Dismissed

Indira M.K. v. Director of Health Services, Thiruvananthapuram

Kerala HC11 Nov 2019OP(KAT)/4370/2013

Case brief

AI extract

What is this about?

Two Junior Public Health Nurses challenged a Kerala Administrative Tribunal order that granted them a seniority date based on a training deputation order, despite their underlying appointment being based on a seniority error in a different district. The High Court upheld the Tribunal's decision.

What did the court decide?

No order as to costs. Petitioners' claim for seniority advantage dismissed.

Indira M.K. Vs Director of Health Services… — Pension and Retirement Benefits | Kerala HC (2019)

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941

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O.P(KAT).No.4370 OF 2013(Z)

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AGAINST THE ORDER IN O.A.148/2012 DATED 01.03.2012 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM.

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PETITIONERS/ RESPONDENTS 3 AND 4 IN O.A.:

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1 SMT.INDIRA M.K., JUNIOR PUBLIC HEALTH NURSE GRADE 1, PUBLIC EALTH CENTRE, KOTTAPPADY, ERNAKULAM - 686 695.

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2 SMT.PREMANJULA GOPAL, JUNIOR PPUBLIC HEALTH NURSE GRADE 1, COMMUNITY HEALTH CENTRE, VARAPPTTY, ERNAKULAM, PIN - 686 691.

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BY ADV. SRI.A.K.ALEX.

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RESPONDENTS/RESPONDENTS 1 AND 2 & APPLICANTS:

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1 DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM – 695001.

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2 THE DISTRICT MEDICAL OFFICER, ERNAKULAM, KOCHI - 691 001.

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3 SHYLASREE S., AGED 46 YEARS, W/O.SAJEEVAN P.S, JUNIOR PUBLIC HEALTH NURSE GRADE 1, PRIMARY HEALTH CENTRE, RAYAMANGALAM, ERNAKULAM DISTRICT, RESIDING AT PUTHIYEDTH, THRIKKALATHUR P.O, ERNAKULAM DISTRICT, PIN - 683 541.

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OP(KAT).4370 of 2013

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4 SHERLY M.C., AGED 46 YEARS, W/O.JOHNY K.GEORGE, JUNIOR PUBLIC HEALTH NURSE GRADE 1, PRIMARY HEALTH CENTRE, RAYAMANGALAM, ERNAKULAM DISTRICT, RESIDING AT KANIMATTATHIL HOUSE, AVOLI P.O, MUVATTUPUZHA - 686 677.

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R1-R2 BY SR. GOVERNMENT PLEADER SRI.ANTONY MUKKATH. R3-R4 BY ADV. SRI.P.NANDAKUMAR

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THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD ON 11.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(KAT).4370 of 2013

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K.Vinod Chandran & V.G.Arun, JJ. -------------------------------O.P(KAT) No.4370 of 2013-Z -------------------------------Dated this the 11^th day of November, 2019 JUDGMENT

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K. Vinod Chandran,J:

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The petitioners herein, two in number, assert their claim of seniority over the respondents 3 and 4 and claim an advantage they were wrongly conceded by the Department in reckoning the correct date of advice. The petitioners were party respondents 3 and 4 before the Tribunal and the respondents 3 and 4 herein the applicants. We refer to their status in the present Original Petition.

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2. The petitioners were both advised in Kasaragod

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as against the post of Junior Public Health Nurse Grade-II. Later, on the basis of the very same selection, since they appeared in the rank list prepared by the Public Service Commission [“PSC” for brevity] in Ernakulam District also, they were advised in that district. They joined as per the advises given to them. However, while fixing their seniority, an error occurred insofar as they being fixed with seniority as per the advises to Kasaragod. They were subsequently promoted to the post of JPHN Grade-I and for the purpose of further promotion, there was a training

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OP(KAT).4370 of 2013 - 4 -

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stipulated. The persons in the feeder category were to be deputed for training in the order of their seniority. When the petitioners were deputed for training, the respondents 3 and 4 challenged the same before the Tribunal. The Tribunal found that the respondents 3 and 4 were seniors to the petitioners; which order is challenged before this Court.

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3. We have heard Sri.A.K.Alex appearing for the petitioners, learned Government Pleader for the official respondents and Sri.P.Nandakumar appearing for respondents 3 and 4.

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4. The learned Counsel takes us through Annexure R3(b) and submits that as per Annexure R3(b), specifically Clause (vii)(b), all ANM's/JPHN's who have completed two years qualifying service for probation and subsequently declared accordingly shall be deemed to have been promoted from the date of declaration of probation as noted in Annexure-II. It is submitted that as per Annexure R3(b), both the petitioners were given the benefit of the said order. Later, when they were deputed for training and when they completed almost one month of training, the respondents 3 and 4 approached the Tribunal. An objection was raised before the Tribunal that they have not sought

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OP(KAT).4370 of 2013 - 5 -

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for the alternate remedies. The Tribunal had brushed aside such contentions and proceeded to adjudicate the issue.

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5. The learned Counsel would specifically emphasize that Annexure R3(b) indicates a seniority list in which the petitioners were placed above the party respondents. The same having been brought out on 15.05.2007 at the time of deputation for training, the party respondents could not have challenged such deputation since they had rested contend with the seniority assigned to them as per Annexure R3(b), which cannot be upset far later. The petitioners had also completed the training when the order of the Tribunal went against them.

