IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 WP(C).No. 6268 of 2010(G) -------------------------------------- PETITIONER(S): ----------------------- D.SUDHARMA, AGED 50, D/O.MADHAVAN ACHARI, HOSPITAL ATTENDANT GRADE II, ESI DISPENSARY, CHATHANOOR, QUILON (RESIDING AT KRIPALAYAM, KUNAYIL, PARAVOOR, QUILON.). BY ADV. SRI.M.J.THOMAS RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT LABOUR AND REHABILITATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF INSURANCE MEDICAL SERVICE, THIRUVANANTHAPURAM. 3. REGIONAL DEPUTY DIRECTOR, INSURANCE MEDICAL SERVICE, SOUTH ZONE, KOLLAM-2. R1 TO R3 BY GOVT. PLEADER MR.ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2010, ALONG WITH WP(C) NO. 11323 OF 2010, WP(C) NO. 12148 OF 2010 AND WP(C) NO. 32733 OF 2009, THE COURT ON 31/05/2010 DELIVERED THE FOLLOWING: rs. C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NOS.32733 OF 2009, 6268, 11323 & 12148 OF 2010 -------------------------------------------- Dated this the 31st day of May, 2010 JUDGMENT Common contentions are raised by the petitioners in these Writ Petitions, who got similar grievances and, therefore, they were heard jointly and are being disposed of by this common judgment. 2. The petitioners commenced their career under the Insurance Medical Service on diverse dates, as Part-time Sweepers and were subsequently promoted to the post of Hospital Attendant Grade-II. Their promotion to the said category was also effected on different dates. Continuance in the post of Hospital Attendant Grade-II would entail their retirement on superannuation on completion of the age of 55 years. Therefore, on the verge of their retirement, they staked claims for reversion to the post of Part-time contingent employee with a view to continue in service up to the age of 70 years, based on a number of decisions of this Court in identical matters. Representations carrying the said claim based on various contentions, including the one based on the decisions of this Court pertaining to the said issue, remained un-attended. It was in the said W.P.(C) NO.6268/2010 & connected cases 2 circumstances that the petitioners approached this Court by filing the above Writ Petitions. 3. The entitlement of the petitioners to get reverted to the post of Part-time Sweepers after cancellation of their promotion to the post of Hospital Attendant Grade-II, which was effected long ago, for the purpose of continuance in the Insurance Medical Service, up to the age of 70 years, is the question posed for consideration in these Writ Petitions. By virtue of their dates of birth, the petitioners in these Writ Petitions were to retire from service on 31.3.2010 on account of the policy of the Government to unify the period of retirement though all of them attained the age of superannuation much before 31.3.2010. A scanning of the contentions of the petitioners in these Writ Petitions would reveal that their claims, as mentioned above, rest mainly on certain aspects. Failure on the part of the respondents/authorities to comply with the stipulation in Government Circular No.27085/Rules II/88/ P& ARD dated 13.4.1989 and the instructions issued by the third respondent in the year 1996 had prejudicially affected prospects of the petitioners to continue in service up W.P.(C) NO.6268/2010 & connected cases 3 to the age of 70 years, it is firstly contended. According to the petitioners, the said circular and instructions make it obligatory on the part of the concerned authorities to inform the concerned Part-time contingent employee before effecting actual promotion with regard to its consequences and a written consent should be obtained from the concerned employee that he/she is aware of the situation arising out of promotion and that he/she is prepared to forgo the pensionary benefits in case of failure to earn the minimum qualifying service for pension upon such promotion. According to the petitioners, the failure on the part of the concerned authorities to scrupulously follow the aforesaid Government circular and instructions of the third respondent would result in the retirement without earning the minimum qualifying service for pension. Therefore, the said failure would result in inexpiable loss and hardship, it is contended. Rule 57 of Part III, Kerala Service Rules provides the minimum required qualifying service for the purpose of earning eligibility for pension. It is further contended that the respondent authorities who were to fully astute to the impact of the promotions on the petitioners ie., retirement without completion of the required minimum period of qualifying service, should W.P.(C) NO.6268/2010 & connected cases 4 have informed the petitioners regarding the said aspect and the said failure is therefore, vital and fatal. Since the petitioners were not informed of the said consequences in terms of the aforesaid circular and instructions, the respondents are bound to accede to the request of the petitioners for reversion to the post of Part-time contingent employee so as to enable them to continue up to the age of 70 years in Insurance Medical Service. The petitioners have yet another contention. Rule 15 of Part-time Contingent Employees Special Rules would enable a Part-time contingent employee to continue in service up to the age of 70 years and, therefore, but for their promotion as Hospital Attendant Grade-II, they could have continued up to the age of 70 years as Part-Time contingent employees. In short, their career under the Insurance Medical Service would be shortened on account of the shear negligence on the part of the authorities to follow the aforesaid Government Circular and instructions issued by the third respondent. It is further contended that under exactly similar circumstances, the respondents based on directions from this Court, passed orders favourable to similarly situated employees and most of them are still continuing in the Insurance Medical Service beyond the age of 55 years. According to the W.P.(C) NO.6268/2010 & connected cases 5 petitioners, the issue involved in this case is squarely covered in their favour by a number of decisions of this Court and, therefore, the respondents should have acted upon the representations submitted by the petitioners carrying request for reversion as Part-time contingent employees after cancelling their promotion to the post of Hospital Attendant Grade-II so as to enable them to continue as Part-time Contingent employees up to the age of 70 years. 