Kerala High Court
P.J.George vs State Of Kerala on 30 January, 2008
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 34182 of 2006(T)
1. P.J.GEORGE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.K.JAJU BABU
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :30/01/2008
O R D E R
P.N.RAVINDRAN, J.
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W.P(C).No.34182 OF 2006
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Dated this the 30th day of January, 2008
JUDGMENT
The petitioner was appointed by promotion as Joint Inspector General of Registration as per Government Order dated 01/10/1990. He joined duty in the said post on 14/12/1990 and continued in that post till his retirement on 30/04/2002.
2. In the year 1992, by GO(Ms)15/92/TD dated 23-01-1992, the then Inspector General of Registration was posted as Special Officer by creating a new post for a period of six months and the post of Inspector General of Registration was declared as a cadre post to be filled up by posting officers of the Indian Administrative Service. According to the petitioner in view of the change brought about by the government order dated 23/01/1992, he could not aspire for promotion to the post of non cadre Inspector General of Registration and had to continue in service for over 11 years as Inspector of Registration till his retirement on 30/04/2002.
3. The petitioner had while he was in service, submitted a representation dated 10/10/2002 to the State Government WPC.No.34182/06 2 claiming promotion as non-cadre Inspector General of Registration by reviving the said post. The petitioner thereafter filed O.P.No.8706/02 in this court. By Ext.P1 judgment delivered on 02/04/2002, this court directed the State Government to consider and pass orders on the petitioner's representation dated 10/10/2001, wherein he had claimed promotion as non-cadre Inspector General of Registration. Pursuant thereto, the State Government considered the petitioner's claim and informed him by Ext.P2 letter dated 23/04/2002 that by virtue of government order dated 23/01/1992, the post of non-cadre Inspector General of Registration in the Registration Department has been kept in abeyance and made a cadre post to be occupied by officers of the Indian Administrative Service. The petitioner was also informed that since the post of Inspector General of Registration is a cadre post held by IAS officers, his claim for promotion to the non-cadre post of Inspector General of Registration cannot be considered. Shortly after Ext.P2 was issued, the petitioner retired from service on attaining the age of superannuation on 30/04/2002.
4. About six months after the petitioner retired from service, he submitted Ext.P4 representation dated 11/11/2002 to the State Government, relying on Ext.P3 Office Memorandum WPC.No.34182/06 3 issued by the Ministry of Personnel, Public Grievances and Pensions of the Government of India, requesting that he may be promoted notionally to the higher scale of Inspector General of Registration and his pay fixed notionally, so as to enable him to draw higher pensionay benefits. The petitioner thereafter filed O.P.No.13049/2003. By Ext.P5 judgment delivered on 29/02/2005, this court disposed of the said original petition, by directing the State Government to consider and pass orders on Ext.P4 representation within a period of four months from the date of production of a copy of the judgment.
5. While matters stood thus, Sri.A.K.Ramakrishnan, the petitioner's successor-in-office, filed W.P.(C)No.3361/05 in this court claiming the benefit of Ext.P3 Office Memorandum and seeking promotion as Inspector General of Registration. By Ext.P6 judgment delivered on 08/02/2006, this court disposed of the said writ petition by directing the State Government to hear the petitioner therein and to take a decision before 31/03/2006. As directed in ExtP6 judgment, the State Government considered the claim of Sri.A.K.Ramakrishnan, the then Joint Inspector General of Registration and passed Ext.P7 order dated 25/03/2006 reviving the post of non-cadre Inspector General of WPC.No.34182/06 4 Registration and promoting him as Inspector General of Registration. Shortly thereafter, by Ext.P8 order dated 10/04/2006, the claim of the petitioner herein in Ext.P4 representation was considered and rejected stating that the Government is not willing to revive the non-cadre post of Inspector General of Registration retrospectively since during the petitioner's tenure there was no open vacancy of Inspector General of Registration and the post of Inspector General of Registration was a cadre post held by the officers of the Indian Administrative Service. By Ext.P8, the Government, besides rejecting the claim of the petitioner for retrospective promotion and financial benefits, also rejected his request for notional promotion and financial benefits. Ext.P8 is under challenge in this writ petition.
6. I have heard Sri.K.Jaju Babu, the learned counsel appearing for the petitioner and Sri.K.Sandesh Raja, the learned Government Pleader appearing for the respondents. The learned counsel appearing for the petitioner submitted that though the petitioner and his successor in office, Sri.A.K.Ramakrishnan, were similarly situated and entitled to the benefit of Ext.P3 office memorandum issued by the Government of India, the petitioner WPC.No.34182/06 5 was discriminated against by giving the benefit of Ext.P3 to Sri.A.K.Ramakrishnan and denying the said benefit to him. The learned counsel further submitted that Ext.P3 office memorandum was issued in the wake of the 85th amendment to the Constitution of India with a view to enable government servants belonging to the scheduled castes and scheduled tribes to retain their seniority in the event of their promotion by applying the rules of reservation. The learned counsel for the petitioner also submitted that even assuming that the State Government was well within its powers to decline to revive retrospectively the non-cadre post of Inspector General of Registration, the petitioner should atleast have been given the benefit of notional promotion, having regard to the fact that the government have in Ext.P7 passed earlier in point of time, decided to revive the non-cadre post of Inspector General of Registration and promoted Sri.A.K.Ramakrishnan to the said post.
