Hemalatha K. and others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **FRIDAY, THE 6TH DAY OF JUNE 2014/16TH JYAISHTA, 1936** **OP(KAT).No. 180 of 2014 (Z)** **---------------------------(AGAINST THE ORDER DATED 6.1.2014 IN O.A.3060 OF 2014 OF THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM)** ## **PETITIONERS/APPLICANTS:** **------------------------** **1. HEMALATHA. K, JUNIOR PUBLIC HEALTH NURSE, GRADE -I, TALUK HOSPITAL PARASSALA, THIRUVANANTHAPURAM DISTRICT.** **2. NIRMALA K.V JUNIOR PUBLIC HEALTH NURSE, GRADE-I COMMUNITY HEALTH CENTRE, PERIYA, KASARAGOD DISTRICT.** **3. PREMALVALLY A.V JUNIOR PUBLIC HEALTH NURSE, GRADE - I PUBLIC HEALTH CENTRE, PADANNE, KASARAGOD DISTRICT.** **4. INDIRA M.V JUNIOR PUBLIC HEALTH NURSE, GRADE - I PUBLIC HEALTH CENTRE, MOGRAL-PUTHUR KASARAGOD DISTRICT.** **5. K.LAKSHMI, JUNIOR PUBLIC HEALTH NURSE, GRADE - I PUBLIC HEALTH CENTRE, CHATTANCHAL, KASARAGOD DISTRICT. 6. K. ASMA JUNIOR PUBLIC HEALTH NURSE, GRADE - I DISTRICT HOSPITAL, KANHANGAD, KASARAGOD DISTRICT.** **7. P.P. LALITHA, JUNIOR PUBLIC HEALTH NURSE, GRADE - I PUBLIC HEALTH CENTRE, ADOOR P.O., OTTUR KASARAGOD DISTRICT.** **8. K.V. VIMALA JUNIOR PUBLIC HEALTH NURSE, GRADE - I PUBLIC HEALTH CENTRE, AJANUR, KASARAGOD DISTRICT.** **9. JANAKI. K JUNIOR PUBLIC HEALTH NURSE, GRADE - I COMMUNITY HEALTH CENTRE, PERIYA, KASARAGOD DISTRICT.** **10. JAYASREE T.P JUNIOR PUBLIC HEALTH NURSE, GRADE - I COMMUNITY HEALTH CENTRE, PERIYA, KASARAGOD DISTRICT.** **11. SARADAMBA C.H JUNIOR PUBLIC HEALTH NURSE, GRADE - I COMMUNITY HEALTH CENTRE, BADIADUKKA KASARAGOD DISTRICT.** **BY ADVS.SRI.T.K.VIPINDAS SRI.K.V.SREE VINAYAKAN SRI.K.M.MUHAMMED HUSSAIN** **RESPONDENTS/RESPONDENTS:** **------------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 004** **2. THE DIRECTOR OF HEALTH SERVICES THIRUVANANTHAPURAM - 695 001.** **3. THE DISTRICT MEDICAL OFFICER OF HEALTH KASARAGOD, KANHANGAD** **BY SR.GOVERNMENT PLEADER SRI.SYAMKUMAR** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 06-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No. 180 of 2014 (Z)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS:** **------------------------** **EXHIBIT P1 : TRUE COPY OF O.A. NO.3060/2010 FILED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL** **ANNEXURE-A1:THE TRUE COPY OF THE JUDGMENT IN WRIT PETITION NOS.476/1991 AND 493/1991 DATED 9.5.1995** **ANNEXURE-A2:THE TRUE COPY OF THE ORDER OF THE HONOURABLE SUPREME COURT IN CIVIL APPEAL NO.4129 OF 2001 AND CONNECTED CASES DATED 11.7.2001** **ANNEXURE-A3: THE TRUE COPY OF THE JUDGMENT OF THE W.P.(C). NO.7203/2001 DATED 23.2.2006 BEFORE HONOURABLE HIGH COURT OF KERALA** **ANNEXURE-A4: THE TRUE COPY OF THE G.O.(Rt) NO.1074/2007/H & FWD DATED 26.3.2007** **ANNEXURE-A5: THE TRUE COPY OF THE JUDGMENT BEFORE THE HONOURABLE HIGH COURT OF KERALA IN W.P.(C).NO.16328/2008 DATED 5.6.2008** **ANNEXURE-A6: THE TRUE COPY OF THE JUDGMENT IN W.A.1841/2008 DATED 3.11.2008** **ANNEXURE-A7:THE TRUE COPY OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT OF INDIA IN CIVIL APPEAL NO.4001 OF 2010 AND CONNECTED CASES DATED 23.8.2012** **ANNEXURE-A8:THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANTS BEFORE THE 1ST RESPONDENT DATED 9.10.2012** **ANNEXURE-A9:THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 17.1.2013** **EXHIBIT P2 : THE TRUE COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL IN O.A NO 3060 /2010 DATED 06.01.2014** ## **RESPONDENT(S)' EXHIBITS:NIL** **-------------------------** **//TRUE COPY//** **P.A TO JUDGE** ## **K.M.JOSEPH & A.K.JAYASANKARAN NAMBIAR, JJ.** **~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~** O.P.(KAT) No.180 of 2014 **~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~** Dated this the 6[th] day of June, 2014 ## **JUDGMENT** ## **K.M.JOSEPH, J.** The petitioners are applicants before the Kerala Administrative Tribunal hereinafter referred to as the Tribunal. They filed O.A.No.3060 of 2013, challenging Annexure-A9 order which was passed on Annexure-A8 representation. 2. The petitioners are Junior Public Health Nurses working in the Health Services Department. They were all appointed on a regular basis on December 1997-1998. Prior to the regular appointments through Public Service Commission they were appointed under Rule 9(a)(i) of the KS & SSR. According to them, they were having 7 years of temporary service in the Department. Some provisional hands like the petitioners had approached the Hon'ble Supreme Court and the Court had ordered their regularisation by Annexure-A1 order dated 09.05.1995. Again reliefs were granted to few others similarly placed by Annexure-A2 order dated 11.07.2001. The petitioners approached this Court by filing W.P.(C).No.7203 of 2001 and the same was disposed of by Annexure-A3 judgment O.P.