High Court of KeralaDivision Bench2014-03-28Petition allowed; remand to Kerala Administrati...

State of Kerala v. Rose Mary S.

Case / Petition Number:OP(KAT).No. 4289 of 2013 (Z)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thottathil B. Radhakrishnan
A. Muhammed Mustaque
Judgment Date: 2014-03-28
Court Decision / Holding: The original petition is allowed; Ext.P4 order is set aside. The Kerala Administrative Tribunal is directed to take OA 1693/2012 back to file and decide it de novo after affording the State an opportunity to file pleadings and materials. The employee may place further pleadings if permitted by the Tribunal. The right to seek interlocutory relief, including emoluments due during pendency, is left open. Parties are to appear before the Tribunal on 19 May 2014.
Final Disposition: Petition allowed; remand to Kerala Administrative Tribunal for de novo consideration of OA 1693/2012 with opportunity for pleadings and materials; appearance fixed on 19 May 2014.

Parties to the Case

Appellants / Petitioners

State of Kerala, represented by its Secretary, General Education (C) Department, Secretariat, Thiruvananthapuram
Director of Public Instructions, The Directorate of Public Instructions, Jagathi, Thiruvananthapuram
The Text Book Officer, Text Book Office, Padmavilas, Fort P.O, Thiruvananthapuram 695 023.

Respondents

Rose Mary. S, Junior Superintendent, Text Book Office, Padmavilas, Fort P.O, Thiruvananthapuram 695 023.

Legal Representation & Advocates

Counsels for Petitioners

• Senior Government Pleader Smt.M.J.Rajasree

Counsels for Respondents

• Sri.O.D.Sivadas
• Sri.S.Shaji

Case Synopsis & Summary

This is a constitutional challenge under Article 227 by the State government against a Kerala Administrative Tribunal order in OA 1693/2012. The petition seeks to quash or modify the Tribunal’s approach to a long series of promotions, reversion, and pay claims connected with Rose Mary S., a junior superintendent in the Text Book Office. The court recites the employee’s career path: she joined as a Lower Division Clerk, was promoted to Upper Division Clerk in 1986, with later corrections to that promotion. The litigation chain began with W.P.(C) 22137/2004, and culminated in a 2014 opinion of the High Court. The High Court notes that the Tribunal issued several interlocutory orders largely because the government officers were slow in placing the relevant materials before it. The judges observe a “checkered” factual picture and that the essential facts were not brought to the focus of the Tribunal. The Court remits OA 1693/2012 for de novo consideration, directing the Government to place pleadings and materials and enabling the employee to place additional pleadings if permitted. It clarifies that the Court does not intend to disturb other orders but requires a fresh examination of the issue. It further permits interlocutory relief for emoluments if pending. Finally, appearance before the Tribunal is fixed for 19 May 2014.

Provisions of Law Cited

Article 227 of the Constitution of India

Legal Doctrines & Maxims

principles of natural justice

Submissions & Arguments

Contentions of Appellants / Petitioners

The State contends that the Kerala Administrative Tribunal’s proceedings in OA 1693/2012 were impeded by delayed productions of materials by the Government officers, leading to a lack of focused consideration. The petition seeks remand for de novo consideration by the Tribunal after the Government is afforded an opportunity to file pleadings and place all relevant materials. The State argues for preserving the integrity of the process and ensuring a comprehensive factual record before the Tribunal, including any newer government orders that may affect the employee’s case, while allowing the employee to submit further pleadings. The aim is a fair, complete, and legally sound adjudication on OA 1693/2012 without disturbing unrelated orders.

