Vasudevan Achary.R v Kerala State Homoeopathic Co-Operative Pharmacy Ltd (HOMCO) & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 15TH DAY OF NOVEMBER 2013/24TH KARTHIKA, 1935 WP(C).No. 11864 of 2012 (G) ---------------------------- PETITIONER: ---------- VASUDEVAN ACHARY.R AGED 48 YEARS ANALYTICAL CHEMIST KERALA STATE HOMOEOPATHIC CO-OPERATIVE PHARMACY LTD. PATHIRAPPALLY.P.O., ALAPPUZHA-688 521. BY ADVS.SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.PRASANTH.S RESPONDENTS: ----------- 1. KERALA STATE HOMOEOPATHIC CO-OPERATIVE PHARMACY LTD.(HOMCO) REPRESENTED BY THE MANAGING DIRECTOR PATHIRAPPALLY.P.O., ALAPPUZHA-688 521. 2. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM.-695 001. R1 BY ADV. SRI.C.A.CHACKO R2 BY GOVERNMENT PLEADER SRI.RAMAPRASAD UNNI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/07/2013, THE COURT ON 15/11/2013 DELIVERED THE FOLLOWING: ## **APPENDIX TO W.P.C.NO.11864 OF 2012** PETITIONER’S EXHIBITS EXHIBIT P1 - RELEVANT PAGES OF THE BYE-LAWS OF KERALA STATE HOMOEOPATHIC CO-OPERATIVE PHARMACY LTD. EXHIBIT P2- TRUE COPY OF G.O.(RT)NO.3253/84/HD DATED 9.10.1984. EXHIBIT P3- TRUE COPY OF ORDER NO.A.1059/92 DATED 9.10.1992 ISSUED BY IST RESPONDENT. EXHIBIT P4- TRUE COPY OF ORDER NO.A.1059/92 DATED 21.12.1993 ISSUED BY IST RESPONDENT. EXHIBIT P5- TRUE COPY OF ORDER NO.A.1059/92 DATED 24.11.2004 ISSUED BY IST RESPONDENT. EXHIBIT P6- TRUE COPY OF G.O.(MS)NO.100/2007/H&FWD DATED 2.5.2007. EXHIBIT P7- TRUE COPY OF RESOLUTION DATED 2.6.2007 PASSED BY ADMINISTRATIVE COUNCIL OF KERALA STATE HOMOEOPATHIC COOPERATIVE PHARMACY LTD. EXHIBIT P8- TRUE COPY OF LETTER DATED 11.11.2010 OF THE IST RESPONDENT TO GOVERNMENT. EXHIBIT P9- TRUE COPY OF REPRESENTATION DATED 11.10.2010 TO THE IST RESPONDENT. EXHIBIT P10- TRUE COPY OF LETTER NO.33332/J3/2011/H&FWD DATED 30.3.2012 OF 2ND RESPONDENT TO IST RESPONDENT. EXHIBIT P11- TRUE COPY OF REPRESENTATION DATED 7.5.2012 TO IST RESPONDENT. EXHIBIT P12- TRUE COPY OF LETTER DATED 12.5.2012 OF THE IST RESPONDENT TO THE PETITIONER. EXHIBIT P13 - TRUE COPY OF G.O.(MS) NO.442/2012/H&FWD DATED 27/12/2012. EXHIBIT P14 - TRUE COPY OF REPRESENTATION DATED 8/1/2013 SUBMITTED TO 1ST RESPONDENT. ## RESPONDENTS' EXHIBITS EXT.R1(a): TRUE COPY OF COMMUNICATION DATED 15/5/2012 OF 1ST RESPONDENT. EXT.R1(b): TRUE COPY OF COMMUNICATION DATED 7/6/2012 OF 2ND RESPONDENT. EXT.R1(c): TRUE COPY OF COMMUNICATION DATED 19/1/2012 OF THE 2ND RESPONDENT. EXT.R1(d): TRUE COPY OF RELEVANT PAGES OF PROCEEDINGS OF THE MEETING DATED 26/11/1993. //TRUE COPY// PA TO JUDGE ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.11864 of 2012 ---------------------------------------- Dated this the 15[th] day of November 2013 ## **J U D G M E N T** The writ petition is filed challenging Ext.P10 and P12 and for a direction to the 1[st] respondent to sanction and disburse to the petitioner pay and allowances for the month of April 2012 onwards and to declare that the petitioner is entitled for pay and allowances, annual increments, time bound higher grade and other service benefits already sanctioned to the petitioner on the basis of the resolutions passed by the Board of Directors/Administrative Council of the 1[st] respondent and that no amount shall be recovered from his salary. 2. The short facts involved in the writ petition is that the petitioner was appointed as Analytical Chemist in the 1[st] respondent concern on 09/10/1992. His salary was withheld from April 2012 and a decision was taken to refix his pay at minimum of the scale of pay from May 2007 on the basis of W.P.C.No.11864/2012 2 a direction issued by the 2[nd] respondent. It is the case of the petitioner that he was appointed in a leave vacancy on 09/10/1992 as per Ext.P3 for a period of 179 days. He joined on 26/10/1992. The Administrative Council in a meeting held on 26/11/1993 allowed the petitioner to continue in the post until further orders. Ext.P4 is the said order dated 21/12/1993. He was given annual increments and the scale of pay was revised from time to time. He was granted time bound higher grade on completion of 10 years as per Ext.P5 order dated 24/11/2004. Several employees were working in the 1[st] respondent society on temporary basis and daily wages. The 1[st] respondent therefore sent a proposal to the Government for regularising such employees. According to the petitioner, by mistake his name was included. The said recommendation of the Administrative Council was accepted by the Government in terms of Ext.P6 Government Order dated 02/05/2007. On that basis, the Administrative Council of the 1[st] respondent in its meeting held on 02/06/2007 resolved to regularise the service of the employees with W.P.C.No.11864/2012 3 effect from 02/05/2007 except that of the petitioner. However, his pay