OP(KAT) No. 214 of 2023

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945** **OP(KAT) NO. 214 OF 2023** **AGAINST THE FINAL ORDER DATED 14.11.2022 IN OA.NO.1074/2020 OF THE** **KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 TO 3 IN OA:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT,SCHEDULED CASTE SCHEDULED TRIBES DEVELOPMENT (D) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN – 695001.** **2 THE DIRECTOR, SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, DIRECORATE OF SCHEDULED TRIBES DEVELOPMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM,KERALA, PIN – 695033.** - **3 CONVENOR, DEPARTMENTAL PROMOTION COMMITTEE (HIGHER), SECRETARY TO GOVERNMENT, SCHEDULED CASTE SCHEDULED TRIBES DEVELOPMENT (D) DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM,KERALA, PIN - 695001** **BY SRI.ASOK M. CHERIAN, ADDL. ADVOCATE GENERAL ALONG WITH SMT.SABEENA ISMAIL, GOVERNMENT PLEADER** ## **RESPONDENT/APPLICANT IN OA:** **JACQUELINE SHINNY FERNANDEZ, AGED 58 YEARS, W/O GLENVILE FERNANDEZ (LATE), RESIDING AT CHARLEY DALE, KAKKAD P.O., KANNUR, PIN:670005, PROJECT OFFICER (RTD), INTEGRATED TRIBAL DEVELOPMENT PROJECT, KANNUR, CIVIL STATION, ADDITIONAL BLOCK, KANNUR, PIN: 670002** **BY ADVS.M/S.ASHA S.V., KRISHNA T C, P.RAMAKRISHNAN, PREETHI RAMAKRISHNAN, C.ANIL KUMAR, ASHA K.SHENOY, PRATAP ABRAHAM VARGHESE & GOKUL KRISHNA** **THIS OP(KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP FOR ADMISSION ON 06.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS & C.JAYACHANDRAN, JJ.** ================== O.P(KAT) No. 214 of 2023 _[Arising out of the impugned final order dated 14.11.2022 in O.A.No. 1074/2020 on the file of KAT, TVM]_ ================== Dated this the 6[th] day of June, 2023 ## **J U D G M E N T** ## **ALEXANDER THOMAS,J.** The aforecaptioned Original Petition (KAT) instituted under Articles 226 and 227 of the Constitution of India, is directed against the impugned final order dated 14.11.2022 rendered by the Kerala Administrative Tribunal, Thiruvananthapuram Bench, in O.A.No. 1074/2020. 2. The petitioners herein are respondents 1 to 3 in the O.A. and the sole respondent herein is the sole applicant in the O.A. 3. Heard Sri.Asok M.Cherian, learned Addl. Advocate General instructed by Smt.Sabeena Ismail, learned Government Pleader appearing for the petitioners in the O.P. In the nature of the orders proposed to be passed by this Court in this Original Petition, notice to the respondent in this Original Petition will stand dispensed with. 4. The sole respondent herein has filed the instant Ext.P-1 original application, O.A.No. 1074/2020 before the Kerala O.P(KAT) 214/23 - : 2 :- ## Administrative Tribunal, Thiruvananthapuram Bench, with the ## following prayers: - _“A. To declare that the applicant is entitled and eligible to be promoted to the post of Joint Director with effect from the date of arising of vacancy on 01-04-2020, being the next in line of promotion as evident from Annexure A1._ - _B. To declare that the applicant is entitled and eligible to be promoted retrospectively with effect from the date of arising of vacancy on 0104-2020, as she was not promoted admittedly due to the delay and laches on the part of the respondents and due to non compliance with the provisions of Rule 28(b)(i)(4) of Part II, KS&SSR, regarding timely convening of DPC, and hence as per the dictum laid down, in State of Kerala v Narayanan 1985 KLT 695, the applicant is eligible for retrospective promotion with effect from the date of arising of the vacancy, with all and every service and monetary benefits with effect from the said date._ - _C. To direct the respondents to disburse all and every monetary benefits upon such retrospective promotion, in a time bound manner. &_ - _D. Such other reliefs this Honorable Tribunal deems fit and proper.”