State of Kerala v. A. Batheruneza and Palakkad Municipality

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
V. G. Arun
Judgment Date: 2020-01-17
Court Decision / Holding: Writ appeal is rejected; the judgment of the learned Single Judge setting aside Ext.P4 and restraining recovery is not interfered with, and the question of law is left open. No order on costs.
Final Disposition: Writ appeal dismissed; question of law left open; no costs.

Parties to the Case

Appellants / Petitioners

State of Kerala
Director of Urban Affairs
Deputy Director of Local Fund Audit (Palakkad)

Respondents

A. Batheruneza
Palakkad Municipality

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.G. Pramod (Government Pleader)

Counsels for Respondents

• Sri U. Balagangadaran
• Sri P.S. Appu
• Sri T.C. Suresh Menon

Case Synopsis & Summary

This writ appeal, filed by the State of Kerala, challenges a learned Single Judge’s order that set aside a cancellation of a benefit granted to a Junior Public Health Nurse (JPHN) on the basis of treating temporary service as officiating service for the purpose of increments. The petitioner, a JPHN, served from 1985 to 1991 in Health Services and joined the Municipal Common Service in 1991 via KPSC, receiving increments under Government Decision No.2 in Rule 33 of the Kerala Service Rules for treating temporary service as officiating. After retirement in 2007, Ext.P4 (28.03.2008) cancelled the earlier grant and ordered recovery. The Single Judge’s decision to set aside Ext.P4 was upheld by the appellate court, which also noted undue hardship and treated the matter as analogous to the principles set in State of Punjab and other v. Rafiq Masih (White Washer). The State submits that two different services were involved (Health Services and Municipal Common Service), which would disable application of the Government Decision No.2, and that deletion of clause (3) in Ext.P8 does not alter the rule’s main body. The respondents contend that identical pay scales, qualifications, and appointment methods exist, and clause (3)’s deletion aligns the posts as the same service. The bench ultimately dismisses the WA, leaving the question of law open, and directs no costs.

Provisions of Law Cited

Government Decision No.2 in Rule 33 of the Kerala Service Rules

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that two different services (Health Services and Municipal Common Service) were involved, which would bar the petitioner from the benefit under Government Decision No.2. They contended that Ext.P8’s deletion of clause (3) cannot alter the main body of the rule and that the two posts do not form a single service for the purpose of the decision. They maintained that the provisional service must be regularised in the same category to be treated as officiating service, and the earlier cancellation Ext.P4 was valid.

