IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 WP(C).No. 32479 of 2008(N) -------------------------- PETITIONER(S): --------------- DR.G.HARIDAS, ASSISTANT SURGEON GENERAL HOSPITAL, ALAPPUZHA. BY ADV. SRI.ANIL K.NAIR SRI.B.UNNIKRISHNA KAIMAL RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT SECRETARIATE, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI.P.NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.32479 of 2008 ------------------------------- Dated this the 5th November, 2008. J U D G M E N T Heard Sri.Anil.K.Nair, the learned counsel appearing for the petitioner and Sri.P.Nandakumar, the learned Government Pleader appearing for the respondents. 2. The petitioner is an Assistant Surgeon in the Health Services Department. He was advised for appointment on 24.1.1980 and joined duty on 1.4.1981. While he was working as Assistant Surgeon in the District Hospital at Manjeri, he was placed under suspension on 10.12.1997 pending enquiry into a vigilance case registered against him. After enquiry, the Vigilance department recommended departmental action. The petitioner was thereafter reinstated in service on 30.11.1999. The Government thereafter referred the matter to the Vigilance Tribunal. The Vigilance Tribunal after enquiry recommended imposition of the punishment of compulsory retirement from service. The Government, on a consideration of the records of W.P.(C) No.32479/08 2 the enquiry, tentatively decided to impose the punishment of barring of two increments with cumulative effect. When the Kerala Public Service Commission was consulted, the Commission recommended imposition of the punishment of compulsory retirement from service. The Government accepted the opinion of the Kerala Public Service Commission and imposed the punishment of compulsory retirement from service. The petitioner challenged the order imposing punishment in W.P.(C) No.23655 of 2004. By Ext.P1 judgment delivered on 14.7.2004, the order imposing punishment was set aside on the ground that the Government did not independently take a decision and abdicated its statutory function as the disciplinary authority, when it accepted the opinion of the Kerala Public Service Commission. The writ petition was allowed, the order imposing punishment was set aside and the Government was directed to pass fresh orders in the matter. 3. Pursuant to Ext.P1 judgment, Ext.P2 order was passed on 24.1.2008 imposing on the petitioner the punishment W.P.(C) No.32479/08 3 of barring of two increments without cumulative effect. By order passed on 6.2.2008, the Director of Health Services reinstated the petitioner in service and posted him as Assistant Surgeon in the General Hospital, Alappuzha, where he joined duty on 8.2.2008. Thereafter, by Ext.P3 order passed on 24.6.2008, the Government regularised the period during which the petitioner was under suspension as duty for all purposes except for pay and allowances, which was limited to the subsistence allowance already drawn by him. The period during which the petitioner was out of service following the imposition of the punishment of compulsory retirement from service was also ordered to be treated as duty for all purposes, except for pay and allowances which was limited to the subsistence allowance which the petitioner was entitled to as per the Rules. The period that intervened between the date of Ext.P2 and 8.2.2008, the date on which the petitioner rejoined duty was ordered to be treated as joining time/leave admissible. W.P.(C) No.32479/08 4 4. The petitioner's grievance is that by reason of the disciplinary action initiated as early as in the year 1997, which ultimately led to the imposition of the minor punishment of barring of two increments without cumulative effect, he was deemed promotion to the post of Civil Surgeon and further promotion as Deputy Director of Health Services as his case was not considered by the Departmental Promotion Committee. The petitioner submits that he is also entitled to be placed in the Speciality Cadre by virtue of his service. The petitioner has, in Ext.P4 representation dated 22.7.2008 submitted to the Secretary to the Government, Health and Family Welfare Department, pointed out that he has less than two years to retire from service and that his promotion as Civil Surgeon and as Deputy Director of Health Services may be considered. He has in Ext.P5 representation dated 1.8.2008 addressed to the Director of Health Services staked his claim for placement in the Speciality Cadre. In this writ petition, the petitioner prays for a direction to respondents 1 and 2 to pass orders on Exts.P4 and W.P.(C) No.32479/08 5 P5 representations within a time limited to be fixed by this Court. 5. The pleadings disclose that from the year 1997 onwards till Ext.P2 order was passed on 24.1.2008, the petitioner was facing disciplinary action. He was initially suspended, later compulsorily retired from service and after Ext.P2 order was passed, reinstated in service. During the interregnum, the petitioner's juniors were promoted to the post of Civil Surgeon and to higher posts. The effect of Ext.P2 is that the petitioner should be deemed to have been in continuous service and the period during which he was out of service either under suspension or by reason of the punishment of compulsory retirement imposed on him, has to be treated as duty for all purposes, except for pay and allowances, which is limited to the Subsistence allowance. The petitioner's request for promotion to the post of Civil Surgeon and to other higher posts, therefore, requires to be considered by the Government in the light of the relevant rules. As regards placement under the Speciality W.P.(C) No.32479/08 6 Cadre also, by reason of the above facts, the petitioner could not opt in time. He has, in Ext.P5 representation, moved the Director of Health Services seeking orders in that regard. Taking note of the facts and circumstances of the case and having regard to the fact that the petitioner has only less than two years of service left, I dispose of this Writ Petition with a direction to the Secretary, Health and Family Welfare Department, to consider Ext.P4 representation and pass orders thereon, after affording the petitioner an opportunity of being heard. This shall be done within a period of three months from the date of receipt of a copy of this judgment. The Director of Health Services shall likewise hear the petitioner and pass orders on Ext.P5 representation, after affording him an opportunity of being heard, within a similar period of three months from the date of receipt of a copy of this judgment. P.N.RAVINDRAN, JUDGE nj.