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Nazeer Ahmed S/O. mr.fakheer Ahmed Vs. The Principal District & Sessions Judge - Court Judgment

LegalCrystal Citation
CourtKarnataka Kalaburagi High Court
Decided On
Case NumberWA 200059/2016
Judge
AppellantNazeer Ahmed S/O. mr.fakheer Ahmed
RespondentThe Principal District & Sessions Judge
Excerpt:
.....principal district & sessions judge, raichur 19/19 accordingly, the present writ appeal is dismissed, as being devoid of merits. no order as to costs. sd/- judge judge sd/- srt
Judgment:

1/19 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE8H DAY OF SEPTEMBER2016PRESENT THE HON’BLE DR. JUSTICE VINEET KOTHARI AND THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT APPEAL No.200059/2016 (S-RES) Between: Nazeer Ahmed S/o Mr. Fakheer Ahmed Aged about 62 years, Occ: Retd. Sheristedar At Principal Senior Civil Judge & CJM Court, Raichur Now residing at H.No.2-2-136, Behind HPC, Androon Quilla, Raichur Dist: Raichur – 584 101. (By Sri Shivakumar Kalloor, Advocate) And: The Principal District & Sessions Judge, At Raichur, Dist: Raichur – 584 101. (By Sri Syed Habeeb, AGA) … Appellant … Respondent Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 2/19 This Writ Appeal is filed under Section 4 of the Karnataka High Court Act, praying to allow the above Writ Appeal and set aside the impugned order dated 03.12.2015 passed by Hon’ble Single Judge in WP No.201104/2015 and allow the said Writ Petition No.201104/2015 filed by appellant, in the ends of justice and equity. This Appeal coming on for admission this day, VINEET KOTHARI J., delivered the following:

JUDGMENT

Sri Shivakumar Kalloor, Advocate for Appellant. Sri Syed Habeeb, AGA for respondent. This writ appeal has been filed by the appellant – Nazeer Ahmed aggrieved by the order passed by the learned Single Judge on 03.12.2015, dismissing his Writ Petition No.201104/2015 (S-RES).

2. The facts giving rise to the present appeal in brief are as under:- Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 3/19 The appellant/petitioner was working as a “Sheristedar” (Senior Ministerial Clerk) in the Court of the Civil Judge and CJM, Raichur. Due to ill-health, he made a representation dated 25.07.2012 to refer him to Medical Board to examine him with regard to his illness, as he was seeking voluntary retirement on health grounds. The said request was initially rejected by the Principal District and Sessions Judge, Raichur. Thereafter, the appellant had filed an Administrative Appeal No.2/2013 before High Court and the same came to be allowed by the Registrar (Vigilance) by an order dated 18.09.2014 vide Annexure-G and the matter was remanded back to the learned Principal District and Sessions Judge, Raichur directing him to afford an opportunity to the appellant to produce proper Medical Certificate and then pass appropriate orders in accordance with law. Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 4/19 3. The appellant filed another Medical Certificate before the learned Principal District and Sessions Judge, Raichur after himself getting examined as Out-door Patient vide OPD No.162253/2012 dated 20.09.2012 and along with the said application, he filed his application for voluntary retirement on medical grounds on 27.09.2012.

4. The learned Principal District and Sessions Judge, Raichur however again rejected the application vide Order No.138/ADMN/2014 dated 20.10.2014 giving the following reasons, including reproducing the very same Medical Certificate itself: “I have gone through the entire records in respect of the official even after submitting his application for retirement on medical grounds on 27. 09.2012 till today i.e. for more than two years the official is on duty and he is discharging his duty as Sheristedar, a responsible official. During this period the official has never availed leave on medical Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 5/19 grounds. Therefore, no sanctity can be attached no evidentiary value can be given to the medical certificate issued by the Medical Board. On perusal of medical certificate it reveals that the official got himself examined as OPD No.162253/2012 dated 20.09.2012 prior to submitting the application dated 27.09.2012. The Medical Board has stated as follows: “ Certified that I/we have carefully examined Sri Nazeer Ahmed S/o Sri Fakeer Ahmed, Sheristedar, Prl. Sr. Dn. C.J.

