N. Sankunni Menon v. Government of Kerala and The Commissioner of Excise

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## ## **FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929** ## - **N. SANKUNNI MENON, CIRCLE INSPECTOR OF EXCISE (RETIRED), VIMALA VIHAR, AYYANTHOLE, THRISSUR DISTRICT.** ## **BY ADV. SRI.P.VIJAYA BHANU, ADV. SMT.ROHINI V.MENON.** ## **1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY, TAX DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM.** ## **BY GOVERNMENT PLEADER SRI. SALIM.P.A.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/01/2008,THE COURT ON 11/01/2008 DELIVERED** **ORDER ON C.M.P. NO. 38898/2001 IN O.P. NO. 23698/2001-U** ## **DISMISSED** **11/01/2008.** **SD/- P.N.RAVINDRAN, JUDGE.** **//TRUE COPY//** **prv.** ## **P.N.Ravindran, J.** ## **============== O.P.No.23698 of 2001** ## **===============** ## **Dated this the 11th day of January, 2008.** ## **JUDGMENT** The petitioner retired from service as Circle Inspector in the Excise Department on 31.7.1991. He has, in this original petition, sought to quash Ext.P5 and prayed for a direction to the respondents to refix the date of granting promotion to the cadre of Circle Inspector of Excise and to the higher cadres and to revise the pensionary benefits and pay accordingly. 2. The petitioner entered service as an Excise Guard on 7.4.1960. He was promoted as Preventive Officer on 29.7.1967 and as Excise Inspector on 23.9.1967. He was promoted as Circle Inspector on 27.9.1980 and while working as Circle Inspector, he retired from service on 31.7.1991. 3. Long thereafter, the petitioner submitted Ext.P1 representation dated 12.3.1995 to the respondents seeking a OP 23698/01 -: 2 :- review of the promotions made to the post of Preventive Officer and higher posts and for revision of his pay and allowances, payment of arrears thereof and also for refixation of pensionary benefits. The petitioner had, in Ext.P1, stated that in the light of the decision of the Apex Court in **Chandran** v. **Board of Revenue** - 1995(1) K.L.T. 12, all promotions to the cadre of Preventive Officer and higher posts are liable to be reviewed. 4. The pleadings in the case disclose that pursuant to the judgment of the Apex Court a seniority list of Excise Inspectors was drawn up on 31.7.1994 and published in the Kerala Gazette dated 16.8.1994. In that list, the petitioner was assigned the date 15.5.1970 in the category of Excise Inspector, 3.11.1980 in the category of Circle Inspector of Excise and 1.4.1991 in the category of Assistant Excise Commissioner. Long after the petitioner submitted Ext.P1 representation, by Ext.P2 proceedings dated 8.12.1999, the second respondent granted ratio based senior grade to various Officers in the Excise service. By Ext.P2, the petitioner along with 20 others was granted senior grade in the category of Circle Inspector of Excise with effect from 1.7.1988. By the very same proceedings, one K.K.Ayyappan was OP 23698/01 -: 3 :- granted higher grade with effect from 1.4.1991 in the category of Circle Inspector based on the petitioner's notional promotion as Assistant Excise Commissioner with effect from that date. 5. After submitting Ext.P1 representation dated 12.3.1995, the petitioner did not take steps to work out his remedies arising out of Ext.P2 and the decision of the Apex Court in **Chandran** v. **Board of Revenue** - 1995(1) K.L.T. 12. Long afterwards, he submitted Ext.P3 representation dated 14.11.2000 to the respondents relying on Ext.P2 and contending that he was entitled to be promoted as Assistant Excise Commissioner with effect from 1.4.1991 and hence, steps may be taken to redress his grievances by promoting him as Assistant Excise Commissioner with effect from 1.4.1991 and to pay him all consequential benefits. The petitioner thereafter filed O.P.No.507 of 2001 in this Court seeking the following reliefs: "(i) issue a writ of mandamus or such other writ, order or direction directing the respondents to refix the date of granting of promotion to the petitioner to the cadre of Circle Inspector and to the higher cadres and revise the pensionary benefits and arrears of pay accordingly. OP 23698/01 -: 4 :- (ii) grant such other reliefs as this Honourable Court may deem just and proper in the facts and circumstances of the case." 6. By Ext.P4 judgment delivered on 9.1.2001, this Court directed the first respondent herein to consider Ext.P3 representation and to pass appropriate orders thereon within a period of four months from the date of receipt of a copy of the judgment. The State Government thereafter issued Ext.P5 order rejecting the petitioner's request in Ext.P3 on the ground that he had not officiated in the post of Assistant Excise Commissioner and hence, he is not entitled to payment of salary and allowances applicable to the said post. The State Government had in Ext.P5 taken the stand that Rule 23(a) Part I of the Kerala Service Rules (hereinafter referred to as "the K.S.R.") can be invoked only if the petitioner had officiated in the promotion post. The said order of the Government is under challenge in this writ petition. 