Of Kerala vs Sunanda S on 9 April, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
OP(KAT) NO. 7 OF 2018 1
2025:KER:30144
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 9TH DAY OF APRIL 2025/19TH CHAITHRA, 1947
OP(KAT) NO. 7 OF 2018
AGAINST THE ORDER DATED 03.01.2017 IN OA NO.982 OF
2014 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 3 IN OA:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
LABOUR DEPARTMENT,
SECRETARIAT,
THIRUVANANTHAPURAM,
KERALA-695 001.
2 THE DIRECTOR,
INSURANCE MEDICAL SERVICES,
KERALA STATE,
THIRUVANANTHAPURAM-695 001.
3 THE REGIONAL DEPUTY DIRECTOR,
SOUTH ZONE,
OFFICE OF THE REGIONAL DEPUTY DIRECTOR,
INSURANCE MEDICAL SERVICES,
POLAYATHODE,
KOLLAM,
KERALA-691001.
BY SRI.A.J.VARGHESE, SR.GOVERNMENT PLEADER
OP(KAT) NO. 7 OF 2018 2
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RESPONDENT/APPLICANT AND 4TH RESPONDENT IN OA:
1 SUNANDA S.,
ASSISTANT NURSING SUPERINTENDENT,
EMPLOYEES STATE INSURANCE CORPORATION
MEDICAL COLLEGE & HOSPITAL,
PARIPPALLY, KOLLAM,
KERALA.
2 THE SUPERINTENDENT,
EMPLOYEES STATE INSURANCE CORPORATION
MEDICAL COLLEGE & HOSPITAL,
PARIPPALLY, KOLLAM,
KERALA - 691 574.
BY ADVS.
ELVIN PETER P.J. (SR.)
K.R.GANESH
SREELEKSHMI A.S.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 07.04.2025, THE COURT ON 09.04.2025
DELIVERED THE FOLLOWING:
OP(KAT) NO. 7 OF 2018 3
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JUDGMENT
Dated this the 9th day of April, 2025
A.Muhamed Mustaque, J.
Smt. Sunanda, the 1st respondent herein, was given
her first time-bound higher grade in the year 2003 while
working as a Head Nurse in ESI Hospital, Parippally. While
she was given the higher grade, she executed a declaration
undertaking that she will not relinquish regular promotion
when it becomes due. She became eligible for promotion
with effect from 04.05.2010. At that time, she was working
as a Head Nurse in ESIC Hospital, Parippally.
2. The Government agreed to hand over the above
Hospital to the Employees State Insurance
Corporation(ESIC) based on a decision taken in a meeting
held on 16.04.2010. As per the decision of the meeting, the
existing staff of ESI hospital who wished to continue
working on deputation in ESIC hospital, Parippally, were
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allowed to do so until further orders. The 1st respondent
opted to continue in the ESIC hospital. Thereafter, the 1 st
respondent was absorbed in ESIC Hospital with effect from
04.03.2011.
3. Since the 1st respondent was in another service on
deputation, i.e, with ESIC, she had to relinquish the
promotion which was due to her with effect from
04.05.2010.
4. In view of the relinquishment, the Government
initiated recovery proceedings based on the undertaking
given by the 1st respondent at the time of granting the first
time-bound higher grade. This was challenged before the
Tribunal, which upheld the challenge.
5. The relinquishment was essentially based on the
fact that the 1st respondent was working in another service
on deputation and was later absorbed into that service. The
objective of obtaining a relinquishment is to ensure that
when a Government servant is entitled to promotion, he will
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not relinquish it, thereby, preventing him from continuing
to enjoy the benefits of higher grades while regular
promotional avenues are available. This means that one
cannot have the advantage of a higher grade while
relinquishing the promotion at the same time. In a case like
this, we find that the 1st respondent had relinquished the
promotion in a peculiar circumstance when she had been
absorbed into another service which was permitted based
on the decision of the government itself. As seen from the
impugned order as well as the pleadings, the 1 st
respondent was in another service from 16.04.2010
onwards, even before the promotion became due. In such
circumstances, the Government could not have proceeded
against the 1st respondent based on the undertaking given
by her earlier. The undertaking given at the time of
granting a higher grade had a specific purpose, and it
cannot be insisted on mechanically. The relinquishment of
promotion was, in fact, to continue in another service as
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permitted by the government, and not with an intention to
enjoy the benefit of the higher grade and renounce the
promotion at the same time. The purpose of the
undertaking was only to prevent deceitful tactics of the
Government servants who might seek to enjoy the benefit
of a higher grade and relinquish the promotion at the same
time when such promotion becomes due.
6. The recovery initiated is also unsustainable for
another reason. The promotion was due prospectively with
effect from 04.05.2010. If the 1st respondent relinquished
the claim for promotion, at the best she can be denied the
scale of pay applicable in the promoted category from the
date on which promotion became due, i.e. 04.05.2010. The
1st respondent was legally entitled to the scale of pay based
on the higher grade till the promotion became due. Since
the 1st respondent entered into service on 16.04.2010 in
ESIC hospital, no recovery is possible as the effective date
of promotion was only with effect from 04.05.2010. The
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Government has no case that higher grade was irregular till
the promotion was due. Therefore, no recovery is possible
in this case, even based on the undertaking given by the 1 st
respondent.
