K.G. Kumar v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938** **OP(KAT).No. 80 of 2016 (Z)** **--------------------------OA(EKM) 756/2014 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** **--------** **PETITIONER(S)//APPLICANT:** **------------------------** **K.G.KUMAR AGED 75 YEARS, S/O K.GOPALAN, RESIDING AT KUMARMANDIRAM,MYLODE P.O. KOTTARAKARA-PIN- 691 537 (RETD SUPERINTENDENT, FISHERMAN TRAINING CENTRE)** **BY ADVS.SMT.S.SINDHU SRI.S.SHARAN** **RESPONDENT(S)/RESPONDENTS :** ## **1. STATE OF KERALA** - **REP. BY THE SECRETARY TO GOVERNMENT, FISHERIES AND PORT (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001** **2. DIRECTOR OF FISHERIES, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 001** **3. SMT.K.BABY LATHIKA DEPUTY DIRECTOR OF FISHEREIS TRAINING, ERNAKULAM, KOCHI-11** ## **4. P.V. SAMSUDEEN** - **DEPUTY DIRECTOR OF FISHEREIS, PONNANI - 679 577** **BY GOVERNMENT PLEADER SRI. M. MOHAMMED SHAFI** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 21-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **OP(KAT).No. 80 of 2016 (Z) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **P1: A TRUE COPY OF THE ORDER DATED 5-11-2014 IN OA(EKM) 756/2014 OF THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM, CAMP SITTING AT ERNAKULAM** **P2: A TRUE COPY OF THE OA(EKM)NO.756/2014 ALONG WITH ANNEXURES:** **RESPONDENT(S)' EXHIBITS : NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.** -------------------------------------------------- O.P. (KAT) No. 80 of 2016 -------------------------------------------------Dated this the 21[st] day of June, 2016 ## **J U D G M E N T** ## P.R. Ramachandra Menon, J. Challenge is against the interference declined by the Kerala Administrative Tribunal in respect of Annexure A14 order dated 28.05.2014, declining the claim for promotion to the post of Assistant Director of Fisheries and all consequential benefits. 2. The sequence of events for the purpose of adjudication of th is case is that the petitioner herein, who is a septuagenarian, having crossed the age of 70 years, entered service as LD Clerk on 06.01.1969 and was later appointed as Sub Inspector of Fisheries, by transfer, on 22.07.1974. Respondents 3 and 4, who are juniors to the petitioner, joined the service on 30.11.1979 and 12.04.1975 respectively in the post of Sub Inspector. O.P. (KAT) No. 80 of 2016 ..2.. 3. As a matter of fact, the Fisheries Department was having to wings; 'Administrative wing' and the 'Research wing'. By virtue of promulgation of the Kerala Agricultural Universities Act, the Agricultural University was set up by the Government and all the research activities were transferred to the Agricultural University. Still, the respondents 3 & 4 were treated as continuing in the 'Research wing' and they were given promotion as Research Assistant and to further higher levels, despite the fact that no such 'Research wing' was actually in existence, having transferred the entire operations to the Agricultural University. It is pointed out that respondents 3 and 4 were promoted as Research Assistants on 15.10.1984 and 17.04.1978 respectively. Thereafter, they were given promotion to still higher posts and were working as Additional Directors in the Department. 4. The petitioner retired from service on 31.05.1999, after attaining the age of superannuation. The petitioner felt that he ought to have been promoted to the cadre of Assistant Director much earlier and that O.P. (KAT) No. 80 of 2016 ..3.. the select list of Superintendents, Ext.P5 in OP No.11903/1999, was not liable to be sustained and hence, the same was sought to be challenged by filing OP No.11903/1999. The prayers raised in the said original petition, as extracted in the judgment dated 07.10.2009, are as follows; “(i) to call for the records leading to Ext.P5 and to quash the same by the issue of writ of certiorari so far as it directs the promotion of persons who are having lesser service in the category of Inspector of Fisheries/Research Assistants etc. than that of the petitioner and so far as it is against the ratio of 1:1 fixed by the special rules for appointment by promotion and by transfer. (ii) to issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to consider the petitioner for promotion to the post of Assistant Director of Fisheries and to pass appropriate orders according to the special Rules for Kerala Fisheries Service and to grant him all consequential benefits. (iii) to issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to provisionally promote the petitioner to the post of Assistant Director of Fisheries. (iv) to grant such other reliefs as this Hon'ble Court may deem fit in the circumstances of the case.” 5. A learned Single Judge of this Court observed that, at the time of filing the original petition itself, the 3[rd] respondent had been holding the post of Deputy Director of Fisheries and the particulars as to when the 3[rd] O.P. (KAT) No. 80 of 2016 ..4.. respondent was promoted to the said post were not given by the petitioner. Referring to actual facts and figures and also the mandate of Sub rule 8(a) of Rule 