Allowed

State of Kerala v. Prabodu Kumar .K.P

Kerala HC5 Mar 2021OP(KAT)/6/2021

Case brief

AI extract

What is this about?

The High Court set aside the Kerala Administrative Tribunal order cancelling a Government employee's regularization and promotion. Crucially, the Court held that if the employee is reverted due to the setting aside of the order, neither the Government nor the employee can recover alleged excess pay drawn during the interim. The Court also affirmed that no such recovery shall be effected.

What did the court decide?

The impugned Tribunal order of 16-10-2019 set aside; no recovery of excess pay to be effected from the applicant if he suffers reversion.

State of Kerala Vs Prabodu Kumar .K.P — Pension and Retirement Benefits | Kerala HC (2021)

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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 ALEXANDER THOMAS

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THE HONOURABLE MR.JUSTICE K. BABU

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FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

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OP(KAT).No.6 OF 2021

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AGAINST THE ORDER IN OA 553/2018 DATED 16-10-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONERS/RESPONDENTS IN O.A:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695001.

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2 THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM, PIN-695011.

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BY SRI.B.VINOD, SR.GOVT.PLEADER

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RESPONDENT/APPLICANT:

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PRABODU KUMAR .K.P, AGED 43 YEARS, S/O.KARTHIKEYAN NAIR, REHABILITATION TECHNICIAN GRADE I, GOVERNMENT MEDICAL COLLEGE, DEPARTMENT OF PMR,LIMB FITTING CENTRE, THIRUVANANTHAPURAM,PIN-695011, RESIDING AT GURUPAVANAPURI,VENPAKAL.P.O, ARALUMMOODU,THIRUVANANTHAPURAM, THIRUVANANTHAPURAM,PIN-695 123.

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R1 BY ADV. SRI.MURALI PALLATH

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(KAT)No.6/2021

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ALEXANDER THOMAS & K.BABU, JJ.

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O.P(KAT) No.6 of 2021 (Arising out of the order dated 16-10-2019 in O.A No.553/2018 of KAT, Tvm Bench]

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Dated this the 5^th day of March, 2021

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JUDGMENT

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ALEXANDER THOMAS, J.

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The prayers in the afore captioned Original Petition (KAT) filed

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under Articles 226 & 227 of the Constitution of India are as follows

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[See page No. 13 of the paper book of this O.P]:

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“(i) To set aside Ext.P5 order dated 16-10-2019 of the Kerala Administrative Tribunal in O.A No.553/2018.

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(ii) To dismiss the Ext.P1 Original Application No.553/2018 filed by the respondent before the Kerala Administrative Tribunal, holding that the said respondent is not eligible for any of the reliefs claimed in the Ext.P1 Original Application.

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(iii) To declare that Anx.A6 order is valid and legally sustainable and declare that the respondent is not eligible for getting probation declared, Time Bound Higher Grade, or any other incidence of their service for increment, promotion and seniority.

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(iv) Any other order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”

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Heard Sri.B.Vinod, learned Senior Government Pleader

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appearing for the petitioners (State of Kerala & the Director of Medical Education) in the O.P/respondents in the O.A and Sri.Murali Pallath, learned Advocate appearing for the sole respondent in the O.P/sole applicant in the O.A before the Tribunal.

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OP(KAT)No.6/2021

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The prayers in Ext.P1 O.A No.553/2018 filed by the

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respondent herein before the Kerala Administrative Tribunal, Thiruvananthapuram Bench are as follows (See page No.28 of the paper book of this O.P):

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(i) Issue an order to set aside Anx.A6 letter issued by the 1^st respondent.

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(ii) Issue an order or direction that the regularization of the applicant in the post of Rehabilitation Technician Grade-II and also his regular promotion granted in the cadre of Rehabilitation Technician Grade-I by the 2^nd respondent is maintainable and in order.

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(iii) Issue such other directions or orders as this Hon'ble Tribunal deems fit and proper in the interest of justice and circumstances of the case.”

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The Tribunal after hearing both sides has passed the impugned Ext.P5 final order dated 16-10-2019 in O.A No.553/ 2018, whereby the impugned directions and orders passed by the Government in Anx.A6 Government Letter No.16/B2/2018 /H&FWD dated 07-04-2018 issued by the competent authority of the State Government in the Health & Family Welfare Department has been quashed. By the impugned Anx.A6 Government Letter, it was directed that the orders regularising the applicant in service and declaration of probation, reckoning of seniority and the promotion to the post of Rehabilitation Technician Grade-I, etc will stand cancelled. The said Anx.A6 was thus quashed by the Tribunal as per the impugned Ext.P5 order.

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OP(KAT)No.6/2021

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Now we are told that that the Tribunal has rendered

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series of orders similar to Ext.P5 in similar cases and the same was subjected to the challenge at the instance of the State of Kerala by filing original petitions as in O.P(KAT) No.448/2019 & connected cases and that the Division Bench of this Court has rendered a common judgment dated 01-02-2021 in O.P(KAT)No.448/2019 & connected cases, whereby the impugned orders of the Tribunal in such cases have already been set aside and thereby restoring the order impugned in the O.A that was earlier set aside by the Tribunal.

