State of Kerala & Ors. v. G.M. Kochukanjiram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 22[ND] DAY OF DECEMBER 2021 / 1ST POUSHA, 1943 OP(KAT) NO. 372 OF 2021 AGAINST THE ORDER IN OA 1544/2014 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS:** 1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE (F) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001. 2 THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF FOREST FORCES VAZHUTHACADU, THIRUVANANTHAPURAM - 695 014. 3 THE ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FORESTS (ADMINISTRATION), FOREST HEADQUARTERS, VAZHUTHACADU, THIRUVANANTHAPURAM - 695 014. BY ADV PUBLIC PROSECUTOR ## **RESPONDENT:** G.M.KOCHUKANJIRAM AGED 55 YEARS S/O. LATE K. C. MANI, (DEPUTY CONSERVATOR OF FORESTS (NON -CADRE), WORKING AS DIVISIONAL FOREST OFFICER, S. H. MOUNT P. O., KOTTAYAM, RESIDING AT KOCHUKANJIRAM HOUSE, VETOOR P. O., KOTTAYAM. SRI.ANTONY MUKKATH, SR.GOVT.PLEADER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 22.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(KAT) NO. 372 OF 2021** **2** ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ===================================** ## **OP(KAT) No.372/2021** _(arising out of the common order dated 13.11.2018 in OA No.1544/2014 & 388/2014 of the KAT, TVPM)_ **========================================= Dated this the 22[nd] of December, 2021** ## **J U D G M E N T** The sole respondent herein has filed the instant Ext.P1 Original Application OA No.1544/2014 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench with the following prayers. _“i. Call for the records leading to the Issuance of Annexure A6 and Annexure A7 by the respondents and may be setaside._ _ii. Call for the records leading to the issuance of Annexure A4 GO (Rt) No. 361/2013/F & WLD dated 24.09.2013 granting notional promotion to the applicant as senior Grade Assistant Conservator of Forests which is also known as Deputy Conservator of Forests (non cadre) and the condition in the order that the applicant and others named in the order are "not eligible for back arrears during the period of notional promotion", so far as the applicant is concerned may be set aside._ _iii. To Direct the respondents to fix the scale of pay of the applicant in the scale of pay of the senior Grade Assistant Conservator of Forests also known as Deputy Conservator of Forests (non-cadre) with effect from 01.04.2010 and to grant back arrears pay and other allowances from 01.04.2010 to 24.09.2013._ _iv. Call for the records leading to the issuance of Annexure A3 GO(RT) No.160/2013 F&WLD dated 19.04.2013 of the 1[st] respondent granting notional promotion to the applicant as Assistant Conservator of Forests w.e.f. 12.12.2000 and the condition in the order are not eligible for back arrears during the period of notional promotion as Assistant Conservator of Forests w.e.f. 12.12.2000 so far as the applicant concerned may be set aisde._ _v. To direct the respondents that the pay of the applicant may be fixed in the scale of pay of the Assistant Conservator of Forests w.e.f. 12.12.2000 and grant all consequential increments and subsequent pay fixations in the light of the pay revision orders and_ **OP(KAT) NO. 372 OF 2021** **3** _also direct the respondents to give him the arrears of pay and allowances due to him consequent to the above fixation._ _vi To Declare that the applicant is eligible and entitled to get the back arrears of pay and allowances during the period of notional promotion as Senior Grade Assistant Conservator forests viz. 01.042010 to 24.09.2013 and also to declare that the applicant is from eligible and entitled to get the back arrears of pay and allowances, during the period of notional promotion as Assistant Conservator of Forests viz. From 12.12.2000._ _vii. Such other reliefs which are just and equitable may also be granted in favor of the applicant.”