IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 WP(C).No. 12125 of 2006(R) ---------------------------------- PETITIONERS: --------------- 1. RAJEENA BEEVI,W/O.E.P.UMMER, AGED 33 YEARS,MELE VEETTIL HOUSE, P.O.PARAVANNA,TIRUR, MALAPPURAM DISTRICT. 2. V.V.ABDUL MAJEED,S/O.K.M.ABOOBACKER, RETIRED SENIOR SUPERINTENDENT, K.S.E.BOARD,RESIDING AT MELE VEETTIL HOUSE, P.O.PARAVANNA,TIRUR,MALAPPURAM DISTRICT. BY ADV. MR.K.M.SATHYANATHA MENON RESPONDENTS: ----------------- 1. THE CHEIF ENGINEER,VYDHUTHY BHAVAN, PATTOM,TRIVANDRUM. 2. THE STATE OF KERALA, REP.BY THE SECRETARY, KERALA STATE ELECTRICITY BOARD, SECRETARIAT,TRIVANDRUM. ADV. MR.K.S.ANIL, SC, KSEB FOR R1,2 MR. ASOK M.CHERIYAN, SC, KSEB FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12125 of 2006 APPENDIX PETITIONERS' EXHIBITS EXT.P1(A): COPY OF APPLICATION SUBMITTED BY THE PETITIONER BEFORE R1. EXT.P1(B): COPY OF THE MEDICAL CERTIFICATE SUBMITTED BY THE SECOND PETITIONER. EXT.P2: COPY OF THE CERTIFICATE OF TRANSFER OF CHARGE WITH RESPECT TO THE SECOND PETITIONER. EXT.P3: COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE MEDICAL BOARD IN VIEW OF THE REQUEST MADE BY THE BOARD AND THE HEALTH SERVICES AND THE ORDER ISSUED BY THE BOARD. EXT.P4: COPY OF THE ORDER DTD 7-8-2001 ISSUED BY R1 TO THE SECOND PETITIONER. EXT.P5: COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE BOARD. EXT.P6: COPY OF THE ORDER ISSUED BY R1 TO THE FIRST PETITIONER DTD 15-4-2004. EXT.P7: COPY OF THE REPRESENTATION SUBMITTED BY THE FIRST PETITIONER DTD 30.9.2005 BEFORE R1. EXT.P8: COPY OF THE DETAILED REPRESENTATION SUBMITTED BY THE FIRST PETITIONER BEFORE THE HON'BLE MINISTER. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------ W.P.(C) No.12125 OF 2006 ------------------------------- Dated this the 27th day of September, 2010 J U D G M E N T First petitioner is the daughter of the second petitioner. The second petitioner was an employee of the Kerala State Electricity Board. The second petitioner was due to retire on superannuation at the age of 55 years on 31.1.2002. The second petitioner was suffering from a serious disease on account of which from 1992 onwards he was on medical leave for various periods as follows: During 1) From 08/07/92 to 31.12.92 - 78 days 2) From 01/01/93 to 20.11.93 - 141 days 3) From 19.10.94 to 28.11.94 - 11 days 4) From 10/03/95 to 21.10.95 - 25 days 5) From 27.02.96 to 31.12.96 - 136 days 6) From 01/01/97 to 31.08.97 - 163 days 7) From 14.05.98 to 31.12.98 - 88 days 8) From 02/01/99 to 31.12.99 - 292 days 9) From 01/01/00 to 11/08/00 - 78 days W.P.(c)No.12125/06 2 Ultimately, by Ext.P1 application dated 4.1.2001, supported by Ext.P1(A) medical certificate, certifying that the second petitioner is completely and permanently incapacitated for further service of any kind in the Kerala State Electricity Board, the second petitioner sought retirement on medical grounds. Consequent to the said application, by Ext.P2, the second petitioner was relieved from service. Subsequently, the second petitioner's medical condition was approved by the Medical Board by Ext.P3. Pursuant thereto, by Ext.P4 order dated 7.8.2001, the second petitioner was allowed to retire from the service of the Board on the ground of invalidity, with effect from 16.4.2001 under Rules 42 and 43 of Part III of Kerala Service Rules. As per a Board order in force, dependant of employees, who retire on invalidity grounds with more than one year service left, is entitled for compassionate employment in the Board. The first petitioner applied for such appointment by Ext.P5 application. That was rejected by Ext.P6 order. Ext.P7 appeal filed by the first petitioner before the Government was not considered favouarbly by the Government also. It is under the above circumstances, the W.P.(c)No.12125/06 3 petitioners have filed this writ petition seeking the following reliefs: “(i) a writ of certiorari or any other appropriate writ order or direction calling the original of Exts. P4 and P6 and quash the same with respect to the retirement of the second petitioner with effect from 16-4-2001 and to accept the request of the first petitioner and provide an employment in the Kerala State Electricity Board; (ii) to issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to appoint the first petitioner in the service of the respondents” 2. A counter affidavit has been filed on behalf of the first respondent, wherein the contention taken is that the second petitioner's application for retirement on medical grounds, though filed on 4.1.2001, was accepted only on 16.4.2001 on the basis of a medical certificate of that date. The second petitioner's normal date of retirement was 31.1.2002. After 16.4.2001, the second petitioner did not have minimum one year's service left so as to give a claim to the first petitioner for appointment under the Scheme. Therefore, the first respondent would contend that the petitioners are not entitled to the reliefs prayed for. 3. I have considered the rival contentions in detail. It is not disputed before me that the second petitioner filed W.P.(c)No.12125/06 4 Ext.P1 application dated 4.1.2001 supported by Ext.P1(A) medical certificate dated 4.1.2001 for retirement on medical grounds. Ext.P1(A) medical certificate issued by the consultant in Psychiatry of Calicut Medical College shows that the second petitioner was completely and permanently incapacitated for further service of any account in the Kerala State Electricity Board. Even prior to 4.1.2001 also the second petitioner was on long leave for quite some time, for various periods as is evident from Ext.P1, the details of which have already been quoted at the beginning of this judgment. It is also not disputed before me that pursuant to Ext.P1 application, the petitioner was relieved from service as evidenced by Ext.P2 charge transfer certificate. Rules 52 to 54 of Part III of KSR provide thus: “52. Applicants to be discharged.