Dr. S. Vijaya v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE A.M.BABU MONDAY, THE 16TH DAY OF JULY 2018 / 25TH ASHADHA, 1940 OP(KAT).No. 259 of 2018 -------------------------AGAINST THE ORDER IN OA 742/2014 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 6.4.2018 ## PETITIONER(S)/APPLICANT DR.S.VIJAYA, AGED 52 YEARS, D/O. GOPINATHAN NAIR, SENIOR MEDICAL OFFICER, GOVERNMENT AYURVEDA HOSPITAL, KOYENKARA, KASARAGOD, RESIDING AT MADHAVIPURAM, MULIYAR, KANATHUR POST, KASARAGOD DISTRICT. BY ADVS.SRI.KALEESWARAM RAJ KUM.A.ARUNA SMT.MAITREYI SACHIDANANDA HEGDE SMT.RIYA RAYMOL IYPE KUM.THULASI K. RAJ SRI.VARUN C.VIJAY ## RESPONDENT(S):RESPONDENTS 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM 695 001 2. SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM 695 001 3. THE DIRECTOR, INDIAN SYSTEM OF MEDICINE, AROGYA BHAVAN, P.B NO. 182,THIRUVANANTHAPURAM, KERALA 695 001. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. BY GOVERNMENT PLEADER SRI.ANTONY MUKKATH THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 16-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 259 of 2018 (Z) APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1:COPY OF THE ORDER DATED 14/03/2018 IN OA(EKM) NO.742/2014. EXHIBIT P2:COPY OF THE MEMORANDUM OF OA (EKM) NO.742/2014 EXHIBIT P3:COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT IN OA (EKM) NO.742/2014. EXHIBIT P4:COPY OF THE APPLICATION DATED 24/12/2012. EXHIBIT P5:COPY OF THE APPLICATION ALONG WITH THE COVERING LETTER DATED 25/10/2017. EXHIBIT P6:COPY OF THE ORDER NO.E1/5803/98 DATED 22/08/2001. RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR & A.M.BABU, JJ.** ## **========================== O.P.(KAT) No.259 OF 2018 ==========================** Dated this the 16[th] day of July, 2018 ## **JUDGMENT** _Ravikumar, J._ This original petition is directed against order dated 14.3.2018 passed by the Kerala Administrative Tribunal in O.A.(EKM)No.742 of 2014. The petitioner is an Ayurveda doctor. She filed the original application feeling aggrieved by the denial of deputation benefits extended to medical officers belonging to the Department of Indian System of Medicine who obtained admission to Post Graduation course in the department quota. Evidently, Annexure A11 G.O. dated 28.10.2008 extended such benefits for the batch 2006-2009 and subsequent batches. The contention of the petitioner is that the action in restricting extension of such benefits only from 2006-2009 batches is nothing but an arbitrary and invidious discrimination. The petitioner underwent the P.G course from 2005 to 2008. In such **O.P.(KAT). 259/2018** 2 circumstances, challenging the cut off date in Annexure A11 and contending that there is no rationale behind such fixation of cut off date that the said original application has been filed. 2. The petitioner has taken up a contention that she being the sole candidate who underwent the said course, the Government could have and ought to have extended such benefits to her. As noticed hereinbefore, it is the denial of such benefits that constrained the petitioner to approach the Tribunal by filing the above mentioned original application. The Tribunal had considered the rival contentions and rejected the same. A perusal of paragraph 7 of the impugned order would reveal that the Tribunal took note of the fact that there is no statutory restriction or similar provisions in the Rules and in such circumstances, it is within the competence of the Government to fix the cut off date. In short, it was held that in the circumstances obtained in the case, it could not be said that the Government had acted illegally or arbitrarily. It was assigning such reasons that the original application was dismissed. 3. We have heard the learned counsel for the petitioner and also **O.P.(KAT). 259/2018** 3 the learned Government Pleader. 4. The contention of the learned counsel for the petitioner is that a perusal of Annexure A2 would reveal that it is a recommendation made by the Committee on Subordinate Legislation that led to the issuance of Annexure -A11 G.O. dated 28.10.2008. The learned counsel drew our attention to paragraphs 133 and 134 of Annexure A2. A perusal of the said paragraphs would reveal that the said committee had suggested for extension of such deputation benefits being enjoyed by medical officers in Allopathy to medical officers in Ayurveda also. But at the same time, it is only a recommendation and essentially, it was for the Government to decide whether it could be accepted and even on acceptance in what manner it could be extended. As is obvious from Annexure A11, the Government thought it fit only to extend it for batches 2006-2009 and 2007-2010 onwards. When that be a concession, we are of the considered view that this Court could not issue any direction, rather, mandamus to the Government to extend such benefits to the previous batch viz., 2005-2008 to which the petitioner belonged. If we extend the same to the said batch, **O.P.