S. Ponnathal vs The Director of Medical and Rural Health Services

M. Thanikachalam, J.—By consent of parties, the writ petition itself is taken up for final disposal.

The writ petitioner was working as a Staff Nurse, in the respondent Department. When there was a promotional opportunity, from the post of

Staff Nurse to Nursing Superintendent Grade III, this petitioner was considered for promotion and promoted as Nursing Superintendent Grade III

and posted as such in Government Hospital, Karaikudi, as per the proceedings dated 11.07.2003. Subsequently, by regular inspection or

otherwise, the department felt that the promotion given to the petitioner, as Nursing Superintendent Grade III, is not proper, since the service of

the petitioner was taken from 17.09.1973, though a fresh appointment was given to her with effect from 25.03.1976. In this view, taking into

consideration, that the petitioner is not entitled to be promoted as Nursing Superintendent Grade III, by the impugned order dated 19.05.2005,

she was reverted as a Staff Nurse immediately and posted at Government Head Quarters Hospital, Virudhunagar, which is under challenge in this

writ petition. Further, it is also ordered that the excess pay and allowances drawn by her from 18.07.2003 i.e. her date of promotion as Nursing

Superintendent Grade III till the date of reversion as Staff Nurse should be recovered and remitted into the Government Treasury immediately.

Heard Mr. Veerakathiravan, learned Counsel for the petitioner and Mr. V. Arun, learned Government Advocate for the respondent.

Mr. Veerakathiravan, learned Counsel for the petitioner would submit that before passing the impugned order dated 19.05.2005, no

opportunity was given to the petitioner, to say whether she is eligible for promotion or not and whether she is liable to be reverted or not and

without giving any opportunity, by issuing notice, behind her back, violating the natural justice, which she is entitled to, as of right, the impugned

order came to be passed, which requires to be set aside. In support of the above submission, learned Counsel for the petitioner also relied on the

decision of the Apex Court in Bhagwan Shukla v. Union of India and Ors. (1994) 28 ATC 258, wherein it is held as follows:

The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his

basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without

following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been

made to suffer huge financial loss without being heard.

In the case involved in the above decision also, it seems, without ordering notice to the Government Servant, an order came to be passed

refusing the pay, which was challenged. Considering the fact, that no notice has been issued, and by the impugned order, the Government Servant

was directed to suffer huge financial loss, the Apex Court has come upon heavily against the department, and set aside the order, which ratio has

to be followed in this case also.

In the affidavit filed in support of the petition, the writ petitioner has stated, specifically, that no notice has been issued to her, before passing the

impugned order. Even in the petition filed to vacate the stay as well as counter affidavit in the main writ petition, it is nowhere stated that before

passing the impugned order, notice has been issued to the writ petitioner, but she failed to explain the same and therefore, she is not entitled to

raise this point. The impugned order is also silent, about the issuance of the notice before passing the order, thereby making it clear that the

authorities concerned have not issued any notice to the petitioner, before passing the order on 19.05.2005, which had, not only caused grievance

by demoting to the original post, but also by causing monetary loss, where a direction has been given for the recovery of the alleged excess amount

, said to have been paid, in which post, she served for two years or so, as submitted. For these reasons, the order passed by the authority

concerned, which is impugned, is violative of natural justice and therefore, it requires to be set aside.

In the light of the above discussion, the impugned order dated 19.05.2005 is set aside and the writ petition is allowed, to the above said extent

alone, and no direction can be issued to regularise the service of the petitioner as Nursing Superintendent Grade III. It is left to the authorities

concerned, if they desire, to issue notice to the writ petitioner viz., S. Ponnathal and pass appropriate orders according to law and on merits. No

costs. Consequently, connected W.P.M.P and W.V.M.P. are closed.

The petitioner was permitted to retire by the authorities, as per the stay granted by this Court. Whether that service would enure in calculating

the period of pension, has to be decided by the department and it is left open.