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Hence it is seen that the matter in issue is covered in

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favour of the petitioners (State of Kerala) as per the common judgment dated 01-02-2021 in O.P(KAT) No.448/2019 & connected cases.

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However, Sri.Murali Pallath, learned Advocate appearing for the respondent herein/original applicant had made a fervent plea on the previous occasion that, the setting aside of the orders of the Tribunal in favour of the State should not lead to the situation whereby even the alleged excess pay drawn by the incumbent like the respondent herein/original applicant herein should be recovered and that in the instant case the respondent herein/original applicant was

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OP(KAT)No.6/2021

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granted promotion to the post of Rehabilitation Technician Grade-I and that the possible scenario of reversion from the present position as Rehabilitation Technician Grade-I to Rehabilitation Grade-II should not lead to recovery of the alleged excess pay in that regard, etc.

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Taking note of the said plea made by the learned counsel for the original applicant, we had requested the learned Senior Government Pleader to get instructions from the competent authority of the State Government in that regard. After hearing both sides, it appears to us that the said plea made by the original applicant is eminently fair and just.

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In the instant case, it is beyond any dispute that the impugned order initially in favour of the original applicant was issued voluntarily by the State Government, which was later cancelled. Hence the promotion given to the original applicant from the post of Rehabilitation Technician Grade-II to the next category of Rehabilitation Technician Grade-I was on the volition of the competent authority of the Government/Department concerned. Moreover, the employees like the original applicant herein are physically disabled/differently abled candidates, in whose case earlier

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OP(KAT)No.6/2021

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a favourable order was passed by the competent authority of the Government/Department, which was later sought to be undone by them and the said impugned order was interdicted in favour of the original applicant by the Tribunal, which now has been reversed by the Division Bench of this Court in the abovesaid common judgment. Hence we hold and order that the possible reversion of the Original applicant from the post of Rehabilitation Technician Grade-I to the lower post of Rehabilitation Technician Grade-II, etc. should not lead to the situation of recovery of the alleged excess pay drawn by him.

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Accordingly, it is ordered that the impugned Ext.P5 final order dated 16-10-2019 rendered by the Tribunal in this case viz, O.A No.553/2019 will stand set aside. However, no recovery shall be effected in the original applicant in respect of the said alleged excess pay, even if he has to suffer any reversion.

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With these observations and directions the above Original Petition (KAT) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

Sd/-

K.BABU, JUDGE

KAS

OP(KAT)No.6/2021

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF O.A.NO.553/2018 ALONG WITH ANNEXURES. ANNEXURE A1 TRUE COPY OF THE G.O(P)NO.63/13/SJD DATED 07.08.2013 ANNEXURE A2 TRUE COPY OF THE ORDER NO.E3/22638/2013/DME DATED 07.10.2013 FROM THE SENIOR ADMINISTRATIVE OFFICER, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM.

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ANNEXURE A3 TRUE COPY OF THE ORDER NO.E3/35681/2011/DME DATED 02.06.2015 OF THE JOINT DIRECTOR OF MEDICAL EDUCATION,THIRUVANANTHAPURAM

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ANNEXURE A4 TRUE COPY OF THE ORDER NO.E3/34124/2015/DME DATED 09.12.2015 OF THE SENIOR ADMINISTRATIVE OFFICER, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM.

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ANNEXURE A5 TRUE COPY OF THE ORDER NO.E3/9999/2013/DME DATED 09.03.2017 OF THE SENIOR ADMINISTRATIVE OFFICER, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM

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ANNEXURE A6 TRUE COPY OF THE GOVT.LETTER NO.16/B2/2018/H&FWD DATED 07.04.2018 FROM ADDITIONAL CHIEF SECRETARY,HEALTH AND FAMILY WELFARE DEPARTMENT. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE SECOND PETITIONER OIN 13.12.2018 EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE FIRST PETITIONER ON 26.03.2019 ALONG WITH EXHIBITS ANNEXURE (R1(A) TRUE COPY OF THE G.O.(P)NO.40/13/SJD DATED 18.05.2013.

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OP(KAT)No.6/2021

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ANNEXURE (R1(B) TRUE COPY OF THE G.O.(P)NO.1/2016/SJD DATED 03.02.2016 EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT FILED BY THE SECOND PETITIONER TO VACATE THE STAY ALONG WITH EXHIBIT ANNEXURE (R2(A) TRUE COPY OF THE G.O.(P)NO.5/17/SJD DATED 26.04.2017. EXHIBIT P5 TRUE COPY OF THE FIINAL ORDER DATED 16.10.2019 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL IN O.A.NO.553/2018.

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RESPONDENT'S/S EXHIBITS: NIL

State of Kerala v. Prabodu Kumar .K.P

Case brief

What is this about?

What did the court decide?

State of Kerala v. Prabodu Kumar .K.P

Case brief

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