IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 WA.No. 1978 of 2006() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.36439/2003 Dated 29/06/2006 .................... APPELLANTS: RESPONDENTS: ----------------------------------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY, FINANCE DEPARTMENT, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL (A & E), KERALA, INDIAN AUDIT AND ACCOUNTS DEPARTMENT, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF HEALTH SERVICES, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. SANDESH RAJA RESPONDENTS: PETITIONERS: ------------------------------------------------- 1. DR. T.N.BABU RAVINDRAN, CIVIL SURGEON, GOVERNMENT HOSPITAL, THALASSERY, KANNUR DISTRICT. 2. DR. P.GOPEENATHAN, CIVIL SURGEON, KOOTHUPARAMBA, KANNUR. 3. DR. K.V.MUKUNDAN, CIVIL SURGEON, DISTRICT HOSPITAL, KANNUR. ADV. SRI.P.K.VIJAYAMOHANAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------- W.A.No.1978 OF 2006 ------------------------------------- Dated 30th September, 2008 JUDGMENT Koshy,J . The writ petitioners are Civil Surgeons in the Health Service Department. They had availed of leave without allowance for undergoing the post graduate courses before completing five years of service. By Ext.P1, Government allowed increments for the period of leave for study purpose. Ext.P1 reads as follows: “The Medical Officers of the Health Services Department undergoing Postgraduate studies, and the Kerala Government Medical Officers' Association have requested the Government to count the period of leave spent for postgraduate studies for purposes of increment. Government have examined the question in detail and are pleased to order that the period of leave without allowances granted to the Medical Officers of the Health Services Department to undergo Postgraduate studies will count for increment in relaxation of Rule 33(b)(2), Part I, Kerala Service Rules,.........” In view of the introduction of Rule 91A of Part I of the Kerala Service Rules with effect from 15.7.1976, officers with continuous service of five years or more only are entitled to the benefit of increment. It is further W.A.1978/2006 2 provided that leave shall be granted only with due regard to the usefulness of the higher studies to the public service. Since most of the teaching staff of Medical Colleges had undergone post graduate course before completing five years of service, they were not eligible for increments during the leave period. When tutor trainee scheme was introduced in 1980, the above benefit was again given. Therefore, benefit was denied to Medical College teaching staff only during the period from 1976 to 1980. On their request, Ext.P3 Government Order was passed relaxing the condition of five years service for getting the benefit of increment. Paragraph 3 of Ext.P3 reads as follows: “3. Government have examined the matter in detail and are pleased to order that the benefit of increment, sanctioned to the teaching staff of Medical Colleges for the period of their post-graduate course in the G.O. read as first paper above will be extended to all those who underwent the Post- graduate course till the introduction of the tutor trainee scheme in 1980.” The Government Order clearly mentions that the above relaxation was granted till the tutor trainee scheme was introduced in 1980. Under the above scheme, they were entitled to the benefit of increment during the period of their post graduate course. The doctors in the health service also requested for extending the benefit to them also. Consequently, Ext.P4 order was passed. Paragraph 2 of Ext.P4 shows that the benefit of Rule 91A of Part I of Kerala Service Rules W.A.1978/2006 3 was considered and extended irrespective of the length of service. That was accepted and at paragraph 3 of the above order it was stated as follows: “3. Government have examined the matter in detail and are pleased to extend the benefit of the government order read above to the medical officers of the health services who went on leave for P.G.Degree/Diploma after the introduction of Rule 91A Part I of Kerala Service Rules.” The above order is dated 28.12.2000. Based upon the above, the learned single Judge found that the petitioners are also entitled to get the benefit. Contention of the appellants is that Ext.P3 order is applicable only to Medical College staff. By Ext.P4 the above benefit was extended to members of health services also. Therefore, petitioners who are members of the health services are also entitled to get increment and grade benefit during the period of study leave. Ext.P4 is not amended or withdrawn by any Government Order. In the above circumstances, we fully agree with the learned single Judge. The appeal is dismissed. J.B.KOSHY JUDGE K.P.BALACHANDRAN JUDGE tks