C.R.MOHANAN v. Travancore Devaswom Board and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 6TH DAY OF NOVEMBER 2013/15TH KARTHIKA, 1935 WP(C).No. 17008 of 2011 (A) ---------------------------- PETITIONER: ----------- C.R.MOHANAN, FLAT NO.8, SUVRAG APARTMENTS, CHAMBAKKARA POONITHURA, KOCHI. BY ADVS.SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENTS: - ----------- 1. THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE THIRUVANANTHAPURAM. 2. THE SECRETARY, THE TRAVANCORE DEVASWOM BOARD, NANTHANCODE THIRUVANANTHAPURAM. 3. THE DEVASWOM COMMISSIONER, THE TRAVANCORE DEVASWOM BOARD, NANTHANCODE THIRUVANANTHAPURAM. 4. THE ACCOUNTANT GENERAL (A&E), O/O.THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. - R1-R4 BY ADV. SRI.A.N.RAJAN BABU, SC, TRAVANCORE DEVASWOM BOARD BY SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX TO W.P.C.NO.17008 OF 2011** ## **PETITIONER'S EXHIBITS:** |EXT.P1:|TRUE PHOTOCOPY OF THE REPRESENTATION DATED 02.08.2004.|TRUE PHOTOCOPY OF THE REPRESENTATION DATED 02.08.2004.| |---|---|---| |EXT.P1(a):|TRUE COPY OF THE REPRESENTATION DATED 27/09/2005.|| |EXT.P2:|TRUE PHOTOCOPY OF THE REPORT OF THE 3RD RESPONDENT.|| |EXT.P3:|TRUE PHOTOCOPY OF THE REMARKS OF THE FINANCE AND ACCOUNTS|| ||OFFICER DATED 20/4/2006.|| |EXT.P3(a):|TRUE PHOTOCOPY OF THE REMARKS OF THE LAW OFFICER|DATED| ||19/5/2006.|| |EXT.P4:|TRUE PHOTOCOPY OF THE NOTE.|| |EXT.P5:|TRUE PHOTOCOPY OF THE JUDGMENT DATED 24/01/2007 IN|| ||W.P.C.NO.2510/2007.|| |EXT.P6:|TRUE<br>PHOTOCOPY<br>OF<br>THE<br>COMMUNICATION|DATED| ||49498/DEV.2/07/RD DATED 09/08/2007.|| |EXT.P7:|TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT|| ||BEARING ROC NO.5849/04/EST.I DATED 10/09/2007.|| |EXT.P8:|TRUE PHOTOCOPY OF THE PROCEEDINGS BEARING|ROC| ||NO.5849/04/EST.I DATED 24/09/2007.|| |EXT.P9:|TRUE PHOTOCOPY OF THE REPRESENTATION DATED 27/11/2007.|| |EXT.P9(a):|TRUE PHOTOCOPUY OF THE COVERING LETTER DATED 30/11/2007.|| |EXT.P10:|TRUE PHOTOCOPY OF THE ORDER DATED 16/02/2008.|| |EXT.P11:|TRUE PHOTOCOPY OF THE REPRESENTATION DATED 20/11/2008.|| |EXT.P12:|TRUE PHOTOCOPY OF THE APPLICATION DATED 23/02/2009.|| |EXT.P13:|TRUE PHOTOCOPY OF THE REPLY DATED 09/10/2009.|| |EXT.P14:|TRUE PHOTOCOPY OF THE JUDGMENT DATED 29/11/2010 IN|| ||W.P.C.NO.35430/2010.|| |EXT.P15:|TRUE PHOTOCOPY OF THE ARGUMENT NOTES DATED 17/01/2011.|| |EXT.P16:|TRUE PHOTOCOPY OF THE ORDER BEARING|NO.ROC| ||NO.5849/04/EST. DATED 22/2/2011.|| |EXT.P17:|TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF ORDER BEARING|| ||ROC NO.4000/06/EST.1 DATED 17/05/2006.|| ## **RESPONDENT'S EXHIBITS:** NIL //TRUE COPY// PA TO JUDGE // True Copy// PA to Judge ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.17008 of 2011 ---------------------------------------- Dated this the 6[th] day of November 2013 ## **J U D G M E N T** The writ petition is filed challenging Ext.P16 proceedings of the Travancore Devaswom Board, the 1[st] respondent herein, denying certain monetary benefits to the petitioner. 2. Ext.P16 order came to be passed as per the direction issued by this court in W.P.C.No.25430 of 2010. This Court directed the first respondent to consider and pass order on a representation submitted by the petitioner within a specified period. 3. The admitted facts with reference to the above case is as under: (i) Petitioner entered the service of first respondent as Lower Division Clerk on 12/07/1973. He sought Leave without Allowance (LWA) for a period of five years from W.P.C.No.17008/2011 2 01/01/1980 for taking employment abroad, which was allowed by the first respondent. The Government Order dated 29/04/1970 was applicable during the relevant time, as per which, a person who is granted LWA will not loose his seniority during the period of such leave. (ii) He was promoted as Upper Division Clerk on 05/04/1980 and as Head Clerk on 01/07/1983. He rejoined duty on 01/01/1985 in the post of Head Clerk and again availed leave from 19/01/1985 for another spell of five years. He rejoined duty as Head clerk on 04/12/1989. (iii) In the meantime, Appendix XII A of Kerala Service Rules (for short 'KSR'), which is applicable to the employees of the first respondent was amended with reference to the grant of LWA as per Government Order dated 27/12/1986 with retrospective effect from 16/12/1983. As per the said Government Order, those persons who were granted LWA after 16/12/1983 shall loose all service benefits and promotion chances as may arise with reference to the W.P.C.No.17008/2011 3 seniority in the posts from which they proceeded on leave. (iv) Later a note was added to Rule 10 of KSR as per Government Order dated 16/12/1992 inter alia stating that those persons who proceeded on leave for taking up employment abroad before the commencement of the amended rules after obtaining permission will continue to be governed by the unamended rules even if the period of leave extends beyond 16/12/1983. (v) The petitioner was promoted as Junior Superintendent (JS) on 27/03/1990 and thereafter as Assistant Devaswom Commissioner on 07/05/1993. (vi) According to the petitioner he was entitled to be promoted as JS on the basis of Government Order dated 16/12/1992, much before 27/03/1990 as in between his juniors were promoted as JS. Vacancies had arisen to the post of JS between 01/07/1983 and 01/01/1985. (vii) The petitioner submitted a representation to the first respondent on 02/08/2004 as Ext.P1, to restore his W.P.C.No.17008/2011 4 seniority and give him due promotions and consequential benefits. A further representation was submitted on 27/09/2005 as Ext.P1(a). Ext.P2 is a report dated 03/03/2006 of the third respondent wherein it was recommended to promote the petitioner as JS with effect from 01/08/1984 and as Assistant Devaswom Commissioner with effect from 02/02/1990 and as Deputy Devaswom Commissioner with effect from 31/10/2004, subject to the opinion of Finance & Accounts Officer and Law Officer. Exts.P3 and P3(a) are the remarks of the Finance & Accounts Officer and the Law Officer. (viii) Since no orders were passed by the first respondent petitioner filed W.P.C.No.2501 of 2007. The writ petition was disposed of by judgment dated 24/01/2007 directing the first respondent to pass orders within a time frame. According to the petitioner the first respondent unnecessarily referred the matter to the Government. The Government also opined that promotions are to be given as W.P.C.No.17008/2011 5 already reported. Accordingly the first respondent by proceedings dated 24/09/2007 promoted the petitioner to the post of Deputy Devaswom Commissioner with retrospective effect from 31/10/2004 with monetary benefits from the date of assumption of charge. Ext.P8 is the said order. Petitioner submitted Ext.P9 representation dated 27/11/2007 claiming the grade promotion which was due to him on completion of three years in the post of Deputy Devaswom Commissioner to which he was promoted with effect from 31/10/2004. Petitioner retired from service on 31/11/2007. (ix) Further representation was submitted on 20/11/2008 as per Ext.P11. Since there was no reply, petitioner filed W.P.C.No.35430 of 2010 and by judgment dated 29/11/2010 this Court directed the first respondent to consider and pass appropriate orders in the matter. Petitioner was therefore heard and Ext.P16 order came to be passed. W.P.C.No.17008/2011 6 4. The main contention urged by the petitioner is that the promotion due to him had been wrongly denied in time and therefore he was entitled for all the monetary benefits. Hence, while challenging Ext.P16, the petitioner inter alia seeks for a direction to grant him grade promotion in the cadre of Deputy Devaswom Commissioner with effect from 01/07/2007, the date on which his junior was given grade promotion and also to disburse the monetary benefits flowing out of such grade promotion and also to revise the pensionary benefits due to him. 5. Affidavit is filed by the second respondent admitting the promotion granted to the petitioner retrospectively, but contending that such promotions were granted on condition that he is not entitled to get any monetary benefits and the same will be available only from the date of actual assumption of duty. Petitioner retired from service on 30/11/2007 as Deputy Devaswom Commissioner and since he had not acted in that post from W.P.C.No.17008/2011 7 31/10/2004 he is not entitled to get grade promotion in the said cadre and his entitlement to get monetary benefits arises only from 26/09/2007. Hence the respondent sought for rejecting the claim of the petitioner. 6. The learned counsel for petitioner relied upon the following judgments. - (i) **Rajappan Nair v. State of Kerala and others** - _(1984 KLT 141)_ - (ii) **State of Kerala v. Bhaskaran Pillai** _[2003(1) KLT_ - _60]_ (iii) **State of Kerala v. E.K.Bhaskaran Pillai** [ _(2007) 6 SCC 524]_ (iv) **LIC of India v.John** (2008(1)KLT SN47 (C.No.48) **Rajappan Nair** (supra) is a Division Bench judgment of this Court wherein it is held that if a Government servant does not get his due promotion on the date he ought to have got it and later it is given with retrospective effect from an earlier date, for no fault of his, he is entitled to restoration of W.P.C.No.17008/2011 8 the benefits which he has lost and which is not on account of his conduct or laches. In **Bhaskaran Pillai** (supra) another Division Bench of this Court had occasion to analyse the case law on this point and held as under: _“20. The observations in the two decisions of the Supreme Court referred above do convey that it may not be possible any longer to assume that the normal rule when retrospective notional promotions are granted is that the claimant is not entitled to monetary benefits. Such a rigid statement of the law does not appear to be possible now. Of course the principle of no work no pay must be borne in mind. But if the officer concerned was willing to work