IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 WA.No. 1211 of 2008 --------------------- AGAINST THE JUDGEMENT IN OP.18372/2002 Dated 30/07/2007 .................... APPELLANT(S): RESPONDENTS IN THE OP: ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, LABOUR & REHABILITATION (F)DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF INSURANCE MEDICAL SERVICES, THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SRI.BENNY GERVASIS RESPONDENT(S): PETITIONERS IN THE OP: ------------------------------------- 1. DR.TOM EPHREM D, ORTHO-SURGEON, ESI HOSPITAL, UDYOGAMANDAL. 2. DR.VIJAYAMA THOMAS, PEADIATRICIAN, ESI HOSPITAL, UDYOGAMANDAL. 3. DR.ALEYAMMA THOMAS, OPTHALMOLOGIST & INSURANCE MEDICAL OFFICER, ESI HOSPITAL, UDYOGAMANDAL. 4. DR.P.G.SIVASANKARAN NAIR, SURGEON, INSURANCE MEDICAL OFFICER, ESI HOSPITAL, UDYOGAMANDAL 5. DR.G.LATHA, GYNAECOLOGIST, ESI HOSPITAL, UDYOGAMANDAL 6. DR.VARGHESE.A.MAMPILLY, ASSISTANT INSURANCE MEDICAL OFFICER, ESI HOSPITAL, UDYOGAMANDAL 7. DR.USHA.N., INSURANCE MEDICAL OFFICER, ESI HOSPITAL, ALAPPUZHA. WA NO.1211/2008 8. DR.AJITHA NAIR R., GYNAECOLOGIST, ESI HOSPITAL, ALAPPUZHA. 9. DR.GIRIJA KUMARI K.R., ASSISTANT, INSURANCE MEDICAL OFFICER, ESI HOSPITAL, ALAPPUZHA. 10. DR.A.A.SHEELA, PEADIATRICIAN, ESI HOSPITAL, VADAVATHOOR. 11. DR.GEEVAN MATHEW, INSURANCE MEDICAL OFFICER, ESI HOSPITAL, VADAVATHOOR. 12. DR.JOSEPH MATHEW, INSURANCE MEDICAL OFFICER, ESI HOSPITAL, VADAVATHOOR. 13. DR.KUMARI LETHA, ASSISTANT INSURANCE MEDICAL OFFICER, ESI HOSPITAL, VADAVATHOOR. 14. DR.K.T.YOHANNAN, SURGEON, ESI HOSPITAL, VADAVATHOOR. ADV. SRI.S.RADHAKRISHNAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.NO.1211/2008 ------------------------------ Dated this, the 7th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The respondents in the Original Petition are the appellants. 2. The brief facts of the case are the following: The respondents/petitioners were Insurance Medical Officers, who underwent Post-graduate course between 1993 and 1996, after taking leave. Since, at the relevant time, deputation benefits were granted only to those persons who underwent Post-graduate courses in certain disciplines called unpopular specialities, the respondents underwent the Post-graduate courses, taking leave admissible under Rule 91A of Part I, Kerala Service Rules. The above mentioned stipulation for grant of leave for study purpose was applicable to the Assistant Surgeons in the Health Services Department also. But, the Government relaxed those rules and granted deputation WA No.1211/2008 - 2 - benefits to all persons who underwent Post-graduate courses, irrespective of the speciality concerned, as per Exts.P3 and P4 orders. Finding that the said benefit was not extended to the Insurance Medical Officers, their Association represented and finally, the Government came round and passed orders, as represented by their Association. Ext.P5 is that order, which was issued on 19.8.1999. But, by that time, the respondents/petitioners had completed their courses. Later, the Government issued a communication on 11.2.2000, clarifying that those who have completed their Post-graduate courses before 19.8.1999 among the Insurance Medical Officers are ineligible to get deputation benefits provided under Ext.P5. The Director of Insurance Medical Services, thereupon issued Ext.P6, pointing out the clarificatory communication of the Government dated 11.2.2000. Challenging Ext.P6 and seeking a declaration that those who have completed their Post-graduate courses even prior to 19.8.1999, the date of issuance of Ext.P5, are also entitled to get deputation benefits, the Original Petition was filed in July, 2002. Though the Original Petition was resisted by WA No.1211/2008 - 3 - the appellants/respondents by filing a counter affidavit, it was allowed by the learned Single Judge, relying on the decision of another learned Single Judge in O.P.No.7920/2001 dated 31.5.2005. The appellants, feeling aggrieved by the said judgment, have preferred this Writ Appeal. 3. The point that arises for decision is whether the benefit of Ext.P5 can be claimed by those who have completed their Post-graduate courses before 19.8.1999. The opening sentence in para 2 of Ext.P5 reads as follows: “Government have examined the matter in detail and are pleased to order that deputation benefits will be granted to all Medical Officers who are undergoing P.G Course under Insurance Medical Services quota subject to the following terms and conditions.” The order is meant for those who are undergoing the course on the date of issuance of the order and not those who underwent the course earlier. This position is clear from Ext.P5. What is clarified in Ext.P6 is the very same position. Ext.P6 dated 23.2.2000 reads as follows: WA No.1211/2008 - 4 - “The Government in letter 2nd cited has informed that the Government Order 1st cited has no retrospective effect and those who have completed P.G. Course before or prior to the issue of the same are not eligible for deputation benefit. Hence it is informed that those Medical Officers who have completed their P.G. Course before 19.8.99 are not eligible for deputation benefit.” Going by Ext.P6, we are of the view that the same does not in any way modify Ext.P5. What is clear from Ext.P5 has been reiterated in Ext.P6. So, in the absence of any challenge to Ext.P5, the respondents/petitioners are not entitled to get any reliefs. It is not in dispute that when they underwent the course, they were ineligible for deputation benefits as, admittedly, they were not undergoing the courses in any unpopular specialities, as contemplated under the relevant Government orders. In view of that position, the respondents underwent the course, taking leave under Rule 91A of Part I of the Kerala Service Rules and completed their courses. They have a case that those who underwent the course in the Health Services Department at the relevant time were granted WA No.1211/2008 - 5 - deputation benefits as per Exts.P3 and P4. But, the respondents have not chosen to raise that discrimination before this Court at the appropriate time, that is, between 1993 and 1996. Only in 2002 they came before this Court, raising grievance against Ext.P6 and not against Ext.P5. We think, in the view taken by us that even in the absence of Ext.P6, they are ineligible to get deputation benefits, their contention has only to be rejected. 4. We think, the judgment in O.P.No.7920/2001, relied on by the learned Single Judge, does not lay down the correct legal position. The learned Single Judge proceeded on the footing that deputation benefits will be extended to persons who have completed the course before 19.8.1999 but passed the examination subsequently. The said assumption was factually incorrect. The terms of Exts.P5 and P6 do not generate any such result. In view of our finding that Ext.P6 does not introduce any new element in Ext.P5, the quashing of that order by the learned Single Judge, relying on the judgment in O.P.No.7920/2001 is unjustified. We overrule the said judgment. So, the reliance placed on the said judgment by the WA No.1211/2008 - 6 - learned Single Judge to grant reliefs to the respondents/petitioners, is unsustainable. Needless to say, the petitioner in O.P.No.7920/2001 will not be affected by this judgment, unless that judgment is set aside in appeal or review. In the result, the Writ Appeal is allowed. The judgment under appeal is reversed and the Original Petition is dismissed. K. Balakrishnan Nair, Judge. C.T.Ravikumar, Judge. nm.