IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12125 of 2006(R)
1. RAJEENA BEEVI,W/O.E.P.UMMER,
... Petitioner
2. V.V.ABDUL MAJEED,S/O.K.M.ABOOBACKER,
Vs
1. THE CHEIF ENGINEER,VYDHUTHY BHAVAN,
... Respondent
2. THE STATE OF KERALA,
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :SRI.K.S.ANIL, SC, KSEB
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :27/09/2010
O R D E R
S. SIRI JAGAN, J.
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W.P.(C) No.12125 OF 2010
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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 mayW.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
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