G. Vijayakrishnan Pillai v State of Kerala and The Director of Industries and Commerce

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941** ## **OP(KAT).No.179 OF 2014(Z)** **AGAINST THE ORDER IN TA 4884/2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **G.VIJAYAKRISHNA PILLAI S/O.GOPALA PILLAI, RESIDING AT SURYAKRIPA, KIZHAKEPRAM, N.PARAVUR PO, ERNAKULAM 683 513.** **BY ADVS. SRI.BRIJESH MOHAN SMT.RESMI G. NAIR** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, THIRUVANANTHAPURAM 695 001.** **2 THE DIRECTOR OF INDUSTRIES AND COMMERCE VIKAS BHAVAN P.O, THIRUVANANTHAPURAM 695 033. R1 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** ## **SR.GP SRI.ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) 179 of 2014 2 ## **JUDGMENT** Dated this the 19[th] day of November, 2019 ## **V.G.ARUN, J.** The petitioner was appointed as Industries Extension Officer in the Department of Industries and Commerce on 6.6.1981 and was promoted as Assistant District Industries Officer on 18.4.1992. The Special Rules for the Kerala Industries Service provided for further promotion to the post of Assistant Registrar of Co-operative Societies. Even though petitioner was due for promotion in the year 1990, his seniority was overlooked and his juniors in the cadre promoted for the alleged reason of the petitioner not possessing the qualification required for promotion as Assistant Registrar. 2. The qualification prescribed for promotion as Assistant Registrar was Higher Diploma in Co-operation or O.P.(KAT) 179 of 2014 3 Junior Diploma in Co-operation or B.Sc (Co-operation and Banking) awarded by the Kerala Agricultural University. But for direct recruitment, the qualification prescribed was B.Com Degree of a recognised University with Co-operation as optional subject or a Degree of a recognised University and Higher Diploma in Co-operation or B.Sc (Co-operation and Banking) awarded by the Kerala Agricultural University. 3. The petitioner had the qualification of B.Com Degree with Co-operation, which was sufficient for direct recruitment, but not prescribed as a qualification for promotion. Challenging non-consideration of his claim for promotion, the petitioner filed O.P.No.1860 of 1995, which was disposed of by Ext.P2 judgment dated 3.3.2005, declaring the petitioner eligible to be considered for promotion as Assistant Registrar along with the other persons having the prescribed qualification. The Director of Industries and O.P.(KAT) 179 of 2014 4 Commerce was directed to consider the claim of the petitioner for promotion in accordance with his seniority, in the light of the declaration. Based on the judgment, Ext.P3 notification was issued, revising the select list for the post of Assistant Registrar for the year 1990. Consequently, the petitioner was granted notional promotion in the cadre of Assistant Registrar with effect from 20.12.1990, with eligibility to get re-fixation benefit with effect from the date of notional promotion. 4. In the meanwhile, the petitioner's immediate junior in the cadre of Assistant Registrar was promoted to the post of Deputy Registrar with effect from 9.4.1991. Therefore, the petitioner claimed promotion to the post of Deputy Registrar with effect from 9.4.1991. By Ext.P6 dated 18.6.2007, the petitioner was notionally promoted to the post of Deputy Registrar with effect from 10.10.1992; the date on which the promotion of his immediate junior to the post of Deputy O.P.(KAT) 179 of 2014 5 Registrar was regularised. In Ext.P6, it was specified that the notional promotion will not entitle the petitioner for arrears of pay and allowances and that pensionary benefits alone will be allowed, based on the fixation consequent to the notional promotion. 5. The writ petition, which was subsequently transferred to the Kerala Administrative Tribunal and numbered as T.A.No. 4884 of 2012, was filed by the petitioner challenging Ext.P6 to the extent it denied promotion to the petitioner with effect from 9.4.1991, the date on which his immediate junior was promoted to the cadre of Deputy Registrar and to sanction all consequential benefits. 6. The prayer for promotion from 9.4.1991 with all consequential benefits was opposed by the respondents by contending that the petitioner had never worked as Deputy Registrar, prior to Ext.P6 and was hence not entitled for salary O.P.(KAT) 179 of 2014 6 from the date of notional promotion. Rule 23 (a) of Part I KSR was pressed into service to contend that the petitioner was not entitled for arrears of pay based on his notional promotion. The prayer for retrospective promotion with effect from 9.4.1991 was opposed on the ground that his junior was regularly promoted only with effect from 10.10.1992. 7. The Tribunal accepted the contentions urged by the respondents and found the claim of the petitioner for promotion with effect from 9.4.1991 to be untenable. While upholding the decision to grant notional promotion from 10.10.1992 without arrears of pay and allowances, the Tribunal directed to recompute the terminal benefits due to the petitioner based on his pay at the time of retirement, reckoned on the basis of the notional promotion. The additional amounts towards monthly pension and DCRG, O.P.(KAT) 179 of 2014 7 based on such re-computation, was directed to be released within three months. 