and he was denied opportunity to work in such promoted post for no fault of his, that principle should definitely not operate to his prejudice._ _21. The three classes of cases referred to in Philomina are:-_ _i. When such promotee is kept out of work or denied or deprived of his rightful place by an illegal order which, upon the declaration or_ W.P.C.No.17008/2011 9 _admission of its illegality becomes wholly destitute of legal efficacy._ _ii. Where the authority has acted malevolently and without bona fides such as where the authority is shown to have deliberately and wilfully denied the officer his due promotion or other benefits with intent to injure him._ _iii. Where the authority has in disobedience of a direction of a competent court, denied the officer what has been held to be his due._ _If the case on hand falls under any of the above three categories there could be no deprivation and all monetary benefits will have to be restored to such a promotee. Of course if such person is guilty_ _of any contumacious conduct, behaviour, negligence or want of due diligence in the prosecution of his own cause, he cannot be permitted to claim such monetary benefits and encumber the coffers of the State unnecessarily by claiming such monetary benefits._ _22. In short 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_ W.P.C.No.17008/2011 10 _promotion. In appropriate cases it could be denied to him for valid reasons. In the three categories of cases enumerated in Philomina such benefits cannot be denied to him. The dictum in Philomina cannot be held to be valid any more in view of the decisions of the Supreme Court referred above to the extent that it stipulates a rule of general application that no Government servant is entitled to be paid for work which he has not done. This conclusion appears to be inevitable in view of the subsequent declaration of law by the Supreme Court in the decisions referred above."_ This Division Bench judgment is upheld by the Supreme Court in **State of Kerala v. E.K.Bhaskaran Pillai** [ _(2007) 6 SCC 524]_ . In **John's** case (supra) another Division Bench of this Court held as under: _“18. In the light of the above decisions, the entitlement for arrears of wages based on deemed promotion can be denied only when there are valid reasons to do so, since the normal rule would be to grant him such emoluments when promotion was denied at the first instance for no fault of the_ W.P.C.No.17008/2011 11 _employee; but was granted later with retrospective effect. Whether or not valid reasons exist for denial of such emoluments is therefore a matter which at the first instance should be considered by the authority after hearing the petitioner as well. We are therefore direct that the question regarding entitlement for bock arrears will be considered by the second respondent after affording an opportunity of being heard to the petitioner and pass appropriate orders.”_ 7. Having regard to the factual situation arising in the above case and also the judgments relied upon, the short question to be considered is whether the petitioner is entitled for grade promotion after three years from the date on which he was retrospectively promoted as Deputy Devaswom Commissioner i.e with effect from 31/10/2004. Petitioner relies upon Ext.P10 order by which his junior was given grade promotion on 01/07/2007 and therefore petitioner also claims grade promotion in the cadre of Deputy Devaswom Commissioner from 01/07/2007. W.P.C.No.17008/2011 12 8. It is not in dispute that there was some confusion in regard to the promotion of the petitioner when the 1986 Government Order came into effect from 16/12/1983. The confusion was regarding the eligibility of the petitioner to be promoted as JS. But, by way of incorporation of a note to Rule 10 of Appendix XII of KSR, as per Government order dated 16/12/1992 the petitioner became eligible to be promoted as JS. 9. But, in between, several of his juniors got promoted and he could avail of the benefit of the subsequent amendment only after he rejoined service. He was promoted as JS on 27/03/1990 and thereafter as Assistant Devaswom Commissioner on 07/05/1993. However, the petitioner kept quiet for a substantially long period and he claimed restoration of seniority only by Ext.P1 representation dated 02/08/2004. It is, pursuant to the said representation that an enquiry was conducted and it was opined that the petitioner ought to have been promoted to W.P.C.No.17008/2011 13 the post of JS and Assistant Devaswom Commissioner on 01/08/1984 and 02/02/1990 respectively, whereas he was actually promoted as JS only on 27/03/1990 and thereafter as Assistant Devaswom Commissioner on 07/05/1993. However, since no order was passed with reference to Ext.P1 representation, petitioner filed W.P.C.No.2510 of 2007 for a direction to the first respondent to pass final orders. The said writ petition was disposed on 24/01/2007 and thereafter orders