28(b)(i) of the KS & SSR, and holding that no proper objection was ever raised by the petitioner at the relevant point of time, in confirmity with the statutory mandate, interference was declined and the original petition was dismissed. This was sought to be challenged by filing WA No.2742/2009. Though no specific reason was stated for interference, the learned Judges who considered the matter, observed that the matter required to be reconsidered. It was accordingly that, Annexure A13 judgment was passed on 05.02.2014, directing the matter to be reconsidered on merits. It was also mentioned that the pensionary reliefs could be refixed passing appropriate orders based on the order to be passed on reconsideration. It was also made clear that, the appellant would not be entitled to get any arrears in relation to the pay and allowance following such revision, if resulted. O.P. (KAT) No. 80 of 2016 ..5.. 6. Pursuant to the above direction, the matter was reconsidered by the Director of Fisheries, who passed Annexure A14 order on 28.05.2014. The Director of Fisheries observed that the petitioner had retired from service on 31.05.1999, whereas his eligibility to be promoted as 'Assistant Director' was to arise only on '22.11.2001' when the vacancy had occurred. It was accordingly, that the relief sought for was turned down, rejecting the claim as per Annexure A14 order, which was sought to be challenged by filing OA (EKM) No.756/2014 before the Tribunal. 7. The Tribunal dealt with the matter in detail, including as to the contention that the petitioner was actually promoted as Inspector of Fisheries only on 10.04.1981, whereas he ought to have been promoted to that post with effect from the date on which he completed the 'three years' of service. It is further noted that, no rule was brought to the notice of the Tribunal, that there had to be any automatic promotion on completion of 'three years' of service. It was also observed that the O.P. (KAT) No. 80 of 2016 ..6.. judgment cited from the part of the applicant, i.e., the judgment dated 09.12.1997 in OP No.8636/1983 of this Court, had not declared any such law, so as to facilitate automatic promotion on completion of three years. It was accordingly held that the claim was untenable to the said extent. The Tribunal also found that the claim was not substantiated by producing any material before the Tribunal so as to arrive at a finding that the so called juniors were given promotion superseding the rights of the petitioner/applicant. In para 5 of Ext.P1 verdict, the Tribunal observed that the only claim put forth by the applicant was that he should have been promoted to the post of 'Inspector of Fisheries' much earlier and if this was done, his turn would have arisen for promotion as 'Assistant Director' according to seniority, before his retirement. The said belated claim was also held as not actionable, declining interference and the OA was dismissed, which, in turn, is sought to be challenged by way of the present original petition. 8. Heard Mr.S.Sharan, the learned counsel O.P. (KAT) No. 80 of 2016 ..7.. ## appearing for the petitioner at length. 9. The learned counsel for the petitioner submits that the right of the petitioner and the claim raised in this regard was a common/similar grievance as felt among the employees of the Department on a wider magnitude. In the absence of any 'Research wing', no fortuitous promotion should have been granted to the persons, who were continuing in the said wing of the Fisheries Department. Some of the similarly situated persons like the petitioners had approached this Court by way of OP No.3081/1988, seeking for immediate interference; and after hearing both the sides, the said OP was disposed of as per judgment dated 04.11.1992, making some observations directing the concerned respondents for causing the 'Special Rules' for recruitment to be amended. Though the said verdict was subjected to challenge by filing WA No.606/1993, interference was made (as per judgment dated 17.10.2001) only in respect of the direction given to amend/formulate the 'Special Rules', holding that the same will not come within the O.P. (KAT) No. 80 of 2016 ..8.. purview/jurisdiction of this Court. The remaining observations are left intact. This being the position, the matter ought to have been considered by the concerned respondents in the light of the observations made by the learned Single Judge in OP No.3081/1988, which would have settled the grievance of the petitioner. 10. We do not find it necessary to go into the merits, in so far as there was no case of the petitioner at any point of time earlier, that he had projected his cause of action by way of appropriate proceedings, before the appropriate forum, at appropriate time. It is true, that if there is any declaration of law by a Court, it is to be made applicable equally to all others, i.e., even to those, who were not parties to the proceedings. This is the law declared by the Apex Court as per the decision reported in **Aswani Kumar & Others** v. **State of Bihar & Others** [1997 (2) SCC 1]. But, this decision does not come to the support of the petitioner, in any manner, in so far as no declaration of law is made, but, for some observations as contained in the judgment dated 04.11.1992 in OP O.P. (KAT) No. 80 of 2016 ..9.. No.3081/1988. The direction was to consider the representation preferred by the petitioners in the said case and what happened thereafter is not known. 