and allowances were protected as per Ext.P7 resolution dated 07/12/2009. Subsequently, in respect of persons regularised in terms of Ext.P6 Government order, a proposal was sent to regularise them from the date on which they joined service. But the petitioner's name was not included in the same. In the meantime, petitioner submitted an application for granting him second higher grade on completion of 16 years as per Ext.P9 dated 11/10/2010. The 2[nd] respondent by letter dated 30/03/2012 informed the 1[st] respondent that the petitioner is not eligible for time bound higher grade promotion with effect from 26/10/2008 since the regularization of the petitioner at Ext.P6 was only prospective and the petitioner's past service could not be counted for pay fixation, seniority, etc. Ext.P10 is the said letter dated 30/03/2012. On receipt of Ext.P10, the 1[st] respondent decided to withhold the salary of the petitioner from the month of April 2012 onwards and to refix his pay from May 2007. He was not disbursed salary W.P.C.No.11864/2012 4 for the month of April 2012. He submitted Ext.P11 representation dated 07/05/2012. However, the 1[st] respondent informed the petitioner as per Ext.P12 dated 12/05/2012 that since the Government had not sanctioned his appointment with retrospective date, no benefits can be granted to the petitioner. 3. The main contention urged by the petitioner is that he was a candidate sponsored by employment exchange after conducting a selection and after preparing a rank list. Though the appointment was for a period of 179 days, the Administrative Council took a decision to continue his service against the existing vacancy and he was granted all service benefits. Since he was continuously working since 1992 he was granted grade promotion and all other benefits which cannot be taken away on the ground that his appointment was not made on permanent basis. In fact, according to the petitioner, it was only due to a mistake on the part of the 1[st] respondent that his name was included in the list of employees forwarded to Government for W.P.C.No.11864/2012 5 regularization. It is contended by the petitioner that as per Clause 15 of Ext.P1 bye-laws the management of the 1[st] respondent shall vest in the Board of Directors constituted under the said Clause. It is as per Ext.P2 order that an Administrative Council is functioning as Board of Directors. Power is vested with the Board of Directors to determine the staff required to run the concern efficiently and also to fix the salary to be paid to them. In so far as no rules were framed by the Government relating to the service conditions of the employees of the 1[st] respondent, the Board of Directors is fully competent to make appointment to the post of Analytical Chemist and to fix the salary. Further, it is contended that by Ext.P10 the Government had only called for an explanation for the irregular action. Without giving a proper explanation in the matter, the Board of Directors had issued Ext.P12. Hence the petitioner seeks for the reliefs, as prayed for. 4. Counter affidavit is filed by respondents 1 and 2. The 1[st] respondent supports the stand taken by them. W.P.C.No.11864/2012 6 According to them, petitioner was appointed in a leave vacancy of one Smt.Marykutty Mathai who went abroad. Though he was appointed for a period of 179 days he was permitted to continue in the said post and he was given annual increment and other allowances. The leave vacancy became an open vacancy only in 2006 when Smt.Marykutty Mathai was removed from service and until then he was on leave vacancy. He was not regularised in service by any Government Order or by any resolution of Administrative Council until Ext.P6 was issued. Though he was allowed first time bound higher grade after 10 years by the then Managing Director vide Ext.P5, there was no supporting resolution of Administrative Council nor was there any order or ratification by the Government. Ext.P7 resolution was passed to protect his existing pay and allowances but as it was against Ext.P6 Government Order, the Administrative council decided to refix the pay of the petitioner adhering to Ext.P6 Government Order. It was further indicated that though the Administrative Council in their resolution dated W.P.C.No.11864/2012 7 26/11/1993 has decided that the petitioner was eligible for annual increment, no decision was taken to grant him time bound higher grade. It is further indicated that by Ext.P7, the Administrative Council resolved to protect the pay and allowances of the petitioner, but as the same was against Ext.P6 Government Order it was not forwarded to the Government for ratification. It is also indicated that there was mistake in Ext.P7. The statement that the petitioner was given