In such circumstances, we find no merit in this
matter. The original petition stands dismissed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P.KRISHNA KUMAR
JUDGE
rkj
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APPENDIX OF OP(KAT) 7/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE OA ALONG WITH
ANNEXURES
AANNEXURE A14 TRUE COPY OF THE ORDER DATED 31.03.2014
ISSUED BY THE 1ST RESPONDENT.
ANNEXURE A13 TRUE COPY OF THE ORDER DATED 16.01.2014
IN O.A.NO.2571/2013 OF THIS HON'BLE
TRIBUNAL.
ANNEXURE A12 TRUE COPY OF THE REPRESENTATION DATED
25.08.2012 SUBMITTED BY THE APPLICANT
BEFORE THE 1ST RESPONDENT.
ANNEXURE A11 TRUE COPY OF THE ORDER DATED 28.07.2010
ISSUED BY THE 2ND RESPONDENT.
ANNEXURE A10 TRUE COPY OF THE ORDER DATED 19.12.2011
ISSUED BY THE ESI CORPORATION ABSORBING
THE APPLICANT.
ANNEXURE A9 TRUE COPY OF THE LETTER DATED
26.03.2011 ISSUED BY THE GOVERNMENT.
ANNEXURE A8 TRUE COPY OF THE ORDER DATED 04.05.2010
ISSUED BY THE INSURANCE MEDICAL SERVICE
DEPARTMENT.
ANNEXURE A7 TRUE COPY OF THE ORDER DATED 26.07.2013
ISSUED BY THE GOVERNMENT.
ANNEXURE A6 TRUE COPY OF THE OPTION FORM DATED
16.04.2010 SUBMITTED BY THE APPLICANT.
ANNEXURE A5 TRUE COPY OF THE MINUTES OF THE MEETING
OF THE ESI CORPORATION HELD ON
16.04.2010.
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ANNEXURE A4 TRUE COPY OF THE COMMUNICATION DATED
13.04.2010 ISSUED BY THE STATE MEDICAL
COMMISSIONER, ESI CORPORATION TO THE
2ND RESPONDENT.
ANNEXURE A3 TRUE COPY OF THE COMMUNICATION DATED
04.02.2010 ISSUED BY THE 2ND
RESPONDENT.
ANNEXURE A2 TRUE COPY OF G.O. DATED 01.01.2010
ISSUED BY THE GOVERNMENT.
ANNEXURE A1 TRUE COPY OF G.O.DATED 15.10.2009 ALONG
WITH THE TERMS OF ABSORPTION ISSUED BY
THE GOVERNMENT.
EXHIBIT P2 TRUE COPY OF ANNEXURE MA 1/14
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED
BY THE 1ST RESPONDENT ALONG WITH THE
ANNEXURES.
ANNEXURE R1(i) TRUE COPY OF GOVERNMENT ORDER G.O.(RT)
NO.448/2014/LBR DATED 31.03.2014.
ANNEXURE R1(h) TRUE COPY OF THE GOVERNMENT LETTER
NO.25007/F2/12/LBR DATED 09.10.2013
WITH TRANSLATION.
ANNEXURE R1(g) TRUE COPY OF GOVERNMENT LETTER
NO.773/F2/11/LBR DATED 26.03.2011 WITH
TRANSLATION.
ANNEXURE R1(f) TRUE COPY OF ORDER NO.E57298/2010/DIMS
DATED 28.07.2010.
ANNEXURE R1(e) TRUE COPY OF ORDER NO.E5-7298/10/DIMS
DATED 04.05.2010.
ANNESURE R1(d) ATRUE COPY OF G.O.(MS) NO.94/2013/LBR
DATED 26.07.2013.
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ANNEXURE R1(c) TRUE COPY OF G.O.(MS) NO.98/2012/LBR
DATED 27.06.2012.
ANNEXURE R1(b) TRUE COPY OF G.O.(MS) NO.2/2010 /LBR
DATED 01.01.2010.
ANNEXURE R1(a) TRUE COPY OF G.O.(MS) NO.138/2009/LBR
DATED 15.10.2009.
EXHIBIT P4 TRUE COPY OF THE REJOINDER OF THE
APPLICANT ALONG WITH ANNEXURES
ANNEXURE A20 TRUE COPY OF LETTER DATED 18.09.2014
SUBMITTED BY THE APPLICANT'S HUSBAND
UNDER THE RIGHT TO INFORMATION ACT.
ANNEXURE A17, A18, TRUE COPY OF THE COMMUNICATION DATED
A19 14.10.2014 ALONG WITH TWO LETTERS
ISSUED BY THE STATE PUBLIC INFORMATION
OFFICER.
ANNEXURE A16 TRUE COPY OF THE TRANSFER ORDER OF
SMT.V.SREEKALA DATED 13.04.2010.
ANNEXURE A15 TRUE COPY OF THE REPLY DATED 16.08.2011
ISSUED BY THE INFORMATION OFFICER.
EXHIBIT P5 TRUE COPY OF ORDER DATED 03/01/2017 IN