_ 2. The Tribunal after hearing both sides has rendered the impugned Ext.P3 final order dated 13.11.2018 in the instant OA No.1544/2014 finding that the main matter in issue is covered in favour of the Original Applicant as per the orders and directions passed by the Tribunal in terms of the final order dated 08.07.2016 rendered in OA No.2998/2013 and that there is no change of duties to be discharged in the post of Deputy Conservator of Forest compared to the post of Asst. Conservator of Forest and hence Rule 23(d) of Part I KSR would squarely apply and that the applicant is entitled to a salary during the period of their notional promotion upto a maximum period of one year and that arrears of salary due to the applicant for the period of 1 year from 24.09.2012 till his actual promotion on 24.09.2013 shall be sanctioned and released by the State Government within the time limit mentioned therein. It is this final verdict of the Tribunal at Ext.P3 rendered on 13.11.2018 in the instant OA No.1544/2014 that is under challenge in the instant Original Petition filed at the behest of the State of Kerala and the **OP(KAT) NO. 372 OF 2021** **4** Forest Department under Article 226 and 227 of the Constitution of India. 3. The prayes in the instant Original Petition filed on 18.11.2021 are as follows: _“1. To set aside Ext.P3 order dated 13.11.2018 in OA No.1544/2014 of the Hon'ble Kerala Administrative Tribunal. 2. Such other reliefs this Hon'ble Court deems fit to grant in the interest of justice, equity and good conscience.”_ 4. Heard Sri.Antony Mukkath, learned Sr.Government Pleader appearing for the petitioners in the OP/respondents in the OA. In the nature of the orders proposed to be passed by this Court in this OP, notice to the sole respondent in this OP/sole applicant in the OA will stand dispensed with. 5. At the outset it has to be noted that Ext.P3 final verdict has been rendered by the Tribunal in the instant OA No.1544/2014 as early as on 13.11.2018, whereas the instant Original Petition has been filed by the respondents in this OA only as late as on 19.11.2021. No explanation has been offered in the present OP as to the reasons for the inordinate delay in filing the present OP as late as on 19.11.2021. The challange has been made as against the verdict of the Tribunal only after an elapse of about 3 long years. It is trite that the issues of delay and laches would also be applicable in public law proceedings initiated under Articles 226 and 227 of the Constitution of India. Hence we are of the firm view that the **OP(KAT) NO. 372 OF 2021** **5** present OP is liable to be dismissed solely on the ground of unexplained and long delay and laches on the part of the petitioners in the OP and we do so. Further we also note that the main case put forward in the Original Application is that the applicant was earlier working in the Post of Assistant Conservator of Forest and he was denied his lawful promotion as Dy.Conservator of Forest, when it became due. It is much later as per Annexure A4 GO(RT) No.361/2013/F&WLD dated 24.09.2013 that he was given notional promotion as Dy.Conservator of Forest with effect from 01.04.2010 and that too was subject to the condition that the applicant will not be eligible for arrears of pay and allowances during the period of notional promotion. The request for arrears of pay and allowances has been denied by the Government by mainly placing reliance on Rule 23(c) of Part I KSR. The Tribunal has found that the provisions contained in Rule 23(d) of Part I KSR would be squarely applicable in the facts and circumstances of the instant case and further that there is no change of duties and functions to be discharged by an incumbent working in the post of Asst. Conservator of Forest compared to that to be discharged in the post of Dy.Conservator of Forest. The operative portion of Rule 23(a), (c) and Rule 23(d) of Part I KSR provides as follows: _“23. (a) Subject to any exceptions specifically made in these rules, an officer shall begin to draw the pay and allowances_ **OP(KAT) NO. 372 OF 2021** **6** _attached to his tenure of a post with effect from the date he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. If the charge is transferred afternoon, the transfer does not affect pay and allowances until the next day._ _Exception.