(KAT) No.180 of 2014 2 directing the Government to consider their representation to reckon their provisional service for various service benefits. The same was rejected by Annexure-A4 order dated 26.03.2007 that was unsuccessfully challenged by them by filing Writ Petition No. 16328 0f 2008. The above writ petition was dismissed by this Court as per Annexure-A5 judgment dated 05.06.2008. The said decision was affirmed by the Division Bench of this Court by Annexure-A6 judgment dated 3.11.2008. A Special Leave Petition was filed before the Hon'ble Supreme Court against Annexure-A6. It appears leave was granted and the case was numbered as C.A.4001 of 2010. But the same was finally dismissed as not pressed along with a few other similar cases and the following orders were passed by the Apex Court. “After addressing us for some time, learned counsel appearing for the appellants/petitioners seek leave to withdraw these appeals/special leave petitions with liberty to make a comprehensive representation to the authorities concerned for consideration of their claim. Accordingly, appeals/special leave petitions are dismissed as not pressed. 3 O.P.(KAT) No.180 of 2014 We clarify that we have not expressed any opinion on the merits of these appeals/special leave petitions. As and when the representations are made, the same shall be considered on their own merits, uninfluenced by the withdrawal of these appeals/special leave petitions, as expeditiously as possible.” 3. Thereafter, the petitioners preferred Annexure -A8 representation before the Government, but it was rejected by the Government by Annexure-A9. The Tribunal found no merit in the original application. It was found that the provisional service cannot be counted for claiming service benefits in the light of the provisions contained in Rule 9(a)(i) of the KS & SSR. It was also found that seniority could not be based on provisional service in view of provisions under Rule 27 of the KS & SSR and further that with the withdrawal of the special leave petition, the judgment of the High Court has become final and Government was bound by the said judgment. The Tribunal took note of the fact that the representation of the applicants should be considered uninfluenced by the withdrawal of special leave petition. As far as Annexures -A1 O.P.(KAT) No.180 of 2014 4 and A2 orders are concerned, the Tribunal was of the view that the Apex Court has not laid down any general principles of law to be followed as a precedent. Finding that there was no merit, the application was accordingly rejected. Feeling aggrieved this original petition is filed under Article 227. 4. we heard the learned counsel for the petitioners and also the learned Government Pleader. 5. What is pressed before us by the learned counsel for the petitioners is Annexure -A9 stating that the Government has failed to consider the effect of decision No.2 of Rule 33 of Part I of the Kerala Service Rules. Learned counsel for the petitioners would point out while it is true that the said decision was deleted with effect from 01.10.1994, insofar as the petitioners had provisional service at the time when the decisions were in force, they would be entitled to the benefit of the same. The Government decision No.2 as it stood till it was deleted read as follows: ## “ **GOVERNMENT DECISION NO.2** Provisional service on regularisation with or without break in the same category or post 5 O.P.(KAT) No.180 of 2014 will be treated as officiating service _**ab initio**_ for the limited purpose of granting of increments. Provisional service followed by a regular appointment with or without break in the same category of post will also be treated as officiating service ab initio for the limited purpose of granting of increments. The term 'same category' of post for the purpose denotes post satisfying the following conditions:- (i) The posts should carry the same or identical scale of pay, (ii) The qualification and method of appointment should be the same, and (iii) The post should fall in the same service. The above decision shall be deemed to have come into force with effect from 1-111956 but the monetary benefit thereof will be admissible only with effect from 24.7.1967.” 6. The learned government Pleader however pointed out that insofar as the petitioners are concerned, when they were advised for regular appointments, the said decision was not available on account of its deletion in 1994. Hence, it is contended, that the petitioner cannot claim benefit of the same. 6 O.P.(KAT) No.180 of 2014 7. We notice in fact that the issue is no longer _res integra_ and it stands concluded against the petitioners by virtue of the judgment of a Division Bench in Writ Appeal Nos.94 & 67 of 2005. In fact the Division Bench rendered the said judgment overruling the judgment of the learned single judge in O.P 26284 of 2002 which in fact is reported as **K.M.Majeed v. State of Kerala and Others** (2004 (2) KLT Page 54 S.N. 62). In the light of this development, we are also not in a position to accede to the request of the petitioners, which was pressed before us, that the benefit of decision No.2 to Rule 33 should have been granted and it was not even considered by the Government, as the issue does not survive for consideration. The original petition will accordingly stand dismissed. **K.M.JOSEPH JUDGE** ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/