OP(KAT) NO. 7 OF 2018 1 2025:KER:30144 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR WEDNESDAY, THE 9TH DAY OF APRIL 2025/19TH CHAITHRA, 1947 OP(KAT) NO. 7 OF 2018 AGAINST THE ORDER DATED 03.01.2017 IN OA NO.982 OF 2014 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONERS/RESPONDENTS 1 TO 3 IN OA: 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LABOUR DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695 001. 2 THE DIRECTOR, INSURANCE MEDICAL SERVICES, KERALA STATE, THIRUVANANTHAPURAM-695 001. 3 THE REGIONAL DEPUTY DIRECTOR, SOUTH ZONE, OFFICE OF THE REGIONAL DEPUTY DIRECTOR, INSURANCE MEDICAL SERVICES, POLAYATHODE, KOLLAM, KERALA-691001. BY SRI.A.J.VARGHESE, SR.GOVERNMENT PLEADER OP(KAT) NO. 7 OF 2018 2 2025:KER:30144 RESPONDENT/APPLICANT AND 4TH RESPONDENT IN OA: 1 SUNANDA S., ASSISTANT NURSING SUPERINTENDENT, EMPLOYEES STATE INSURANCE CORPORATION MEDICAL COLLEGE & HOSPITAL, PARIPPALLY, KOLLAM, KERALA. 2 THE SUPERINTENDENT, EMPLOYEES STATE INSURANCE CORPORATION MEDICAL COLLEGE & HOSPITAL, PARIPPALLY, KOLLAM, KERALA - 691 574. BY ADVS. ELVIN PETER P.J. (SR.) K.R.GANESH SREELEKSHMI A.S. THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 07.04.2025, THE COURT ON 09.04.2025 DELIVERED THE FOLLOWING: OP(KAT) NO. 7 OF 2018 3 2025:KER:30144 J U D G M E N T Dated this the 9th day of April, 2025 A.Muhamed Mustaque, J. Smt. Sunanda, the 1st respondent herein, was given her first time-bound higher grade in the year 2003 while working as a Head Nurse in ESI Hospital, Parippally. While she was given the higher grade, she executed a declaration undertaking that she will not relinquish regular promotion when it becomes due. She became eligible for promotion with effect from 04.05.2010. At that time, she was working as a Head Nurse in ESIC Hospital, Parippally. 2. The Government agreed to hand over the above Hospital to the Employees State Insurance Corporation(ESIC) based on a decision taken in a meeting held on 16.04.2010. As per the decision of the meeting, the existing staff of ESI hospital who wished to continue working on deputation in ESIC hospital, Parippally, were OP(KAT) NO. 7 OF 2018 4 2025:KER:30144 allowed to do so until further orders. The 1st respondent opted to continue in the ESIC hospital. Thereafter, the 1st respondent was absorbed in ESIC Hospital with effect from 04.03.2011. 3. Since the 1st respondent was in another service on deputation, i.e, with ESIC, she had to relinquish the promotion which was due to her with effect from 04.05.2010. 4. In view of the relinquishment, the Government initiated recovery proceedings based on the undertaking given by the 1st respondent at the time of granting the first time-bound higher grade. This was challenged before the Tribunal, which upheld the challenge. 5. The relinquishment was essentially based on the fact that the 1st respondent was working in another service on deputation and was later absorbed into that service. The objective of obtaining a relinquishment is to ensure that when a Government servant is entitled to promotion, he will OP(KAT) NO. 7 OF 2018 5 2025:KER:30144 not relinquish it, thereby, preventing him from continuing to enjoy the benefits of higher grades while regular promotional avenues are available. This means that one cannot have the advantage of a higher grade while relinquishing the promotion at the same time. In a case like this, we find that the 1st respondent had relinquished the promotion in a peculiar circumstance when she had been absorbed into another service which was permitted based on the decision of the government itself. As seen from the impugned order as well as the pleadings, the 1st respondent was in another service from 16.04.2010 onwards, even before the promotion became due. In such circumstances, the Government could not have proceeded against the 1st respondent based on the undertaking given by her earlier. The undertaking given at the time of granting a higher grade had a specific purpose, and it cannot be insisted on mechanically. The relinquishment of promotion was, in fact, to continue in another service as OP(KAT) NO. 7 OF 2018 6 2025:KER:30144 permitted by the government, and not with an intention to enjoy the benefit of the higher grade and renounce the promotion