were passed promoting the petitioner to the cadre of Deputy Devaswom Commissioner with retrospective effect from 31/10/2004 with monetary benefits from the date of assuming charge, as per Ext.P8. Therefore it could be seen that though a representation was submitted by the petitioner as per Ext.P1 on 02/08/2004, the petitioner approached this Court only in 2007 and that too for disposal of his representation. On a perusal of the reports at Ext.P2, it is seen that the petitioner was entitled for promotion as JS with effect from 14/02/1985. But one cannot find fault with W.P.C.No.17008/2011 14 the first respondent for not promoting the petitioner at the relevant time as JS since the Note to Rule 10 of Appendix XII to KSR had come into effect only on 16/12/1992. Hence the entire promotion in the Department had to be reworked and it was reported that the petitioner was entitled to the post of Deputy Devaswom Commissioner with effect from 31/10/2004. This report is dated 03/03/2006. The remarks of Finance & Accounts Officer is dated 20/04/2006 and that of the Law Officer is dated 19/05/2006. Further note is prepared by the first respondent as Ext.P4 on 23/01/2007. Therefore it could be seen that the entire matter got delayed only on account of the laches on the part of the petitioner in not taking up his issue for promotion in time. Even according to the petitioner he was promoted as JS only on 27/03/1990 and thereafter as Assistant Devaswom Commissioner on 07/05/1993. He accepted this position until a representation was submitted on 02/08/2004. If the petitioner was vigilant enough, he could have taken up the issue regarding his due W.P.C.No.17008/2011 15 promotion in time especially after the Government order dated 16/12/1992 came into effect. In fact, it is based on the aforesaid Government order that the entitlement of the petitioner to be treated as JS had arisen with effect from 14/02/1985 and thereafter as Assistant Devaswom Commissioner with effect from 02/02/1990. 10. Under these circumstances, the question is whether the petitioner is entitled for grade promotion after being promoted to the post of Deputy Devaswom Commissioner with effect from 31/10/2004. 11. The principle of 'no work no pay', may not apply under certain circumstances. The position of law is well settled. If a Government servant does not get his due promotion for no fault of his, on the date he ought to have got it and later it is given with retrospective effect from an earlier date, he is normally entitled to restoration of the benefits which he has lost. But such loss should not be on account of his conduct or laches. In **Bhaskaran Pillai** W.P.C.No.17008/2011 16 (supra) this Court held that if the officer concerned was willing to work and he was denied opportunity to work in such promoted post for no fault of his, the principle of 'no work no pay' should not operate to his prejudice. It is further held that the normal rule must be, 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. In appropriate cases it could be denied to him for valid reasons. In **John's** case (supra) also this Court held that the entitlement for arrears of wages based on deemed promotion can be denied only when there are valid reasons to do so, since the normal rule would be to grant him such emoluments when promotion was denied at the first instance for no fault of the employee; but was granted later with retrospective effect. It is further held that _“Whether or not valid reasons exist for denial of such emoluments is therefore a matter which at the first instance should be considered by the authority after hearing the_ W.P.C.No.17008/2011 17 _petitioner as well.”_ 12. Therefore it has to be verified whether the delay in providing the due promotion to the petitioner was due to his own fault. As already stated there was some confusion in regard to the entitlement of the petitoner for promotion on account of the change in law. In between, his juniors were promoted. But the petitioner kept quiet until 2004, to seek restoration of his seniority. Thereafter an enquiry was conducted and finally the petitioner approached this Court only in 2007 seeking interfernce of this Court. Hence this is not a case in which the 1[st] respondent had deliberately denied promotion to the petitioner. He was given promotion as JS and Assistant Devaswom Commissioner which he accepted without any demur and worked till 2004, when for the first time a claim was made. Thereafter the entire promotion had to be reworked and the promotion of the petitioner in different posts were fixed from an earlier date. Hence I have no hesitation to hold that the petitioner was W.P.C.No.17008/2011 18 negligent in demanding his due promotion in time or at least within a reasonable time, and therefore he is not entitled for any relief as sought for in the writ petition. Accordingly, the writ petition is dismissed. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr