IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 WP(C).No. 22218 of 2011(B) -------------------------- PETITIONER : --------------------- JAYASREE M., AUXILIARY NURSE CUM MIDWIFE, CHALAPPURAM, KOZHIKODE DISTRICT. BY ADV. SRI.A.K.ALEX RESPONDENT(S): ------------------------- 1. DIRECTOR OF INSURANCE MEDICAL SERVICE, THIRUVANANTHAPURAM-14. 2. INSURANCE MEDICAL OFFICER, ESI DISPENSARY, CHALAPPURAM. 3. SECRETARY TO GOVT., HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE SECRETARY TO GOVT., (LABOUR AND REHABILITATION DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI. P.K. RAVI KRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 22218 of 2011(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF ORDER NO. A4 7060/89 DATED 22-4-1989 ISSUED BY THE DISTRICT MEDICAL OFFICER OF HEALTH, PALAKKAD. EXT.P2 : COPY OF THE PROCEEDINGS OF REGIONAL DEPUTY DIRECTOR OF INSURANCE MEDICAL SERVICE (NORTH ZONE) BEARING NO. A3-3422/98/RDD (NZ) DATED 3-10-1998. EXT.P3 : COPY OF THE JUDGMENT DATED 19-7-2007 IN WP(C) 547/2005 (M) OF THIS HON'BLE COURT. EXT.P4 : COPY OF THE ORDER NO. E4 14700/10/DIMS DATED 28-6-2011. EXT.P5 : COPY OF G.O.(RT) NO. 2802/10/H & FWD DATED 21-7-2010 ISSUED BY THE SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT. EXT.P6 : COPY OF THE ORDER OF ADDITIONAL DIRECTOR OF HEALTH SERVICE (FW) DATED 30-3-2011. EXT.P7 : COPY OF THE JUDGMENT DATED 16-12-2009 IN WP(C) 21231/2009. EXT.P8 : COPY OF ORDER NO. S3 2308/2011/DHS DATED 16-3-2011 OF ADDITIONAL DIRECTOR OF HEALTH SERVICE (FW). RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn C.T.RAVIKUMAR, J. ------------------------------- W.P.(C)No.22218 of 2011 ------------------------------- Dated 29th September, 2011 JUDGMENT The petitioner is working as an Auxiliary Nurse cum Midwife under the first respondent. Earlier, as per Ext.P1 order dated 22.4.1989 she was appointed, on provisional basis, as Junior Public Health Nurse under Rule 9(a)(i) of the Kerala State & Subordinate Services Rules, 1958 in the scale of pay of Rs.660-1050. She continued to work on provisional basis despite the expiry of the period mentioned in Ext.P1. Later, she was relieved on 15.10.1998 on her getting a regular appointment as Auxiliary Nurse cum Midwife based on the advice by the Kerala Public Service Commission. Thereupon, she joined the service of the department as Auxiliary Nurse cum Midwife on 16.10.1998 pursuant to Ext.P2 order. However, her request for regularization of provisional service remained unconsidered. In the said circumstances, the petitioner approached this Court along with certain others having similar grievances by filing W.P.(C)No.547 of 2005. The said writ petition was disposed of as per Ext.P3 judgment with a direction to the first respondent to consider the representations filed by the petitioners therein in the light of Exts.P22 and P23 judgments, referred as such in the said writ petition, and to extend the benefits given to similarly situated persons covered by the said judgments to the WP(C).No.22218/2011 2 petitioners therein also. Pursuant to Ext.P3 judgment, the first respondent has allowed higher grade and increment to the petitioner reckoning the aforesaid provisional service rendered by her. From 2007 onwards she has been enjoying the said benefits granted based on such reckoning of the provisional service. Now, Ext.P4 order was passed without affording the petitioner an opportunity of being heard and even without putting her on notice. As per Ext.P4, the higher grades granted to the petitioner on completion of 10 years and 16 years after counting her provisional service were cancelled. Cancellation of the grant of increments and time bound higher grades granted to the petitioner after reckoning the provisional service and to effect recovery of the benefits granted based on such reckoning are being taken pursuant to Ext.P4. It is in the said circumstances that this writ petition has been filed mainly challenging Ext.P4. 2. I have heard the learned counsel for the petitioner and also the learned Government Pleader. 3. Ext.P4 is mainly challenged on the ground that it was passed in blatant violation of the principles of natural justice. It is contended that the petitioner was granted the increments and higher grades reckoning her provisional service pursuant to Ext.P3 judgment WP(C).No.22218/2011 3 and that she has been enjoying the said benefits since 2007. Ext.P4 order is dated 28.6.2011. As already noticed hereinbefore, the increments and higher grades granted to the petitioner after reckoning her provisional service was cancelled as per Ext.P4 and it was directed to effect recovery of the benefits paid to the petitioner after reckoning the provisional service rendered by her. Obviously, the said order was passed without affording the petitioner an opportunity of being heard. The benefits which the petitioner has been enjoying since 2007 have virtually been cancelled without putting her on notice and without affording her an opportunity of being heard. The petitioner commenced her provisional service based on Ext.P1 order dated 22.4.1989. It appears that she continued as such till 15.10.1998, when she obtained regular appointment pursuant to the advice made by the Kerala Public Service Commission. Evidently, the increments and higher grades were granted to the petitioner reckoning her provisional service pursuant to Ext.P3 judgment. In Ext.P4, it is stated that about 20 similarly situated persons who had rendered provisional service followed by regular appointment approached this Court for a direction to the respondents to grant them increments and time bound higher grades reckoning such provisional service and their claim was directed to be considered by the WP(C).No.22218/2011 4 first respondent. It was in the said circumstances that the case of the petitioner was reopened and ultimately the decision in Ext.P4 to cancel the increments and higher grades granted to the petitioner reckoning the provisional service was taken. Considering the fact that the increments and higher grades were granted to the petitioner pursuant to Ext.P3 judgment and she had been enjoying the said benefits since 2007, the respondents should not have cancelled the same without putting the petitioner on notice. The question whether the petitioner is entitled to the benefit of reckoning her provisional service was earlier, decided in her favour and it was reopened only on account of the circumstances mentioned earlier. I do not propose to go into the sustainability or otherwise of the decision taken in Ext.P4 at this stage. Evidently, the decision in Ext.P4 was taken in flagrant violation of salutary principles of natural justice and indisputably, adverse civil consequences flow from Ext.P4. In the said circumstances, this writ petition is disposed of granting liberty to the petitioner to approach the third respondent raising claims, contentions and grievances against Ext.P4. It will be open to the petitioner to raise all contentions including the one based on Ext.P3 judgment. The petitioner may do so within a period of two weeks from the date of receipt of a copy of this judgment. WP(C).No.22218/2011 5 In case the petitioner prefers such a representation before the third respondent within the above stipulated time, the third respondent shall consider the same and pass appropriate orders thereon with notice to the petitioner expeditiously, at any rate, within a period of six weeks from the date of receipt of such representation. Till orders are passed and communicated to the petitioner steps to effect recovery pursuant to Ext.P4 shall be kept in abeyance. Needless to say that the necessity to effect recovery thereafter would depend upon the decision to be taken by the third respondent based on this judgment. Sd/- C.T.RAVIKUMAR Judge TKS The words “third respondent” occurring in line 17 of page number 4 and in lines 2 and 9 of page number 5 of the judgment dated 29.9.2011 in W.P.(C) 22218/2011 are corrected and substituted as “4th respondent”, vide order dated 21.10.2011 in I.A.16883/2011 in W.P.(C) 22218/2011. Sd/- Registrar (Judicial)