_ 5. The Tribunal after hearing both sides has rendered the impugned Ext.P-4 final verdict on 14.11.2022 disposing of the above OA with the clear finding that the act of the official respondents in the O.A. in not actually promoting the applicant to the post of Joint Director of Scheduled Caste (SC) Development Department with effect from 1.4.2020, is illegal and that as the applicant was later promoted as per order dated 20.8.2020 before her retirement on 31.8.2022, the respondent State Government was directed to ensure notional promotion of the applicant as Joint Director w.e.f. the due date, ie., 1.4.2020 and that she would be entitled for consequential O.P(KAT) 214/23 - : 3 :- benefits on account of her notional promotion and such benefits should be granted within 3 months. It is this verdict of the Tribunal at Ext.P-4 that is under challenge in the instant Original Petition. 6. We have in extenso heard the learned Addl. Advocate General, instructed by the learned Government Pleader at the admission stage and thereafter, we were convinced that there is no necessity to admit this case and that the original petition is only to be dismissed for reasons to be given hereinafter. 7. Brief recital to the relevant facts of the case would be pertinent:- At the time of filing the instant Original Application, the applicant was working as Project Officer in the Scheduled Caste & Scheduled Tribe (SC & ST) Department. She was duly included in the final gradation list of officers in the cadre of Deputy Director/Project Officer as on 30.11.2016 and she was placed as rank No.2. There does not appear to be much dispute that rank No.1 in the said seniority list had already retired and the applicant herein was next in line for promotion to the next higher category post of Joint Director. It is the specific case of the applicant that she was entitled to be considered for promotion to the post of Joint Director as against the vacancy that has arisen in the said post on 1.4.2020 on account of the retirement of O.P(KAT) 214/23 - : 4 :- the previous incumbent on 31.3.2020. Going by the mandate contained in Rule 28(b)(i)(4) Part II KS&SSR, the respondents in the O.A. are under the statutory obligation to ensure periodical preparation of select by the periodical meetings of the DPC and by assessing the confidential reports of the officers in the field of choice for the preceding 3 years, etc. Apart from the abovesaid statutory provisions as contained in Rule 28 of Part II KS&SSR, the competent authority of the State Government has issued a series of circulars and norms as in Anxs. A-2 dated 26.5.1992, A-3 dated 3.7.1995 and A-4 dated 14.3.2007 stipulating that the authorities concerned shall take effective and timely steps for ensuring the timely convening of the DPC and for consequential preparation of the select list in regular time intervals to ensure that the right to be considered for promotion is effectuated fully in connection with with the statutory mandate. 8. Some of the above aspects have been considered in the judgment dated 18.2.2022 rendered by the Division Bench of this Court in O.P(KAT) No. 38/2022 [arising out of the impugned final order dated 5.3.2021 in O.A.(ERN)No. 2150/2018 on the file of the KAT, Ernakulam Bench]. Para 9 of the said order reads as follows: _“9. Now the main ground urged before us by the learned Senior Government Pleader is that it is not mandatory that the DPC_ O.P(KAT) 214/23 - : 5 :- _should necessarily meet before the date of retirement of all the eligible officers concerned and that due to various constraints of administration, various formalities had to be completed for convening of the DPC and DPC could meet only on 09.06.2015, by which time the original applicant had already retired from service as Junior Superintendent on 31.05.2015 and that the provisions contained in Rule 28 (b) (iA) of Part II of KS & SSR would clearly indicate that it is not mandatory that the DPC should necessarily meet prior to the retirement of the eligible officers and that the above said Rule would clearly indicate that the Rules contemplate a situation where the DPC may meet the position only thereafter. Therefore, the delay on the part of the respondents in convening the DPC on 06.07.2015, cannot be the basis for granting notional promotion benefits to the original applicant. Further, it is urged that serial Nos.1 to 24 of Annexure-A1 select list are all seniors to the original applicant in the feeder category of Junior Superintendent and that, if the original applicant is given the benefit of notional promotion as Sub Registrar from a date prior to his date of retirement on 31.05.2015, all the other senior hands from Serial Nos.1 to 24 should also be given the same benefit, in as much as all the eligible incumbents concerned have been given actual promotion order as per proceedings dated 14.07.2015, whereby the promotion order takes effect prospectively only from 14.07.2015 and regular promotion has been actually given only to eligible incumbents, who are in service as on 14.07.2015, etc.”