IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 28TH JUNE 2007 / 7TH ASHADHA 1929 OP.No. 12992 of 2000(V) ----------------------------- PETITIONER: --------------- T.V.MARY, NURSE GR.II (RETIRED), PUTHUSSERRY HOUSE, P.O.KOTTAT, WEST CHALAKUDY, TRICHUR DISTRICT. BY ADV. SRI.O.D.SIVADAS RESPONDENTS: ------------------ 1. THE DISTRICT MEDICAL OFFICER, (I.S.M.), TRICHUR. 2. THE SENIOR MEDICAL OFFICER, GOVERNMENT AYURVEDA HOSPITAL, KODAKARA, PERAMBRA. 3. THE DIRECTOR, INDIAN SYSTEMS OF MEDICINES, AROGYA BHAVAN, TRIVANDRUM. 4. THE GOVERNMENT OF KERALA REP.BY THE JOINT SECRETARY, HEALTH AND FAMILY WELFARE (D) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. ADDL.R5 IMPLEADED 5. SUB TREASURY OFFICER, SUB TREASURY, CHALAKUDY. IS IMPLEADED AS PER ORDER DT. 24.8.05 IN IA. NO.12536/2005. BY GOVERNMENT PLEADER SRI.V.T.K.MOHANAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/06/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.12992/2000 ORDER ON CMP. NOS.16020/02,21170/2000 IN IA. NOS. 11789/05,12537/2005, 9366/05 IN OP. NO.12992/2000 CLOSED 28.06.2007 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONER'S EXHIBITS EXT.P1:- COPY OF THE ORDER ISSUED BY the 1ST RESPONDENT DT. 11.3.1996. EXT.P2:- COPY OF THE RELEVANT PAGES THE PENSION BOOK OF THE PETITIONER. EXT.P3:- COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DT. 7.8.1996. EXT.P4:- COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DT. 18.8.89. EXT.P5:- COPY OF THE STATEMENT FILED BY THE 1ST RESPONDENT DT. 15.10.99. EXT.P6:- COPY OF THE JUDGMENT IN OP. NO.24199/99 DT. 25.10.99. EXT.P7:- COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DT. 2.2.2000. EXT.P8:- COPY OF THE AFFIDAVIT FILED BY THE 3RD RESPONDENT DT. 8.2.2000. EXT.P9:- COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DT. 31.1.2000. EXT.P10:- COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DT. 6.3.2000. /TRUE COPY/ tss T.R.RAMACHANDRAN NAIR, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No. 12992 of 2000 (V) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 28th day of June, 2007 J U D G M E N T The petitioner is aggrieved by Ext.P10 order passed by the Government denying the disbursement of arrears of pay and allowances consequent to the pay fixation and grade promotion. 2. The petitioner retired from service on superannuation as Nurse Grade II on 31/12/1993 from the Government Ayurveda Hospital, Kodakara, Perambra, under the second respondent herein. She was having more than 30 years of continuous service at the time of retirement. She was granted the 13 years Higher Grade as per G.O.(P).No.439 of 1979, dated 01/08/1979. The Higher Grade benefits due for the years 20 and 25 were not granted and, ultimately, by Ext.P1, the first respondent granted the grade promotion and subsequent pay fixations. This is after the retirement of the petitioner. The effect of Ext.P1 is that, the arrears of pay and allowances from 12/11/1986 to 31/12/1993 O.P.No.12992/2000(V) -: 2 :- have been sanctioned. The petitioner had been granted the benefit of revised pension and other benefits based on Ext.P1. Since, inspite of Ext.P1, there was no disbursement of arrears of pay etc. due to the petitioner, she had been approaching the authorities complaining about the non disbursal of the same. By proceedings Ext.P3 dated 07/08/1996, the first respondent directed the second respondent to disburse the arrears of pay. But still the same was not paid. Ext.P4 will show that the District Medical Officer had in the said letter explained the delay occurred in the matter after reporting her eligibility for the amount. Ultimately, the petitioner approached this Court by filing O.P.No.24199/1999. Ext.P5 is the statement filed by the first respondent in the above O.P. In the above statement in paragraph '7', it was stated that:- “Arrear bill amounting to Rs.1,55,005/- is pending with the Director of Indian System of Medicines, Trivandrum. Immediately after getting the government sanction, the amount will be disbursed to the petitioner.” O.P.No.12992/2000(V) -: 3 :- 3. This Court by Ext.P6 judgment disposed of the original petition with the following directions:- “Therefore, the Director of Indian Systems of Medicines, Trivandrum is directed to get necessary Government sanction for claiming and disbursing the arrears bills due to the petitioner as per Ext.P1. this must be done within two months from the date of receipt of a copy of this judgment. The question of interest is left open.” 4. Ext.P7 will show that after the above positive direction was issued by this Court, there was a later order on 15/12/1999 cancelling the proceedings dated 11/03/1996 granting higher grade to petitioner. But the same was withdrawn noting that it is not proper and amounts to disobeyance of this Courts order. Ext.P8 is an affidavit filed by the Director, Indian Systems of Medicine, Thiruvananthapuram, in C.C.No.65/2000 stating that he had carried out his obligations in compliance with the judgment and that the matter is now with the Government and immediately after the Government sanctioning the bill, amount O.P.No.12992/2000(V) -: 4 :- can be disbursed to the petitioner. Ext.P9 is the letter showing the fact that the Director had forwarded the arrear bill in question to the Government. 