-An officer deputed for a course of instruction or training which is ordered to be treated as duty, if promoted to a higher post in the regular line during such course of instruction or training, may draw the pay thereof, without joining it, the benefit of promotion being given from the date his junior assumes charge of the higher post._ _(c) In the case of notional promotions back arrears of pay and allowances are not admissible_ _(d) Promotions which do not involve change of duties shall have effect from the date of occurrence of vacancy, or the date of acquiring eligibility for promotions, whichever is later, but monetary benefit shall be admissible only for a maximum period of one year prior to the date of order of promotion._ 6. Rule 23(a) is a specific rider and the said provision is subject to any exceptions made in those Rules. Whereas Rule 23(d) specifically stipulates that promotions which do not involve change of duties shall have effect from the date of occurance of vacancy or the date of acquiring eligibility for promotions, whichever is later, but monetory benefits shall be admissible only for a maximum period of one year prior to the date of the order of promotion. A similar issue was considered by the Tribunal wherein the Tribunal has rendered final order dated 08.07.2016 in OA No.2998/2013 wherein it has been held that there is no change of duties and functions to be discharged by an incumbent in holding the post of Asst. Conservator of Forest compared to the post of Dy.Conservator of Forest and therefore, Rule 23(d) of Part I KSR will apply. Hence it was found that the applicants therein are entitled to salary for the period of notional promotion up to a maximum period of one year and hence it was **OP(KAT) NO. 372 OF 2021** **7** ordered therein that arrears of salary due to the applicants therein for the period of one year from 24.09.2012 till their actual promotion on 24.09.2013 shall be sanctioned and disbursed to them by the respondent State Government within the time period mentioned therein. In the instant case, the Tribunal has found that the dictum laid down by the Tribunal in the verdict in OA NO.2998/2013 will squarely apply and that since there is no change of duties and responsibilities to be discharged by an incumbent in the post of Asst. Conservator of Forest compared to the post of Dy. Conservator of Forest, the beneficial provision contained in Rule 23(d) of Part I KSR will apply. In the instant case, the notional promotion has been granted to the applicant as per annexure A4 GO(RT) No.361/2013/F&WLD dated 24.09.2013, but notionally with effect from 01.04.2010 etc. Hence, the applicant is entitled for arrears of salary in the post of Dy. Conservator of Forest for a period from 24.09.2012 up to his actual promotion as per Annexure A4 order dated 24.09.2013 will have to be sanctioned and released to him by the competent authority of the State Government etc. The said view of the Tribunal cannot be faulted in any serious manner. The petitioners have attempted to argue the case that Rule 23(d) will not be applicable in the instant case inasmuch as promotion as Dy. Conservator of Forest (Non-cadre) (ie, Senior Grade Assistant Conservator of Forest), is a grade promotion post of Assistant Conservator of Forest in the ratio 1:3 and that there are 101 sanctioned posts for **OP(KAT) NO. 372 OF 2021** **8** Assistant Conservator of Forest, but retrospective promotion of the applicant is only due to revision of seniority and promotion was not with reference to vacant post etc. Further that, applicant at no point of time had taken charge as Dy. Conservator of Forest (Non-cadre) with respect to the date from which he was granted notional promotion with effect from 01.04.2010 and that assumption of charge is _sine a qua non_ for payment of salary etc. We are not impressed by the above said argument raised on behalf of the petitioners. A reading of Annexure A4 GO(RT) No.361/2013/F&WLD dated 24.09.2013 would make it clear that the same is for implementing a proposal for granting promotion to Assistant Conservator of Forest in the cadre of Senior Grade ACF which is also known as Deputy Conservator of Forest (non-cadre). Further that the Government has examined the case in detail and have sanctioned senior grade to the following Assistant Conservator of Forest with effect from the date of this order and one of the incumbents shown therein is the present applicant, Sri. G.M.Kochukanjiram has been given notional promotion as Assistant Conservator of Forest (Sr.Grade)/Dy.Conservator of Forest (noncadre) with effect from 01.04.2010. The provision in Rule 23(d) is an exception which is made applicable for promotions which do not involve change of duties and shall have effect from the date of occurance of the vacancy or the date of acquiring eligibility for promotion whichever is later, but that monetary benefit shall be admissible only for a maximum **OP(KAT) NO. 372 OF 2021** **9** period of one year, prior to the date of the order of promotion. Even going by the case of the petitioners in the OP, the post of Dy.Conservator of Forest (non-cadre) is only a Sr.Grade Asst. Conservator of Forest. Rule 23(d) will be applicable in case where there is no change of duties and responsibilities and there, promotion is not actually made from the due date, but made only subsequently, but from a notional anterior date and in such a case, where there is no change of duties and responsibilities, then such promotion shall have effect from the date of occurance of vacancy or the date of acquiring eligibility for promotion whichever is later, but monetory benefit shall be admissible only for a maximum period of one year prior to the date of order of promotion. It is admitted by the petitioners as per Annexure A4 GO.(Rt) No.361/2013/F&WLD dated 24.09.2013, that the due date of promotion in the case of the applicant as Dy. Conservator of Forest (non-cadre)/Senior Grade Assistant Conservator of Forest is 01.04.2010. But Annexure A4 promotion order is actually made only on 24.09.2013. It is indisputable that there is no change of duties and responsibilities to be discharged by an incumbent holding the post of Assistatant Conservator of Forest, compared to an incumbent holding the post of Deputy Conservator of Forest (non-cadre). The former is only a senior grade. Hence the promotion shall take effect from the date of occurance of vacancy or date of acquiring eligibility of promotion, whichever is later. The said date can be reckoned only as 01.04.2010 as is **OP(KAT) NO. 372 OF 2021** **10** admitted in Annexure A4. However, the monetary benefits shall be admissible only for a maximum period of one year prior to the date of promotion, ie, monetary benefits shall be liable to be paid to the applicant for the period from 24.09.2012, up to 24.09.2013 (date of issuance of Annexure A4 promotion order). It has to be borne in mind that Rule 23(c) stipulates that in the case of notional promotions, back arrears of pay and allowances will not be admissible. However, Clause (d) of Rule 23 specifically stipulates as above and therefore the said provision contained in Rule 23(d) is an exception to Rule 23(c), but subject to the limitations therein. Therefore, the Tribunal cannot be blamed in any manner for having taken the view that in a case like this, the applicant is entitled for arrears of salary for the period from 24.09.2012 up to 24.09.2013 (date of actual issuance of promotion order). The argument that the same can be claimed, benefit of Rule 23(d) can be claimed only if the applicant had taken charge