K. Jaladharan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 24TH DAY OF MAY 2013/3RD JYAISHTA 1935** **WP(C).No. 15603 of 2012 (A) ----------------------------** **PETITIONER :** **K.JALADHARAN, AGED 56 YEARS KUZHIYANATHU VEEDU, NALLILA, KOLLAM 691515 (ADDITIONAL REGISTRAR (RTD), KERALA LOK AYUKTA LEGISLATURE COMPLEX, THIRUVANANTHAPURAM 695033** **BY ADVS.SRI.B.RAGUNATHAN SRI.G.GOPALAKRISHNA PILLAI SRI.R.SRINATH SRI.VIPIN VARGHESE** ## **RESPONDENT(S):** - **-------------** **1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** **2. ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695001** **3. KERALA LOK AYUKTA,** - **REPRESENTED BY REGISTRAR KERALA LOK AYUKTA KEGISLATURE COMPLEX, THIRUVANANTHAPURAM - 695033.** **R1 & R2 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL R3 BY ADV. SRI.K.JAJU BABU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **WP(C).No. 15603 of 2012 (A)** ## **APPENDIX** **PETITIONER(S) EXHIBITS : EXT. P1 TRUE COPY OF THE G.O. DATED 30-03-1999 EXT. P2 TRUE COPY OF THE G.O. DATED 22-07-1999 EXT. P3 TRUE COPY OF THE LETTER DATED 13-03-1995 OF THIS HON'BLE COURT EXT. P4 TRUE COPY OF THE ORDER DATED 06-08-2004 OF THE 3RD RESPONDENT EXT. P5 TRUE COPY OF THE LETTER DATED 23-12-2004 OF the R1 EXT. P6 TRUE COPY OF THE LETTER DATED 18-03-2005 OF THE 1ST RESPONDENT EXT. P7 TRUE COPY OF THE GO (RT) NO 288/07/VIG DATED 15-12-2007 EXT. P8 TRUE COPY OF THE LETTER DATED 22-11-2008 OF THE 1ST RESPONDENT EXT. P9 TRUE COPY OF THE REPRESENTATION DATED 08-11-2010 TO THE 1ST RESPONDENT EXT. P10 TRUE COPY OF THE LETTER DATED 14-09-2011 OF THE R3 EXT. P11 TRUE COPY OF THE LETTER DATED 24-12-2011 OF THE R1 RESPONDENTS' EXHIBITS : NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.No.15603 of 2012 ---------------------------------------Dated this the 24[th] day of May 2013 ## **J U D G M E N T** Petitioner was promoted as Additional Registrar, Lok Ayuktha with effect from 05/06/2004 by way of a ratification order dated 15/12/2007 issued by the Government at Ext.P7. However, it was mentioned that the provisional promotions will have only notional effect from 05/06/2004 and the monetary benefits will be admissible only from the date of ratification of the order. The complaint of the petitioner is that on account of Ext.P7, he is denied the salary in the grade of Additional Registrar from 05/06/2004 till 15/12/2007. 2. The facts involved in the case would disclose that the petitioner was promoted as Deputy Registrar by the Lok Ayuktha on 05/06/2003 and thereafter promoted as Additional Registrar on 05/06/2004. Ext.P4 is the said order. The Government by Ext.P5 dated 23/12/2004 directed the W.P.C.No.15603/2012 2 Lok Ayuktha to cancel the promotion order dated 06/08/2004 of the petitioner to the post of Additional Registrar and to report compliance. It is stated that the promotion of the petitioner in terms of the order dated 06/08/2004 of the Lok Ayuktha was irregular and in violation of the decision taken in the meeting with Chief Secretary on 31/04/2004. Unless special rules are prescribed, executive orders issued by the Government alone would be binding. This order came to be challenged by the petitioner and another person by filing W.P.C.No.11960 of 2005 and by an interim order dated 07/04/2005, this Court had stayed further proceedings pursuant to Ext.P5. In the meantime, the petitioner had submitted a representation to the Government and on the basis of such representation Ext.P7 came to be passed. The writ petition was later dismissed as not pressed. In Ext.P7, the operative portion of the order reads as under: W.P.C.No.15603/2012 3 _“(i) the action of the Lok Ayuktha in having provisionally promoted Sri.K.Jaladharan as Additional Registrar and Sri.C.V.Jayakumar as Deputy Registrar w.e.f 5/6/04 is ratified subject to the final decision in W.P.C.No.11960/05 pending before the Hon.High Court of Kerala._ _(ii) The provisional promotions will have notional effect from 5/6/04 and monetary benefit will be admissible only from the date of this ratification order.”_ 3. Subsequently the petitioner submitted a representation to the Government for payment of salary and other benefits due to him from 05/06/2004 till 15/12/2007 on the ground that the petitioner had worked as Additional Registrar during the relevant time. By Ext.P8 dated 22/11/2008, the Government rejected the request. The petitioner filed another representation as Ext.P9 to the Government claiming salary and other monetary benefits for the aforesaid period. Ext.P10 is the request made by the Registrar of the Lok Ayuktha to the Government requesting W.P.C.No.15603/2012 4 the Government to provide the benefits to the petitioner. The Government considered the matter and rejected the said representation also. In an appeal filed by the petitioner, provisional promotion was ordered by the Lok Ayuktha on 06/08/2004. The Government had taken a lenient view and ratified the promotion without monetary benefits. The probation of the petitioner was declared with effect from the date of ratification of the promotion that is from 15/12/2007. Hence the petitioner was entitled to get salary only with effect from 15/12/2007. Ext.P11 is the said order. 