High Court of KeralaDivision Bench2015-03-23Appeals dismissed

WA.No. 38 of 2013 IN WP(C).16923/2011

Case / Petition Number:WA.No. 38 of 2013 IN WP(C).16923/2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Ashok Bhushan, Acting Chief Justice
A.M. Shaffique, J.
Judgment Date: 2015-03-23
Court Decision / Holding: All appeals dismissed. The Division Bench upheld the Single Judge’s directions, maintaining that the petitioner should be promoted as UD Clerk on a notional basis from the date juniors were promoted, with pay scale fixation accordingly; monetary benefits are to be prospective given the financial considerations and circumstances of the second respondent. The third party’s challenge was also rejected with directions to pursue remedy through appropriate authorities.
Final Disposition: Appeals dismissed

Parties to the Case

Appellants / Petitioners

Moncy T. Malikkal
Sri Anish A.P

Respondents

Abu N, s/o Noorutheenkutty
The State of Kerala
The Managing Director, Kerala State Audio Visual and Reprographic Centre (Renamed as Kerala State Centre for Advanced Printing and Training)

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri T.O Xavier

Counsels for Respondents

• Adv. Sri B.S. Krishnan (Sr.)
• Adv. Sri V.A. Muhammed
• Adv. Sri K.E. Hamza
• Adv. Sri K. Anand (Sr.)
• Adv. Sri Latha Krishnan
• Adv. Sri K.K. Raziya
• Special Government Pleader, Sri Girija Gopal

Case Synopsis & Summary

This writ appeal arises from a Kerala High Court writ petition (WP(C) 16923/2011) filed by Abu N challenging the sine qua non of his promotional benefits as an Upper Division Clerk (UD Clerk) and seeking the same promotions and consequential monetary benefits that his juniors had received. The petition traced the career path: Abu N joined as Office Assistant, became a Lower Division Clerk (L.D. Clerk) in 1998, while the 3rd and 4th respondents, initially L.D. Store Keeper, were re-designated as L.D. Clerks and later promoted to UD Clerk in 2001. The petitioner contended that, in accordance with the service rules, he was eligible for promotion on the same terms as his juniors, and that the authorities had erred in denying him this benefit. The learned Single Judge directed the 2nd respondent to promote Abu N as UD Clerk from the date when juniors were promoted, with notional seniority and retrospective pay fixation, while monetary benefits were to be prospective due to the financial constraints. The appellants (3rd & 4th respondents) contended there was no basis to promote the petitioner and argued that the judgments and representations did not justify such order. The Division Bench ultimately dismissed all appeals, confirming the Single Judge’s directions in substance but clarifying the monetary benefit regime. The decision emphasizes adherence to service rules and the permissibility of notional promotion with prospective monetary relief constrained by fiscal realities.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that there was no lawful basis to promote the writ petitioner and that the petitions for monetary benefits had been rendered unnecessary given the earlier promotions and the delay in challenging them. They argued the promotions to 3rd and 4th respondents were proper and that the writ petitioner’s claim should be rejected on merits and time-bar considerations. They also argued that the court should not disrupt settled promotions given financial constraints.

Contentions of Respondents

The respondent-petitioner contended that a promotion on notional basis with retrospective pay fixation was necessary to correct an evident inequity when juniors were promoted earlier; monetary benefits should be prospective given the financial strain cited. He relied on Ext. P6 and prior orders directing promotion and seniority restoration, asserting that denial of monetary gains would be inequitable for the petitioner.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Valsala Kumari Devi v. State of Kerala	2011(3) KLT 549	Mentioned Only	Cited by counsel to compare with a different scenario (financial strain) but not applied as a controlling precedent in the instant facts; the court noted it but distinguished it due to delay in approaching the court.

