Flower Augustine v. State of Kerala and Regional Cancer Centre & Director, Regional Cancer Centre, Thiruvananthapuram

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE V.G.ARUN`** ``` FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944 ``` ``` WP(C) NO. 41168 OF 2016 ``` ## **`PETITIONER/S:`** ``` MRS.FLOWER AUGUSTINE NURSING SUPERINTENDENT, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, TRIVANDRUM 695 011. ``` **`BY ADVS.`** government **`SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.THOMAS GEORGE SRI.TONY GEORGE KANNANTHANAM`** ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.`** - **`2 THE REGIONAL CANCER CENTRE REPRESENTED BY ITS DIRECTOR MEDICAL COLLEGE CAMPUS TRIVANDRUM - 695 011.`** - **`3 THE DIRECTOR REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, TRIVANDRUM 695 011. BY ADVS. GOVERNMENT PLEADER SRI.T.A.SHAJI (SR.) SRI.ATHUL SHAJI`** ## **`OTHER PRESENT:`** ## **`SR.GP.PREMCHAND R.NAIR`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 41168 OF 2016 ``` ``` 2 ``` ## **JUDGMENT Dated this the 20[th] day of May, 2022** The petitioner was appointed as Nursing Superintendent Grade II in the Regional Cancer Centre (for short “RCC”) on 14.01.1993. Although the Registrar of the RCC recommended to declare the petitioner’s probation with effect from 12.05.1994, the Director extended her probation by six months. To the petitioner's dismay, her probation was terminated by order dated 05.09.1994. This gave rise to long drawn litigation between the petitioner and the RCC. The Government intervened in the dispute and issued Ext.P6 (G.O(Rt) No.2931/2002/H&FWD dated 29.11.2002) directing the RCC to reinstate the petitioner. Accordingly, the RCC issued Ext.P7 order dated 30.11.2002 reinstating the petitioner as Nursing Superintendent Grade II with effect from the forenoon of 30.11.2002. Thereafter, the ``` WP(C) NO. 41168 OF 2016 ``` ``` 3 ``` Government issued Ext.P10 order dated 16.05.2012 directing the RCC to reckon the period during which the petitioner was kept under suspension (15.03.1993 to 29.11.2002) for all service benefits and to declare her probation with retrospective effect. The monetary benefit due under Ext.P10 was not disbursed to the petitioner in spite of repeated requests. In the meanwhile, the RCC sought reconsideration of the directions in Ext.P10 and the Government replied by Ext.P14, reiterating that the petitioner is entitled to get all service benefits, including pay and allowances and there is no legal necessity or justification for modifying Ext.P10. 2. Even after Ext.P14, the monetary benefit due to the petitioner was not disbursed, compelling her to approach this Court in W.P.(C) No.10441 of 2016. After considering all aspects, Ext.P15 judgment was rendered, after taking note of the counter affidavit filed by the RCC categorically admitting that they are obliged to follow the ``` WP(C) NO. 41168 OF 2016 ``` ``` 4 ``` orders of the Government. In Ext.P15, this Court ordered the RCC to pay the entire benefits due to the petitioner within a period of four months. 3. The dispute ought to have attained finality, since Ext.P15 judgment was not challenged by the Government or RCC. Surprisingly, the matter was again raked before the Government by certain employees in the RCC, resulting in the petitioner being issued with Ext.P17 notice of hearing. Even though petitioner sought for a copy of the letter from the Advocate General's office referred in Ext.P17 and sought the reasons that had prompted the Government to order rehearing, no positive reply was given. The Government finalised the proceedings by issuing Ext.P21 order, revoking Ext.P6 and P10 orders, finding them to have been issued contrary to the judgments in O.P.