& C.J.M. Court, Raichur, vide OPD No.162253/2012 dated 20.09.2012 in the RIMS Hospital, Raichur. His age by his own statement is 58 years, and by appearance is about 58 years. I/we consider Sri Nazeer Ahmed to be completely and permanently incapacitated (1) for further service of any kind, or (2) for further service in the Department to which he belongs in Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 6/19 consequence of Left side Fibrothorax with chronic obstructive Lung disease. His incapacity does not appear to me/us to have been caused by irregular of intemperate habits.” If the Medical Certificate is to be accepted, at least from the date of his application the official should have been on medical leave or any other kind of leave and he could not have discharged his duty as a Sheristedar for the last two years after issue of said Medical certificate. I am not rejecting the Medical Certificate issued by the Medical Board on the ground that it does not bear date or that it is not genuine. But it cannot be accepted in view of the fact that the official is discharging his duty till today in the normal course and has not availed leave on medical grounds even after issue of said medical certificate. Under these circumstances, I am of the considered opinion, that the official has not made out grounds to permit him to retire on medical grounds and as such his application is liable to be rejected. It is also Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 7/19 necessary to refer that the official has already been permitted to retire from service on 31.10.2014 on attaining the age of superannuation vide District Court order No.72/ADMN/2014 dated 10.06.2014. Accordingly, I proceed to pass the following. ORDER

Application dated 27.09.2012 submitted by Sri Nazeer Ahmed, Sheristedar presently working in the Court of Prl. Senior Civil Judge & C.J.M., Raichur is rejected. Intimate the official accordingly.” 5. Aggrieved by the same, the appellant has approached this Court by way of writ of certiorari in W.P.No.201104/2015, which came to be dismissed by the learned Single Judge by the order under appeal dated 03.12.2015 giving following reasons, which are quoted below: “6. In the light of the contention putforth, what is necessary to be kept in view is that the voluntary retirement that had been sought in the instant case is on medical Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 8/19 grounds and not a statutory voluntary retirement as provided on completing the minimum required service. If that be the position, when voluntary retirement on medical grounds is sought and if such request is accepted certain other benefits to which the employee would be entitled would also be attached to such consideration of the voluntary retirement on medical grounds. Therefore while taking note of these aspects the fact that an employee was medically unfit to discharge the services is also one of the aspects which would be relevant for consideration.

7. It is no doubt true that the Medical Board had concluded that he is not medically fit. The opinion if taken into consideration and if the application was allowed much prior to the age of superannuation, certainly it would have been of some substance. On the other hand as rightly observed by the appointing authority, though medical opinion was furnished that the petitioner was medically unfit, he has continued to discharge Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 9/19 the services till the date he has attained the age of superannuation and when he has retired from service on attaining the age of superannuation, considering to be medically unfit to grant the benefit of voluntary retirement on that basis at that stage would not arise. The application had become redundant on the petitioner retiring in usual course.

8. Therefore, I see no error committed in the order impugned dated 20.10.2014 so as to call for interference. The petition being devoid of merit stands disposed of.” 6. Aggrieved by the same, the present intra- Court appeal has been filed before us.

7. The learned counsel for the appellant Mr.Shivakumar Kalloor urged that the appellant had suffered very serious lung disease namely “Left side Fibrothorax with chronic obstructive lung decease” as per the Medical Board Certificate issued by three Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 10/19 competent Doctors dated 20.09.2012 and his application ought to have been considered and allowed in the year 2012 itself, in terms of Rule 3-A of Karnataka Civil Services (Appointment on Compassionate Grounds), 1996 (for short ‘KCS Rules’).

8. The Rule 3-A of KCSR Rules is quoted below for reference: “3-A. Appointment of dependents of Government servant retired on medical grounds- (1) Without prejudice to the generality of these rules, dependents of the Government servant retired on medical grounds shall be eligible for appointment on compassionate grounds. (2) All conditions of eligibility, conditions of appointment and the procedure of application and appointment except Rule 9 as applicable to dependents of deceased Government Servant under these rules shall mutatis mutandis apply to the dependents of the Government Servant retired on medical Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 11/19 grounds with effect from the date of his retirement on medical grounds: Provided that all eligible dependents of Government servant retired on medical grounds on the date of commencement of the Karnataka Civil Services (Appointment on Compassionate Grounds) (Sixth Amendment) Rules, 2011 may apply within one year from the date of commencement of the said rules. Explanation – For the purpose of these rules- i) “Government servant retired on medical grounds” means a Government servant who on the ground of bodily or mental infirmity is permanently incapacitated while on duty for public service and retired on medical grounds as per the provisions of the Karnataka Civil Services Rules on or after the 1st day of January, 2010, as certified by the Medical Board constituted by the Department of Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 12/19 Health and Family Welfare at District and Taluk level. ii) The words “while on duty” includes his journey to and from his place of residence to the place of work. iii) The words “dependents” and “family members” defined in respect of deceased Government servant shall also be construed as dependents of a Government servant retired on medical grounds. iv) In these rules, wherever the words “widow” or “widower” occurs in respect of deceased Government Servant, it shall be construed as “wife” or “husband” of the Government servant retired on medical grounds”.

