KOCHU KHADEEJA T.I., Retired Village Officer, Pulloot Village, Kodungallur, Thrissur District v. The Land Revenue Commissioner, Kerala; The District Collector, Thrissur; The Tahsildar, Kodungallur; The Additional Commissioner, Land Revenue

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941** ## **OP(KAT).No.192 OF 2014(Z)** **AGAINST THE ORDER/JUDGMENT IN OTHERS 5482/2012 DATED 21-10-2013 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **PETITIONER:** **KOCHU KHADEEJA T.I. RETIRED VILLAGE OFFICER,PULLOOT VILLAGE,KODUNGALLUR,THRISSUR DISTRICT** **BY ADVS. SRI.DINESH R.SHENOY SRI.H.KIRAN** ## **RESPONDENTS:** |**1**|**THE LAND REVENUE COMMISSIONER**| |---|---| ||**OFFICE OF LAND REVENUE COMMISSIONER,PUBLIC**| ||**OFFICE BUILDING,THIRUVANANTHAPURAM 695 001**| |**2**|**THE DISTRICT COLLECTOR COLLECTORATE**| ||**THRISSUR 680 001**| |**3**|**THE TAHSILDAR**| ||**KODUNGALLUR,THRISSUR DISTRICT 680 664**| |**4**|**THE ADDITIONAL COMMISSIONER**| ||**LAND REVENUE,OFFICE OF COMMISSIONER OF LAND**| ||**REVENUE,PUBLIC OFFICE**| ||**BUILDING,THIRUVANANTHAPURAM 695 001**| ||**R1-4 BY GOVERNMENT PLEADER**| OP(KAT) No.192/2014 : 2 : ## **OTHER PRESENT:** **SRI.ANTONY MUKKATH, SR.GP.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT) No.192/2014 : 3 : ## **JUDGMENT** ## **Dated this the 25[th] day of November, 2019** ## **K. Vinod Chandran, J.** ## **The applicant before the Tribunal is the** **petitioner in this Original Petition. The petitioner seeks promotion to the post of Deputy Tahsildar which she relinquished, according to her, only for one year. The petitioner who joined the Revenue Department as Copyist on 11.05.1984, in due course was promoted as Lower Division Clerk, Upper Division Clerk and then Village Officer; last of which was on 26.05.2003. While she was continuing as Village Officer, Pulloot in the Thrissur Revenue District, she was granted Grade Promotion in the scale of pay applicable to Deputy Tahsildar on 25.05.2004 and** **was subsequently posted as Deputy Tahsildar/Junior Superintendent Malappuram by Ext.P2 order dated 27.06.2007.** **2. The petitioner was not inclined to move to Malappuram and hence she filed an application under Rule 38 of the Kerala State and** OP(KAT) No.192/2014 : 4 : **Subordinate Services Rules for relinquishment dated 03.07.2007. The Government refused to consider the same especially since, when Grade Promotions are granted the same is on the undertaking that the Government Servant would accept the promotion when it is offered. This is evident from paragraph 3(vi) of the Government Order bearing No.G.O.(P) 39/91/P&ARD dated 07.12.1991, which G.O gives the benefit of higher grade to the government servants.** **3. The petitioner then approached this Court with a writ petition numbered as W.P(C) No. 20684/2007. In the said writ petition, there was an order directing continuance of the petitioner as Village Officer, Pulloot. The order was extended as is seen from Ext.P6 for two months as on 13.12.2007. We called for the Judges Papers, which on verification reveals that the order was extended for different periods and last extended up to 14.7.2008. The petitioner continued as Village Officer and after an year, in July 2008** OP(KAT) No.192/2014 : 5 : **approached this Court with another writ petition numbered as W.P(C) NO.22814/2008. The said writ petition was disposed of at the admission stage itself as per Ext.P3 directing consideration of the claim of the petitioner for promotion to the post of Deputy Tahsildar and her claim for increment with effect from 01.05.2008. The petitioner retired on 30.09.2008. The consideration made in compliance with the direction in Ext.P3 is seen at Ext.P4 dated** ## **03.09.2008.** **4. Ext.P4 order specifically finds that the petitioner was not entitled to relinquish the promotion post after having accepted the higher grade. If at all, on relinquishment, the petitioner is liable to refund the amounts drawn in the higher grade. The petitioner's continuance of Village Officer was only by reason of the interim orders obtained in W.P(C) No. 20684/2007, filed against the rejection of the relinquishment attempted. It was alleged that** OP(KAT) No.192/2014 : 6 : **when the first writ petition was pending another writ petition numbered as W.P(C) No. 22814/2008 was filed suppressing the other writ petition. The petitioner's claim was thus declined by Ext.P4, after which she retired on 30.09.2008 as Village Officer Pulloot.