Dismissed

Abhilash S.G. v. Director

Kerala HC17 Nov 2020OP (CAT)/162/2020

Case brief

AI extract

What is this about?

This court dismissed an original petition challenging the Central Administrative Tribunal's decision denying pay protection to a petitioner appointed as a Staff Nurse at Sree Chitra Tirunal Institute. The court held that central DoPT instructions on pay protection do not automatically apply to the institute unless explicitly adopted and that the petitioner cannot claim unprovided benefits.

What did the court decide?

petition allowed in the original appeal and the same is accordingly dismissed.

Abhilash S.G. Vs Director — Pension and Retirement Benefits | Kerala HC (2020)

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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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THE HONOURABLE MR. JUSTICE GOPINATH P.

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TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942

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OP (CAT).No.162 OF 2020

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AGAINST THE ORDER DATED 07-11-2019 IN OA 175/2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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PETITIONER/PETITIONER:

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ABHILASH S.G.

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AGED 33 YEARS, S/O SREEKANTAN, STAFF NURSE, SREE CHITRA TIRUNAL INSTITE OF MEDICAL SCIENCES AND TECHNOLOGY,THIRUVANANTHAPURAM-695011,RESIDING AT SREESAILAM, PAMMATHMOOLA, VELLANADU.P.O, THIRUVANANTHAPURAM-695543.

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BY ADV. SHRI.S.ANEESH

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RESPONDENTS/RESPONDENTS:

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1 DIRECTOR

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SREE CHITHRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM-695011,

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2 SENIOR DEPUTY (ADMINISTRATION), SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM-695011.

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3 SECRETARY, SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM-695011.

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4 PRESIDENT, GOVERNING BODY OF SREE CHITRA TIRUNAL INSTITUTE OF MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM-695011.

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5 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PERSONNEL AND TRAINING, NEW DELHI-110001.

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R5 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09-11-2020, THE COURT ON 17-112020 DELIVERED THE FOLLOWING:

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OP (CAT) No.162/2020 -2-

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J U D G M E N T

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Dated this the 17^th day of November, 2020

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Gopinath, J:

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This original petition is filed by the applicant in OA No.175/2018 on the file of the Central Administrative Tribunal, Ernakulam Bench. The petitioner had approached the Tribunal praying to quash Annexure-A12 communication by which his request for protection of pay was rejected by the Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram (hereinafter referred to as 'Institute' for the sake of brevity).

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Brief facts are that the petitioner initially joined the service of All India Institute of Medical Sciences, New Delhi as Sister GradeII on 28-12-2010. On being selected as Staff Nurse in the Employees' State Insurance Corporation Hospital at Paripally he submitted his resignation and joined duty as Staff Nurse at ESIC, Paripally on 08-102012. The petitioner claims that his pay was protected while serving at the ESIC Hospital at Paripally. In the meanwhile, the petitioner applied for the post of Staff Nurse in the Institute and following a selection he was appointed as a Staff Nurse there. On 05-05-2017 the petitioner joined the service of the Institute. He requested for the protection of his pay which was rejected by Annexure-A12, in the

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OP (CAT) No.162/2020 -3-

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original application before the Tribunal. The short case of the petitioner is that his claim for the protection of his pay is covered by Annexure-A13 office memorandum issued by the Government of India in the Ministry of Personnel and Training on 30-03-2010. He also relies on Ext.P.6 communication received in response to an application made under the Right to Information Act from the Government of India in the Ministry of Science and Technology under the which the Institute functions that the Rules contained in the Office Memorandums issued by the Department of Personnel and Training (DoPT) apply to the Institute subject to the provisions of the Sree Chitra Tirunal Institute for Medical Sciences And Technology, Trivandrum, Act, 1980 (the ‘SCIMST Act’).

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The Institute took up the contention that they have their own Rules and Regulations made under the provisions of the ‘SCIMST Act’ and unless the petitioner/applicant before the Tribunal were to show that he was entitled to pay protection in terms of such Regulations he was not entitled to the relief claimed.

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The Tribunal on consideration of the rival contentions found that the petitioner/applicant had failed to establish that the DoPT orders on pay protection had been adopted by the Institute and was therefore not entitled to any relief.

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OP (CAT) No.162/2020 -4-

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The learned counsel appearing for the petitioner would contend before us that the Tribunal misdirected itself in law in holding that the petitioner/applicant was not entitled to relief. According to him, it is true that the Institute has got the power to frame Regulations governing the service conditions of the staff and in so far as no specific provision is made regarding the aspect of pay protection, the instructions issued by the DoPT have to be followed by the Institute.

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The Learned counsel for the Institute would, however, contend that the petitioner/applicant had joined the service of the institute after accepting the terms and conditions of the offer of appointment which clearly indicated the scale of pay/grade pay etc. and further provided that the petitioner/applicant would be governed by the Rules and instructions of the Institute in the matter of pay, allowances etc. He would contend that the petitioner/applicant had accepted the appointment being fully aware of the conditions and he cannot, therefore, turn around and challenge the terms of his appointment. He would also place reliance on the judgment of this Court in W.P (C) No.8891/2009 & 17370/2010 which held that the Institute has the authority under Section 31 of the SCIMST Act either to adopt any prescriptions made by the Central Government or to

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OP (CAT) No.162/2020 -5-

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accept it subject to any change that it may make to such instructions.

