A. Shaji v. Government of Kerala and Others (W.A. No. 2151 of 2009)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 WA.No. 2151 of 2009() --------------------AGAINST THE JUDGEMENT/ORDER IN WPC.28602/2008 .................... ## APPELLANT/PETITIONER --------------------------------- A.SHAJI, UPPER DIVISION CLERK(WARDEN), PREMATRIC HOSTEL FOR BOYS, ADIMALI, IDUKKI DISTRICT. BY ADV. SRI.M.V.THAMBAN ## RESPONDENTS/RESPONDENTS -------------------------------------- 1. PRINCIPAL SECRETARY TO THE GOVERNMENT, DEPARTMENT OF SCHEDULE CASTE/SCHEDULE TRIBE, DEVELOPMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, SCHEDULE TRIBES DEVELOPMENT DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. G.ANIL KUMAR, AGED 37 YEARS, S/O.LATE GOPALAN NAIR, TRIBAL EXTENSION OFFICER, TRIBAL DEVELOPMENT OFFICE, MOOVATTUPUZHA. 4. K.R.JOLLY, AGED 46 YEARS, S/O.RAPHEL, TRIBAL EXTENSION OFFICER, TRIBAL DEVELOPMENT OFFICE, PANAMARAM, WAYANAD. BY SR. GOVT. PLEADER SRI. BENNY GERVASIS ADV. SMT.MARIAMMA JOSEPH FOR R3 & 4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMAN & P.N.RAVINDRAN, JJ.** ## **--------------------------W.A. No. 2151 OF 2009** **-------------------------Dated this the 30[th] day of March, 2010** ## **J U D G M E N T** ## _Ravindran,J._ The appellant is the petitioner in W.P.(C) No. 28602 of 2008. By judgment delivered on 19.8.2009, the learned single Judge dismissed the writ petition. The brief facts of the case are as follows: 2. The appellant entered service as Lower Division Clerk in the Scheduled Tribe Development Department on 4.10.1990. His probation in the category of Lower Division Clerk was declared satisfactorily completed with effect from 30.10.1992. Thereafter, he applied for inter-departmental transfer to the Revenue Department on 29.3.1996. That request was granted. He was thereupon relieved from Tribal Development Office, Kasaragod, as per order dated 27.3.1996 and he joined duty in the Taluk Office, Kollam under the Revenue Department on 29.3.1996. Years later, he moved the Government seeking repatriation to his parent department namely the Scheduled Tribe Development Department. By Ext.P1 order dated 3.1.2005, the Government granted the said W.A. No.2151/09 2 request apparently exercising the power under Rule 8 of Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as the KS&SSR for short). Pursuant thereto, the appellant joined duty in the Scheduled Tribe Development Department on 12.7.2005. Later, by Ext.P6 order dated 10.2.2006, the appellant was promoted as Upper Division Clerk with effect from 5.4.1995 in the scale of pay of Rs.4000-6090. That order was thereafter cancelled by the Government after hearing the appellant by Ext.P8 order dated 1.9.2008. In that order the Government inter alia directed as follows; “10. Government after being satisfied that the incumbent is not eligible for re-appointment by invoking the provisions of Rule 8, KS&SSR, 1958, order that the G.O. read as 3[rd] paper above stands modified to the extent that: i) The transfer of Sri. A.Shaji back to Scheduled Tribe Development Department would be deemed to have been done in pursuance of the conditions stipulated vide G.O. read as 1[st] paper above. ii) The incumbent shall be treated as the juniormost in the category to which he was appointed (from the date of his reappointment) upon his reversion to the Scheduled Tribes Development Department and iii) Government also order that the retrospective benefits of promotion, increment etc. awarded to the incumbent shall stand W.A. No.2151/09 3 ## cancelled. 11. The Director Scheduled Tribe Development Department shall take immediate steps to reassign his seniority in the cadre to which he was given reappointment, and the additional monetary benefits paid to him, consequential to the G.O. read as 3[rd] paper above, shall be recovered from the incumbent, forthwith. The proceedings issued by the Director Scheduled Tribe Development Department, read as 8[th] paper above, granting retrospective effect of promotion to the incumbent sands cancelled.” 3. Aggrieved thereby, the appellant filed W.P.(C) No.28602 of 2008 in this Court challenging Ext.P8 order and seeking the following reliefs: i) To issue a writ of certiorari or any other writ, or order or direction calling for the records leading to Ext.P8 and quash the same. ii) directing the respondents 1 & 2 to implement Ext.P1 and extend the benefit of Rule of KS&SSR by assigning due seniority to the petitioner in the gradation list of UDC, assigning rank No. to him above his immediate junior and to give promotions to higher grades such as Head Clerk, of Junior Supdt. w.e.f. the dates his immediate junior was promoted, with all consequential benefits. ## iii) to issue declaration as follows: a) that the cancellation of promotion ordered in Ext.P8 in respect of the petitioner is illegal arbitrary and discriminatory and that the recovery of the W.A. No.2151/09 4 monetary benefits drawn by the petitioner consequent upon by the promotion granted under Ext.P6 cannot be recovered from the petitioner: b) petitioner is entitled to be included in the gradation list of Upper Division Clerks just above his immediate junior and has a right to get higher promotions accordingly, to the grade of Head Clerk Junior Superintendent, Senior Superintendent etc., c) that the Government order Ext.P9 has no application in the dispute involved in this case where in the question is in relation to reparation to parent department where his lien has not been cut off and he has not been conformed in the transferred department. iv) To issue a writ of mandamus or any other writ, or order or direction directing th respondents 1 and 2 to implement Ext.P1 and extend the benefit of Rule 8 of KS&SSR and grant promotion to the grade of Head Clerk, Junior Superintendent and Senior Superintendent on the basis of his original seniority in the parent department on the basis of his advise by the PSC and from the dates his immediate junior was promoted with all consequential benefits including arrears of salary and also to direct the respondents not to disturb his present seniority in the grade of UDC as assigned in Ext.P6. 4. Then the appellant contended that he was entitled to be repatriated to the parent department retaining his seniority under Rule 8 of the KS&SSR and therefore Ext.P8 order is liable to be invalidated. The respondents resisted the writ petition. They W.A. No.2151/09 5 contended inter alia that under the 4[th] proviso to Rule 8 of the KS&SSR, the appellant is not entitled to restoration of rank and seniority in the parent department. It was contended that the appellant had gone over to the Revenue Department as Lower Division Clerk at his own request and not in the exigencies of public service and the same was the situation when he applied for and got a transfer back to his parent department. It was contended that Ext.P1 order was mistakenly passed and that said mistake was rectified when the Government issued Ext.P8 order. The learned single Judge who considered the rival contentions held that appellant's case is not covered by Rule 8 of the KS&SSR Reliance was placed on the Full Bench decision of this Court in **Balakrishnan Nair v. Ram Mohan Nair (** 1998 (1) KLT 766 **).** The writ petition was accordingly dismissed. Hence this writ appeal. 5. We heard Sri. M.V.Thamban, the learned counsel appearing for the appellant, Sri. Benny Gervasis, the learned Senior Government Pleader appearing for the official respondents and Smt. Mariamma Joseph, the learned counsel appearing for respondents 3 and 4. It is not in dispute that the appellant applied for inter- W.A. No.2151/09 6 departmental transfer to the Revenue Department voluntarily. His transfer to the Revenue Department was not pursuant to a notification issued by the Government of Kerala or the Kerala Public Service Commission, inviting applications for appointment by transfer to the Revenue Department. He admittedly went over to the Revenue Department as Lower Division Clerk at his own request. Applying the terms of the relevant Government order, he took his rank and seniority as the juniormost in the said post in the Revenue Department. While continuing as Lower Division Clerk in the Revenue Department, he sought repatriation to the parent department contending that there was no scope for promotion in the Revenue Department. That request was granted and the appellant was repatriated to the parent department. The appellant's repatriation to the parent department was also based on his request. 