OP(KAT).427/2019 (State of Kerala vs Dr. P.K. Sundara Raj)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941** **OP(KAT).No.427 OF 2019** **AGAINST THE ORDER/JUDGMENT IN TA 5487/2012 DATED 20-06-2018 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001 2 THE SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM 3 THE DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE.P.O, THIRUVANATHAPURAM** **4 THE ACCOUNTANT GENERAL(A AND E) KERALA THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER** ## **RESPONDENT/S:** **DR.P.K.SUNDARA RAJ** **RETIRED PROFESSOR AND HEAD OF DEPARTMENT, DEPARTMENT OF ORTHOPAEDICS, MEDICAL COLLEGE, THIRUVANANTHAPURAM, RESIDING AT PATTATHIL.P.T.CHACKAO NAGAR, ULLOOR, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM, PIN-695011** ## **OTHER PRESENT:** ## **SR.GP SRI.ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 19-11-2019, THE COURT ON 19-11-2019 DELIVERED THE FOLLOWING:** _**OP(KAT).427/19**_ 2 **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ----------------------------------------------O.P.(KAT) No.427 of 2019 ----------------------------------------------Dated this the 19[th] day of November, 2019 ## **JUDGMENT** ## _**Arun, J**_ The challenge in the original petition is against Exhibit P4 order of the Kerala Administrative Tribunal, allowing the transferred application filed by the respondent/applicant. By the impugned order, the Tribunal set aside Exhibit P11 order, to the extent it refused retrospective promotion to the applicant with effect from 1.5.1998 and declared the entitlement of the applicant to be promoted as Professor with retrospective effect from 1.5.1998 with all consequential benefits including arrears of pay and allowances and revised terminal benefits. The averments in the transferred application, in brief, were as follows; The applicant, while working as Assistant Professor of Orthopaedics, was subjected to disciplinary proceedings, initiated through memo of charges dated 24.10.1997, which culminated in the punishment of barring of one increment without cumulative effect, as per Exhibit P1 Government Order dated 17.6.2000. As _**OP(KAT).427/19**_ 3 a result of the pending disciplinary proceedings, the applicant's name was not included in the select list for promotion to the post of Professor, in spite of his merit and seniority. 2. Being aggrieved by the imposition of penalty, the applicant filed a review petition dated 17.8.2000, as provided under Rule 35 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. The applicant was due to retire on 31.5.2002, in spite of which the review petition was kept pending without orders. Therefore, he filed O.P.No.5361 of 2002 before this Court seeking expeditious disposal of his review petition. The original petition was disposed of by this Court under Exhibit P2 judgment dated 19.2.2002 directing the Government to endeavour to dispose of the review petition before the retirement of the applicant. It was made clear that in the event of the applicant's claim being considered after retirement, he will be entitled to all consequential benefits, irrespective of the fact that he had retired from service. The review petition was considered by the Government after the applicant had superannuated and Exhibit P3 order issued, absolving him from all the charges and revoking the punishment imposed on him. _**OP(KAT).427/19**_ 4 3. In view of his exoneration, the applicant raised the claim for promotion with retrospective effect, from the date on which the vacancy of Professor had arisen, by convening a special DPC for the purpose. His request in this regard being unanswered, the applicant approached this Court again. By Exhibit P5 judgment dated 23.7.2002, this Court disposed the original petition directing consideration of the applicants request in Exhibit P4 representation, within three months. Accordingly, an _ad hoc_ DPC was convened on 20.1.2003 and decision taken to give notional promotion to the applicant with effect from 1.5.1998, with the stipulation that no arrears of pay will be given and