grade based promotion as per Resolution No.10 dated 26/11/1993 was wrong. The resolution is produced as Ext.R1(d). The only decision taken was to grant increment. Hence according to the 1[st] respondent, petitioner is not entitled for the reliefs as sought for. 5. Petitioner has filed I.A.No.3051 of 2013 seeking for an interim direction to fix the pay of the petitioner in the revised scale of pay in terms of Ext.P13. Counter affidavit is filed by the 1[st] respondent inter alia stating that in order to fix the pay in the revised scale with effect from 01/07/2009 as per Ext.P13 his pay has to be re-fixed in view of Ext.P6 W.P.C.No.11864/2012 8 and only thereafter the same could be done. 6. Counter affidavit is filed by the 2[nd] respondent supporting their stand in the matter. According to them, Ext.P7 resolution of the Administrative Council dated 02/06/2007 is against the Government Order at Ext.P6. It is also indicated that 14 other employees who were regularised along with the petitioner were having several years of past service and unless they were regularised they were not entitled for any benefits like time bound higher grade and other service benefits. 7. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent and the Learned Government Pleader. 8. Learned counsel for the petitioner relied upon a Division Bench judgment of this Court in W.A.No.2061 of 2004. That was a case in which the District Rural Development Agency (DRDA) decided to regularise the service of the petitioners who were working on daily wages. Though resolution was passed, it was not implemented as W.P.C.No.11864/2012 9 the Government did not approve the same. It was found that when a resolution is passed by DRDA as early as in 1991, the said body, being the employer, is entitled to take such a decision. As long as there is no challenge to the said decision and the Government did not invalidate the same, a different stand could not be taken in the matter. Since already a decision was taken, for regularising the said persons, the judgment in **Secretary, State of Karnataka v. Umadevi** _[2006(4) SCC 1]_ does not apply and accordingly the direction by the learned Single Judge to regularise the petitioners was upheld. According to the petitioner, his case is also on similar lines and is entitled for regularisation with effect from the date of joining. But it is relevant to note that in the case on hand, there is absence of a resolution by the Administrative Council to regularise his service. Though the said Council can take a decision in the matter relating to employment, no such decision was forthcoming. Admittedly, the petitioner was appointed on a casual basis through employment exchange. The period of appointment was for W.P.C.No.11864/2012 10 179 days. His appointment is not based on a process known to law. **Umadevi'** s case (supra) squarely applies to the said factual situation. 9. The Board of Directors of the 1[st] respondent was dissolved and replaced by an Administrative Council as per Ext.P2 dated 09/10/1984. By Ext.P3 dated 09/10/1992, petitioner was appointed in a leave vacancy. By Ext.P4 dated 21/12/1993 it is indicated that the Administrative Council decided to continue the service of the petitioner in the existing vacancy until further orders. It is indicated that he will be eligible for annual increment and other allowances as per the prevailing rules in the Pharmacy. Reference is made to Resolution No.10 of the Administrative Council in its meeting dated 26/11/1993. By Ext.P5 dated 24/11/2004 he was given 10 year time bound higher grade. Apparently, this is not backed by any resolution. By Ext.P6 dated 02/05/2007 the Government approved regularisation of 16 employees including the petitioner under a particular scale of pay. On this basis, Ext.P7 resolution was passed by the W.P.C.No.11864/2012 11 Council. In respect of the petitioner, it was mentioned that his scale of pay was Rs.6675-10550 whereas his present scale of pay was Rs.7450-11475 on account of him being given 1[st] time bound higher grade. Hence it was opined that a review of the order was necessary. A decision was taken to protect his existing pay and allowances. The Government thereafter informed the 1[st] respondent that the 2[nd] time bound higher grade cannot be granted to the petitioner as his regularisation was effective only from 02/05/2007. 