at the same time. The purpose of the undertaking was only to prevent deceitful tactics of the Government servants who might seek to enjoy the benefit of a higher grade and relinquish the promotion at the same time when such promotion becomes due. 6. The recovery initiated is also unsustainable for another reason. The promotion was due prospectively with effect from 04.05.2010. If the 1st respondent relinquished the claim for promotion, at the best she can be denied the scale of pay applicable in the promoted category from the date on which promotion became due, i.e. 04.05.2010. The 1st respondent was legally entitled to the scale of pay based on the higher grade till the promotion became due. Since the 1st respondent entered into service on 16.04.2010 in ESIC hospital, no recovery is possible as the effective date of promotion was only with effect from 04.05.2010. The OP(KAT) NO. 7 OF 2018 7 2025:KER:30144 Government has no case that higher grade was irregular till the promotion was due. Therefore, no recovery is possible in this case, even based on the undertaking given by the 1st respondent. In such circumstances, we find no merit in this matter. The original petition stands dismissed. Sd/- A.MUHAMED MUSTAQUE JUDGE Sd/- P.KRISHNA KUMAR JUDGE rkj OP(KAT) NO. 7 OF 2018 8 2025:KER:30144 APPENDIX OF OP(KAT) 7/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE OA ALONG WITH ANNEXURES AANNEXURE A14 TRUE COPY OF THE ORDER DATED 31.03.2014 ISSUED BY THE 1ST RESPONDENT. ANNEXURE A13 TRUE COPY OF THE ORDER DATED 16.01.2014 IN O.A.NO.2571/2013 OF THIS HON'BLE TRIBUNAL. ANNEXURE A12 TRUE COPY OF THE REPRESENTATION DATED 25.08.2012 SUBMITTED BY THE APPLICANT BEFORE THE 1ST RESPONDENT. ANNEXURE A11 TRUE COPY OF THE ORDER DATED 28.07.2010 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A10 TRUE COPY OF THE ORDER DATED 19.12.2011 ISSUED BY THE ESI CORPORATION ABSORBING THE APPLICANT. ANNEXURE A9 TRUE COPY OF THE LETTER DATED 26.03.2011 ISSUED BY THE GOVERNMENT. ANNEXURE A8 TRUE COPY OF THE ORDER DATED 04.05.2010 ISSUED BY THE INSURANCE MEDICAL SERVICE DEPARTMENT. ANNEXURE A7 TRUE COPY OF THE ORDER DATED 26.07.2013 ISSUED BY THE GOVERNMENT. ANNEXURE A6 TRUE COPY OF THE OPTION FORM DATED 16.04.2010 SUBMITTED BY THE APPLICANT. ANNEXURE A5 TRUE COPY OF THE MINUTES OF THE MEETING OF THE ESI CORPORATION HELD ON 16.04.2010. OP(KAT) NO. 7 OF 2018 9 2025:KER:30144 ANNEXURE A4 TRUE COPY OF THE COMMUNICATION DATED 13.04.2010 ISSUED BY THE STATE MEDICAL COMMISSIONER, ESI CORPORATION TO THE 2ND RESPONDENT. ANNEXURE A3 TRUE COPY OF THE COMMUNICATION DATED 04.02.2010 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A2 TRUE COPY OF G.O. DATED 01.01.2010 ISSUED BY THE GOVERNMENT. ANNEXURE A1 TRUE COPY OF G.O.DATED 15.10.2009 ALONG WITH THE TERMS OF ABSORPTION ISSUED BY THE GOVERNMENT. EXHIBIT P2 TRUE COPY OF ANNEXURE MA 1/14 EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT ALONG WITH THE ANNEXURES. ANNEXURE R1(i) TRUE COPY OF GOVERNMENT ORDER G.O.(RT) NO.448/2014/LBR DATED 31.03.2014. ANNEXURE R1(h) TRUE COPY OF THE GOVERNMENT LETTER NO.25007/F2/12/LBR DATED 09.10.2013 WITH TRANSLATION. ANNEXURE R1(g) TRUE COPY OF GOVERNMENT LETTER NO.773/F2/11/LBR DATED 26.03.2011 WITH TRANSLATION. ANNEXURE R1(f) TRUE COPY OF ORDER NO.E57298/2010/DIMS DATED 28.07.2010. ANNEXURE R1(e) TRUE COPY OF ORDER NO.E5-7298/10/DIMS DATED 04.05.2010. ANNESURE R1(d) ATRUE COPY OF G.O.(MS) NO.94/2013/LBR DATED 26.07.2013. OP(KAT) NO. 7 OF 2018 10 2025:KER:30144 ANNEXURE R1(c) TRUE COPY OF G.O.(MS) NO.98/2012/LBR DATED 27.06.2012. ANNEXURE R1(b) TRUE COPY OF G.O.(MS) NO.2/2010 /LBR DATED 01.01.2010. ANNEXURE R1(a) TRUE COPY OF G.O.(MS) NO.138/2009/LBR DATED 15.10.2009. EXHIBIT P4 TRUE COPY OF THE REJOINDER OF THE APPLICANT ALONG WITH ANNEXURES ANNEXURE A20 TRUE COPY OF LETTER DATED 18.09.2014 SUBMITTED BY THE APPLICANT'S HUSBAND UNDER THE RIGHT TO INFORMATION ACT. ANNEXURE A17, A18, A19 TRUE COPY OF THE COMMUNICATION DATED 14.10.2014 ALONG WITH TWO LETTERS ISSUED BY THE STATE PUBLIC INFORMATION OFFICER. ANNEXURE A16 TRUE COPY OF THE TRANSFER ORDER OF SMT.V.SREEKALA DATED 13.04.2010. ANNEXURE A15 TRUE COPY OF THE REPLY DATED 16.08.2011 ISSUED BY THE INFORMATION OFFICER. EXHIBIT P5 TRUE COPY OF ORDER DATED 03/01/2017 IN OA.NO.982/2014