- An employee who has submitted under Rule 43 a medical certificate of incapacity for further service,must not (except for special reasons to be reported to the Government) be retained on duty pending a decision on his application for pension, nor can he obtain leave of absence. Without the special orders of Government, duty after the date of such medical certificate does not count for pension. 53. The object of Rule 52 is to discourage tentative applications; but last grade employee, who in the opinion of the Head of Office, is fit for light work may W.P.(c)No.12125/06 5 be retained in employment till his pension is sanctioned, provided that his post is not filled up till he retires, and that his service counts only to the date of his medical certificate. 54. Rule 52 refers only to the retention in duty of an employee who has furnished a medical certificate in support of an application for invalid pension or gratuity. The retirement of an employee who is absent on leave other than earned leave when such certificate is submitted, may have effect from the termination of his leave, and the employee may continue to draw leave allowance to the end of his leave” Of course, Rule 43 provides thus: 43. The incapacity for service must be established by a medical certificate attested as follows:- (a) By a Medical Board, in the case of all Gazetted Government employees whose pay as defined in Rule 12 (23), Part I of these Rules, exceeds Rs.500 per mensem. (b) In other cases, by a Medical Officer not below the rank of a Civil Surgeon. (c) No medical certificate of incapacity for service may be granted unless the applicant produces a letter to show that the Head of his Officer or Department is aware of his intention to appear before the Medical Officer. The Medical Officer shall also be supplied by the Head of the Office or Department in which the applicant is employed with a statement of what appears from official records to be the applicant's age. Where the applicant has a Service Book, the age therein recorded should be reported.” It remains a fact that pursuant to Ext.P1 application, the petitioner was relieved from service based on Ext.P1(A) medical certificate, which certified that the second petitioner is completely and permanently incapacitated for further service W.P.(c)No.12125/06 6 of any kind, if Ext.P1(A) certificate was not acceptable and was not in terms of Rule 43, the first respondent ought to have directed the second petitioner to produce a proper medical certificate. But instead, the first respondent relieved the second petitioner from duty as is clear from Ext.P2 certificate of transfer of charge. The veracity of Ext.P1(A) medical certificate has also been confirmed by Ext.P3. Therefore, the effect of Ext.P3 relates back to Ext.P1(A) medical certificate. Under Rule 52, an employee who has submitted, under Rule 43, a medical certificate of incapacity for further service cannot be retained on duty, pending a decision on his application of pension nor can he obtain leave of absence. Therefore, after 4.1.2001, when the petitioner was relieved from duty, he could not have been granted any leave. Consequently, the second petitioner's status after 4.1.2001 could only have been that of a person allowed to retire from service under Rule 43. Therefore, although Ext.P4 order was passed only on 7.8.2001, that order must be deemed to have come into force with effect from 4.1.2001. In so far as the second petitioner had been relieved from service under Rule 52 on 4.1.2001 itself, I do not W.P.(c)No.12125/06 7 think that the petitioners can be prejudiced by the delay on the part of the first respondent in passing orders on Ext.P1 application dated 4.1.2001 of the second petitioner, that too after relieving the second petitioner from duty in accordance with Rule 52. In fact Rule 53 specifically stipulates that the purpose of Rule 52 is to discourage tentative applications. The very fact that the second petitioner was on medical leave for long periods on various occasions would categorically prove that the second petitioner's application dated 4.1.2001 was not a tentative application at all. Therefore, there was no occasion for the first respondent to even suspect the genuineness of the second petitioner's application for retirement under Rule 43, nor the medical certificate Ext.P1(A). Therefore, I am satisfied that the second petitioner's retirement should take effect on 4.1.2001 and not from 16.4.2001 as held by the first respondent. Therefore, Exts.P4 and P6 are quashed to that extent. The result is that the second petitioner had more than one year's service on the date of his retirement under Rule 43. If that be so, the eligibility of the first petitioner to get compassionate employment also cannot be disputed. The W.P.(c)No.12125/06 8 result of the above discussion is that the first petitioner has become entitled to compassionate employment on account of the retirement of the second petitioner under rule 43. Therefore, there would be a direction to the respondents to give employment to the first petitioner in a suitable vacancy as per the Board order granting such benefits as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(c)No.12125/06 9 W.P.(c)No.12125/06 10