6. On the admitted facts, we are in agreement with the learned single Judge that under the 4[th] proviso to Rule 8 of the KS&SSR, the appellant who was absent from duty in the Scheduled Tribe Development Department due to his joining the Revenue Department solely on his own application and not in the exigencies of W.A. No.2151/09 7 public service, was not eligible to the benefits flowing from Rule 8 of the KS&SSR on his rejoining duty in the Scheduled Tribe Development Department. Though the Government had in Ext.P1 order, while granting his request for repatriation, conceded him the right under Rule 8 of the KS&SSR, on noticing the mistake, it was rectified when Ext.P8 order was passed. It is settled law that public authorities have the inherent power to rectify mistakes. [See the decision in **V.V. Prakasini v. K.P.S.C. and Others** (1993 (1) KLJ 632)]. In the instant case, the mistake was corrected within a period of three years from the date on which the appellant was repatriated to the parent department. Therefore, it cannot also be said that there was inordinate delay in exercising the power to rectify the mistake. If the claim of the appellant is conceded, it will have the effect of amending the provisions of Rule 8 of the KS&SSR, which the Government did not intend to do while passing Ext.P8. We therefore find no merit in the contentions raised by the appellant. 7. In Ext.P8, the Government had inter alia directed cancellation of the retrospective promotion and other service benefits given to the appellant. The Government also directed that additional W.A. No.2151/09 8 monetary benefits paid to the appellant pursuant to Ext.P1 Government order will also be recovered from him. As noticed earlier, the appellant rejoined duty in the parent department pursuant to Ext.P1 order on 12.7.2005. He sought repatriation to the parent department for the reason that there was no scope for promotion in the Revenue Department where he was working as Lower Division Clerk. After the appellant rejoined duty, he was promoted by Ext.P6 order dated 10.2.2006 as Upper Division Clerk with retrospective effect from 5.4.1995. As on 5.4.1995, the appellant was working in the Scheduled Tribe Development Department. The appellant has no case that as on 5.4.1995 he was entitled to be promoted as Upper Division Clerk in the Scheduled Tribe Development Department. In fact, he applied for inter departmental transfer to the Revenue Department aggrieved by lack of promotion avenues in the Scheduled Tribe Development Department. His request for inter departmental transfer was granted on 29.3.1996. Therefore, the order promoting the appellant as Upper Division Clerk in the Scheduled Tribe Development Department with effect from 5.4.1995 is evidently a mistake. However, we are of the opinion that the W.A. No.2151/09 9 direction to recover the salary and other benefits received by the appellant during the period he had worked as Upper Division Clerk pursuant to Ext.P6 order namely from 10.2.2006 till 22.9.2008 the date on which Ext.P11 order was passed reverting him to the post of Lower Division Clerk cannot be sustained. The appellant was promoted as Upper Division Clerk nearly one year after he rejoined duty in the parent department by Ext.P6 order passed by the Director of the Scheduled Tribe Development Department in implementation of Ext.P1. He started discharging duties in the higher post and had actually worked as Upper Division Clerk pursuant to Ext.P6. In such circumstances, we are of the opinion that as the appellant had worked as Upper Division Clerk on the strength of Ext.P6 order of promotion till he was reverted by Ext.P8 order, it will be unjust to recover the monetary benefits paid to him during the said period. We are therefore of the opinion that the direction issued by the Government in Ext.P8 to recover the benefits paid to the appellant during the period from 10.2.2006 to 22.9.2008 cannot be sustained. For the reasons stated above, we allow the writ appeal in part, modify the judgment of the learned single Judge and quash W.A. No.2151/09 10 Ext.P8 to the extent it directs recovery of the monetary benefits paid to the appellant pursuant to Ext.P6 order from the date of Ext.P6 till 22.9.2008 when he was reverted as Lower Division Clerk. In all other respects, the writ petition shall stand dismissed. **P.R.RAMAN, (JUDGE ) P.N.RAVINDRAN, (JUDGE)** vps W.A. No.2151/09 11