(KAT). 259/2018** 4 necessarily, the previous batches viz., 2004-2007 and backwards could also claim the extension of same benefit. Nonetheless, we are of the view that in matters like this, it cannot be said that there is no power vested with the Government to fix cut off date. Since it is only a concession, rather, extension of a particular benefit, it is essentially for the Government to take a decision. At the same time, we are of the view that there is some substance in the contention of the learned counsel for the petitioner based on Ext.P6. Ext.P6 is the proceedings of the District Medical Officer granting increments covering the period during which the petitioner had undergone post graduation course. A perusal of the same would reveal that, for undergoing the said course, its beneficiary was granted leave without allowance for three years from 15.3.1996 to 12.3.1999. It is to be noted that if such benefits can be granted even in the case of persons who were granted LWA, the petitioner who had undergone the same course in 2005 is justified in contending that she is also entitled to get similar treatment based on G.O.(RT) No.2865/96/H & FWD dated 2.12.1996. To buttress the said contention, the learned counsel relied on a Division Bench decision of **O.P.(KAT). 259/2018** 5 this Court in **Kamala Devi v. Kerala State Financial Enterprises** ## **Ltd. [2002(1) KLT 157]** . 5. The learned Government Pleader submitted that a scanning of the contention raised by the petitioner in the original petition would reveal that no such contention was taken up before the Tribunal. In short, it is contended that the Tribunal had no opportunity to consider Ext.P6 and therefore, the petitioner cannot raise any grievance against the impugned order contending that this question was not at all considered by the Tribunal. There is substance in the contention. At the same time, we are of the view that this original petition can be disposed of leaving liberty to the petitioner to raise this question before the Government. Essentially, the grievance of the petitioner is that the benefit which was extended to the subsequent batches were denied to the petitioner. We have already held that there is no scope of interference with Annexure A11 and to direct the Government to extend the said benefits to the petitioner. At the same time, we are of the view that the contention raised by the petitioner based on Ext.P6 is a matter upon which the Government could bestow some attention. A perusal of **O.P.(KAT). 259/2018** 6 Ext.P6 would reveal that it is a case where the medical officer who was granted leave without allowances for three years with effect from 15.3.1996 for study purpose (MD Ayurveda) was granted increments during the said period. Evidently, the said proceedings would reveal that it was issued based on G.O dated 2.12.1996 referred as first item in the said order. The learned Government Pleader submitted that the petitioner had already submitted Ext.P4 representation dated 24.12.2012 and Ext.P5 representation dated 25.10.2017 seeking increments during the period she underwent the P.G Course. It is submitted by the learned counsel that no orders have so far been passed thereon. The learned Government Pleader submitted that nothing is on record to reveal that those representations were actually received by the Government and that they are pending. At the same time, it is to be noted that it is the Government Pleader who made the submission that the petitioner seems to have represented before the Government to alleviate the grievance relating increments. It is submitted by the learned counsel for the petitioner that though the said representations were submitted, so far, no information regarding their outcome was **O.P.(KAT). 259/2018** 7 received by the petitioner. In such circumstances, the petitioner is granted liberty to submit fresh representation seeking incremental benefits. The petitioner is also at liberty to forward a copy of Ext.P6 along with the said representation for perusal. If the petitioner is desirous to file such representation, she may do so within a period of two weeks from the date of receipt of a copy of this judgment. In case of receipt of such representation, the second respondent shall consider the same and pass appropriate orders thereon expeditiously, at any rate, within a period of three months from the date of receipt of such representation. In case Exts.P4 and P5 are still pending, it will be open to the second respondent to pass appropriate orders thereon without waiting for further representation from the petitioner. While confirming the judgment passed by the Tribunal, this original petition is disposed of as above. **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** **Sd/A.M.BABU (JUDGE)** ## **spc/** **O.P.(KAT). 259/2018** 8 **C.T. RAVIKUMAR, J.** 9 ## **O.P.(KAT). 259/2018** **JUDGMENT September, 2010**