_ The State, being aggrieved by the abovesaid verdict of the Division Bench of this Court in O.P(KAT) No. 38/2022 had filed SLP (Civil) No.10829 of 2022 before the Apex Court, which was dismissed by the Apex Court on 11.7.2022. 9. In the instant case, the original applicant was holding the post of Project Officer in the SC/ST Development Department at the relevant time and she has been duly included in the final gradation list of officers in the cadre of Project Officer/Deputy Director as on 30.11.2016 as rank No.2. She was entitled to be considered for O.P(KAT) 214/23 - : 6 :- promotion to the next higher category post of Joint Director of the above Department. There is no serious dispute that there is a vacancy in the post of Joint Director which has arisen on 1.4.2020. She was due to retire by superannuation from service on 31.8.2020. The Tribunal has found that no effective steps were taken by the respondents in the O.A. for the timely convening of the DPC and for the preparation of the select list as envisaged in the aforesaid provisions of Rule 28 of Part II of KS&SSR, more particularly, Rule 28(b)(i)(4) of KS&SSR, which reads as follows: ## _“_ _**Rule 28. Promotion** . (i)_ _xxx_ _xxx xxx_ _(b) (i) Promotion and appointment by transfer according to merit and ability._ _(1) ....._ _xxx xxx xxx_ _(4) The Committee shall meet periodically to prepare select lists, in the order of merit, of the Officers selected for appointment. The Committee may also hold ad hoc meetings for the purpose of making selections to particular vacancies whenever occasion arises. The criterion for assessment of merit shall be the confidential reports of the officers. The confidential reports of the officers for at least the preceding three years shall be made available to the Committee for this purpose. Where remediable adverse remarks recorded in the confidential report of a Government Servant are not communicated to the officer concerned, such remarks shall be ignored by the Departmental Promotion Committee while considering his case for promotion. The following procedure shall be adopted by the Departmental Promotion Committee for the preparation of select lists:_ _(a) Select lists shall be prepared during a calendar year for the vacancies estimated to arise in the next calendar year;_ _(b) During the first six months of the year action shall be taken to make all the Confidential Reports up-to-date, adverse remarks communicated, and orders for expunging such remarks issued wherever necessary. Simultaneously seniority lists shall also be made up-to-date and_ O.P(KAT) 214/23 - : 7 :- _probation of officers in the field of choice declared. Confidential Reports and seniority lists shall be made up to date before 30th June;_ _(c) *** *** *** *** *** ***_ _(d) During September/October the Departmental Promotion Committees will be convened and select lists prepared which will be notified before 30th November and in any case not later than December 31. If any officer becomes qualified after the preparation of the select list, but, before the occurrence of the vacancy, the Departmental Promotion Committee shall meet subsequently and his name shall be considered for inclusion in the select list;_ _(e) At the time of change over from the existing system the number of vacancies for the current year and the next year shall be considered together.”