7. Per contra, the learned Government Pleader appearing for the respondents submitted that since Ext.P2 was not challenged in O.P.No.13049/2003 or even in this writ petition, the petitioner cannot successfully assail Ext.P8. The learned Government Pleader also submitted referring to the counter WPC.No.34182/06 6 affidavit filed on behalf of the first respondent that the post of Inspector General of Registration was made a cadre post and the incumbent holding the post Inspector General of Registration was posted as Special Officer by G.O.(Ms)15/92/TD dated 23/01/1992. The learned Government Pleader further submitted that thereafter, till the Government decided by Ext.P7 to revive the non-cadre post of Inspector General of Registration, the post of Inspector General of Registration was a cadre post held by officers of the Indian Administrative Service and that during the period when the petitioner was in service, there was no open vacancy of Inspector General of Registration. The learned Government Pleader also submitted that as the petitioner did not officiate in the post of Inspector General of Registration, he would not be entitled to any monetary benefit, even if he were to be promoted notionally with retrospective effect.
8. I have considered the rival contentions put forward on behalf of the petitioner and the respondents. In my considered opinion, the writ petition is liable to be dismissed on the short ground that Ext.P2 whereby the claim of the petitioner was first rejected as early as in 2002 at a time when he was in service has not been challenged either in O.P.No.13049/2003 or in this writ WPC.No.34182/06 7 petition. The claim of the petitioner for promotion as non-cadre Inspector General of Registration, made by him while he was in service was repelled by the State Government on 23/04/2002. The petitioner cannot ignore Ext.P2 or the finality attaching to the rejection of his claim thereunder by submitting repeated representations and seeking expeditious disposal of the same. Ext.P2 was not produced in O.P.No.13049/2003 and the learned counsel for the petitioner fairly conceded that it was not challenged therein. Further, the petitioner did not also challenge the validity of G.O.(Ms)15/92/TD dated 23/01/1992 while he wsa in service and even if it were under challenge now, as the decision to convert a non-cadre post to a cadre post and to man it with officers of Indian Administrative Service was a policy decision of the State Government, this court cannot in exercise its jurisdiction under Article 226 of the Constitution, sit in appeal over the wisdom of the policy and unsettle the state of affairs that continued from 23/01/1992 till the petitioner retired from service. The Inspector General of Registration is the head of the Registration Department and if the Government of the day thought it fit that, the post should be held by an IAS officer, its wisdom cannot be questioned.
WPC.No.34182/06 8
9. Besides the finality attaching to Ext.P2, the challenge to Ext.P8 has to fail on yet another ground as well. By Ext.P7, the State Government decided to revive the non-cadre post of Inspector General of Registration and to promote Sri.A.K.Ramakrishnan, the petitioner's successor-in-office to the said post. The petitioner who retired from service as early as on 30/04/2002 and did not challenge Ext.P2 cannot claim the benefit extended to Sri.A.K.Ramakrishnan, retrospectively by reviving the non-cadre post of Inspector General of Registration. During the period when the petitioner was in service as Joint Inspector General of Registration, the incumbent holding the post of non-cadre Inspector General of Registration was posted as Special Officer and the post of Inspector General of Registration was declared a cadre post and it was manned by officers of the Indian Administrative Service. There was admittedly no vacancy in the post. Further, Ext.P3 does not at all support the petitioner's claim. Ext.P3 operates in a different situation and its object is entirely different. The petitioner's case is not at all covered by Ext.P3. Hence, the petitioner's claim for retrospective notional promotion as non-cadre Inspector General of Registration and consequential financial benefits is plainly untenable. In my WPC.No.34182/06 9 opinion, the petitioner's claim for notional promotion was also belated. It was more than six months after the petitioner retired from service, that he submitted Ext.P4 representation claiming the benefit of notional fixation of pay in the post of Inspector General of Registration so as to enable him to draw higher pensionary benefits. The petitioner who was the Joint Inspector General of Registration for 11 long years, cannot ignore the finality attaching to Ext.P2.
For the reasons stated above, I hold that the claim of the petitioner for notional promotion and fixation of pay in the post of Inspector General of Registration and consequential benefits is without merit and is untenable. In the result, the writ petition fails and it is dismissed. No costs.
P.N.RAVINDRAN JUDGE sv.