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We have considered the contentions raised on either side. We have also perused the order passed by the Tribunal. On a consideration of the rival contentions, we are of the view that the Tribunal committed no error in holding that the petitioner/applicant was not entitled to the benefit of pay protection. The petitioner/applicant has no case that he was not aware of the terms of his appointment or that he was promised that his pay would be so protected while serving under the Institute. The petitioner/applicant has accepted the terms of his appointment. We cannot permit him, thereafter, to turn around and claim a benefit which was not provided for in the terms of appointment on the application of the law of election. The applicant has accepted the terms of his appointment and cannot be heard to say that he was entitled to the benefit not provided for in the terms of his appointment. Further, it is clear from the judgment of this Court in W.P (C) No.8891/2009 & 17370/2010 that the office memorandum/instructions issued by the Government of India, DoPT are not automatically applicable to the Institute and they will apply only if they are adopted in some manner. The Tribunal was bound to follow the said judgment of this Court. We are in complete agreement with the view taken in W.P (C) No.8891/2009 &

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OP (CAT) No.162/2020 -6-

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17370/2010 regarding the scope of Section 31 of SCIMST Act. The petitioner/applicant has failed to show that the Institute has adopted the instructions relating to the protection of pay issued by the DoPT.

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In that view of the matter, we find no merit in this original

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petition and the same is accordingly dismissed. No costs.

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(Sd/-) A. M. SHAFFIQUE Judge

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(Sd/-) GOPINATH P. Judge

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AMG

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OP (CAT) No.162/2020 -7-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF ORDER DATED 07.11.2019 IN O.A.KNO.175 OF 2018. EXHIBIT P2 TRUE COPY OF O.A.NO.175 OF 2018 ALONG WITH ANNEXURES. ANNEXURE A12 TRUE COPY OF MEMO NO.P&A VPF 2483/2467/SCTIMST/2017 DATED 13.07.2017 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A1 TRUE COPY OF THE MEMO NO.F-45-501/2020.ESTT (TC)DATED 24.09.2012 ANNEXURE A2 TRUE COPY OF THE JOINING REPORT DATED 29.10.2012. ANNEXURE A3 TRUE COPY OF THE OFFICE ORDER NO.81/2014 DATED 19.06.2014. ANNEXURE A4 TRUE COPY OF THE PAY SLIP FOR THE MONTH OF MARCH 2017 ANNEXURE A5 TRUE COPY OF THE NO OBJECTION CERTIFICATE NO.544/36/1/EHP/11 ADMN.DATED 16.09.2015 ISSUED BY THE ESIC HOSPITAL PARIPALLY,KOLLAM ANNEXURE A6 TRUE COPY OF THE APPOINTMENT BEARING NO.P&A11/9/SCTIMST/2015 DATED 06.12.2016 ISSUED BY THE 1ST RESPONDENT ANNEXURE A7 TRUE COPY OF THE LETTER NO.P&A/11/09/STAFF NURSE/SCTIMMST/2015 DATED 27.12.2016 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A8 TRUE COPY OF THE OFFICE ORDER NO.113/2017 ANNEXURE A9 TRUE COPY OF THE INTER OFFICE MEMO DATED 05.05.2017 ISSUED BY THE 1ST RESPONDENT'S OFFICE ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED 16.07.2017 ANNEXURE A11 TRUE COPY OF THE PAY SLIP FOR SEPTEMBER 2017. ANNEXURE A13 TRUE COPY OF THE OM NO.12/3/2009-PAY 1 DATED 30.03.2010 ISSUED BY THE 5TH RESPONDENT

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OP (CAT) No.162/2020 -8-

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ANNEXURE A14 TRUE COPY OF THE OM 28020/1/2010 ESTT.(C)DATED 26.12.2013

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ANNEXURE A15 TRUE COPY OF THE OM NO.28020/2010 ESTT.(C)DATED 17.08.2016

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ANNEXURE A16 TRUE COPY OF THE ORDER DATED 07.06.2017 IN O.A.NO.990/2016 ISSUED BY THE BANGALORE BENCH OF THE HON'BLE TRIBUNAL.

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ANNEXURE A17 TRUE COPY OF THE JUDGMENT IN THE CASE OF SANJOG KAPOOR V.UNION OF INDIA AND OTHERS DATED 20.04.2017. EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BEHALF OF THE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT. ANNEXURE A18 TRUE C0PY OF THE OM 28020/1/2010 ESTT.(C)DATED 26.12.2013. ANNEXURE A19 TRUE COPY OF ORDER DATED 31.01.2012 IN O.A.NO.2009/2011 OF THE PRINCIPAL BENCH OF THE TRIBUNAL. ANNEXURE A20 TRUE COPY OF THE ORDER NO.P&A 1/101/SCTIMST/2017 ISSUED BY THE 1ST RESPONDENT DATED 12.10.2017. EXHIBIT P5 TRUE COPY OF ONLINE QUERY UNDER RTI ACT SUBMITTED BY THE PETITIONER TO THE DEPARTMENT OF SCIENCE AND TECHNOLOGY, GOVERNMENT OF INDIA EXHIBIT P6 TRUE COPY OF REPLY DATED 3/7/2020 ISSUED TO THE PETITIONER BY THE MINISTRY OF SCIENCE AND TECHNOLOGY GOVERNMENT OF INDIA

Abhilash S.G. v. Director

Case brief

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Abhilash S.G. v. Director

Case brief

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