_ 10. The Tribunal also found that the competent authority of the State Government has consistently issued guidelines and circulars as per Anx.A-2 dated 26.5.1992, Anx.A-3 dated 3.7.1995, Anx.A-4 dated 14.3.2007, etc. directing the authorities concerned to ensure the timely consideration of claims of promotion and for timely convening of the DPC and preparation of select list, where the promotion is filtered through DPC process. So the Tribunal has found that the authorities concerned have breached their duties and obligations, both in terms of the aforesaid circulars as well as the statutory provisions contained in Rule 28 of KS&SSR. Later, she was promoted as per G.O.No.686/2020/SCSTDD dated 20.8.2020. This was just 11 days before her retirement. The applicant had to retire from service on 31.8.2020. The main excuse put forward by the O.P(KAT) 214/23 - : 8 :- respondents in the O.A. in not timely convening the DPC was citing grounds based on Covid-19 pandemic issues. The Tribunal found that the documents as per Anx. A-6 select list dated 26.3.2020, Anx. A-8 select list dated 28.4.2020 and Anx. A-9 select list dated 28.5.2020, DPC was to be convened and promotions were regularly effected in many of the Departments even the Covid was at its peak. Hence the Tribunal has found that the excuse cited on the basis of Covid-19 pandemic issue for the long delay in the convening the DPC process was not justifiable. Further even the promotion order dated 20.8.2020 was issued in favour of the applicant belatedly only because of the intervention made by the Tribunal by the issuance of the interim order dated 13.8.2020 by the Tribunal, wherein it has been specifically directed that the respondents in the OA will provisionally promote the applicant against the existing vacancy of Joint Director before 20.8.2020. It is only at that time that the authorities started moving and had issued the promotion order as per G.O. dated 20.08.2020. The Tribunal was fully convinced that there were no convincing reasons for the long delay and laches in convening the DPC process. There is no dispute that a vacancy had indeed arisen on 1.4.2020 and she has been promoted belatedly as O.P(KAT) 214/23 - : 9 :- against that vacancy. It is in that view of the matter that the Tribunal has ordered that the respondents in the OA shall grant the limited relief of notional promotion to the applicant in the higher post of Joint Director w.e.f. 1.4.2020. So all what has been ordered is that for the period from 1.4.2020, upto 19.8.2020 (day prior to the promotion dated 20.8.2020) the service of the applicant in the higher category post of Joint Director should be treated as notional and only notional benefits could be granted and for the said period, there is no question of the respondents being made to pay any arrears of pay and allowances, etc. We are in respectful agreement with the considered views of the Tribunal and we do not find any tenable grounds to interdict with the same. Accordingly it is for the petitioners herein/ respondents in O.A. to ensure that orders are passed notionally promoting the applicant to the category of Joint Director w.e.f. 1.4.2020 and fix her last pay in the post of Joint Director notionally as on 31.8.2020 (date of retirement) by treating as if she has been notionally promoted to the category of Joint Director w.e.f. 1.4.2020. Based on such treatment, it has to be ensured that pensionary benefits will have to be revised and the arrears of the pensionary benefits will have to be paid to the applicant through that exercise. O.P(KAT) 214/23 - : 10 :- Even otherwise, since the period involved is only from 1.4.2020 upto 19.8.2020, there may not be much financial consequence in granting the abovesaid notional benefit and for revising the pensionary benefits. 11. Further we see that the State Government as the statutory rule making authority has amended the provisions contained in Rule 28(b)(i) by inserting Rule 28(b)(i)(14) KS&SSR Part II w.e.f. 23.10.2010 as per SRO No.183 of 2010, which reads as follows: ## _“_ _**Rule 28(b)(i):- Promotion and appointment by transfer according to merit and ability.**_ _(1)........_ _xxx xxx xxx_ _(14) Notwithstanding anything contained under this rule, the Government may by order effect promotion/appointments by transfer notionally without monetary benefit of pay and allowances but with consequential pensionary benefits, to a pensioner without having to follow the procedures such as preparation, publication and review of select list by convening the Departmental Promotion Committee, if it is found later on after his retirement that he would have become eligible at any time during the course of his service for being promoted or appointed to such posts, categories or grade in that service had due procedure according to the rule existing at that time or made applicable thereafter been followed at the appropriate time."