(C) No.13003 of 1994 and W.P.(C) No.639 of 2000. The Government went on to hold that Ext.P10 being an order based entirely on Ext.P6, cannot ``` WP(C) NO. 41168 OF 2016 ``` ``` 5 ``` have any legitimate claim to validity. 4. Senior Advocate Kurian George Kananthanam appearing for the petitioner took strong exception to the manner in which Ext.P21 is issued. Learned Senior Counsel submitted that Ext.P21, in effect, sets aside Ext.P15 judgment of this Court. It is pointed out that this Court had issued a mandamus directing payment of the amounts due to the petitioner, after being convinced about the legal sanctity of Ext.P10, as clarified by Ext.14. It is contended that, if the procedure adopted for issuing Ext.P21 is permitted, that will have a debilitating effect on the finality of the judgments rendered by the Constitutional Courts. 5. Learned Government Pleader submitted that the Government had passed Ext.P21 after considering all relevant aspects, including the earlier judgments of this Court. The Government had also taken into account Ext.R1(a) judgment whereby writ appeal filed by the third party was closed in the light of Ext.P21. ## **`WP(C) NO. 41168 OF 2016`** ``` 6 ``` 6. Learned Standing Counsel for RCC drew attention to Ext.R2(a) judgment by the which the petitioner's initial challenge against termination of probation was repelled by this Court and Ext.R2(b), dismissing the writ appeal filed against that judgment. It is contended that the petitioner's challenge against termination having been repelled by this Court, the Government had committed gross illegality in issuing Ext.P6 order of reinstatement and Ext.P10, directing regularisation of the period of suspension and payment of consequential benefits. It was in such circumstances that the Government issued Ext.P21 revoking the earlier decisions. 7. The short question arising for consideration is whether the Government is clothed with the power to upset a mandamus issued by this Court, by revoking the orders based on which the mandamus was issued. The answer to the question can only be an emphatic no. As ``` WP(C) NO. 41168 OF 2016 ``` ``` 7 ``` held by the Apex Court in **M. Nagabhushana v. State of Karnataka [(2011) 3 SCC 408]** , the principle of finality is based on the high principle of public policy and in the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. In the case at hand, the Government as well as the RCC were parties to Ext.P15 judgment. Neither the Government nor the RCC had challenged Ext.P15. On the other hand, the judgment was challenged by a third party in W.A.No.1019 of 2016. Ext.R1(a) judgment shows that the writ appeal along with writ petition (WP(C) No.16873 of 2016) was withdrawn by the third party in view of Ext.P21. The Division Bench closed the judgment leaving it open for the 4[th] respondent (petitioner herein) to question Ext.P21 order, if needed, in appropriate proceedings. Even though learned Standing Counsel for ``` WP(C) NO. 41168 OF 2016 ``` ``` 8 ``` the RCC contended that Ext.R1(a) lends a stamp of approval to Ext.P21 order, I am unable to accept the contention since the Division Bench has only referred to Ext.P21 while closing the writ appeal as withdrawn and gave liberty to the petitioner to challenge Ext.P21 in appropriate proceedings. There is considerable force in the argument advanced by the learned Senior Counsel that the Government committed gross illegality by entertaining a challenge against Exts.P10 and P14 by a third party even after Ext.P15 inter parte judgment and in issuing Ext.P21, which has the effect setting aside not only Exts.P10 and P14, but even Ext.P15 judgment of this Court. Therefore, I find the Government to have committed gross illegality