4. All the petitioners herein had commenced their career under the Insurance Medical Service as Part-time Sweepers. It was while continuing as Part-time Sweepers that they were promoted to the post of Hospital Attendant Grade-II. Indisputably, continuance as Hospital Attendant Grade-II would entail retirement on superannuation on completion of the age of 55 years and, at the same time, continuance as Part-time Sweepers would enable an employee under the Insurance Medical Service to continue up to the age of 70 years. In some cases, promotion of Part-time Sweepers as Hospital Attendant Grade-II may result in the retirement from the service before completion of the required W.P.(C) NO.6268/2010 & connected cases 6 minimum period of qualifying service for pension as required under Rule 57 of Part III of the Kerala Service Rules. In such cases, the concerned employee would be deprived of the opportunity to continue in service as Part-time contingent employee up to the age of 70 years and at the same time, they would be constrained to retire from service without earning eligibility for pension and such other retiral benefits. The petitioners herein are put to such a situation on account of their promotion. In short, continuance as Part-time contingent employees would have extended their period of service by 15 years. In other words, promotion as Hospital Attendant Grade-II would result in loss of 15 years of service as Part-time contingent employees and at the same time, would make them to retire without getting any pension or such other retiral benefits. In fact, being members of the lowest strata of the service, the petitioners cannot be expected to have knowledge about the relative merits of demerits of promotions. It was to avert such hapless situations that the aforesaid Government circular and instructions were issued. Therefore, the requirements to follow them scrupulously cannot be construed as an empty formality as its failure would result in adverse civil consequences in W.P.(C) NO.6268/2010 & connected cases 7 respect of certain Part-time contingent employees. It was considering all such relevant aspects pertaining to the issue that this Court as per judgments in W.P.(C).Nos.7807/2008, 3048/09, 35708/09 and 10599/07 issued directions to the concerned authorities to consider the requests of the concerned petitioners for cancellation of promotion and for continuance as part-time contingent employees. After perusing the aforesaid judgments with due regard to the facts of these Writ Petitions, I am of the considered view that the claims of the petitioners require consideration even in case some of them were made to retire from the Insurance Medical Service on completion of the age of 55 years. As noticed hereinbefore, the petitioners have staked their claims for reversion to the post of part-time Sweeper after cancelling their promotion, as Hospital Attendant Grade-II based on similar set of facts which led to the aforementioned judgments. In these circumstances, these Writ Petitions are disposed of with a direction to the first respondent to consider the representations submitted by the petitioners on merits, and pass orders thereon within a period of one moth from the date of receipt of a copy of this judgment. In case the petitioners are continuing in service, they shall W.P.(C) NO.6268/2010 & connected cases 8 be permitted to continue in service till decisions in terms of this judgment are taken. Needless to say that while considering such representations, the first respondent shall take into account the aforesaid judgments passed by this Court in the Writ Petitions mentioned earlier which ultimately culminated in favourable orders to the concerned Writ Petitioners. In case of decisions in favour of the petitioners, the respondents will be at liberty to recover all the benefits given to the petitioners except the benefits and amounts otherwise payable to them as Part-time contingent employees during the period from the date of promotion till the date of completion of age of 55 years or on interim orders till they are reverted. In the event of such recovery, the amount due shall be recovered from their salaries in equal instalments. 5. Before parting with the judgment, I may hasten to add the following:- Recurrence of such instances and situations despite the repeated judgments of this Court in the subject matter cannot be viewed lightly. It is a fact that Government have issued circulars and the third respondent has also issued instructions on the subject of promotion to Part- W.P.(C) NO.6268/2010 & connected cases 9 time contingent employees. Going by such circulars and instructions, the concerned authorities are bound to convey the consequences of promotions to the members of part-time contingent service especially to those who, on such promotion, would retire without earning eligibility to pension or any such other retiral benefits on account of failure to complete the minimum qualifying service for pension. Scrupulous adherence to the aforesaid government circulars and instructions are essential on the point of the view of the department as well. It will not be conducive to the smooth functioning of any department to permit employees beyond the age of 55 years, on their completion of the said age of superannuation, after cancelling the orders of promotion granted long ago. Such promotions of such employees would definitely result in their drawing pay in a higher pay scale and enjoying such other better benefits. Therefore, granting of reversion on the verge of their retirement for the purpose of allowing continuance as Part-time contingent employees after cancellation of regular promotion solely on account of the lapse in following the aforesaid circulars and instructions would necessitate recovery of excess payment. That apart, it may cause delay or result in denial of promotion of other W.P.(C) NO.6268/2010 & connected cases 10 willing and qualified Part-time contingent employees. Therefore, it is only appropriate for the authorities to scrupulously follow the government circulars and instructions issued by the third respondent so as to avoid recurrence of such situation in future. Therefore, the registry is directed to forward a copy of this judgment to the Secretary to Government, Rehabilitation Department for taking appropriate remedial measures to avoid recurrence of such circumstances in future. These Writ Petitions are disposed of, accordingly. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.6268/2010 & connected cases 11 C.T. RAVIKUMAR, J. W.P.(C). NOS.32733 /09, 6268, 11323 & 12148/ 10 JUDGMENT 31st May, 2010 W.P.(C) NO.6268/2010 & connected cases 12