IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 WP(C).No. 152 of 2006(R) ----------------------------------- PETITIONER: ------------------- DR.REMAMAHESWARI THANKACHI.S, CIVIL SURGEON (OB. & GYN.), GOVERNMENT HOSPITAL PEROORKADA, PEROORKADA, THIRUVANANTHAPURAM-695 005. BY ADVS. SRI.B.RAGUNATHAN, SRI.V.V.MATHEW. RESPONDENTS: ------------------------ 1. SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM-695 001. 2. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM-695 037. R1 & R2 BY SR. GOVERNMENT PLEADER SRI. P. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/05/2010, ALONG WITH W.P.(C). NO.176 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.152/2006-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O.(RT).NO.4264/2000/H&FWD DT. 28/12/2000. EXT.P.2: COPY OF THE G.O.(RT).NO.3408/2001/H&FWD DT. 28/12/2001. EXT.P.3: COPY OF THE G.O.(RT).NO.217/05/H &FWD DT. 22/01/2005. EXT.P.4: COPY OF THE STATEMENT FILED ON BEHALF OF THE R.1. IN C.C. NO. 970/2003 ON THE FILE OF THE HON'BLE KERALA LOK AYUKTA. EXT.P.5: COPY OF THE REPRESENTATION DTD. MAY 2005, ADDRESSED TO R.1. EXT.P.6: COPY OF THE LETTER DT. 12/09/05 OF THE R.1. EXT.P.7: COPY OF THE JUDGMENT DTD. 13/12/2006 IN W.P.(C).NO.36482/2003-R. EXT.P.8: COPY OF THE JUDGMENT DTD. 05/12/2008 IN W.A. NO. 1445/2007-E. EXT.P.9: COPY OF THE G.O.(RT).NO.3665/09/H &FWD DTD. 16/12/2009. EXT.P.10: COPY OF THE GO(RT).NO.19/10/H&FWD DTD. 01/01/2010. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) Nos.152/2006 &176/2006 -------------------------------------------------- Dated this the 20thday of May, 2010 J U D G M E N T Issue raised in these writ petitions is common and therefore these cases were heard and disposed of by the common judgment. Documents referred to in this judgment are those marked in WP(c).No.152/2006. 2. Petitioner in WP(c).No.152/2006 joined service as Assistant Surgeon on 24.1.1979 and the petitioner in WP(c). No.176/2006 joined service as Assistant Surgeon on 8.2.1979. Both of them availed leave on loss of pay for the period from 23.12.1980 to 23.12.1982 and underwent Post Graduation in MD (O & G). On successful completion of the course, they rejoined service. On rejoining service they represented that the period spent by them on leave should be counted for increments and grade promotion. That was rejected. Later, following the issuance of Ext.P1 Government Order, they reiterated their claim, but requests were again rejected. However, relying on the finding of the Kerala Lok Ayukta, the same benefit was granted to another Doctor as per Ext.P3 order. Thereupon Ext.P5 representation was WPC.No.152/2006 & anor. :2 : made once again claiming that the period spent by them for higher studies should be counted for grade promotion and increments. Their claim was again rejected by Ext.P6 stating that Ext.P3 order was extended to the Doctor mentioned therein following the order passed by the Lok Ayukta and is not one of general application. Therefore these writ petitions are filed claiming that the period spent by them for attending Post Graduate Course by availing leave, should be counted for grade promotion and increments. 3. Learned counsel for the petitioner placed considerable reliance on Ext.P3 order referred to above and also Ext.P7 to P10. Ext.P7 is a judgment rendered by this court in WP(c). No.36482/2003, where an Assistant Surgeon who joined service on 26.7.1982 and underwent higher studies during the period from 9.4.1987 to 8.4.1990 by availing of leave, claimed benefits similar to the one claimed by the petitioner. This court by Ext.P7 judgment directed that the petitioner therein is entitled to have the period reckoned for grade promotion and increments. Against that judgment, State filed Writ Appeal No.1445/2007. That Writ Appeal was dismissed by Ext.P8 judgment. State sought review WPC.No.152/2006 & anor. :3 : of the judgment and that was also rejected. Thereafter SLP(c). No.17463/09 was filed before the Apex Court and that was also dismissed by order dated 17.7.2009. Based on all the above, Ext.P9 order was issued by the State extending the benefit of the judgment to the petitioner in Ext.P7 judgment. Again similar benefit has been extended to similarly situated 3 other Doctors as per Ext.P10 order dated 1.1.2010. 4. Having perused Exts.P3 and P7 to P10, I see nothing to distinguish the case of the petitioner from the cases dealt with in those judgments and the orders issued by the Government. Therefore, I am satisfied that the petitioner is entitled to the same benefit. 5. Learned Government Pleader referred to me Rule 88(ii) and Rule 91A of Part-I KSR and also referred to me GO(P). No.524/84/Fin. dated 18.9.1984 and Circular No.72/05/Fin dated 30th December, 2005 and contended that the petitioner who had not rendered minimum service of 5 years was granted leave relaxing Rule 88(ii) and with a condition that the period will not count for any purpose. In my view, since the same issue has been dealt with by this court in the judgments referred to above, which WPC.No.152/2006 & anor. :4 : has been affirmed by the Apex Court and as the benefit of the judgment has been extended to similarly situated persons, this contention raised by the Government Pleader cannot be entertained. In the result, petitioners are entitled to succeed. 6. Ext.P6 in WP(c).No.152/2006 and Ext.P5 in WP(c). No.176/06 are quashed. Respondents are directed to pass orders reckoning the period from 23.12.1980 to 23.12.1982 for the purpose of grade promotion and increments. Since the petitioners have retired from service, it is directed that the pensionary benefits that are due to them shall be revised accordingly. This shall be done as expeditiously as possible and at any rate within 3 months from the date of receipt of a copy of the judgment. Writ Petitions are disposed of as above. (ANTONY DOMINIC) JUDGE vi/