Contentions of Respondents

Rose Mary S. contends that the Tribunal should evaluate the employee’s long service record, including the reversion and alleged irregularities in promotion during probation, and determine the proper relief. She relies on past orders and the ongoing dispute over emoluments due, asserting that the Government’s revised position or documentation need to be considered. The respondents urge that the matter be remitted to the Tribunal with full pleadings and evidence, and that any interim relief or emoluments be adjudicated once the matter is thoroughly examined on the merits.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Santhakumari v. State of Kerala	2005 (4) KLT 649	Mentioned Only	Cited to indicate earlier reliance on recovery of excess salary; the present judgment does not primarily rely on or overrule this decision.
W.P.(C) No.22137 of 2004	W.P.(C) No.22137 of 2004	Mentioned Only	Background writ petition cited; not treated as binding precedent in the present determination.
W.A.No.1895 of 2009	W.A.No.1895 of 2009	Mentioned Only	Division Bench decision cited for background; no direct application or distinction made in the present order.
R.P.No.1159 of 2009	R.P.No.1159 of 2009	Mentioned Only	Review petition that vacated a direction to recover excess salary; background reference without altering the present remand disposition.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 28TH DAY OF MARCH 2014/7TH CHAITHRA, 1936** **OP(KAT).No. 4289 of 2013 (Z)** **-----------------------------------------** **AGAINST THE ORDER IN OA 1693/2012 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM, DATED 25-01-2013** **---------------** ## **PETITIONER(S):** ## **-----------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION (C) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, THE DIRECTORATE OF PUBLIC INSTRUCTIONS, JAGATHI, THIRUVANANTHAPURAM.** **3. THE TEXT BOOK OFFICER, TEXT BOOK OFFICE, PADMAVILAS, FORT P.O, THIRUVANANTHAPURAM 695 023.** ## **BY SENIOR GOVERNMENT PLEADER SMT.M.J.RAJASREE** **RESPONDENT(S):** - **-------------------------** **ROSE MARY. S, JUNIOR SUPERINTENDENT, TEXT BOOK OFFICE, PADMAVILAS, FORT P.O, THIRUVANANTHAPURAM 695 023.** **BY ADVS. SRI.O.D.SIVADAS SRI.S.SHAJI** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 28-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **OP(KAT).No. 4289 of 2013 (Z)** **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **EXHIBIT P1. COPY OF THE OA NO.1693/12 FILED BEFORE THE HONOURABLE KAT** - **EXHIBIT P2. COPY OF THE ORDER DATEDN 22/11/12 IN OA 1693/12 OF THE HONOURABLE KAT.** - **EXHIBIT P3. COPY OF THE REPLY STATEMENT FILED BY 2ND RESPONDENT IN OA 1693/12 KAT DATED 20.12.12.** - **EXHIBIT P4. COPY OF THE ORDER DATED 25.01.13 IN OA NO.1693/12 KAT.** - **EXHIBIT P5. COPY OF THE ORDER NO.C5/12155/10/DPI DATED 15.11.10.** - **EXHIBIT P5(A).COPY OF THE ORDER NO.C5/12155/10/DPI DATED 08.12.10 OF DPI.** - **EXHIBIT P6. COPY OF COMMUNICATION NO.45965/C1/2011/G.EDN DATED 11.5.12.** - **EXHIBIT P7. COPY OF THE LETTER NO.C5/757/2012/DPI DATED 29.5.12.** - **EXHIBIT P7(A).ENGLISH TRANSLATION OF EXT. P7.** - **EXHIBIT P8. COPY OF LETTER NO.45965/C1/11/G.EDN. DATED 07.11.12.** - **EXHIBIT P9. COPY OF LETTER NO. C5/757-12 DATED 22.02.13 ISSUED BY THE 2ND PETITIONER TO THE FIRST PETITIONER.** - **EXHIBIT P10. COPY OF THE ORDER NO.C5/67756/2012/DPI DATED 28.2.13.** - **EXHIBIT P11. COPY OF CP NO.19/13 IN OA 1693/12 (KAT).** - **EXHIBIT P12. COPY OF THE ORDER DATED 22.3.13 IN CP 19/13 IN OA 1693/12 OF THE KAT.** - **EXHIBIT P13. COPY OF THE INTERIM ORDER DATED 31.5.13 IN CP 19/13 IN OA 1693/12.** - **EXHIBIT P14. COPY OF THE AFFIDAIVT FILED BY THE APPLICANT IN CP 19/13 IN OA 1693/12.** - **EXHIBIT P15. COPY OF THE AFFIDAVIT FILED BY THE DPI RESPONDENT IN CP 19/13 IN OA 1693/12.** - **EXHIBIT P16. COPY OF THE REPLY AFFIDAVIT DATED 12.8.13 FILED BY THE PETITIONER IN CP 19/13 IN OA 1693/12.** **PJ** **....2/-** **..2..** ## **OP(KAT).No. 4289 of 2013 (Z)** ## **-----------------------------------------** **EXHIBIT P17. COPY OF THE INTERIM ORDER DATED 23.8.13 OF KAT IN CP 19/13 IN OA 1693/12** **EXHIBIT P18. COPY OF THE MA NO.2670/13 IN CP 19/13 IN OA 1693/12.** **EXHIBIT P19. COPY OF THE ORDER NO.C5/67756/12/DPI DATED 26.10.13.** **EXHIBIT P20. COPY OF MA NO.2747/13 IN CP NO.19/13.** **EXHIBIT P21. COPY OF THE MA NO.2745/13 IN CP NO.19/13.** **EXHIBIT P22. COPY OF THE ORDER IN MA NO.2670/13 IN CP NO.19/13. EXHIBIT P23. COPY OF THE ORDER IN MA NO.2747/13 IN CP NO.19/13. EXHIBIT P24. COPY OF THE ORDER IN MA NO.2745/13 IN CP NO.19/13.** **EXHIBIT P25. COPY OF THE ORDER NO.C5/757/12/DPI DATED 14.6.13.** **EXHIBIT P26. COPY OF THE LETTER NO.C5/757/12 /DPI DATED 09.07.13. EXHIBIT P27. COPY OF G.O (RT) NO.2203/13/G.EDN DATED 27.5.13.** **EXHIBIT P28. COPY OF THE ORDER DATED 28.10.13 IN CP NO.19/13.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **EXT.R1(A): COPY OF THE COMMUNICATION ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS DATED 6/9/12.** **EXT.R1(B): COPY OF THE ORDER DATED 12/12/12 IN AP.63(2)/2012/SIC.** **/ TRUE COPY /** **P.S. TO JUDGE** ## **PJ** ## **THOTTATHIL B.RADHAKRISHNAN & A.MUHAMED MUSTAQUE, JJ.** ---------------------------------------------------- O.P.(KAT) No.4289 of 2013 ---------------------------------------------------Dated this the 28[th] day of March, 2014 ## **JUDGMENT** ## **Thottathil B.Radhakrishnan, J.