11. Coming to the grievance projected by the petitioner, he chose to approach this Court for the first time only in the year 1999, i.e., in the year of his retirement. Even by that time, the concerned respondents had already been promoted as Deputy Directors. Interference of this Court was sought for with reference to the promotion given to respondents 3 & 4 way back in the year 1978/1984 and on subsequent occasions of promotion to the concerned posts. The petitioner did not have any such case earlier; nor did he chose to challenge the promotions given to respondents 3 & 4 then and there. Even at the time of filing OP No.11903/1999, the prayers were only to the effect as reproduced above. The said matter was considered, ultimately, leading to Annexure A-14 order (pursuant to the intervention made by the Division Bench of this Court); wherein there is a detailed discussion as to the O.P. (KAT) No. 80 of 2016 ..10.. ## factual aspects as noted below; “Sri.K.G.Kumar entered in service as LD Clerk in 6/1/1969. He was appointed as Sub Inspector of Fisheries by “transfer” on 22/7/1974. He was promoted as Inspector of Fisheries with effect from 10/4/1981. Further, he was promoted as Superintendent, Fishermen Training Centre (Gazetted Cadre) as per Order No.A2/13043/97 dated 10/5/97 of Director of Fisheries. Sri.K.G.Kumar retired from service on superannuation on 31/5/1999. Sri.G.Jayasingh, his immediate junior in the select list for the post of Superintendent, Fishermen Training Centre for the year 1999, was promoted as Assistant Director of Fisheries as per GO (RT) No.453/2001/F & P D dated 22/11/01. Date of promotion of Sri. K G Kumar and Sri. G.Jayasingh as Inspector of Fisheries was 10/4/81. On verification of the office records, date of eligibility of Sri.K G Kumar to be promoted as Assistant Director of Fisheries was 22/11/01. But he retired from service on superannuation on 31/5/99, ie, prior to the date of eligibility for promotion as Assistant Director of Fisheries. Smt. Baby Lalitha and Sri.P.V.Shamsudeen entered in service as Sub Inspector of Fisheries on 30/11/79 and 12/4/1975 respectively. They were promoted as Research Assistant with effect from 15/10/84 and 17/4/78 respectively. Since Research Assistant are being considered for appointment as Research Officers (Gazetted Cadre), Sri. P V Shamsudeen was promoted are Research Officer on 19.02.86. Smt.Baby Lathika was promoted as Superintendent, Fishermen Training Centre from the post of Research Assistant on 25/3/89 as per the provision of Special Rules. They were further promoted as Assistant Director of Fisheries from the Gazetted post of Superintendent, Fishermen Training Centre and Research Officer. Hence it is clear that any of the juniors of Sri.K G Kumar (Retired) have not been given promotion prior to him.” 12. From the above, it is quite evident that the O.P. (KAT) No. 80 of 2016 ..11.. petitioner could not have aspired for any promotion to the post of 'Assistant Director' when his eligibility to be promoted to the said post was to arise on '22.11.2001'; for the plain reason that by that time, he had already retired from service, on attaining the age of superannuation, on 31.05.1999. This aspect has been rightly considered by the Tribunal, in turn, declining interference as per Ext.P1 order, which is under challenge. We find no reason to interfere with the finding entered by the Tribunal. 13. Yet another aspect to be considered is that, Ext.P1 order was passed by the Tribunal way back on 05.11.2014. We are in the middle of June, 2016. Nearly, 'two years' are already over. Absolutely no reason has been stated by the petitioner for the inordinate delay, anywhere in the proceedings. The power vested with this Court is not to extend relief to any such person, who was virtually sleeping in arm chair, unmindful of his rights and interests as held by the Apex Court in **Rabindra Nath Bose** v. **Union of India** [AIR 1970 SC 470]. That O.P. (KAT) No. 80 of 2016 **==> picture [26 x 9] intentionally omitted <==** apart, the attempt now made is by quashing the promotions given to respondents 3 & 4 decades back. This will virtually unsettle the settled position eventhough there may not be any claim for seniority or such other aspects, presumably, for the reason that the concerned persons might have retired from service by this time. Settled position cannot be unsettled, is the settled position of law. We find support from the ruling rendered by the Apex Court reported in **Bhoop Singh** v. **Union of India** [AIR 1992 SC 1414]. We find no tenable ground to interfere with the verdict passed by the Tribunal. The original petition fails and accordingly, the same is dismissed. Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** bka/-