A. Seetharama Poduval v. The Secretary, Kerala Khadi and Village Industries Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933** **WP(C).No. 5006 of 2007(U)** **--------------------------------------** **PETITIONER(S):** **------------------------** **A. SEETHARAMA PODUVAL, RETIRED DEPUTY DIRECTOR, KERALA KHADI AND VILLAGE INDUSTRIES BOARD, 'SREESADMAM', MAHADEVAGRAMAM, PAYYANNUR, KANNUR DISTRICT.** **BY ADV. SRI.V.N.RAMESAN NAMBISAN** **RESPONDENT(S):** **--------------------------** **THE SECRETARY, KERALA KHADI AND VILLAGE INDUSTRIES BOARD, THIRUVANANTHAPURAM.** **BY ADV. MR.K.P. HARISH, SC.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **WP(C).No. 5006 of 2007(U)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE JUDGMENT DATED 15/01/1991 IN WP(C) NO. 2487/1986.** **EXT.P2: COPY OF THE PROCEEDINGS OF THE RESPONDENT DATED 20/06/19991.** **EXT.P3: COPY OF THE MEMORANDUM OF APPEAL REFERRED BY THE PETITIONER DATED 20/07/1992.** **EXT.P4: COPY OF THE PROCEEDINGS DATED 07/08/1998.** **EXT.P5: COPY OF THE PETITION DATED 19/09/1998.** **EXT.P6: COPY OF THE MEMO DATED 16/11/1998.** **EXT.P7: COPY OF THE PROCEEDINGS ALONG WITH THE FIXATION STATEMENT DATED 31/07/1999.** **EXT.P8: COPY OF THE JUDGMENT DATED 02/01/2006 OF THE HONOURABLE COURT IN O.P. NO. 8824/2000.** **EXT.P9: COPY OF THE ORDER NO.KB.04014/06/E1(A) DATED 01/08/2006 OF THE RESPONDENT.** **EXT.P10: COPY OF THE REGISTERED LAWYER NOTICE DATED 07/06/2006 ISSUED TO THE RESPONDENT.** **EXT.P11: COPY OF THE ORDER NO.KB 4014/2006/E1A/L DATED 31/10/2006 OF THE RESPONDENT.** **EXT.P12: COPY OF THE LETTER DATED 30/09/1996 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY OF THE BOARD.** **EXT.P13: COPY OF THE LETTER DATED 13/12/1996 SUBMITTED BY THE PETITIONER BEFORE THE VICE CHAIRMAN OF THE BOARD.** **EXT.P14: COPY OF THE LETTER DATED 01/12/1997 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY OF THE BOARD.** ## **RESPONDENT'S EXHIBITS: NIL.** **//TRUE COPY//** ## **P.A. TO JUDGE** **rs** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.5006 OF 2007 ---------------------------------------------Dated this the 18[th] day of July, 2011 ## **JUDGMENT** The petitioner is a retired employee of the Kerala Khadi and Village Industries Board, the respondent herein. When his juniors were promoted earlier to the petitioner, the petitioner and another similarly placed employee approached this Court by filing O.P.No.2487/1986. In that writ petition, by Ext.P1 judgment, it was declared that since the juniors were promoted with effect from 5.2.1981, the petitioner and the other employee are entitled to promotion with effect from that date. Pursuant to that judgment, by Ext.P2 order, the petitioner was given notional promotions with effect from 5.2.1982 after his retirement. Of course, the petitioner challenged the same by filing Ext.P3 appeal. But, the petitioner did not pursue the same properly and as on today, Ext.P2 order, whereby the petitioner was given promotion with effect from 5.2.1982 has become final. The petitioner agitated his claim for monetary benefits of the promotions with effect from 5.2.1982 and subsequently by W.P.(C)No.5006/07 2 Ext.P4, that was denied to him on the ground that the petitioner had not performed the duties in the promotion post and therefore, he is entitled to only notional fixation and retirement benefits based on such fixation. That was reiterated in Ext.P6. The petitioner again took up the matter in O.P.No.8824/2000 challenging Exts.P4 and P6. In that, the respondent did not file any counter affidavit. Therefore this Court directed reconsideration of the issue. Pursuant to the same, Ext.P9 order has been passed holding that the petitioner is entitled to only notional fixation and no monetary benefits since the petitioner did not perform the duties of the promotion post and the persons who were reverted to promote the petitioner had drawn pay and allowances in the said post which have not been recovered from them. The respondent has reiterated the same in Ext.P11 reply to the advocate of the petitioner. The petitioner is challenging the same seeking the following reliefs: “i) to issue a writ of certiorari any other appropriate writ quashing Exhibits P9 and P11; ii) To issue a writ of mandamus any other appropriate writ commanding the respondent to disburse monetary benefits from the retrospective dates of promotion to the petitioner; iii) to declare that the petitioner is entitled for monetary benefits from the dates of notional promotion ordered as per Exhibit P4; 3 W.P.