** - 1.This original petition under Article 227 of the Constitution of India by the State Government challenging a final order of the Kerala Administrative Tribunal. - 2.We have heard the learned Government Pleader and the learned counsel for the respondent-employee quite _in extenso_ . - 3.It appears that during the course of the original application from which this original petition arises, the Tribunal issued a sequence of interlocutory orders, essentially because the Government Officers concerned were slow in placing the relevant facts and factors before that Tribunal. We make this observation because, the checkered career-graph of the employee concerned and the litigation-graph touching that O.P.(KAT) No.4289 of 2013 2 employee, have not apparently been brought to the focused attention of the Tribunal. - 4.We may say that we are only giving a skeletal sketch of the facts, the details of which will have to be looked into by the establishment and the employee while placing further submissions before the learned Tribunal, since we proceed to make an order of remit of the case. 5.The employee joined service as a Lower Division Clerk in the Education Department. Later, she was promoted as Upper Division Clerk with effect from 28.02.1986. That was revised by the Department since it was found to be erroneous. Initially, the employee filed W.P.(C) No.22137 of 2004 before this Court. An interlocutory order was issued by this Court on 28.11.2008 in that writ petition, requiring the establishment to verify the different materials, files and records and to place a report. This was because the employee had even then taken the stand that she was unaware of the O.P.(KAT) No.4289 of 2013 3 reversion from UDC to LDC on 01.11.1989. This is clearly reflected by that interlocutory order dated 28.11.2008. Ultimately, by judgment dated 10.06.2009, this Court dismissed that writ petition. A writ appeal was filed by the employee before this Court as W.A.No.1895 of 2009. That writ appeal was decided by the Division Bench on 24.08.2009, dismissing the same holding that the Division Bench was not impressed by the technical contention of violation of principles of natural justice and the employee concerned could not have aspired for a promotion while she was still a probationer at the relevant time. The Bench had also refused to grant her exemption from recovery of excess salary paid, relying on **Santhakumari v. State of Kerala** [2005 (4) KLT 649]. Later, a review petition was filed seeking review of that judgment in the writ appeal. That was decided as per judgment dated 24.06.2011 in R.P.No.1159 of 2009 whereby the direction in the writ appeal judgment for recovery of the excess drawn salary was vacated. However, adverting to paragraph 2 of that judgment on the review O.P.(KAT) No.4289 of 2013 4 petition, it can be seen that insofar as the findings relating to the correctness of the reversion on rectification in 1989 are concerned, it was noted that there was no ground for interference either in the appeal or in the review petition. We have reached at the aforesaid facts after looking into the files in W.P.(C) No.22137 of 2004, W.A.No.1895 of 2009 and R.P.No.1159 of 2009, as well. 6.With the aforesaid, we note that the executive decision relied on by the employee has been revised by the Government on a review. The facts situation pointed out by the Director of Public Instruction needs deeper consideration at the hands of the learned Tribunal while answering the claim of the employee before it in O.A.No.1693 of 2012. We are sure that the Government should place the entire facts, including the sequence of events which are relevant for the learned Tribunal to come to the just and proper conclusion. We say so more particularly because, according to the employee, by now, there are different orders by the Government or its O.P.(KAT) No.4289 of 2013 5 officers either in her favour or against her. Though it is mentioned before us, we do not have to look into any of those, since this matter will end in a remit of the issues to the learned Tribunal for consideration. By this judgment, we do not intend to interfere with any situation obtained by those orders. The requirement now is that O.A.No.1693 of 2012 needs to be considered _de novo_ by the Tribunal after giving the State of Kerala and other respondents in that O.A. opportunity to place the pleadings and materials appropriately. In the result, this original petition is allowed setting aside Ext.P4 order. As a consequence, the learned Tribunal is requested to take back O.A.No.1693 of 2012 to file and decide on it _de novo_ after affording opportunity to the Government to file pleadings and materials. It is clarified that the employee, if so advised, may place further pleadings and materials as may be permitted by the learned Tribunal. We also leave open the right, if any, of the employee to seek O.P.(KAT) No.4289 of 2013 6 interlocutory orders as the Tribunal may grant even as regards her grievance that the emoluments due to her have not been released during the pendency of the case. The parties are directed to mark appearance before the learned Tribunal on 19.5.2014. Sd/- **THOTTATHIL B.RADHAKRISHNAN, JUDGE** Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ln /True copy/ P.A. to Judge