4. Petitioner challenges Exts.P7, P8 and P11 inter alia contending that the petitioner having got the post of Additional Registrar from 05/06/2004, he is entitled to get salary and other monetary benefits in that grade. It is contended that when the promotion of the petitioner as Deputy Registrar was never under challenge by the Government, promotion was made by the Lok Ayuktha as Special Rules were not made. Promotion to the post of W.P.C.No.15603/2012 5 Additional Registrar alone has been challenged and once the Government had ratified the action of the Lok Ayuktha in promoting the petitioner by treating the same as notional, the above action is only to deny the benefit of payment of salary and other benefits to the petitioner. The petitioner having worked in the said capacity cannot be denied the salary. 5. Counter affidavit is filed by the 2[nd] respondent supporting the stand taken in the impugned orders. It is contended that as per Section 16 of the Kerala Lok Ayuktha Act 1999 the categories of officers and employees are referred to in sub Section (1) of Section 16 of the Act and their appointment and other conditions of service shall be as prescribed by the Government in consultation with the Lok Ayuktha. Section 23 gives the power to the Government to make Rules inter alia to fix the salary, allowance, appointment and other conditions of service of members and employees of Lok Ayuktha and Upa Lok Ayuktha under W.P.C.No.15603/2012 6 sub Section (2) of Section 16. It is contended that in so far as special rules have not been framed in relation to the appointment of persons, without the permission of the Government, it is not open for the Lok Ayuktha to have issued orders of promotion to the petitioner. It is in that view of the matter that Ext.P5 had been issued and the order of promotion was directed to be cancelled. Once the Government had taken such a view and the order of promotion had been directed to be cancelled, the Lok Ayuktha was bound to act accordingly. It was only on account of a stay granted by this Court that Ext.P5 was kept in abeyance and while issuing Ext.P7 it was made clear that the monetary benefits will be admissible only from the date of the ratification order. 6. It is further contended that in a meeting between the Chief Secretary and the Lok Ayuktha, it is decided that the post of Additional Registrar is to be filled up from the post of Additional Secretary from the Government W.P.C.No.15603/2012 7 Secretariat and by virtue of an order dated 14/01/2004, the Government had posted an Additional Secretary on deputation to the Kerala Lok Ayuktha as Additional Registrar but the officer was denied entry to the office of Kerala Lok Ayuktha and he was not allowed to join duty and he was compulsorily sent back. It is therefore contended that there was a decision in principle that the avenues of promotion of members and staff of Lok Ayuktha should be looked into and proposal should be sent to the Government. According to the Government, such a decision in principle will not confer any authority on the Registrar-in-charge to issue orders of probation arbitrarily without consulting with the Government. 7. Counter affidavit is filed by the 3[rd] respondent Lok Ayuktha inter alia stating that the petitioner who was in charge as Additional Registrar with effect from 05/06/2004 and had discharged all the functions and therefore there is no reason to treat the period from 05/06/2004 to 14/12/2007 W.P.C.No.15603/2012 8 as notional. It is also contended that the order of promotion issued by the competent authority was not violating any statutory provision. When the Government had issued orders ratifying promotion with effect from 05/06/2004, in the meantime, no other person was posted or was working as Additional Registrar. Therefore, according to the 3[rd] respondent, the petitioner has made the claim for salary and other benefits only for the period during which he had discharged the duties of Additional Registrar and this being his legal right, the Government was bound to provide salary and other benefits to the petitioner. 8. Heard learned counsel for the petitioner, learned Government Pleader appearing on behalf of the Government and the learned Standing Counsel for the Lok Ayuktha. 9. The short question to be considered in the writ petition is the validity of Exts.P7, P8 and P11. As already indicated, in Ext.P7 it was mentioned that the petitioner is eligible to get monetary benefits to the post of Additional W.P.C.No.15603/2012 9 Registrar only from the date of the said order that is from 15/12/2007. Apparently, there is denial of salary to the petitioner from 05/06/2004 to 14/12/2007. 