_ So it can be seen that the rule making authority has taken a progressive and liberal statutory rule, whereby it has been made that notwithstanding anything contained in KS&SSR, the Government is empowered to order promotion/appointments by transfer notionally without monetary benefit of pay and allowances but with O.P(KAT) 214/23 - : 11 :- consequential pensionary benefits to a pensioner without having to follow the procedures such as preparation, publication and review of select list by convening the DPC, if it is found later on, after his retirement that he would have become eligible at any time during the course of his service for being promoted or appointed to such posts, categories or grade in that service had due procedure according to the rule existing at that time or made applicable thereafter been followed at the appropriate time. So, in view of the amended statutory provision made effective from 23.10.2010, such notional benefits without pay and arrears, but involving only revision of pensionary benefits, can be granted to a pensioner even without observing the rigmarole of the DPC process. When that is the position, in view of the above aspects, we do not find any illegality or unreasonableness in the verdict rendered by the Tribunal. In a matter like this, in view of the abovesaid aspects, more particularly in the light of Rue 28(b)(i) (14) of KS&SSR Part II, we fail to understand as to why the State of Kerala and others have ventured to initiate litigative proceedings to challenge the well considered verdict of the Tribunal. However, it is ordered that the time limit for complying with the directions issued by the Tribunal as per Ext.P-4 verdict will be two months from the O.P(KAT) 214/23 - : 12 :- date of production of a certified copy of this judgment. With these observations and directions, the above Original Petition (KAT) will stand dismissed. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** **Sd/-** **C. JAYACHANDRAN, JUDGE** sdk+ ## **APPENDIX OF OP(KAT) 214/2023** |**PETITIONERS' **|**ANNEXURES:**| |---|---| |**ANNEXURE A1**|**TRUE COPY OF THE FINAL GRADATION LIST OF**| ||**DEPUTY DIRECTOR/PROJECT OFFICER AS ON**| ||**30.11.2016.**| |**ANNEXURE A2**|**TRUE COPY OF CIRCULAR NO.1053/RULES- 1/P&ARD**| ||**DATED 26.05.1992**| |**ANNEXURE A3**|**TRUE COPY OF CIRCULAR NO.9481/RULES- 1/95-**| ||**2/P&ARD DATED 03.07.1995**| |**ANNEXURE A4**|**TRUE COPY OF CIRCULAR NO.11919/R1/06/P&ARD**| ||**DATED 14.03.2007**| |**ANNEXURE A5**|**TRUE COPY OF THE REPRESENTATION SUBMITTED BY**| ||**APPLICANT TO THE 2 ND RESPONDENT DATED**| ||**17.06.2020**| |**ANNEXURE A6**|**TRUE COPY OF THE SELECT LIST PUBLISHED VIDE**| ||**NOTIFICATION NO.ES5-102692/2019/DHS DATED**| ||**26.03.2020 FOR PROMOTION TO THE POST OF PHN**| ||**TUTOR**| |**ANNEXURE A7**|**TRUE COPY OF SELECT LIST PUBLISHED VIDE**| ||**NOTIFICATION**<br>**NO.DT/6594/2019-A6**<br>**DATED**| ||**22.04.2020 TO THE POST OF PRINCIPAL CLASS**| ||**II/VICE PRINCIPAL/TRAINING OFFICER/TRADE TEST**| ||**OFFICER**| |**ANNEXURE A8**|**TRUE COPY OF SELECT LIST PUBLISHED VIDE**| ||**G.O(P) NO.29/2020/H&FWD DATED 28.05.2020 FOR**| ||**PROMOTION**<br>**TO**<br>**THE**<br>**POST**<br>**OF**<br>**SENIOR**| ||**SUPERINTENDENT LAY SECRETARY AND TREASURER**| ||**CHIEF ACCOUNTANT/MANAGER**| |**ANNEXURE A9**|**TRUE COPY OF SELECT LIST PUBLISHED VIDE**| ||**G.O(P) NO.26/2020/H&FWD DATED 28.05.2020 FOR**| ||**THE POST OF COMMUNICATION OFFICER**| |**EXHIBIT P1**|**TRUE COPY OF THE O.A NO.1074/2020**| |**EXHIBIT P2**|**TRUE COPY OF THE REPLY STATEMENT FILED BY THE**| ||**FIRST PETITIONER ON 27.07.2022**| |**EXHIBIT P3**|**TRUE COPY OF THE REJOINDER FILED BY THE**| ||**RESPONDENT TO THE REPLY STATEMENT FILED BY**| ||**THE 1 ST PETITIONER ON 08.11.2022**| |**EXHIBIT P4**|**TRUE COPY OF THE IMPUGNED ORDER OF THE**| ||**TRIBUNAL DATED 14.11.2022 IN THE AFORESAID**| ||**ORIGINAL APPLICATION**|