IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WP(C).No. 19314 of 2004(Y) -------------------------- PETITIONER(S): --------------- K.RAMACHANDRAN, S/O. G.KRISHNA PILLAI, DENTAL HYGIENIST, GENERAL HOSPITAL, THIRUVANANTHAPURAM. BY ADV. SRI.BRIJESH MOHAN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES THIRUVANANTHAPURAM. MR.ANTONY MUKKATH, GOVERNMENT PLEADER FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.19314/2004 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE ORDER NO.EF4/13234/91/DHS DATED 24/06/92 ISSUED BY R2. P2 : COPY OF REPRESENTATION DATED 31/07/99 OF THE PETITIONER BEFORE R2. P3 : COPY FO LETTER OF R2 ADDRESSED TO R1 DATED 01/02/2000. P4 : COPY OF ORDER OF R1 DATED 08/03/2000. P5 : COPY OF REPRESENTATION DATED 29/10/2001 OF THE PETITIONER BEFORE THE HON'BLE MINISTER FOR HEALTH. P6 : COPY OF LETTER DATED 02/09/2002 ISSUED BY R1 TO R2. P7 : COPY OF ORDER NO.EF4-66385/2002/DHS DATED 15/11/2002 ISSUED BY R2. P8 : COPY OF ORDER NO.EF4-88544/2002/DHS DATED 15/11/2002 ISSUED BY R2. P9 : COPY OF PETITION DATED 26/03/2003 SUBMITTED BY THE UNION OF THE PETITIONER TO R1. P10 : COPY OF ORDER DATED 02/07/2003 ISSUED BY R1. // TRUE COPY // PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------ WP(C) No.19314 of 2004 (Y) -------------------------- Dated, this the 22nd day of December, 2009 J U D G M E N T The petitioner was working as a Dental Hygienist. By Ext.P1 order dated 24/06/1992 the petitioner was posted to the Office of the Director of Health Services to assist the Deputy Director of Health Services. This arrangement continued till November, 2002. 2. By Ext.P2, submitted on 31/07/1999, the petitioner claimed special pay for the additional duty he discharged. The Director, Health Services took up the claim before the Government. However, the Government rejected the claim by Ext.P4 order dated 08/03/2000 stating that as the petitioner was not posted against a sanctioned post, his claim cannot be allowed. 3. Despite the rejection of his claim, the petitioner continued to assist the Deputy Director of Health Services, and on completion of his term, was finally relieved by Ext.P7. Again he pursued his claim by submitting a further representation in the matter, which also was rejected by the Government by Ext.P10. It is WP(C) No.19314/2004 -2- in these circumstances, this writ petition has been filed challenging Exts.P4 and P10 and for a direction to the respondents to pay the petitioner the special pay due to him for the duty he discharged pursuant to Ext.P1 order. 4. As already stated, the only reason stated in Ext.P4 order passed by the Government is that the petitioner was not posted to a sanctioned post. However, in the counter affidavit filed by the 2nd respondent it is further stated that Ext.P1 order did not provide for any special pay. However, in this affidavit, the 2nd respondent admits that although the normal duty time of the petitioner was from 8 AM to 1 PM, the duty discharged by the petitioner pursuant to Ext.P1 was from 11 AM to 5 PM. From these averments in the counter affidavit, it is evident that the petitioner had worked additional working hours to discharge his duties under Ext.P1 order. If that be so, the question is whether he should be paid special pay for the additional work he did. Since it is an admitted fact that the petitioner was posted to assist the Deputy Director of Health Services and that he had to work for additional working hours, there is no requirement in any of the Rules that the WP(C) No.19314/2004 -3- post should be a sanctioned post in order to make the appointee eligible to claim special pay. In this case, obviously, the petitioner worked for additional working hours. If that be so, irrespective of the fact that whether the petitioner was posted to a sanctioned post or not, he is entitled to be paid wages for the work he did. Therefore, I am not satisfied with Ext.P4. Accordingly, I quash Ext.P4 and direct the respondents to assess the eligibility of the petitioner for special pay and pay him the amount due. This shall be done as expeditiously as possible, at any rate, within three months of receipt of a copy of this judgment. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg