T.K. Venugopal v. Guruvayoor Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **SATURDAY, THE 23RD DAY OF MARCH 2013/2ND CHAITHRA 1935** ## **WP(C).No. 27181 of 2006 (J)** **----------------------------** ## **PETITIONER(S):** ## **--------------------------** **T.K.VENUGOPAL, AGED 43, FIRST GRADE OVERSEER, GURUVAYOOR DEVASWOM BOARD, GURUVAYOOR.** **BY ADVS.SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM** ## **RESPONDENT(S):** - **----------------------------** **1. GURUVAYOOR DEVASWOM COMMISSIONER, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM.** **2. THE GURUVAYOOR DEVASWOM BOARD, MANAGING COMMITTEE, REP. BY THE ADMINISTRATOR, GURUVAYOOR DEVASWOM BOARD, GURUVAYOOR.** **3. THE DEPUTY ADMINSTRATOR, (FINANCE), GURUVAYOOR DEVASWOM BOARD, GURUVAYOOR.** **R2 BY ADV. SRI.U.K.RAMAKRISHNAN (SR.) R2 BY ADV. SRI.E.K.MADHAVAN R2 BY ADV. SRI.P.V.LOHITHAKSHAN R2 BY ADV. SRI.V.KRISHNA MENON R2 BY ADV. SMT.P.VIJAYAMMA R2 AND R3 BY ADVS.SRI.P.NANDAKUMAR,SC,GURUVAYOOR D.BOARD SRI.NAGARAJ NARAYANAN, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 27181 of 2006 (J)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1 COPY OF PAY FIXATION STATEMENT DATED 22.10.1996. EXT.P2 COPY OF PROCEEDINGS NO.A3-3634/04 DATED 12.05.05. EXT.P3 COPY OF REQUEST DATED 28.05.05 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4 COPY OF REQUEST DATED 07.11.2005. EXT.P5 COPY OF THE REQUEST DATED 05.12.2005. EXT.P6 COPY OF ORDER DATED NO.A3-3634/04 DATED 11.01.2006. EXT.P7 COPY OF REQUEST DATED 10.02.2006. EXT.P8 COPY OF THE RELEVANT PAGE OF MY SERVICE BOOK RECEIVED AS PER THE PROVISIONS OF THE RIGHT TO INFORMATION ACT. EXT.P9 COPY OF THE LETTER DATED 15.03.2005 ISSUED BY THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT TO THE 2ND RESPONDENT.** ## **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY// P.A TO JUDGE** **LSN** ## **K.VINOD CHANDRAN,J** ## **---------------------------------W.P.(C) NO.27181 of 2006 ------------------------------------Dated this the 23[rd] day of March, 2013** ## **J U D G M E N T** The petitioner is a First Grade Overseer who was appointed in the first respondent on 08.08.1986. After completion of ten years as per the extant rules his first higher grade was granted with effect from 22.10.1996 by Ext.P1. Subsequently, after completion of a further period of eight years, the petitioner filed a representation dated 05.10.2001 requesting sanction of time bound higher grade for 18 years, he having completed eight years service in the first promoted post as First Grade Overseer. The Competent Authority of the second respondent by Ext.P2 sanctioned the same. However, a period of thirteen days between 01.04.1987 and 13.04.1987 was held to be Leave Without Allowance ('LWA' for short), since there was no medical certificate available in the files. **2** ## **W.P.(C) NO.27181 of 2006** 2. Hence the Authority by Ext.P2 order found that the first higher grade should have been granted only after reckoning the said period as LWA and excluding the said thirteen days. On such understanding and finding without notice to the petitioner, the Authority sanctioned the second higher grade but however, made modification with respect to the increment date even with regard to the sanction of first higher grade as also the second higher grade. The petitioner challenges the same as arbitrary and illegal as also violative of principles of natural justice. It is the contention of the petitioner that, he had submitted a leave application and that the mere fact that the records of the second respondent did not contain the said leave application submitted nine years back, could not be a reason to revise the earlier higher grade granted to the petitioner, that too granted nine years back. **3** ## **W.P.(C) NO.27181 of 2006** 3. The learned counsel for the second respondent however, would submit that the same was only a rectification of mistake and that needed neither notice to the petitioner nor a specific provision in the rules. To buttress the above contention the learned counsel also places reliance on _**V V Prakasini v K.P.S.C and others**_ **, 1993(1) KLT 632** . According to the learned counsel, the said decision would on principle be applicable on all fours and despite there being no provision to rectify the mistake; the second respondent was very much well within its power to correct an error that occurred, however back in period the error had occurred. 4. Looking at Ext.P1, it is evident that, at that point LWA for 75 days between 21.02.1988 and 05.05.1988 was not reckoned as qualifying service for higher grade. There is no whisper about the thirteen days, now ferreted out by the second respondent. ## **W.P.(C) NO.27181 of 2006** **4** Obviously, the petitioners claim that a medical certificate was produced is the only possible inference looking at Ext P1. It is after a period of nine years that Ext.P2 was passed without notice and again attempting to overturn the grant of a higher grade made nine years before. The finding in Ext.P2 is that, the period of thirteen days afore mentioned was availed without medical certificate and the same should not have been reckoned as qualifying service for ten years higher grade. The representations made by the petitioner also ended in failure as is evident by Ext.P6. Even in Ext.P6 the specific statement of the second respondent is that from the “available records there is no medical certificate for the afore mentioned period” and hence the claim of the petitioner cannot be sustained. In the counter affidavit too the specific claim of the second respondent is : **W.P.(C) NO.27181 of 2006** **5** “It is submitted that the leave application submitted by the petitioner 19 years back is not available in the record section as it is not necessary to keep a leave application for such a long period.” 5. Evidently the contention of the second respondent is that, there is no necessity for keeping the records for more than nineteen years. If the Authority relies on the principle that, the Authority does not have to keep the records for very many years then, it is not discernible as to how after a period of nineteen years the Authority can take a contention if there is no medical certificate available in the files then the petitioner should be considered as having not produced the medical certificate. If the medical certificate was produced by the petitioner for the period availed, then the same would not have been reckoned as qualifying service for the grant of higher grade. Ext.P1 however did not exclude the thirteen days and in all probability such ## **W.P.(C) NO.27181 of 2006** **6** exclusion would not have been made since the medical certificate was available at that point of time. Merely because the medical certificate given nine years back was not available in the files, the earlier grant of higher grade cannot be revised when the sanction of the next higher grade was under consideration. This is especially so when the second respondent admits that the records are not maintained for very many years. 6. The facts in **V V Prakisini'** s case ( _supra_ ) would indicate that an advise tendered by the Public Service Commission was sought to be cancelled within one year on the detection of a mistake which had occurred in sending the said advise. A learned Single Judge of this Court, had categorically held that, despite there being no provision for cancellation of an advise; when the Authority attempts to correct an inadvertent error then the same could not be challenged on the ground of absence of provision since, correction of errors **7** ## **W.P.(C) NO.27181 of 2006** occasioned by human frailty; is a power which has to be inherently found in every Authority. This Court is of the opinion that, the facts of the above case does not at all relate to the facts of the instant case nor is the principle laid down applicable to the facts of the present case. For one the delay in correction of error in the decision cited is only of one year and it has been eminently demonstrated in the said case that there was an inadvertent error that resulted in the advise being sent and it was only the correction of such mistake which concluded in the cancellation. 7. In the instant case, at the time of Ext.P1, the records were verified and LWA for 75 days alone, was specifically excluded from the consideration for higher grade. Subsequently, only at the time of sanction of second higher grade that too after a period of nine years, the Authority woke up to the fact that, there was no medical certificate submitted in support of another ## **W.P.(C) NO.27181 of 2006** **8** thirteen days leave. Against the assertion of the second respondent, is the equally vehement assertion of the petitioner that he had in fact submitted medical certificate at the time of availing the leave for 13 days. Comparing this with the specific averments in the counter affidavit as also the statement in Ext.P6 that no medical certificate is available at the time of passing Ext.P2 in the **available** records of the second respondent; that cannot be a reason for modifying the date of the higher grade granted at an earlier point of time. There is no error apparent in the facts revealed. What is indicated is that, after nine years, the second respondent states that no medical certificate was submitted by the petitioner while in the same breath second respondent also submits that there is no requirement for keeping the records for very many years. In the circumstances, this Court is of the opinion that, Ext.P6 needs to be set aside and it is so done. **W.P.(C) NO.27181 of 2006** **9** Ext.P2 to the extent it excludes thirteen days shall also stand set aside. The petitioner shall be entitled to all benefits from the date effective in Ext.P1 as far as the first higher grade is concerned and eight years therefrom for the second higher grade. Ext.P2 shall stand modified accordingly. The pay shall be re-fixed and payments made in accordance with the above directions and if any recovery has been effected, the same shall be refunded to the petitioner. The entire exercise shall be completed within a period of two months from the date of receipt of a copy of this judgment. The Writ Petition(Civil) is allowed. No costs. Sd/- K.VINOD CHANDRAN, Judge True Copy P.A to Judge lsn