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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 THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN** **& THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 23RD DAY OF MARCH 2015/2ND CHAITHRA, 1937** **WA.No. 38 of 2013 IN WP(C).16923/2011** **------------------------------------------** **AGAINST THE JUDGMENT IN WP(C) 16923/2011 of HIGH COURT OF KERALA DATED 31-10-2012** ## **APPELLANTS/3RD & 4TH RESPONDENTS:** **----------------------------------------------------------** ## **1. MONCY .T. MALIKKAL** - **S/O.LATE M.D THOMAS UPPER DIVISION CLERK KERALA STATE AUDIO VISUAL AND REPROGRAPHIC CENTRE RE-NAMED AS KERALA STATE CENTRE FOR ADVANCED PRINTING AND TRAINING HEAD OFFICE COMPLEX VATTIYORKAVU THIRUVANANTHAPURAM 695013 (NOW RESIDING AT THANVELIL HOUSE VADAVATTOOR P.O KOTTAYAM 686 010)** ## **2. SRI ANISH A.P AGED 50 YEARS** **UPPER DIVISION CLERK RENAMED AS KERALA STATE CENTRE FOR ADVANCED PRINTING AND TRAINING HEAD POFFICE COMPLEX VATTIYOORKAVU THIRUVANANTHAPURAM 695 013** **(NOW RESIDING AT AMBALI PARAMBIL HOUSE P.O KADALUNDY CALICUT 673302** ## **BY ADV. SRI.T.O.XAVIER** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:** **----------------------------------------------------------------------------** **1. ABU.N, S/O.NOORUTHEENKUTTY LOWER DIVISION CLERK KERALA STATE AUDI VISUAL AND REPROGRAPOHIC CENTER (RENAMED AS KERALA STATE CENTRE FOR ADVANCED PRINTING AND TRAINING (NOW WORKING ON DEPUTATION TO KERALA STATE BEVERAGES CORPORATION LTD TRIVANDRUM** **...2** ## **WA.No. 38 of 2013 IN WP(C).16923/2011** **-2-** ## **2. THE STATE OF KERALA** **REPRESENTED BY ITS SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT SECRETARIAT THIRUVANANTHAPURAM 695 001** ## **3. THE MANAGING DIRECTOR** **KERALA STATE AUDIO VISUAL AND REPROGRAPHIC CENTRE (RE-NAMED AS KERALA STATE CENTRE FOR ADVANCED PRINTING AND TRAINING HEAD OFFICE COMPLEX VATTIYOOR KAVU THIRUVANANTHAPURAM 695 013** **R3 BY ADVS. SRI.K.ANAND (SR.) SMT.LATHA KRISHNAN SMT.K.K.RAZIYA SC R1 BY ADVS. SRI.B.S.KRISHNAN (SR.) SRI.V.A.MUHAMMED SRI.K.E.HAMZA** **R2 BY SPECIAL GOVERNMENT PLEADER SMT. GIRIJA GOPAL** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-03-2015, ALONG WITH WA. 260/2013, WA. 211/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WA.No. 38 of 2013 IN WP(C).16923/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES** **ANNEXURE A : TRUE COPY OF THE MINUTES OF THE 12TH GOVERNING BODY DATED 11.3.1998 ANNEXURE B : TRUE COPY OF THE PETITION DATED 10.1.2005 ANNEXURE C : TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 2ND RESPONDENT DATED 4.7.2000** ## **RESPONDENT'S ANNEXURES** **ANNEXURE R1(D) TRUE COPY OF THE SERVICE RULES** **/TRUE COPY/** **PA TO JUDGE** **JJJ** ## **ASHOK BHUSHAN, Ag. C.J. & A.M. SHAFFIQUE, J.** ------------------------------------------ W.A. Nos. 38 & 260 of 2013 & W.A. No.211 of 2015 -----------------------------------------Dated this the 23[th] day of March, 2015 ## **J U D G M E N T** ## A.M.Shaffique, J. These appeals have been filed against the judgment dated 31.10.2012 in W.P.(C) No.16923 of 2011. Writ Appeal No.38/2013 has been filed by respondents 3 and 4 in the Writ Petition, Writ Appeal No.260/2013 has been filed by the petitioner in the Writ Petition, dissatisfied with the non grant of various monetary benefits to the petitioner and Writ Appeal No.211/2015 has been filed by the third party seeking leave of Court to file the same. Parties are referred to as shown in the Writ Petition. 2. The Writ Petition is filed by the petitioner claiming promotion to the post of Upper Division Clerk with effect from the date on which his juniors were promoted and **W.A. Nos. 38 & 260/2013 & 211/2015** **-2-** seeking all the consequential benefits arising from such promotion. It is _inter alia_ contended by the petitioner that he entered into service as Office Assistant on 14.7.1995 and was promoted to the post of Lower Division Clerk on 24.9.1998. The post of L.D. Clerk is a feeder category to the post of U.D. Clerk. It was contended that the 3[rd] respondent joined service as L.D. Store Keeper on 22.2.1996 and the 4[th] respondent joined service as L.D. Store Keeper on 4.8.1995. L.D. Store Keeper is a lower post for which the prescribed qualification is SSLC or its equivalent and one year experience as Store Keeper; whereas the qualification for the post of L.D. Clerk, as per Service Rules, is Bachelor Degree. It is also stated that L.D. Store Keeper is not in the feeder category of L.D. Clerk. However, respondents 3 and 4, were granted postings as L.D. Clerk by way of category change, which was not in terms with Service Rules. This category change was ## **W.A. Nos. 38 & 260/2013 & 211/2015** **-3-** effected on 4.7.2000 and respondents 3 and 4 were promoted as U.D. Clerk from 14.06.2001. It is claiming the very same benefit that this Writ Petition has been filed. 