Contentions of Respondents

The respondents argued that the posts of JPHN in Health Services and Municipal Common Service carry identical pay, qualifications, and method of appointment. With Ext.P8 removing clause (3), the eligibility hinges on identical post qualifications and appointment. The respondents pressed that the two posts should be treated as within the same service, making the petitioner eligible for the benefit and supporting the earlier order setting aside Ext.P4 and restraining recovery.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab and other v. Rafiq Masih (White Washer)	AIR 2015 SC 696	Positive	Cited as analogous authority showing that cancellation of benefits can cause undue hardship; supports the view that the relief granted can be sustained in similar circumstances.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 17TH DAY OF JANUARY 2020 / 27TH POUSHA, 1941 WA.No.1219 OF 2014** **AGAINST THE ORDER/JUDGMENT IN WPC 23994/2008 DATED 04-04-** **2013 OF HIGH COURT OF KERALA** ## **APPELLANTS:** - **1 STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE DIRECTOR OF URBAN AFFAIRS THIRUVANANTHAPURAM.** - **3 THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT PALAKKAD.** **BY ADVS. GOVERNMENT PLEADER SRI.P.G.PRAMOD, GOVERNMENT PLEADER** ## **RESPONDENT/S:** **1 A. BATHERUNEZA, AGED 56 YEARS D/O.LATE HASSNAR RAWTHER, JUNIPOR PUBLIC HEALTH NURSE(RETIRED), PALAKKAD MUNICIPALITY, R/A.NORTH VILLAGE, NENMARA, PALAKKAD - 678508.** - **2 PALAKKAD MUNICIPALITY REP. BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD-678001.** **R1 BY ADV. SRI.U.BALAGANGADHARAN R1 BY ADV. SRI.P.S.APPU R2 BY ADV. SRI.T.C.SURESH MENON** 2 W.A No.1219 of 2014 ## **OTHER PRESENT:** ## **GP SRI.P.G.PRAMOD** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17-012020, THE COURT ON 17-01-2020 DELIVERED THE FOLLOWING:** W.A No.1219 of 2014 3 ## **JUDGMENT** **Dated this the 17[th] day of January, 2020** **Vinod Chandran, J.** **The appeal is filed by the State against the judgment of the learned Single Judge which set aside the cancellation of the treatment of temporary service as officiating service for the purpose of granting increments at the time of appointment of the respondent, who was the writ petitioner. The brief facts to be noticed are that the writ petitioner was working as a Junior Public Health Nurse (JPHN) from 01.11.1985 to 28.09.1991 in the Health Services. Subsequently she was appointed as Junior Public Health Nurse (JPHN) through the Kerala Public Service Commission (KPSC) in the Municipal Common Service in which post she joined on 29.09.1991. On her appointment the** W.A No.1219 of 2014 4 **temporary service was treated as officiating service for the purpose of granting increments. This was under Government Decision No.2 in Rule 33 of the Kerala Service Rules. The benefit conferred was canceled on 28.03.2008 by Ext.P4 after the petitioner's retirement on 30.11.2007. The cancellation was interfered with by the learned Single Judge and recovery too fell to the ground.** **2. The learned Government Pleader points out that there were two different services involved which would disable the petitioner from claiming benefit under Government Decision No.2. It is however pointed out by the learned Counsel appearing for the respondent/writ petitioner that in Ext.P8 the third condition, of the posts required to be falling under the same service, has been deleted. In such circumstances, the** W.A No.1219 of 2014 5 **conditions applicable are only that the posts should carry identical scale of pay and have similar qualifications and method of appointment.** **The posts of JPHN in Health Services and the Municipal Common Service carries the same pay and qualification and method of appointment. The learned Government Pleader however, would submit that only when the provisional service is regularised with or without break in the same category of post, it could be treated as officiating service. The contention is that the deletion of clause (3) does not have any effect looking at the main body of the Government Decision.** **3. The learned Single Judge found otherwise. Before looking at the question of law urged before us we have to notice that the writ** W.A No.1219 of 2014 6 **petitioner who was appointed on 1991 retired on 2007 with the benefit granted to her at the time of appointment. It is after retirement that an order was issued on 28.03.2008(Ext.P4) canceling the earlier grant and ordering recovery. This causes undue hardship to the petitioner and it is an identical case as found in** _**State of Punjab and other v. Rafiq Masih (White Washer) AIR 2015 SC 696**_ **. It is also pertinent that the common judgment was in two writ petitions and the writ petitioners were identically situated. There was no appeal from the decision in the other writ petition. Hence, we are of the opinion that the judgment impugned need not be interfered with insofar as the direction, setting aside Ext.P4 and restraining recovery. However, we leave the question of law open.** W.A No.1219 of 2014 7 **Writ appeal is rejected on the grounds stated by us, leaving the question of law open. No order on costs.** **Sd/K. VINOD CHANDRAN, JUDGE. Sd/V.G. ARUN, JUDGE.** **Jma/** W.A No.1219 of 2014 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I TRUE COPY OF THE RULE OF FIXATION OF PAY.** **ANNEXURE II TRUE COPY OF THE GOVERNMENT ORDER DATED 10.9.2012.** **ANNEXURE III TRUE COPY OF THE GOVERNMENT ORDER DATED 11.10.2012.**