(C)No.5006/07 iv) to direct the respondent to refix the pension and family pension and pass orders accordingly”. 2. The respondent would contend that the petitioner is entitled to only notional fixation of pay insofar as the petitioner was given his retrospective promotions only after retirement and the petitioner did not function in the posts to which he was given notional promotion. It is submitted that it is on account of a review of the seniority and promotions as ordered by the Supreme Court and this Court that the petitioner happened to be promoted with retrospective effect. For such promotions, insofar as the petitioner did not perform the duties and functions of the promoted posts, he is not entitled to the monetary benefits attached to the promotion posts, is the contention raised. 3. In answer to the same, the petitioner relies on a Division Bench decision of this Court in _**State of Kerala**_ v. _**Bhaskaran Pillai**_ [2003 (1) KLT 60], wherein, after considering all the previous decisions on the subject, the Division Bench has held that the normal rule must be that where there is no fault on the part of the officer concerned, he must be paid the monetary benefits due to him consequent to the retrospective promotion unless there are valid reasons to 4 W.P.(C)No.5006/07 deny the same. 4. I have considered the rival contentions in detail. By issuing Ext.P2, the respondent himself admitted the fact that the petitioner was entitled to promotion retrospectively with effect from 5.2.1982. That has become final. The reason put forward by the respondent to deny the monetary benefits arising from such retrospective promotion is only that the petitioner did not perform the duties and functions attached to the promotion posts, which were held by others, who have been paid salary in those posts for performing the functions and duties which has not been recovered from them. As rightly pointed out by the learned counsel for the petitioner, in Bhaskaran Pillai's case (supra), this Court has held that the normal rule must be that where there is no fault on the part of the officer concerned, he must be paid monetary benefits due to him consequent to the retrospective promotion although in appropriate cases, it could be denied to him for valid reasons. Here, the fact that the respondent himself accepted the fact that the petitioner was actually entitled to promotion with effect from 5.2.1982 shows that he was denied such promotion for no fault of his. After having denied him promotion for no W.P.(C)No.5006/07 5 fault of his, the respondent cannot take the stand that since the petitioner had not performing the duties and functions attached to those posts, he is not eligible for monetary benefits arising from the retrospective promotion. In fact, another Division Bench of this Court in _**L.I.C. of India**_ v. _**John**_ [2008(1)KLT SN 47 (C.No.48)] has again held that the entitlement for arrears of wages based on deemed promotion can be denied only when there are valid reasons to do so. The reason now put forward by the respondent does not appear to be a valid reason at all. The petitioner was entitled to promotion with effect from 5.2.1982 which is admitted by the respondent by issuing Ext.P2. From the same, it is clear that the petitioner was illegally denied such promotion with effect from 5.2.1982. The respondent cannot take advantage of a mistake committed by him in not promoting the petitioner from the relevant dates, on the ground that the petitioner did not performing the duties and functions attached to the promotion post. Therefore, relying on the Division Bench decisions of this Court, I hold that insofar as there are no valid reasons to deny the monetary benefits arising from the retrospective promotions of the petitioner with effect from W.P.(C)No.5006/07 6 5.2.1982, he is eligible for monetary benefits arising from such promotions also. Accordingly, Exts.P9 and P11 orders denying the petitioner monetary benefits arising from the retrospective promotions with effect from 5.2.1982 are quashed. The respondent is directed to give monetary benefits arising from such promotion to the petitioner. Orders in this regard shall be passed and arrears disbursed to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.5006/07 7 W.P.(C)No.5006/07 8