of the duties of promotion post of Deputy Conservator of Forest (non-cadre) etc is bereft of any merit. If that were so, it would amount to obliterating the provisions contained in Rule 23(d). The said objection is raised only for the purpose of defeating the just and lawful claims of an incumbent like the applicant and hence, we have no hesitation to overrule and reject such contentions of the petitioners. In other words, we are of the firm view that there is no merit in the present original petition. Moreover, we have already found that there is inordinate delay **OP(KAT) NO. 372 OF 2021** **11** and laches on the part of the petitioners to mount challenge as against the present verdict of the Tribunal which has been rendered as early as on 13.11.2018 and whereas the present OP has been filed only as late as on 19.11.2021 and there is no reasonable and credible explanation whatsoever for the long and inordinate delay and laches in that regard. In view of the long delay in the matter, it is ordered that the competent authority of the State Government shall immediately comply with the directions and orders passed by the Tribunal as per Ext.P3, without any further delay at any rate within one month from the date of production of a copy of this judgment. 8. The Registry will forward a copy of this judgment to the respondent herein/original applicant for necessary information. The Secretary to the Office of the Advocate General will immediately forward copy of this judgment to the petitioners in this OP for necessary information and immediate compliance. With these observations and directions, the Original Petition will stand dismissed. ## **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** **Sd/VIJU ABRAHAM JUDGE** Nsd **OP(KAT) NO. 372 OF 2021** **12** ## **APPENDIX OF OP(KAT) 372/2021** PETITIONER EXHIBITS GO |Exhibit P1|THE TRUE COPY OF THE O.A.NO.1544/2014 ALONG| |---|---| ||WIT H ANNEXURES.| |ANNEXURE A1|THE TRUE COPY OF THE ORDER DATED 19.08.2013| ||IN O.A.NO.337/2013 OF THE HON'BLE KERALA| ||ADMINISTRATIVE TRIBUNAL.| |ANNEXURE A2|THE TRUE COPY OF THE INTERIM ORDER DATED| ||14.02.2013 IN O.A.NO.337/2013 OF THE HON'BLE| ||KERALA ADMINISTRATIVE TRIBUNAL.| |ANNEXURE A3|THE TRUE COPY OF THE GO (RT)| ||NO.160/2013/F&WLD DATED 19.04.2013.| |ANNEXURE A4|THE TRUE COPY OF THE GO (RT)| ||NO.361/2013/F&WLD DATED 24.09.2013.| |ANNEXURE A5|THE TRUE COPY OF THE REPRESENTATION DATED| ||11.10.2013.| |ANNEXURE A6|THE TRUE COPY OF THE LETTER| ||NO.12153/F1/2013/F& WLD DATED 01.04.2014| ||ISSUED BY THE FIRST RESPONDENT.| |ANNEXURE A7|THE TRUE COPY OF THE LETTER NO.D2-7370/2010| ||DATED 06.05.2014 ISSUED BY THE 3RD RESPONDENT| ||TO THE APPLICANT.| |ANNEXURE A8|THE TRUE COPY OF THE GO (RT)| ||NO.225/2010/F&WLD DATED 25.05.2010.| |ANNEXURE A9|THE TRUE COPY OF THE FINAL SENIORITY LIST OF| ||ASSISTANT CONSERVATOR OF FORESTS AS ON| ||01.05.2010.| |ANNEXURE A10|THE TRUE COPY OF THE GE REGISTER OF THE| ||APPLICANT.| |ANNEXURE A11|THE TRUE COPY OF THE GE REGISTER OF I.| ||SIDHEEQ.| **OP(KAT) NO. 372 OF 2021** **13** Exhibit P2 THE TRUE COPY OF THE REPLY STATEMENT ALONG WITH ANNEXURES DATED 17.09.2015 FILED BY THE FIRST PETITIONER. ANNEXURE R1(a) TRUE COPY OF G.O.(RT) NO.52/12/F& WLD DATED 30.01.12. ANNEXURE R1(b) TRUE COPY OF JUDGMENT IN OP NO.12034/94 DATED 01.09.94. ANNEXURE R1(c) TRUE COPY OF FINAL SENIORITY LIST OF RANGERS AS ON 01.01.1992. ANNEXURE R1(d) TRUE COPY OF JUDGMENT IN WP(C) NO.37375/08 DATED 20.01.09. ANNEXURE R1(e) TRUE COPY OF JUDGMENT IN WP(C) NO.4420/09 DATED 11.02.09. ANNEXURE R1(f) THE TRUE COPY OF GO(RT) NO.113/10/F&WLD DATED 16.03.10. ANNEXURE R1(g) THE TRUE COPY OF G.O.(MS) NO.52/2012/F&WLD DATED 25.04.2012. ANNEXURE R1(h) THE TRUE COPY OF G.O.(P) NO.1016/2000/FIN. DATED 12.07.2000. ANNEXURE R1(i) THE TRUE COPY OF G.O.(P) NO.83/2007/FIN. DATED 01.03.2007. Exhibit P3 THE TRUE COPY OF THE ORDER IN O.A.1544/2014 DATED 13.11.2018 OF THE KERALA ADMINISTRATIVE TRIBUNAL. //true copy// PA to Judge