the retirement benefits will be revised on the basis of pay notionally arrived at. 4. Aggrieved by the refusal to grant him promotion with effect from 1.5.1998 and the consequential benefits, the applicant filed W.P(C).No.29982 of 2008, which was subsequently transferred to the Tribunal and numbered as T.A.No.5487 of 2012. Before the Tribunal the applicant relied on the observation in Exhibit P2 judgment and contended that the claim having been considered after retirement, he was entitled to all consequential benefits irrespective of his retirement. Reliance was also placed on the _**OP(KAT).427/19**_ 5 direction in Exhibit P5 judgment to consider the applicant's claim for retrospective promotion and consequential benefits. Relying on Rule 23(c) of Part I KSR, as it stood prior to the amendment, it was contended that the applicant was entitled to arrears of salary on being promoted retrospectively. 5. The Government attempted to justify its decision to grant notional promotion without arrears, banking on the principle of 'no work no pay', pointing out that the applicant had worked as Professor only for a period of one month from 1.5.2002 to 31.5.2002. The applicant relied on the decision of the Honourable Supreme Court in _**Ramesh Kumar v. Union of India**_ [2015 14 SCC 335] to contend that the principle of 'no work no pay' cannot be taken as a rule of thumb. The Tribunal accepted the claim of the applicant, finding that the refusal on the part of the respondents to grant retrospective promotion with all consequential benefits cannot be sustained in the facts and circumstances of the case. 6. Heard learned Senior Government Pleader Sri.Antony Mukkath and Sri.P.Nandakumar, the learned counsel for the applicant/respondent. _**OP(KAT).427/19**_ 6 7. The learned Senior Government Pleader relied on Rule 23(a) of Part I KSR, which stipulates that an officer shall begin to draw pay and allowances attached to his tenure of a post only with effect from the date he assumes the duties of that post. It is contended that the applicant assumed charge as Professor only on 1.5.2002 and was therefore eligible to draw the pay and allowances of the post of Professor only from 1.5.2002 to 31.5.2002, the date on which he retired from service. The principle of 'no work no pay' is urged to sustain the decision to deny arrears of salary. 8. The learned counsel for the applicant contended that as a result of a false complaint and a cooked up charge, which ultimately ended in his exoneration, the applicant had lost his right to be promoted as Professor with effect from 8.7.1996, the date on which the vacancy had arisen. It is submitted that the inordinate delay on the part of the Government in finalising a disciplinary proceeding shall not be to the prejudice of the applicant. 9. The following facts are not in dispute. The disciplinary proceedings against the applicant commenced on 24.10.1997. _**OP(KAT).427/19**_ 7 The penalty of barring of one increment without cumulative effect was imposed on the applicant on 17.6.2000. The review petition filed on 17.8.2000 was finally decided on 22.6.2002; exonerating the respondent. The applicant was not considered for promotion in the DPC convened during this period solely due to the pending disciplinary proceedings. The applicant was promoted as Professor only on 1.5.2002 and he retired from service on 31.5.2002. In Exhibit P2 judgment this Court had observed that in the event of the applicant's claim being considered after his retirement, he will be entitled to all consequential benefits irrespective of the retirement. By order dated 22.6.2002, issued after the applicant's retirement, he was exonerated of all the charges. The claim of the applicant for convening _ad hoc_ DPC and grant of retrospective promotion with consequential benefits was directed to be considered as per Exhibit P5 judgment dated 23.7.2002. The _ad hoc_ DPC convened on 20.1.2003, decided to give promotion to the applicant in the cadre of Professor with effect from 1.5.1998. In Exhibit P10 order, no reason is stated for