REGIONAL CANCER CENTRE (RCC) v. USHA J

R BY SMT. VINITHA B., SR. GP THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON

27.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No.462 of 2025 3 Anil K. Narendran, J. JUDGMENT The appellant, who is the 2nd respondent in W.P.(C)No.256 of 2024, has filed this writ appeal invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958, challenging the order dated 06.02.2025 of the learned Single Judge in that writ petition.

#2. The writ petitioners retired from the service of the appellant-Regional Cancer Centre, Thiruvananthapuram, during the period 2018 to 2010, on attaining the age of superannuation. They filed the writ petition seeking a writ of mandamus commanding the appellant to release forthwith their arrears of pay and leave surrender salary due as per 7th Central Pay Revision Scales in terms of Ext.P1 Government order, i.e., G.O.(Ms.)No.76/2021/H&FWD dated 26.02.2021, for the period from 01.01.2016 reckoning their service till retirement; a writ of certiorari to quash Exts.P9 Government order dated

21.11.2022 and Ext.P10 order dated 03.10.2023 issued by the Director of the Regional Cancer Centre to the extent it denies their right for retirement gratuity under the Payment of Gratuity Act, 1972; a writ of mandamus commanding the appellant to W.A.No.462 of 2025 4 pay them arrears of service pension as per the rules and gratuity notified under the Payment of Gratuity Act, reckoning 7th Central Pay Revision Scales implemented from 01.01.2016 till their retirement; and award interest on delayed terminal benefits.

#3. The appellant-2nd respondent filed a counter affidavit dated 18.03.2024 opposing the reliefs sought for in the writ petition, producing therewith Exts.R2(a) to R2(e) documents. The petitioner filed a reply affidavit dated 24.02.2025, producing therewith Ext.P11 document.

#4. By the impugned interim order dated 06.02.2025 of the learned Single Judge, the appellant was directed to pay revised pay and allowances (including gratuity) with statutory interest the writ petitioners terms of Ext.R2(a) Government order, i.e., G.O.(Ms.)No.169/2021/H& FWD dated

22.09.2021, within one month and file a personal affidavit in compliance by the Director of the Regional Cancer Centre, before the next posting date. In the said order, it was made clear that if the affidavit in compliance is not filed before the next posting date, the Director of the Regional Cancer Centre shall remain present in person before the Court. W.A.No.462 of 2025 5 5. On 07.03.2025, when this writ appeal came up for admission, a Division Bench of this Court passed the following order; “Even though Sri. Athul Shaji – learned counsel for the appellant, says that a copy of this Appeal has been served on Sri. Abdul Razak; and though an endorsement to that effect is available on record, he is not present today.

#2. Sri. Athul Shaji argued that the learned Single Judge has issued the impugned interim order presumably being under the impression that Ext.R2(a) only defers the payment beyond 01.06.2021; but that, in fact, what it mandates is that only those people who are in service after 01.06.2021 will be entitled to the monitory benefits, with others being only given notional benefits of the same for pensionary and other benefits.

#3. Smt. Nisha Bose – learned Senior Government Pleader, affirmed the afore submissions of Sri. Athul Shaji; adding that the Government intends to file a counter affidavit in the Original Petition explaining the above.

#4. We have examined the impugned order and are of the view that, going by Clause 4(2) of Ext.R2(a), an interpretation may be possible that the payment is only deferred after 01.06.2021 to all categories of persons. If that be so, the order cannot be construed to be in error.

#5. However, since it is asserted by the Sri. Athul Shaji – learned counsel for the appellant; and by Smt. Nisha Bose- learned Senior Government Pleader, that the purport of Clause 4(2) of Ext.R2(a) is that only those W.A.No.462 of 2025 6 people in service on 01.06.2021 will be entitled to the monetary benefits of the 7th Central Pay Revision, we are of the view that the matter will require to be considered further. For the above purpose, we admit this Appeal and stay the impugned interim order until the next posting date.”

#6. The interim order dated 07.03.2025 was extended for a period of three weeks by the order of this Court dated

10.03.2025, which reads thus; “Heard the learned Standing Counsel for the appellant, learned counsel for respondents 1 to 6-writ petitioners and also the learned Senior Government Pleader for the 7th respondent.

#2. During the course of arguments, the learned Standing Counsel for the appellant has made available for the perusal of this Court letter No.HEALTH-FW2/302/2023- HEALTH dated 06.03.2025 of the Additional Chief Secretary to Government, addressed to the Director, Regional Cancer Centre, Thiruvananthapuram.

#3. From the submissions made at the Bar, we noticed that counter affidavit on behalf of the State, i.e., the 1st respondent in the writ petition is yet to be placed on record.

#4. The learned Senior Government Pleader would submit that the counter affidavit on behalf of the State shall be placed on record in W.P.(C)No.256 of 2024 within a period of two weeks.

#5. Having considered the submissions made at the Bar, W.A.No.462 of 2025 7 we deem it appropriate to extend the interim order granted by the Division Bench of this Court on 07.03.2025, for a period of three weeks.”

#7. Today, when this writ appeal is taken up for consideration, the learned Senior Government Pleader would submit that the counter affidavit on behalf of the 1st respondent State (7th respondent herein) filed in W.P.(C)No.256 of 2024, has already been re-presented after curing the defects noted by the Registry.

#8. The learned counsel for respondents 1 to 6-writ petitioners would submit that he has already been served with a copy of the counter affidavit filed on behalf of the 1st respondent State in W.P.(C)No.256 of 2024.

#9. The purpose of an interim order is only to subserve the main relief. In the instant case, the interim relief granted by the learned Single Judge is nothing but the main relief and in the nature of a mandamus, which can be granted only on the final disposal of the writ petition. Therefore, instead of passing the impugned interim order dated 06.02.2025, the learned Single Judge ought to have considered the rival contentions and decided the question as to whether the petitioner is entitled to a W.A.No.462 of 2025 8 writ of mandamus, as sought for in the writ petition. At any rate, by way of an interim order, the appellant-2nd respondent in the writ petition cannot be directed to pay revised pay and allowances (including gratuity) with statutory interest to the petitioners in terms of G.O.(Ms.)No.169/2021/H&FWD dated

22.09.2021, within one month.

#10. The impugned interim order of the learned Single Judge is not an order merely procedural in nature. Such an order, touching upon the substantial rights and liabilities of the parties and causing substantial prejudice to the appellant, is an interim order qualified for challenge in an appeal filed under Section 5(i) of the Kerala High Court Act.

#11. In such circumstances, we find no reason to sustain the impugned interim order dated 06.02.2025 of the learned Single Judge in W.P.(C)No.256 of 2024 and the same is accordingly set aside. The writ appeal is allowed as above, leaving open the legal and factual contentions raised by both sides. Since the pleadings in the writ petition are complete and the writ petition is ripe for hearing, it is for respondents 1 to W.A.No.462 of 2025 9 6-writ petitioners to bring up the matter before the learned Single Judge for final disposal. ANIL K. NARENDRAN, JUDGE Sd/- AV/27/3 Sd/- MURALEE KRISHNA S., JUDGE