Partly allowed

State of Kerala v. a. Batheruneza

Kerala HC17 Jan 2020WA/1219/2014

Case brief

AI extract

What is this about?

The Single Judge set aside the cancellation of treatment of temporary service as officiating service for increment purposes for a retired nurse, directing recovery be restrained. The High Court rejected the writ appeal insofar as setting aside the cancellation and restraining recovery, leaving the question of law open.

What did the court decide?

Writ appeal rejected insofar as setting aside order of cancellation and restraining recovery. Question of law left open.

State of Kerala Vs a. Batheruneza — 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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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FRIDAY, THE 17TH DAY OF JANUARY 2020 / 27TH POUSHA, 1941

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WA.No.1219 OF 2014

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AGAINST THE ORDER/JUDGMENT IN WPC 23994/2008 DATED 04-042013 OF HIGH COURT OF KERALA

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APPELLANTS:

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1 STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2 THE DIRECTOR OF URBAN AFFAIRS THIRUVANANTHAPURAM.

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3 THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT PALAKKAD.

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BY ADVS. GOVERNMENT PLEADER

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SRI.P.G.PRAMOD, GOVERNMENT PLEADER

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RESPONDENT/S:

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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.

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2 PALAKKAD MUNICIPALITY REP. BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD-678001.

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R1 BY ADV. SRI.U.BALAGANGADHARAN R1 BY ADV. SRI.P.S.APPU R2 BY ADV. SRI.T.C.SURESH MENON

W.A No.1219 of 2014

OTHER PRESENT:

GP SRI.P.G.PRAMOD

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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

JUDGMENT

Dated this the 17^th day of January, 2020

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Vinod Chandran, J.

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The appeal is filed by the State against

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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

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the writ petitioner was working as a Junior Public Health Nurse (JPHN) from 01.11.1985 to 28.09.1991

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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

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joined on 29.09.1991. On her appointment the

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W.A No.1219 of 2014

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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.

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2. The learned Government Pleader points

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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

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in Ext.P8 the third condition, of the posts required to be falling under the same service, has

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been deleted. In such circumstances, the

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W.A No.1219 of 2014

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conditions applicable are only that the posts should carry identical scale of pay and have similar qualifications and method of appointment.

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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.

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3. The learned Single Judge found

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otherwise. Before looking at the question of law

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urged before us we have to notice that the writ

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W.A No.1219 of 2014

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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.

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W.A No.1219 of 2014

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Writ appeal is rejected on the grounds stated by us, leaving the question of law open.

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No order on costs.

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Sd/K. VINOD CHANDRAN, JUDGE.

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Sd/V.G. ARUN, JUDGE.

Jma/

W.A No.1219 of 2014

APPENDIX

PETITIONER'S/S EXHIBITS:

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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.

State of Kerala v. a. Batheruneza

Case brief

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State of Kerala v. a. Batheruneza

Case brief

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