by issuing Ext.P21. In the result, the writ petition is allowed. Ext.P21 order is quashed and respondents 2 and 3 are directed to disburse the benefits granted to the petitioner under Ext.P10, as affirmed by Ext.P15 judgment, expeditiously ``` WP(C) NO. 41168 OF 2016 ``` ``` 9 ``` and at any rate, within two months of receipt of a copy of this judgment. ``` Sd/- V.G.ARUN JUDGE ``` ``` RK ``` ``` WP(C) NO. 41168 OF 2016 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 41168/2016`** - **`PETITIONER EXHIBITS EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 14/1/1993 TO THE PETITIONER`** - **`EXT.P2 TRUE COPY OF THE CERTIFICATE DATED 7/3/1994 ISSUED BY THE REGISTRAR OF RCC`** - **`EXT.P3 TRUE COPY OF THE INTERNAL NOTE PUT UP BY THE REGISTRAR, ENDORSED BY THE SUPTG. DATED 16/5/1994`** - **`EXT.P4 TRUE COPY OF THE ORDER DATED 16/6/1994 ISSUED FROM THE 3RD RESPONDENT`** - **`EXT.P5 TRUE COPY OF THE ORDER DATED 5/9/1994 OF DO.`** - **`EXT.P6 TRUE COPY OF THE ORDER DATED 29/11/2002 OF THE HEALTH & FAMILY WELFARE (J) DEPT.`** - **`EXT.P7 TRUE COPY OF THE ORDER DATED 30/11/2002 OF THE 3RD RESPONDENT`** - **`EXT.P8 TRUE COPY OF THE LETTER DATED 16/5/2006 TO THE 3RD RESPONDENT`** - **`EXT.P9 TRUE COPY OF THE NOTICE DATED 9/12/2011 OF THE GOVERNMENT`** - **`EXT.P10 TRUE COPY OF THE ORDER DATED 16/5/2012 OF THE HEALTH & FAMILY WELFARE (J) DEPARTMENT`** - **`EXT.P11 TRUE COPY OF THE REPRESENTATION DATED 25/6/2012 BY THE PETITIONER TO THE 3RD RESPONDENT`** - **`EXT.P12 TRUE COPY OF THE REPRESENTATION DATED 11/5/2013 FROM THE NURSING SUPTD., REGIONAL CANCER CENTRE`** - **`EXT.P13 TRUE COPY OF THE REPRESENTATION DATED 7/1/2014 FROM THE PETITIONER`** - **`EXT.P14 TRUE COPY OF THE LETTER DATED 11/5/2015 FROM THE GOVERNMENT TO THE 3RD RESPONDENT`** - **`EXT.P15 TRUE COPY OF THE JUGMENT DATED 29/3/2016`** ``` WP(C) NO. 41168 OF 2016 ``` ``` 11 ``` ``` IN WPC NO.10441/2016 OF THIS HON. COURT EXT.P16TRUE COPY OF THE ORDER DATED 30/4/2016 ISSUED BY THE RCC. ``` ``` EXT.P17TRUE COPY OF THE NOTICE DATED 8/8/2016 ISSUED FROM THE GOVERNMENT TO THE PETITIONER ``` ``` EXT.P18TRUE COPY OF THE REPLY DATED 12/8/2016 FROM THE PETITIONER TO THE GOVERNMENT EXT.P19TRUE COPY OF THE REPLY DATED 12/8/2016 FROM THE GOVERNMENT TO THE PETITIONER EXT.P20TRUE COPY OF THE REPLY DATED 18/8/2016 FROM THE GOVERNMENT TO THE PETITIONER EXT.P21TRUE COPY OF THE ORDER DATED 23/9/2016 FROM THE GOVERNMENT EXT.P22TRUE COPY OF THE DETAILED REPRESENTATION DATED 5/10/2016 FROM THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER ``` ``` RESPONDENT EXHIBITS Exhibit R2(A)TRUE COPY OF THE JUDGMENT DATED 10/12/1998 IN O.P 13003/1994 Exhibit R2(B)TRUE COPY OF THE JUDGMENT DATED 18.08.2000 in W.A 639/2000 OF THIS HON’BLE COURT ``` ``` Exhibit R2(C)TRUE COPY OF THE LETTER NO.415391/J1/2006/H&FWD DATED 08.05.2007 ISSUED BY THE GOVERNMENT ``` - **`Exhibit R2(D) TRUE COPY OF THE JUDGMENT DATED 28.310.2016 IN W.A.NO.1019/2016 OF THIS HON’BLE COURT`** - **`Exhibit R2(E) TRUE COPY OF THE REPRESENTATION DATED 12.01.2015 SUBMITTED BY THE PETITIONER TO THE HON’BLE CHIEF MINISTER`** - **`Exhibit R2(F) TRUE COPY OF THE LETTER NO.1254/NS/2005/ADMN-II/RCC DATED 01.08.2005 ISSUED BY THE RCC TO THE PRIVATE SECRETARY TO THE HON’BLE CHIEF MINISTER`** ``` EXHIBIT R2(G)TRUE COPY OF THE LETTER NO.1211/2007/ADMN.II/RCC, DATED ``` ``` WP(C) NO. 41168 OF 2016 ``` ``` 12 ``` ``` 26.09.2007 ISSUED BY RCC EXHIBIT R1(A)A COPY OF THE JUDGMENT DATED 10.12.1998 IN O.P.NO.13003/1994 EXHIBIT R1(B)THE COPY OF THE JUDGMENT DATED 28.10.2016 IN W.A.NO.1019/2016 EXHIBIT R1(C)AN EXTRACT OF THE RELEVANT PAGE OF RULE EXHIBIT R1(D)COPY OF THE REPRESENTATION DATED 12.01.2005 OF THE PETITIONER EXHIBIT R1(E) COPY OF THE LETTER NO.41539/J1/2006/H&FWD DATED 08.05.2007 ```