5. But the petitioner was in for a surprise thereafter. By Ext.P10 Government cancelled the proceedings dated 11/03/1996 of the District Medical Officer, Thrissur. This was without any notice to the petitioner and also without referring to the earlier proceedings especially Ext.P6 judgment and the affidavit filed before this Court as well as Ext.P5 statement. 6. Admittedly, Ext.P1 is the proceedings by which it was found that the petitioner is entitled for the arrears for pay and allowances. The petitioners case is that as per Clause 10 of G.O. (P) No.480/89/Fin., dated 01/01/1989, the petitioner was well in time in withdrawing the relinquishment of the promotions. Clause 10 is extracted below for easy reference:- “Time bound promotions will not be given for those who have relinquished regular promotion. O.P.No.12992/2000(V) -: 5 :- Hereafter, before giving time bound promotion, an undertaking will be obtained from the officer concerned to the effect that he/she will not refuse the regular promotion to that grade as and when it becomes due. In the case of persons who have already obtained a time bound promotion, further time bound promotion will not be available unless and until they give an undertaking to the above effect afresh and also withdraw their earlier relinquishments. However, they will be permitted to withdraw such relinquishment subject to the loss of seniority. These conditions will not be insisted in the case of those who retired before the date of this Government Order.” 7. It is submitted that there is no time limit prescribed in the above Government Order, especially, in Clause 10, for withdrawal of the relinquishment of the promotions and, therefore, it was not a case where the petitioner had acted in violation of any of the clauses in the Government Order. It is also pointed out that the respective dates of which the petitioner is entitled for grade promotions are before the date of the G.O. dated 01/01/1989. O.P.No.12992/2000(V) -: 6 :- 8. It is a case where the petitioner was found entitled for the arrears of pay and allowances, as per Ext.P1, by the competent authority. By Ext.P6 judgment, this Court had also directed to accord sanction by the Government for claiming and disbursing the arrear bills due to the petitioner. All on a sudden the petitioner was told that Ext.P1 stands cancelled. That was without any notice to the petitioner and without affording an opportunity for the petitioner to explain the circumstances for withdrawing the relinquishment of the promotions and its effect. Ext.P10 will show that the petitioner was never put to notice of the proposal to cancel the proceedings stated 11/03/1996. When the pensioner is deprived of the benefit that was granted by Ext.P10 that will result in adverse civil consequences, especially, since herein, she is receiving revised pension. Therefore, it was incumbent on the part of the Government to hear the petitioner also before passing Ext.P10. Ext.P10 is, thus, one issued in violation of the principles of natural justice. 9. Therefore, Ext.P10 is hereby quashed. There will be a further direction to the fourth respondent to take decision O.P.No.12992/2000(V) -: 7 :- regarding grant of sanction for payment of arrears of salary and allowances afresh, with a notice to the petitioner and affording her an opportunity for hearing. If the petitioner wishes to make any further representation, the same can also be made before the fourth respondent who shall hear the matter. The fourth respondent shall take a final decision in the matter within the period of four months from the date of receipt of a copy of this judgment. The original petition is accordingly disposed of. T.R.RAMACHANDRAN NAIR, Judge ms O.P.No.12992/2000(V) -: 8 :- T.R.RAMACHANDRAN NAIR, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No. 12992 of 2000 (V) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J U D G M E N T 28th June, 2007