7. I have heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. The main contention raised by the learned counsel for the petitioner is that since his juniors have been promoted, in view of OP 23698/01 -: 5 :- the decision of the Apex Court in **Chandran** v. **Board of Revenue** - 1995 (1) K.L.T. 12 and the proceedings evidenced by Ext.P2, he was eligible to be promoted as Assistant Excise Commissioner with effect from 1.4.1991, that he was not responsible for the delay in promoting him while he was in service, that it is conceded by the respondents that there was delay in finalising the seniority list of Circle Inspector of Excise and that as he was prevented for no fault of his from officiating in the higher post prior to his retirement, he is entitled to have all service benefits including payment of arrears of pay and allowances and refixation of pension on the basis that he retired from service on 31.7.1991 as Assistant Excise Commissioner. The learned counsel for the petitioner also placed reliance on a Division Bench decision of this Court in **Sucheendran M.K** . v. **State of Kerala & Others** - 2005(2) K.L.J. 401. The learned Government Pleader on the other hand contended that as the petitioner had not officiated in the post of Assistant Excise Commissioner, he is not entitled to any service benefits or to any relief in the original petition. 8. A Division Bench of this Court had, in the decision in OP 23698/01 -: 6 :- **Sucheendran M.K** . v. **State of Kerala & Others** - 2005(2) K.L.J. held that an employee is not entitled to salary for the period of retrospective notional appointment on the principle "no work no pay". The Division Bench however, held that in cases which do not involve change of duties, but only a change in the salary, if the officer was denied promotion with effect from a particular date, he will be entitled to the difference in the salary in the promoted post. The Division Bench had placed reliance on Rule 23(a) Part I of K.S.R. to come to that conclusion. 9. Applying the principles laid down by the Division Bench in the aforesaid decision, the petitioner, who did not officiate in the post of Assistant Excise Commissioner prior to his retirement from service, is not entitled to salary for the period from 1.4.1991 (the date assigned to him in the category of Assistant Excise Commissioner) to 31.7.1991, the date of his retirement, applying the principle 'no work no pay'. The Apex Court has in **State of Haryana & Ors** . v. **O.P. Gupta & Ors.** - 1996(7) S.C.C. 533 held that where entitlement to work in the higher post was dependant on the preparation and finalisation of the seniority list and promotions being made in accordance with the rules, OP 23698/01 -: 7 :- payment of arrears of salary does not arise. There is no pleading in the writ petition and no material was also placed before me to establish that the duties of Circle Inspector of Excise and Assistant Excise Commissioner are one and the same and that promotion to the post of Assistant Excise Commissioner does not involve change of duties. The petitioner has no case that promotion to the post of Assistant Excise Commissioner brings about only a change in the emoluments and does not involve change of duties. Hence, the petitioner cannot rely on Rule 23(a) Part I of K.S.R. In that view of the matter, the petitioner is also not entitled to difference in salary applicable to the post of Assistant Excise Commissioner for the period from 1.4.1991 to 31.7.1991. Since the petitioner retired from service on 31.7.1991 and he was assigned the date 1.4.1991 in the category of Assistant Excise Commissioner in which post he never officiated, long after he retired from service, he is also not entitled to any monetary benefit. 10. Therefore, on a consideration of the totality of the facts and circumstances of the case, I hold that the petitioner is not entitled to any relief in the original petition. Accordingly, the OP 23698/01 -: 8 :- original petition fails and it is dismissed, without any order as to costs. P.N.Ravindran, Judge. ess 5/1