** **5. We called for the Judges Papers of W.P. (C) No. 22814 of 2008 too. We find that the petitioner had averred in the said writ petition that she was continuing as Village Officer on the basis of the interim order in the other writ petition and that the stay granted therein was not in force. But all the same, this averment was not noticed by the Court in the judgment nor was it pointed out, obviously; upon which on admission, there was a direction to consider the claim of promotion. Though as found in Ext.P4 there cannot be alleged a suppression, we are convinced that the promotion of the petitioner could not have been considered, without the claim of relinquishment being first adjudicated. It was** OP(KAT) No.192/2014 : 7 : **later to the second writ petition that the earlier writ petition was withdrawn as per Ext.P7 on 02.06.2008 which was even after the retirement of the petitioner.** **6. The petitioner now points out that even going by Annexure 7 and 8 there are juniors to the petitioner who were promoted to the post of Deputy Tahsildar. The impugned order considered the issue of her promotion to the post of Deputy Tahsildar, and also the recovery demanded from her salary. In fact two writ petitions were filed before this Court after the petitioners retirement, which were transferred to the Tribunal. The first of these filed in the year 2008 sought interference to the order dated 03.09.2008, considered her claim for promotion and declined it. The second was filed in the year 2011 challenging an ordder issued directing the petitioner to give an undertaking for the purpose of recovering the excess salary drawn by her on grant of higher grade, for reason of her** OP(KAT) No.192/2014 : 8 : ## **subsequent relinquishment.** **7. The Tribunal found that the higher grade as per the specific Government Order noticed above, was on the undertaking that promotions would be taken up as and when the post arises. Hence there could not have been any relinquishment from the promotion granted even under Rule 38. Rule 38 was also quoted to find that if relinquishment has to be made she would loose her seniority and after the period of relinquishment is over she could be considered only in accordance with the revised seniority. The common order was passed by the Tribunal, in two OA's; but only one O.P(KAT) has been filed, which is incompetent.** **8. The learned Counsel for the** **petitioner relied on** _**State of Kerala v. Suseela George[2000(3) KLT 295]**_ **to buttress his contention. We have no difference of opinion with respect to the proposition that a relinquishment if properly granted under Rule 38** OP(KAT) No.192/2014 : 9 : **for a period, then, definitely the right to promotion would arise on such period having expired. However, in this case there are particular and peculiar facts which would commend us not to apply the said proposition.** **9. Admittedly the petitioner obtained the benefit of higher grade, which benefit flows from a G.O, the terms of which interdict any person who gets the benefit from relinquishing promotion, when a post arise. In fact when the relinquishment was made it was declined by the Government upon which the petitioner filed W.P(C) No.20684/2017. On the basis of the interim order issued, permitting her to continue in the Village Office Pulloot, she continued thereat. When the said matter was pending, a subsequent writ petition was filed as W.P(C) No.22814/2008 which was disposed of as per Ext.P3 dated 29.07.2008 directing only consideration of the claim without any reference to the merits of the matter. The consideration made, we already noticed was by** OP(KAT) No.192/2014 : 10 : **order dated 03.09.2008. It is argued that there was no extension of the interim order, in the first writ petition at that stage. But that does not absolve the petitioner from the responsibility to disclose the fact before the Court which disposed of the later writ petition W.P(C) 22814/2008. The said writ petition was disposed of on 29.07.2008 with a direction to consider the claim for promotion; when the question of her relinquishment of post itself was pending consideration in W.P(C) 20684/2007. The petitioner did not seek for any adjudication on that aspect in the second writ petition. W.P(C) 20684/2007 also eventually was withdrawn, but on 02.06.2009, after the retirement of the petitioner. In fact the liberty granted in Ext.P7 to agitate the cause was again, without disclosing the earlier writ petition at W.P(C) No.22814/2008. At least at that point of time, the petitioner ought to have sought an adjudication of the claim for relinquishment,** OP(KAT) No.192/2014 : 11 : ## **which even now remains un-adjudicated.** **10. We are of the opinion that the petitioner cannot have any contention against the refund, which is automatic, since her relinquishment had taken effect for one year by virtue of the interim order in her writ petition and she is liable to make good the excess amounts paid on grant of higher grade; which was on the understanding of surely taking up the promotion on a post arising. The benefit of higher grade is allowed to an employee only to mitigate stagnation in a post without promotion for long years. However an employee who relinquishes the promotion cannot have any relief as against stagnation.** **11. On the claim for promotion, after relinquishment, the petitioners seniority is lost and her juniors would move above her, who were also promoted as per Annexure VII. Ann: VII is also dated 30.06.2008, which is within the period of relinquishment claimed by the petitioner for 1** OP(KAT) No.192/2014 : 12 : **year from the date of initial request dated 03.07.2007. Ann: AVIII is dated 07.05.2011, long after her retirement. The petitioners ploy is very clear. When the promotion required a transfer, she relinquished her claim for an year; quite aware of her impending retirement after a little more than an year. After the one year period, which expires on 02.07.2008, she would have to shift her workstation only till 30.09.2008, hardly three months and then she could retire from the promoted post, with higher entitlement for pension. There is absolutely no equity in her claim and this Court deprecates the conduct of the petitioner in having resorted to manipulative litigation to continue in the lower post and then obtain the higher post just prior to retirement; ensuring her enhanced retirement benefits including higher pension.** **12. In the totality of the circumstances we find no reason to interfere with the order of the Tribunal. We are told that the petitioner had** OP(KAT) No.192/2014 : 13 : **not been paid the DCRG till date. As was noticed by the Tribunal there was absolutely no necessity for the petitioner to submit any undertaking, for the purpose of recovery from DCRG, any amounts paid to her in excess on the basis of the grade promotion granted; which is a consequence of her relinquishment. Hence the recovery has to be effected from the DCRG and we further impose a cost of Rs.5,000/- as costs of litigation in favour of the Government which amount shall also be recovered from the DCRG. The balance amounts shall be paid within a period of four months from today, if there is no other liability.** **Original petition would stand dismissed** **with costs as ordered above.** **Sd/K. VINOD CHANDRAN, JUDGE.** **Sd/V.G. ARUN,** **JUDGE.** **jma** OP(KAT) No.192/2014 : 14 : ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE I** **TRUE COPY OF ORDER DATED 21.10.2013 IN TA.NO.5482/2012(WP(C)NO.27937/2008) T.A.NO.1898/2012(WP(C)NO.8581/2011) ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL.** ## **ANNEXURE II** **TRUE COPY OF** - **T.A.NO.1898/2012(WP(C)NO.8581/2011) ALONG WITH EXHIBITS P1 TO P14.** ## **ANNEXURE III** - **STATEMENT FILED BY THE GOVERNMENT PLEADER DATED 11.10.2013 IN T.A.NO.1898/2012, KAT, THIRUVANANTHAPURAM.** ## **ANNEXURE IV** - **TRUE COPY OF T.A.NO.5482/2012 (WP(C)NO.27934/2008) ALONG WITH EXHIBITS P1 TO P11.** ## **ANNEXURE V** - **TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE FIRST RESPONDENT IN T.A.NO.5482/2011 (WP(C)NO.27934/2008) ALONG WITH EXHIBIT R1(A) AND R1(B).