Allowed

K.P.Sobha v. State of Kerala and Others

Kerala HC7 Nov 2012WP(C)/38023/2007

Case brief

AI extract

What is this about?

This writ petition challenged the Government order fixing the date of appointment of the petitioner, a sweeper. While the petitioner could not get salary benefits for unauthorized service, the Court granted notional appointment with retrospective effect to preserve her seniority list.

What did the court decide?

Appointment fixed as effective from 1.6.2004 notional; no salary or other monetary benefits granted for the retrospective period.

K.P.Sobha Vs State of Kerala and Others — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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WEDNESDAY, THE 7TH DAY OF NOVEMBER 2012/16TH KARTHIKA 1934

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WP(C).No. 38023 of 2007 (B)

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PETITIONER(S):

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K.P.SOBHA, SWEEPER, DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE CHOTTANIKKARA, ERNAKULAM.

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BY ADVS.SRI.SATHISH NINAN

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SRI.SANTHOSH MATHEW

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE PRINCIPAL & CONTROLLING OFFICER, GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE THIRUVANANTHAPURAM.

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3. DR.PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA, ERNAKULAM REPRESENTED BY ITS PRINCIPAL.

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4. V.I.SUKUMARI, SWEEPER/CLEANER, DR.PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE CHOTTANIKKARA, ERNAKULAM.

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5. JALAJA, COOK,

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DR.PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE CHOTTANIKKARA, ERNAKULAM.

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R,R5 BY ADV. SMT.SHAHNA KARTHIKEYAN R,R5 BY ADV. SRI.V.ARUN R,R.3 BY ADV. SMT.R.RANJINI R,R4 BY ADV. SRI.T.A.SHAJI R1 AND R2 BY ADV. GOVERNMENT PLEADER SRI.VIJU THOMAS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 38023 of 2007

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1: COPY OF ORDER DATED 23.2.1999 ISSUED BY THE BOARD OF TRUSTEES OF 3RD RESPONDENT COLLEGE.

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EXHIBIT P2: COPY OF PROCEEDINGS NO.4819/99-00 DATED 1.3.2000 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P3: COPY OF G.O(MS)NO.99/02/H&FWD DATED 25.4.2002 ISSUED BY THE FIRST RESPONDENT.

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EXHIBIT P4: COPY OF REPRESENTATION DATED 30.7.2002 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA.

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EXHIBIT P6: COPY OF LETTER NO.2536/C1/02/GHMCT DATED 28.8.02 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.

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EXHIBIT P7: COPY OF PROCEEDINGS NO.2139/C1/2003/GHMCT DATED 2.9.2003 OF THE 2ND RESPONDENT.

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EXHIBIT P8: COPY OF JUDGMENT DATED 23.6.2005 IN WP(C). NO.32541/2003 OF THIS HONOURABLE COURT.

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EXHIBIT P9: COPY OF PROCEEDINGS NO.3291/C1/2003/GHMCT DATED 4.1.2006 OF THE 2ND RESPONDENT.

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EXHIBIT P10. COPY OF G.O(Rt)NO.1539/2006/H&FWD DATED 22.5.2006 ISSUED BY THE FIRST RESPONDENT.

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EXHIBIT P11: COPY OF APPOINTMENT ORDER DATED 31.5.2006 ISSUED TO THE PETITIONER BY THE SECRETARY OF THE BOARD OF TRUSTEES OF 3RD RESPONDENT COLLEGE.

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EXHIBIT P12: COPY OF REQUEST MADE BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR HEALTH.

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EXHIBIT P13: COPY OF LETTER NO.43036/J2/06/H&FWD DATED 20.11.2006 ISSUED BY THE FIRST RESPONDENT.

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/TRUE COPY/

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PS TO JUDGE

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A.M.SHAFFIQUE, J.

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W.P(C).No. 38023 of 2007

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Dated this the 8^th day of November, 2012 JUDGMENT

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The petitioner challenges Exhibit P13 order in so far as the petitioner was not given appointment with effect from 1.6.2004. In fact, by Exhibit P10 order the Government had, after considering the claim put forward by the petitioner based on the judgment of this Court in W.P(C).No.32541 of 2003, approved the appointment of the petitioner in the third respondent-College with effect from the date of order, i.e., 22.5.2006. Subsequently, she was also appointed in the third respondent-College as Sweeper with effect from 22.5.2006 against the vacancy caused by the retirement of Smt.A.S.Savithri. Exhibit P11 is the said proceedings.

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The petitioner's complaint is that though she was appointed as per Exhibit P10, since she was working continuously from 1.6.2004, she is entitled for salary fixation with effect from 1.6.2004, the date on which a vacancy had arisen on account of the retirement of Smt.A.S.Savithri. This was rejected by the Government as per Exhibit P13.

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WP(C).No.38023/07 2

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Going by the Writ Petition, the petitioner challenges Exhibits P10 and P13 to the extent it assigns the date of appointment effective from 25.2.2006. She claims that she may be appointed as Sweeper with effect from 3.3.1999, i.e., the date on which the fourth respondent was included as Sweeper in the direct payment system.

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The Government had objected to the above relief by filing a counter affidavit indicating that the petitioner is entitled to get appointment only from the date of order, as the Management had not sent relevant documents to the Government while the list was prepared. It was also contended that the petitioner's claim for retrospective appointment with effect from 1.6.2004 is baseless, as her service before the date of actual appointment was without Government permission and no relevant documents were produced to prove that she was in continuous service.

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The third respondent had filed a counter affidavit along with Exhibit R3(a), in which it is stated that Smt.Sukumari.V.P and Smt.Jalaja.E.V were appointed as Sweeper with effect from 3.3.1999 and 4.3.1999 respectively and hence they are junior to Smt.K.P.Shobha in the service. In other words, there is no dispute regarding the fact that the petitioner was working in the College even as on 20.6.2004, despite the fact that the Government have

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WP(C).No.38023/07

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indicated that it was without Government permission. In that circumstances, the appointment can only be from the date of the order of appointment as evidenced from Exhibit P10.

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It is submitted by learned counsel for the petitioner that since the petitioner is senior to the other two persons, if the petitioner is not given appointment with effect from 20.6.2004 atleast notionally, it may affect her seniority. It is not in dispute that the petitioner was employed since 3.3.1999, but since the documents were not sent, she was not regularised as was done in the case of two others. Since she was all along working, she is entitled for notional appointment since 1.6.2004 when Smt.Savithri retired.

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In that view of the matter, I am of the view that the Writ Petition can be disposed of as follows:

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The petitioner's appointment shall be effective from 1.6.2004 notionally. It is made clear that the petitioner will not get any salary or other monetary benefits by treating her appointment with effect from 1.6.2004. No other relief can be granted in the matter.

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A.M.SHAFFIQUE,

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JUDGE

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vgs

K.P.Sobha v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

K.P.Sobha v. State of Kerala and Others

Case brief

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