3. The learned Single Judge, after taking into consideration, the relevant aspects of the matter formed an opinion that, a reference to Ext.P6 would indicate that the petitioner was also eligible to be promoted as U.D. Clerk. Though, the petitioner had submitted various representations, nothing was considered by the authorities. In the light of Ext.P6, the course of proceedings pursued by the respondents denying promotion to the petitioner was not correct and therefore a direction was issued to the 2[nd] respondent to pass appropriate orders to promote the petitioner as U.D. Clerk with effect from the date on which the juniors were given promotion and to restore the seniority lost to the petitioner accordingly. It was further observed that the petitioner shall be permitted to work as **W.A. Nos. 38 & 260/2013 & 211/2015** **-4-** U.D. Clerk on the basis of the orders to be passed and the fixation of salary shall be retrospectively on a notional basis. The monetary benefits shall only be prospective, in view of the particular facts and circumstances including the plight of the 2[nd] respondent, which is in the final stage. 4. While impugning the aforesaid judgment, the learned counsel appearing for the appellants in Writ Appeal No.38/2013 (respondents 3 and 4 in Writ Petition), _inter alia_ contended that there is no basis for giving promotion to the Writ petitioner. However, nothing has been brought to our notice to indicate as to how respondents 3 and 4 are aggrieved by the promotion being granted to the petitioner. Further, it is clear that promotion has been granted to respondents 3 and 4 with effect from 14.6.2001. They came to the cadre of L.D. Clerk only on 4.7.2000, whereas the petitioner came to the said cadre on 24.09.1998. When this fact is not disputed there is no reason for the **W.A. Nos. 38 & 260/2013 & 211/2015** **-5-** appellants/respondents 3 and 4 to challenge the judgment and accordingly we are of the view that Writ Appeal No.38/2013 is liable to be dismissed. 5. Learned counsel appearing for the writ petitioner while impugning the judgment of the learned Single Judge to the extent of non granting of monetary benefits, raising his claim on the grounds in Writ Appeal No.260/2013, contend that the learned Single Judge ought to have directed grant of monetary benefits to the petitioner, effective from the date on which he should have been promoted. He also relied upon the judgment of the Division Bench of this Court in **Valsala Kumari Devi v. State of Kerala - 2011(3) KLT 549** . It is relevant to note that this is a case in which there was complete stagnation and no promotion was being effected because of the severe financial strain faced by the 2[nd] respondent. That apart, it is clear that though the petitioner had submitted **W.A. Nos. 38 & 260/2013 & 211/2015** **-6-** representations, he did not approach this Court within a reasonable time. He had approached this Court after 10 years from the date on which respondents 3 and 4 were promoted. In such circumstance, we do not think that the learned Single Judge has committed any error in not granting the monetary benefits. However, it is made clear that the petitioner was entitled to get promotion on notional basis and fixation of pay scale accordingly. Therefore, we do not think it necessary to modify the judgment of the learned Single Judge to the extent complained of. 6. As far as the appeal filed by the third party is concerned, the contention is that the third party along with the petitioner has submitted representation for giving the benefit of promotion in the manner in which respondents 3 and 4 were promoted. The learned counsel appearing for the third party appellant submits that promotion has to be made on the basis of eligibility, which has not been **W.A. Nos. 38 & 260/2013 & 211/2015** **-7-** determined by the governing body. If at all the Writ Petitioner is entitled for any promotion, the same benefit ought to have been granted to the third party as well. As far as her claim is concerned, if she is entitled to get promotion on the basis that respondents 3 and 4 had been promoted, it is always open for her to seek appropriate remedy before the authority concerned and if it is refused, to approach this Court in appropriate proceedings. In a Writ Petition filed by the petitioner it is not open for the third party to claim the said benefit and that too, when the review petition filed by her stands dismissed. Hence, we are of the view that it shall always be open for the third party appellant to agitate her rights before the appropriate authority and if her rights are refused, it shall always be open for her take up the matter before this Court in appropriate proceedings. Hence, this appeal is also liable to be dismissed. ## **W.A. Nos. 38 & 260/2013 & 211/2015** **-8-** In the light of the aforesaid observations, all the appeals are dismissed. Sd/ASHOK BHUSHAN, ACTING CHIEF JUSTICE. Sd/A.M. SHAFFIQUE, JUDGE. /TRUE COPY/ PA TO JUDGE jjj