** ## **ANNEXURE VI** - **TRUE COPY OF I.A.NO.12452/2008 (WP(C)NO.27934/2008) PETITION FOR AMENDMENT ALONG WITH EXHIBIT P12.** - **ANNEXURE VII TRUE PHOTOCOPY OF ORDER NO.LRE 5- 3001/2008 DATED 30.06.2008 ISSUED BY THE LAND REVENUE COMMISSIONER.** ## **ANNEXURE VIII** - **TRUE PHOTOCOPY OF RELEVANT PAGES OF SENIORITY LIST LRT(2)-2002/11(2) DATED 07.05.2011 (PAGES 90/113 AND PAGES 102 TO 105/113).** - **EXHIBIT P1 TRUE PHOTOCOPY OF PROCEEDINGS OF LAND REVENUE ADDITIONAL COMMISSIONER DATED 27/6/2007, EXHIBIT P1.TRUE PHOTOCOPY OF MEDICAL DISABILITY CERTIFICATE DATED 15.08.1997 ISSUED TO THE PETITIONER.** OP(KAT) No.192/2014 : 15 : |**EXHIBIT P2**|**TRUE PHOTOCOPY OF SUBMISSION DATED**| |---|---| ||**9/6/2008 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE TAHSILDAR, EXHIBIT P2.TRUE**| ||**PHOTOCOPY OF PROCEEDINGS OF LAND**| ||**REVENUE ADDITIONAL COMMISSIONER DATED**| ||**27.06.2017.**| |**EXHIBIT P3**|**TRUE PHOTOCOPY OF THE JUDGMENT DATED**| ||**29/7/2008 IN WPC NO 22814/2008,**| ||**EXHIBIT P3.TRUE PHOTOCOPY OF DISCHARGE**| ||**SUMMERY OF THE PETITIONER'S HUSBAND,**| ||**SHRI.RASHEED ALI.**| |**EXHIBIT P4**|**TRUE PHOTOCOPY OF THE LETTER NO LR E5-**| ||**32907(1) DATED 3/9/;2008 ISSUED BY THE**| ||**ADDITIONAL COMMISSIONER,LAND**| ||**REVENUE,O/O COMMISSIONER OF LAND**| ||**REVENUE, EXHIBIT P4.TRUE PHOTOCOPY OF**| ||**CORONARY ANGIOGRAM NO.225730 ISSUED**| ||**FROM AMRITHA INSTITUTE OF MEDICAL**| ||**SCIENCES.**| |**EXHIBIT P5**|**TRUE PHOTOCOPY OF THE ORDER NO LR-E5-**| ||**32907 DATED 22/9/2008 PASSED BY THE**| ||**ADDITIONAL LAND REVENUE COMMISSIONER,**| ||**EXHIBIT P5.TRUE PHOTOCOPY OF LETTER**| ||**DATED 03.07.2007 SUBMITTED BY THE**| ||**PETITIONER BEFORE THE RESPONDENTS 1**| ||**AND 2 RELINQUISHMENT OF PROMOTION FOR**| ||**A PERIOD OF ONE YEAR FROM 27.07.2007**| ||**TO 26.06.2008.**| |**EXHIBIT P6**|**TRUE PHOTOCOPY OF THE REPRESENTATION**| ||**DATED 3/92008 SUBMITTED BY THE**| ||**PETITIONER BEFORE THE 1ST RESPONDENT**| ||**THROUGH PROPER CHANNEL, EXHIBIT P6.**| ||**TRUE PHOTOCOPY OF INTERIM ORDER DATED**| ||**18.12.2007 IN W.P.(C)NO.20684/2007.**| |**EXHIBIT P7**|**TRUE PHOTOCOPY OF THE JUDGMENT DATED**| ||**2/6/2009 IN WPC NO 202684/2007,HIGH**| ||**COURT OF KERALA, EXHIBIT P7. TRUE**| ||**PHOTOCOPY OF SUBMISSION DATED**| ||**09.06.2008 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE TAHSILDAR.**| OP(KAT) No.192/2014 |OP(KAT) No.192/2014|| |---|---| ||: 16 :| |**EXHIBIT P8**|**TRUE PHOTOCOPY OF THE ORDER DATED**| ||**26/05/2010 IN WPC NO 27934/2008,HIGH**| ||**COURT OF KERALA, EXHIBIT P8.TRUE**| ||**PHOTOCOPY OF REPRESENTATION DATED**| ||**19.06.2008 FORWARDED TO THE FIRST**| ||**RESPONDENT THROUGH PROPER CHANNEL.**| |**EXHIBIT P9**|**TRUE PHOTOCOPY OF THE COVERING LETTER**| ||**DATED 31/5/2010 ISSUED BY THE**| ||**PETITIONER TO THE 3RD RESPONDENT,**| ||**EXHIBIT P9. TRUE PHOTOCOPY OF THE**| ||**JUDGMENT DATED 29.07.2008 IN W.P.**| ||**(C)NO.22814/2008.**| |**EXHIBIT P10**|**TRUE PHOTOCOPY OF THE LETTER DATED**| ||**16/07/2010 ISSUED BY THE 3RD**| ||**RESPONDENT, EXHIBIT P10.TRUE PHOTOCOPY**| ||**OF THE NOTICE DATED 05.09.2008 ISSUED**| ||**BY DINESH R.SHENOY, ADVOCATE.**| |**EXHIBIT P11**|**TRUE PHOTOCOPY OF THE REPLY NOTICE**| ||**DATED 23/7/2010 ISSUED BY THE**| ||**PETITIONER TO THE 3RD RESPONDENT,**| ||**EXHIBIT P11. TRUE PHOTOCOPY OF THE**| ||**LETTER NO.LR E5-32907/07(1) DATED**| ||**03.09.2008 ISSUED BY THE ADDITIONAL**| ||**COMMISSIONER, LAND REVENUE, OFFICE OF**| ||**COMMISSIONER OF LAND REVENUE.**| |**EXHIBIT P12**|**TRUE PHOTOCOPY OF THE LAWYER NOTICE**| ||**DATED 3/2/2011 ISSUED BY DINESH**| ||**R.SHENOY,ADVOCATE, EXHIBIT P12.TRUE**| ||**PHOTOCOPY OF THE ORDER NO.LR-E5-32907**| ||**DATED 22.09.2008 PASSED BY THE 4TH**| ||**RESPONDENT.**| |**EXHIBIT P13**|**TRUE PHOTOCOPY OF THE LETTER DATED**| ||**26/2/2011 ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P14**|**TRUE PHOTOCOPY OF THE LETTER DATED**| ||**26.02.2011 ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT R1(A)**|**TRUE COPY OF THE HEARING NOTICE**| ||**NO.L.R.E5-32907/07 DATED 17.09.2008.**| |**EXHIBIT R1(B)**|**A TRUE COPY OF THE PROCEEDINGS**| ||**NO.L.R.E5-32907/07 DATED 22.09.2008.**|