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6. It is admitted that the seniority originally assigned to the petitioners were based on their advice to another District. The petitioners seeks to establish their seniority, which was granted on a mistake. We notice from the documents produced in the O.A. that in fact after Annexure R3(b) was issued in 2007, there was a further seniority list issued as per Annexure A2 dated 10.08.2009.

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The respondents 3 and 4, in the O.A. specifically contended, that, they were placed as seniors to the petitioners in Annexure A2 seniority list. This is also stated to be on a revision of seniority made realizing the

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OP(KAT).4370 of 2013

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mistake committed by the Department in assigning seniority to the petitioners from the date of their advice at Kasaragod. Pertinent is also the fact that Annexure R3(b) was a list of persons who were appointed to the higher post on completion of minimum service; i.e., a time bound promotion, in which all the parties to the lis were equally entitled to. It is not strictly a seniority list.

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7. We also agree with the Tribunal that when deputation for training was ordered, there was no statutory or other remedy available to the party respondents and they were perfectly within their right to approach the Tribunal against the action which was in violation of their entitled seniority. That was the time the respondents had a cause of action to dispute the wrong seniority assigned to the petitioners. As we noticed, the petitioners cannot have a claim as to the respondents having rested contend with their seniority in Annexure R3(b); especially when it is not a seniority list as such.

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8. An obvious mistake committed by the Department has been rectified, which cannot be found fault with. The consequence, whether it would be reversion or otherwise accommodating in the higher post only after the seniors are first appointed, has to necessarily flow from the order of

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OP(KAT).4370 of 2013

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the Tribunal, which we find to be perfectly in order and not liable to be interfered with.

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We, hence, dismiss the Original Petition (KAT),

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without any order as to costs.

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Sd/K.VINOD CHANDRAN JUDGE

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Sd/V.G.ARUN JUDGE

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vku/-

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OP(KAT).4370 of 2013

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF THE ADVISE MEMO DATED 18.10.1993 ISSUED BY THE P.S.C TO 1ST APPLICANT

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ANNEXURE A2 TRUE COPY OF THE SAID ORDER NO.FW(SPLCELL)64647/07/DHS DATED 10.8.2009

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ANNEXURE A3 TRUE COPY OF THE ORDER DATED 20.1.2012 ISSUED BY THE ADDITIONAL DIRECTOR OF HEALTH SERVICES THIRUVANANTHAPURAM

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ANNEXURE R3(A) TRUE COPY OF THE COMMUNICATION OF 1ST RESPONDENT DATED 7.10.2011 ANNEXURE R3(B) TRUE COPY OF THE PROCEEDINGS OF 1ST RESPONDENT (ORDER NO.FW(SPL.CELL)94660/2006/DHS, DATED 15.5.2007)

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ANNEXURE R3(C) TRUE COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK EVIDENCING THE DECLARATION OF PROBATION OF 3RD RESPONDENT IN OA(1ST PETITIONER HERE IN) ANNEXURE R3(D) TRUE COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK EVIDENCING THE DECLARATION OF PROBATION OF 4TH RESPONDENT IN OA(2ND PETITIONER HEREIN)

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EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION FILED UNDER SECTION 19 OF THE ADMINISTRATIVE TRIBUNAL ACT EXHIBIT P2 TRUE COPY OF THE COUNTER AFFIDAVIT OF RESPONDENTS 3 AND 4 EXHIBIT P3 TRUE COPY OF THE ORDER DATED 1-3-2012 IN O.A 148/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM

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EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 31.3.2012 SENT BY 1ST PETITIONER TO THE ADDITIONAL DIRECTOR OF HEALTH SERVICES THIRUVANANTHAPURAM.

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OP(KAT).4370 of 2013

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EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 31.3.2012 SENT BY 2ND PETITIONER TO THE ADDITIONAL DIRECTOR OF HEALTH SERVICES THIRUVANANTHAPURAM

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EXHIBIT P6 TRUE COPY OF THE ORDER NO.ESS-8794/12/DHS DATED 4.4.2012 OF THE ADDITIONAL DIRECTOR OF HEALTH SERVICES (A&T)

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EXHIBIT P7 TRUE COPY OF THE HEALTH SUPERIVISORS TRAINING CERTIFICATES ISSUED BY THE PRESIDENT KERALA NURSES AND MIDWIVES COUNCIL DATED 4.9.2012 TO 1ST PETITIONER

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EXHIBIT P8 TRUE COPY OF THE HEALTH SUPERVISORS TRAINING CERTIFICATE DATED 4.9.2012 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL TO 2ND PETITIONER

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EXHIBIT P9 TRUE COPY OF ORDER NO FWA5-56340/2012/DHS DATED 22.8.2012 ISSUED BY THE ADDITIONAL DIRECTOR HEALTH SERVICES (F.W)

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[TRUE COPY]

Indira M.K. v. Director of Health Services, Thiruvananthapuram

Case brief

What is this about?

What did the court decide?

Indira M.K. v. Director of Health Services, Thiruvananthapuram

Case brief

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