9. The learned counsel for the appellant urged that if such application for voluntary retirement on medical grounds had been considered and allowed in the years 2012, when it was filed on 25.07.2012, the dependants of the appellant would have been entitled to Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 13/19 the compassionate appointment in his place in the same Department in terms of Rule 3-A of KCS Rules but, in view of rejection of his application by the learned Principal District and Sessions Judge, Raichur, he had continued to work till he achieved the age of superannuation on 31.10.2014, a few days after the rejection of his application by the learned Principal District and Sessions Judge, Raichur vide order dated 20.10.2014 and thus he and his dependants were deprived of his benefit of Rule 3-A of KCS Rules, 1996. Hence, the learned Single Judge as well as the learned Principal District and Sessions Judge, Raichur have erred in rejecting his case and the present appeal deserves to be allowed.

10. On the other hand, learned Additional Government Advocate for the respondent has supported the impugned orders. Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 14/19 11. We have perused the records and the orders passed by the learned Single Judge as well as learned Principal District and Sessions Judge, Raichur.

12. We are satisfied that no interference in the impugned orders is called for and the present intra- Court appeal deserves to be dismissed for the reasons as follows.

13. The learned Principal District and Sessions Judge, Raichur, in his order dated 20.10.2014, after remand has rightly observed that if the medical condition of the appellant/petitioner was so bad that he could not serve the Department and sought for voluntary retirement on medical grounds on 25.07.2012, he could not have continuously served for two years thereafter upto 31.10.2014 i.e., till attaining the age of superannuation. The learned Principal District and Sessions Judge, Raichur, has rightly found that, if the voluntary retirement was really sought on Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 15/19 medical grounds, atleast for some days or some period, the appellant would have been abstained from actual working for a period of two years but, since he never availed any leave on medical grounds or any other leave, which were permissible to him in his Department, he cannot be retired on medical grounds in terms of Rule 3-A of KCS Rules, 1996.

14. Not believing the credibility of an evidence and findings of facts on the basis of facts happening and arising before the learned Principal District and Sessions Judge himself, cannot be upset by this Court. They are finding of facts binding upon this Court. No perversity can be found in them. Neither the application filed by the appellant seeking voluntary retirement on medical grounds, nor the evidence in the form of Medical Certificate was the Gospel truth to have been taken at its face value at the relevant point of time. In the face of the facts, when the appellant had continued to serve in the respondent – Department, Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 16/19 namely The Court of Civil Judge and CJM, Raichur, where the weight of an evidence is examined by the trained persons day in and day out, the authority at the level of a Principal District and Sessions Judge cannot be believed that he would have given the real facts a go- bye against the evidence in the form of a Medical Certificate. The averments made in the Medical Certificate that the present appellant was examined by the Doctors only as Out-door patient on a single day on 20.09.2012 for his illness in the form of “left side fibrothorax with chronic obstructive lung decease” and would renders him completely and permanently incapacitated for further service of any kind, was falsified by his actual working in the Court as ‘Sheristedar’ till his retirement on 31.10.2014 for more than two years, when he finally achieved the age of superannuation. Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 17/19 15. The benefit under Rule 3-A of KCS Rules giving compassionate employment to the dependant of a Government Servant is available only if he is actually retired on medical grounds and is not available on some assumed retirement as such. The fact is that the appellant has actually served without any leave for a period of more than two years, after the so called Medical Certificate of his illness by the Medical Board on 20.09.2012 and therefore Rule 3-A of KCS Rules quoted above cannot be applied on the assumed acceptance of his application for voluntary retirement on medical grounds.

16. In the absence of any other material evidence to hold that the order passed by the Principal District and Sessions Judge, Raichur is without any foundation or without any basis, the fact of actual working of the appellant, contrary to the stipulations made in the medical certificate itself belies the said Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 18/19 Medical Certificate. We cannot shut our eyes to the facts as against the Medical Certificate on the basis of maxim of res ipsa loquitor. When the facts speak themselves, the evidence in the form of Medical Certificate, even though a documentary evidence, cannot supersede the real facts obtaining before the respondent – Department, on the basis of which returning the correct finding of facts, the impugned order was passed by the learned Principal District and Sessions Judge, Raichur.

17. For the aforesaid reasons, we cannot find any singular error in the reasons assigned by the learned Single Judge in the order under appeal before us confirming the order passed by the learned Principal District and Sessions Judge, Raichur. Thus, we are of the clear opinion that the learned Single Judge as well as the learned Principal District and Sessions Judge, Raichur, have not erred in passing the impugned orders. Date of order:08.09.2016 WA20005/2016 Nazeer Ahmed Vs The Principal District & Sessions Judge, Raichur 19/19 Accordingly, the present writ appeal is dismissed, as being devoid of merits. No order as to costs. Sd/- JUDGE JUDGE Sd/- Srt


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