granting only notional promotion and refusing arrears of salary to the applicant. _**OP(KAT).427/19**_ 8 10. In the reply statement filed before the Tribunal it is admitted that three of the applicant's juniors had superseded him during the pendency of the disciplinary proceedings. By Exhibit P3 the applicant was absolved of all the charges and the punishment of barring of one increment was revoked with consequential benefits. In such circumstances, there is no rhyme or reason to deny arrears of salary in the higher post to the applicant for the period during which promotion was denied to him. 11. Even though, as per Rule 23(a) of Part I KSR, an officer shall begin to draw the pay and allowances attached to the tenure of a post, only with effect from the date he assumes the duties of that post, Rule 23(c), prior to its amendment, provided that promotions which do not involve change of duties should be given effect from the date on which the vacancy arose. In Exhibit P10 the Government have found that the applicant was entitled for promotion with effect from 1.5.1998. The delay in effecting the promotion being not attributable to the applicant in any manner and on the contrary, being attributable to the administrative delay, the applicant cannot be denied the benefits 9 _**OP(KAT).427/19**_ legitimately due to him. The Honourable Apex Court in _**Ramesh Kumar,**_ held that the principle of 'no work no pay' cannot be applied as a rule of thumb and would depend on the facts and circumstances of each case. It was also held that the principle of 'no work no pay' would not apply when the employer was at fault in not considering the case of the incumbent for promotion and not allowing him to work in a post carrying a higher grade. In the above circumstances, we find no reason to interfere with the order of the Tribunal. The original petition is therefore dismissed. No order as to costs. Sd/- **K.VINOD CHANDRAN JUDGE** Sd/- **V.G.ARUN JUDGE** _vgsx_ **APPENDIX** _**OP(KAT).427/19**_ 10 **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1(TA)** **A TRUE COPY OF THE T.A.NO.5487/2012 ALONG WITH EXHIBITS P1 TO P12 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL** **EXHIBIT P1(TA)(1) THE PHOTOCOPY OF THE ORDER NO.2574/2000/H & FWD DATED 17.06.2000 ISSUED BY THE FIRST PETITIONER** **EXHIBIT P1(TA)(2) THE PHOTOCOPY OF THE JUDGMENT DATED 19.02.2002 IN OP NO.5361/2002 OF THIS HONOURABLE COURT** **EXHIBIT P1(TA)(3) THE PHOTOCOPY OF THE ORDER G.O.(RT) NO.1275/2002/H & FWD DATED 22.06.2002 ISSUED BY THE FIRST PETITIONER** **EXHIBIT P1(TA)(4) THE PHOTOCOPY OF THE REPRESENTATION DATED 10.07.2002 SUBMITTED BY THE RESPONDENT** - **EXHIBIT P1(TA)(5) THE PHOTOCOPY OF THE JUDGMENT DATED 23.07.2002 IN OP NO.20559/2002 OF THIS HONOURABLE COURT** **EXHIBIT P1(TA)(6) THE PHOTOCOPY OF THE LETTER DATED 01.05.2006 SUBMITTED BY THE RESPONDENT BEFORE THE 4TH PETITIONER** **EXHIBIT P1(TA)(7) THE PHOTOCOPY OF THE LETTER NO.GE.5/B/S.384/262, 63 DATED 01.06.2006 OF THE 4TH ADDRESSED TO THE FIRST PETITIONER** **EXHIBIT P1(TA)(8) THE PHOTOCOPY OF THE APPLICATION SUBMITTED BY THE RESPONDENT BEFORE THE FIRST PETITIONER DATED 23.08.2007** **EXHIBIT P1(TA)(9) THE PHOTOCOPY OF THE LETTER NO.37517/B1/07/H & FWD DATED 19.02.2007 OF THE FIRST PETITIONER ADDRESSED TO THE RESPONDENT** **EXHIBIT P1(TA)(10) THE PHOTOCOPY OF THE GOVERNMENT ORDER G.O. (RT) NO.679/2008/H & FWD DATED 23.02.2008 OF THE FIRST PETITIONER** **EXHIBIT P1(TA)(11) THE PHOTOCOPY OF THE LETTER NO.18227/B1/08/H&FWD DATED 11.06.2008 OF THE STATE PUBLIC INFORMATION OFFICER, H & FWD** _**OP(KAT).427/19**_ 11 **EXHIBIT P1(TA)(12) THE PHOTOCOPY OF THE OBJECTION DATED 31.03.2003 SUBMITTED BY THE RESPONDENT BEFORE THE 2ND PETITIONER TO THE SPECIAL DPC EXHIBIT P2(TA) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE FIRST PETITIONER ON 23.09.2009 EXHIBIT P3(TA) TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE RESPONDENT ON 01.12.2009 EXHIBIT P4(TA) TRUE COPY OF THE FINAL ORDER DATED 20.06.2018 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL IN THE TRANSFERRED APPLICATION**