8. The petitioner is aggrieved by denial of regular promotion and refusal to grant consequential arrears of pay and allowances. It is contended that the delay in effecting promotion is not attributable to the petitioner and on the other hand, it was due to an unsustainable objection about the petitioner's qualification that his promotion to the post of Assistant Registrar and the further promotion to the post of Deputy Registrar was unduly delayed. It is contended that procrastination by the Government in the matter of his promotion, should not be to the petitioner's prejudice. It is submitted that Rule 23 (a) of Part I KSR would not be a bar in granting regular promotion to the petitioner, as he had officiated as Deputy Registrar from 1998 onwards, evidenced by Annexure A8. O.P.(KAT) 179 of 2014 8 9. Heard Smt. Resmi G.Nair, learned Counsel for the petitioner and Sri.Antony Mukkath, learned Senior Government Pleader. 10. It is a fact that the petitioner had taken timely legal recourse by filing an original petition before this Court against non-consideration of his claim for promotion to the post of Assistant Registrar in accordance with his seniority. The original petition was ultimately decided in the petitioner's favour by Ext.P2 judgment dated 3.3.2005. It is also a fact that while the original petition was pending before this Court, the petitioner's junior was promoted as Deputy Registrar, with effect from 9.4.1991 and regularised in that post with effect from 10.10.1992. The petitioner did not raise any grievance against that promotion till Ext.P6 order, promoting him as Deputy Registrar, was issued on 18.6.2007. Under Ext.P6, the petitioner was notionally promoted to the post of Deputy O.P.(KAT) 179 of 2014 9 Registrar with effect from 10.10.1992, without arrears of pay and allowances, while counting his notional service for the purpose of retirement benefits. The inordinate delay in availing legal remedy against the denial of his promotion as Deputy Registrar, by itself, is reason enough for rejecting the petitioner's claim for regular promotion with all consequential service benefits. Moreover, as rightly contended by the respondents, Rule 23 (a) stipulates that an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date he assumes the duties of that post. The petitioner's posting as Deputy Registrar in the Industries Department in 1998, prior to his regular promotion as Assistant Registrar as per Ext.P4, cannot be equated with the posting of Deputy Registrar in the Co-operative Department. The petitioner had assumed the duties of Deputy Registrar in the Co-operative Department, only with effect O.P.(KAT) 179 of 2014 10 from 18.6.2007; the date of Ext.P6 order, though the promotion was with effect from 10.10.1992. Hence, he became eligible for pay and allowances of that post only from the date he assumed office as Deputy Registrar based on Ext.P6. 11. The learned Counsel for the petitioner relied on the decisions of the Honourable Supreme Court in _**Ramesh Kumar v. Union of India and others [(2015) 14 SCC 335]** and_ _**State of Kerala and others v. E.K.Bhaskaran Pillai [2007 (3) KLT 711]**_ , in support of his contention that the principle of 'no work no pay' cannot be accepted a rule of thumb and the principle would not be attracted where the Government was at fault in not considering the case of the employee for promotion and not allowing him to work in a post carrying higher pay scale. 12. True that the petitioner was denied promotion to O.P.(KAT) 179 of 2014 11 the post of Assistant Registrar for the reason that he did not have the requisite qualification, which reason was found to be unsustainable by this Court in Ext.P2 judgment, consequent to which the petitioner was granted promotion. But, even in such a case, as per Rule 23 of Part I KSR, the employee would be entitled for pay and allowances attached to the promoted post only on assuming the duties of that post. The distinguishing feature of this case as against the facts in _**Ramesh Kumar**_ and _**E.K.Bhaskaran Pillai**_ , is the impact of Rule 23(a) of Part I KSR on the claim for retrospective promotion with consequential benefits, which was conspicuously absent in the cited decisions. As rightly observed by the Tribunal, the petitioner has not challenged Rule 23 of Part I KSR. In such circumstances, we find no reason to interfere with the order of the Tribunal, in exercise of the power of O.P.(KAT) 179 of 2014 12 judicial review. In the result, the original petition is dismissed. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/19.11 x O.P.(KAT) 179 of 2014 13 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **TRUE COPY OF THE T.A.NO.4884/2012 ALONG WITH EXHIBITS P1 TO P7.** - **EXHIBIT P1 EXTRACTS FROM ORDER DATED 16.01.1996.** - **EXHIBIT P2 COPY OF JUDGMENT IN O.P.NO.1860/1995.** - **EXHIBIT P3 COPY OF NOTIFICATION DATED 27.10.2005.** - **EXHIBIT P4 COPY OF ORDER DATED 04.05.2006 OF THE 2ND RESPONDENT.** - **EXHIBIT P5 COPY OF G.O.(RT)NO.452/92/ID DATED 09.04.1991.** - **EXHIBIT P6 COPY OF G.O. DATED 18.06.2007. EXHIBIT P7 COPY OF REPRESENTATION DATED 31.07.2007.** - **ANNEXURE B TRUE COPY OF THE ORDER DATED 10.02.2014 IN T.A.NO.4884/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** - **ANNEXURE C TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT IN T.A.NO.4884/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **ANNEXURE D TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT TO THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT IN T.A.NO.4884/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ALONG WITH ANNEXURE A8 AND A9.** O.P.(KAT) 179 of 2014 14 **ANNEXURE A8 TRUE COPY OF G.O.(RT)NO.328/98/ID DATED 31.03.1998 ISSUED BY THE 1ST RESPONDENT. ANNEXURE A9 TRUE COPY OF THE SERVICE CARD ISSUED BY THE OFFICE OF THE ACCOUNTANT GENERAL KERALA DATED 26.06.2001 IN RESPECT OF THE APPLICANT.**