10. The learned counsel for the petitioner submits that after Ext.P7 order was passed, the petitioner did not pursue the writ petition as the petitioner had obtained the substantial relief as prayed for especially regarding the ratification of his promotion by the Government. Subsequently, since the monetary benefits were not extended from the date of notional promotion that is 05/06/2004, he submitted Ext.P9 representation which was supported by the Lok Ayuktha as per Ext.P10. But the Government rejected the same in terms of Ext.P11. 11. The main ground taken by the petitioner is that, the petitioner had worked in the capacity of Additional Registrar since 05/06/2004. The petitioner is entitled for the salary payable to the post of Additional Registrar for the entire period and it is wrong on the part of the Government W.P.C.No.15603/2012 10 to have denied the said benefits in terms of Ext.P7 and later by Exts.P8 and P11. The learned counsel for the petitioner also relies upon the following judgments to claim monetary benefits as according to him it is the legal right available to him to receive the salary and other perks as he worked in the capacity of Additional Registrar during the relevant time though it was not ratified by the Government at that point of time. The judgments relied upon were: i) **Arindam Chattopadhyay and Others v. State of West Bengal and Others** [2013(4) SCC 152]. Reference is made to paragraph 13 of the judgment which reads as under: **13.** _“Reverting to the facts of this case, we find that although the appellants were recruited as ACDPOs, the State Government transferred and posted them to work as CDPOs in ICDS projects. If this would have been a stopgap arrangement for few months or the appellants had been given additional charge of the posts of CDPOs for a fixed_ W.P.C.No.15603/2012 11 _period, they could not have legitimately claimed salary in the scale of the higher post i.e. CDPO. However, the fact of the matter is that as on the date of filing of the original application before the Tribunal, the appellants had continuously worked as CDPOs for almost 4 years and as on the date of filing of the writ petition, they had worked on the higher post for about 6 years. By now, they have worked as CDPOs for almost 14 years and discharged the duties of the higher post. It is neither the pleaded case of the respondents nor has any material been produced before this Court to show that the appellants have not been discharging the duties of the post of CDPO or the degree of their responsibility is different from other CDPOs. Rather, they have tacitly admitted that the appellants are working as fullfledged CDPOs since July 1999. Therefore, there is no legal or other justification for denying them salary and allowances of the post of CDPO on the pretext that they have not been promoted in accordance with the_ W.P.C.No.15603/2012 12 _Rules. The convening of the Promotion Committee or taking other steps for filling up the post of CDPO by promotion is not in the control of the appellants. Therefore, they cannot be penalised for the Government's failure to undertake the exercise of making regular promotions.”_ That was a case in which the question that arose for consideration was whether the appellants who have been working as Child Development Project Officers (CDPO) in the Integrated Child Development Services (ICDS) since July 1999 is entitled to get salary in the pay scale prescribed for the post. The facts involved in the said case would disclose that the appellants were selected as Assistant Child Development Project Officer (ACDPO) in 1986-1987. After 12 years, the competent authority issued an order dated 07/07/1999 with the concurrence of the Finance Department of the Government whereby the petitioners were temporarily transferred to ICDS projects to act as CDPOs in their existing pay scales. The appellants made a representation that they W.P.C.No.15603/2012 13 should be permitted as CDPOs or be given pay scale of that post by asserting that they had been discharging the duties of the post of CDPO. When the matter was taken up before the State Administrative Tribunal, the same came to be dismissed. In that circumstances, the Supreme Court after considering the matter in detail especially The West Bengal Junior Welfare Services Rules relating to equal pay for equal work allowed the appeals and held as above. The aforesaid judgment, though can be relied upon by the petitioner in a different situation, in the case on hand, the factual situation is different. This is a case in which the Lok Ayuktha had no authority to promote the petitioner. When the order was passed by the Lok Ayuktha promoting the petitioner, the Government interfered in the matter and directed the Lok Ayuktha to revert the petitioner to the original post. The petitioner filed W.P.C.No.11960 of 2005 inter alia seeking the following reliefs: _“i) issue a writ of certiorari or other appropriate writ, direction or order calling for_ W.P.C.No.15603/2012 14 _the records leading to Exts.P8 & P10 and quash the same._ _ii) issue a writ of mandamus or other appropriate writ, direction or order directing respondents 1 & 2, to regularise the promotion of the petitioners to the posts of Additional Registrar and Deputy Registrar respectively with all attendant benefits.”_ 12. The petitioner also obtained an interim order staying further proceedings pursuant to the directions to revert the petitioner. When Ext.P7 order came to be passed on 15/12/2007, the petitioner had withdrawn the writ petition. In other words, though the petitioner claimed all attendant benefits as well from the date of promotion by the Lok Ayuktha, when the Government passed Ext.P7, the petitioner did not insist for an order and had withdrawn the said writ petition thereby relinguishing his right for any further order in this regard and later submitted a representation to the Government for monetary benefits. Therefore, the factual situation in **Arindam** W.P.C.No.15603/2012 15 **Chattopadhyay** (Supra) has no application to the present case on hand. (ii) Another judgment relied upon is **P.Grover v. State of Haryana** _[AIR 1983_ Supreme Court _1060]._ In this case a teacher was promoted as Acting District Educational Officer with effect from July 1976 and the same was extended for a further period on condition that she would draw her own pay scale and that she would continue to draw the salary on the pay scale prior to promotion. In this particular situation the Supreme Court held that _“Our attention was not invited to any Rule which provides that promotion on an acting basis would not entitle the officer promoted to the pay of the post. In the absence of any Rule justifying such refusal to pay to an officer promoted to a higher post the salary of such higher post (the validity of such a Rule would be doubtful if it existed)_ . _We must hold that Smt.Grover is entitled to be paid the salary of a District Education Officer from the date she was promoted to the post_ W.P.C.No.15603/2012 16 _that is July 19, 1976 until she retired from service on August 31, 1980.”_ (iii) Another judgment relied upon is **Subhash Chander v. State of Haryana** _[2012(1) KLT SN 120 (C.No.128) P. & H. (F.B)]_ . In the said judgment it is held that _“if an employee is appointed to officiate on a post involving assumption of duties and responsibility of greater importance than those attaching to the substantive post then he would be entitled to the salary of his officiating post in higher grade.”_ 13. All the judgments relied upon by the learned counsel for the petitioner have been applicable in cases where appointment is made by a competent authority and on that basis the petitioner has worked in that capacity. That is not the situation here. This is a case where the Lok Ayuktha had no authority to promote the petitioner to a particular post. Immediately knowing about the said promotion, the Government had directed the Lok Ayuktha to revert the petitioner. The petitioner challenged the same by W.P.C.No.15603/2012 17 filing a writ petition and seeking the reliefs as mentioned above. Ext.P7 was passed in between granting the petitioner only notional promotion without any monetary benefit mainly for the reason that the petitioner had worked in a particular capacity. When the very order of appointment was bad in law, it does not give the petitioner a right to claim salary or monetary benefits of that post. The very appointment was questioned and in the absence of Government ratifying the same the appointment is bad in law. 14. That being the situation, the petitioner cannot claim the monetary benefits as a matter of right. That apart, when a claim has been made in the earlier writ petition for monetary benefits and Ext.P7 order came to be issued the petitioner knowing fully well that he is not getting the monetary benefits from the date of his notional promotion, the petitioner had withdrawn the writ petition which clearly indicates that the petitioner did not make a claim for the W.P.C.No.15603/2012 18 said monetary benefits at that point of time and he, by his own conduct relinguished his rights at that point of time. 15. In that view of the matter, it is not open for the petitioner to file another writ petition claiming the very same benefits and that too after five years from the date of Ext.P7 order. True that the petitioner had submitted a representation, but it could be seen that the claim of the petitioner had been rejected as per Ext.P8 dated 22/11/2008 itself. Still he kept quiet. Thereafter another representation is seen given which came to be rejected as per Ext.P11 on 24/12/2011. Successive representations of the petitioner for the same benefit will not give the petitioner a right to approach the court after a long delay. The petitioner did not choose to prosecute the earlier writ petition further and even the claim for monetary benefits were rejected as early as in 22/11/2008. Such being the position, the writ petition is also liable to be dismissed as there was delay in approaching the court W.P.C.No.15603/2012 19 within a reasonable time. Petitioner is therefore not entitled to get any relief as sought for and the writ petition is dismissed. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.15603/2012 20 W.P.C.No.15603/2012 21