10. The contention of the 1[st] respondent is that there was no permanent vacancy to the post of Analytical Chemist until 2006 when Marykutty Mathai was removed from service. That apart, there was no resolution in the Administrative Council meeting dated 26/11/1993 to grant first time bound higher grade whereas the said resolution only permitted the grant of increments. But the Administrative Council in their meeting held on 02/06/2007 decided to protect the existing pay and allowances of the petitioner. According to the first respondent the said W.P.C.No.11864/2012 12 decision was taken contrary to the directions at Ext.P6 and therefore when the request was made for granting second time bound higher grade promotion to the petitioner, in so far as the second respondent did not agree with the same, the 1[st] respondent had to accept the decision of the Government. 11. The question that may arise is whether the petitioner was entitled for the first time bound higher grade after completion of ten years even before he was regularised in service. Apparently, he was working in a leave vacancy and was not regularised even at the time when Ext.P5 was issued. That apart, at the time of issuing Ext.P5 the Administrative Council had not taken any decision either to grant 10 year time bound higher grade or a decision to regularise the petitioner. If he was not regularised as per Ext.P5, apparently the question of granting the first time bound higher grade promotion should not have arisen. The regularisation is done only when Ext.P6 order was passed by the Government. It is clearly indicated in Ext.P6 that the W.P.C.No.11864/2012 13 Administrative Council had taken a decision on 22/12/2005 to regularise the temporary employees. Therefore, until such time, the petitioner was also treated as a temporary employee and he was regularised with effect from the date of the order that is 02/05/2007. The scale of pay of the petitioner was also mentioned as Rs.6675-10550. In Ext.P7 resolution, a reference is made indicating that the petitioner was granted Grade promotion as per Resolution dated 26/11/1993. As already indicated, the said Resolution at Ext.R1(d) did not direct the grant of grade promotion but was only with reference to granting increments. 12. Under these circumstances, I do not think that there was any illegality on the part of the first respondent in arriving at a conclusion that the petitioner's appointment can be regularised only from 02/05/2007 as until then he continued as a temporary employee. Consequently, Government was justified in indicating that the petitioner was not entitled for the 2[nd] time bound higher grade promotion as per Ext.P10. In that view of the matter, the W.P.C.No.11864/2012 14 judgment relied upon by the learned counsel for the petitioner can be distinguished on the facts as stated above. 13. But, it is relevant to note that the petitioner was given first time bound higher grade as per Ext.P5 dated 24/11/2004 and he was granted pay and allowances on that basis. By Ext.P12 it is indicated that the 1[st] respondent intends to recover the amounts paid in excess after fixing the salary of the petitioner. May be, the petitioner had received a higher scale of pay. But, it was not on account of his fault. It was a voluntary payment and the petitioner proceeded on the basis that he was a regular employee having put in service for more than 10 years. But it is still relevant to note that a permanent vacancy had arisen in the 1[st] respondent society for the said post only in 2006 and the petitioner could have claimed first time higher grade only after he is regularised in service. Since regularisation is only effective from the date of Ext.P6 that is 02/05/2007, the petitioner cannot claim any further benefit on that ground. However in respect of amounts already received by the W.P.C.No.11864/2012 15 petitioner, as the same is not on account of his fault, any steps to recover the said amount cannot be permitted. There was also an interim direction by this Court directing the respondents to pay the petitioner salary and allowances without any default. Therefore, the petitioner was receiving the salary and allowances by virtue of an interim order passed by this Court. Hence Ext.P12 to the extent of directing recovery of amounts paid in excess is liable to be set aside. It shall be open for the 1[st] respondent to fix the pay of the petitioner. In the result, this writ petition is disposed of as under: i) That the challenge against Ext.P10 is negatived. ii) Ext.P12 is quashed to the limited extent of directing recovery of any amount till 12/05/2012, and the salary already paid shall not be recovered. iii) There will be a direction to the 1[st] respondent to fix the pay and allowances of the petitioner with effect from 02/05/2007 taking into account the increments granted in his favour and without computation of the first time higher W.P.C.No.11864/2012 16 grade promotion. The said process shall be completed within a period of one month from the date of receipt of a copy of this judgment and the salary shall be paid accordingly. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr