Kerala High Court
P.J.Cyriac vs Stateof Kerala on 10 August, 2017
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon, V Shircy
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
THURSDAY, THE 28TH DAY OF SEPTEMBER 2017/6TH ASWINA, 1939
OP(KAT).No. 366 of 2017 (Z)
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AGAINST THE ORDER IN TA 1396/2012 of KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM DATED 10-08-2017
PETITIONER/APPLICANT:
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P.J.CYRIAC
PUTHUSSERY PUTHENPURA, ELANJI, KERALA, PIN-686665.
BYADVS.SRI.M.RAJENDRAN NAIR
SMT.M.SANTHY
RESPONDENTS/RESPONDENTS :
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1. STATEOF KERALA
REPRESENTED BY ITS SECRETARY,
PLANNING AND ECONOMIC AFFAIRS DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
KERALA-695001.
2. DIRECTOR
ECONOMICS & STATISTICS, THIRUVANANTHAPURAM,
KERALA-695001.
3. P.SURENDRA PILLAI
MUTHAKAM HOUSE, NEDUMCAUD, KARAMANA,
THIRUVANANTHAPURAM,
KERALA-695002.
R BY SR.GOVERNMENT PLEADER SRI.ANTONY MUKKATH
THIS OP KERALAADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION
ON 28-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No. 366 of 2017 (Z)
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APPENDIX
PETITIONER(S)' ANNEXURRES :
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ANNEXUREA1 : TRUE COPY OF MEMORANDUM OF WRIT PETITION 11388/2007
(T.A.1396/2012) FILED UNDER ARTICLE 226 WITH EXHIBITS
EXHIBITS IN ANNEXURE A1
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO.14778/B3/2002/PLG. DATED 26-02-2003.
EXHIBIT P2 TRUE COPY OF THE G.O.(RT)NO.228/2003/PLG. DATED 17-06-2003.
EXHIBIT P3 TRUE COPY OF THE NOTIFICATION NO.13866/B3/2003/PLG.,DATED 16-01-2004.
EXHIBIT P4 TRUE COPY OF THE G.O.(RT)NO.104/2004/PLG. DATED 20-03-2003.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 24-03-2004.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 05-05-2004.
EXHIBIT P7 TRUE COPY OF THE G.O.(RT)NO.363/2004/PLG DATED 28-09-2004.
EXHIBIT P8 TRUE COPY OF THE G.O.(RT)NO.440/04/PLG. DATED 30-11-2004.
EXHIBIT P9 TRUE COPY OF THE NOTIFICATION NO.13526/B3/2004/PLG. DATED 02-03-2005.
EXHIBIT P10 TRUE COPY OF THE LETTER DATED 07-03-2005.
EXHIBIT P11 TRUE COPY OF THE LETTER NO.3689/B3/05/PLG. DATED 04-06-2005.
EXHIBIT P12 TRUE COPY OF THE COMPLAINT DATED 30-06-2005 GIVEN TO THE CHIEF
MINISTER.
EXHIBIT P13 TRUE COPY OF THE LETTER DATED 03-01-2006.
EXHIBIT P14 TRUE COPY OF THE NOTE FILE ALONG WITH COVERING LETTER
DATED 11-10-2006.
EXHIBIT P15 TRUE COPY OF THE LETTER DATED 30-10-2006 GIVEN TO THE 1ST
RESPONDENT.
EXHIBIT P16 TRUE COPY OF THE LETTER DATED 30-10-2006 GIVEN TO THE CHIEF
MINISTER.
EXHIBIT P17 TRUE COPY OF THE LETTER NO.13091/83/2006/PLG. DATED19-12-2006.
ANNEXUREA2 : TRUE COPY OF COUNTER AFFIDAVIT FILED BY 2ND RESPONDENT IN WP(C)
11388/07 WITH EXHIBITS
EXHIBITS IN ANNEXURE A2
ANNEXURE R2(a) : TRUE COPY OF THE G.O.(RT).NO.213/04/PLG DATED 05.06.2004
ANNEXURE R2(b) : TRUE COPY OF THE G.O.(RT).NO.78/04/PLG DATED 25.02.2004
ANNEXURE R2(c) : TRUE COPY OF THE G.O.(RT).NO.104/04/PLG DATED 20.03.2004
ANNEXUREA3 : CERTIFIED COPY OF JUDGMENT IN T.A.1396/2012 DATED 10-8-2017
RESPONDENT(S)' EXHIBITS : NIL
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/TRUE COPY/
P.A TO JUDGE
AV
P.R.RAMACHANDRA MENON & SHIRCY V, JJ.
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O.P.(KAT).No.366 of 2017
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Dated this the 28th day of September, 2017
J U D G M E N T
P.R.Ramachandra Menon, J.
The challenge is against Annexure A3 order passed by the Kerala Administrative Tribunal, Thiruvananthapuram in T.A.No.1396 of 2012, whereby, the claim of the petitioner for retrospective promotion to the post of Joint Director in the Department of Economics and Statistics was declined on merits as well as on the ground of delay.
2. Heard the learned counsel for the petitioner at length and so also, the learned Government Pleader as well.
3. The petitioner entered in service of the Department as a Research Officer on 17.08.1982. He has obtained further promotion as Deputy Director on 30.04.1992 and subsequently, was promoted to the post of Joint Director on 20.04.2005. On attaining the age of superannuation, he retired from service on 30.04.2005, while serving the Department as Joint Director. After the retirement as above, the petitioner submitted a representation claiming that he ought to have been given promotion to the post of Joint Director much earlier, by virtue of his merits. Petitioner approached this Court by filing a writ petition (which came to be transferred to the Tribunal, where it was numbered as T.A.No.396 of 2012) with the O.P.(KAT).No.366 of 2017 2 following prayers:
i) Call for the records leading upto Ext.P17 and to quash the decision contained in the file and reflected in Ext.P11 and P17 communications, to the effect that the petitioner is not entitled to promotion with effect from 8-4-2004.
ii) Declare that the denial of promotion to the petitioner, to the vacancy arising immediately after the period of his relinquishment of the promotion, i.e. on 8.4.2004, is illegal
iii) Issue a writ of mandamus or such other writ order or direction, directing the respondents 1 and 2 to grant promotion to the petitioner with effect from 8.4.2004, on which date a vacancy arose in the post of Joint Director, and grant him the consequential benefits including re-fixation of his monthly pension.
iv) Grant such other further reliefs as may be prayed for and, which this Hon'ble Court deems fit in the circumstances to grant.
4. Admittedly, the next post in the hierarchy of promotions from the post of Deputy Director, is that of the Joint Director and Ext.P1 select list was prepared and published on 26.02.2003 for filling up the vacancies that might occur in the year 2003. It is also admitted by the petitioner that he was included as Rank No.3 in the said list, but he relinquished his right for promotion for a period of one year from 24.03.2003, which term has come to an end on 23.03.2004. It was during this period, that the Departmental Promotion Committee met on 31.12.2003, which led to publication of Ext.P3 select list on 16.01.2004. The applicant was not included in the said list, presumably because of the relinquishment exercised O.P.(KAT).No.366 of 2017 3 by him.
5. While so, there occurred a vacancy and one Sri.S.Rajendran, who was included in Ext.P3 list, was promoted to the post of Joint Director on 25.02.2004. Another vacancy arose on 20.03.2004, which was filled up by accommodating the 3rd respondent, who was also included in Ext.P3 list. On expiry of the period of relinquishment, the applicant sought for promotion as Joint Director by submitting Ext.P5 before the 1st respondent, on 24.03.2004. It was thereafter, that one Sri.K.Asokan, who was already a Joint Director, returned from deputation. The said person was accommodated against the non-joining vacancy of Sri.S.Rajendran, which made the petitioner to feel aggrieved and he filed another representation, claiming promotion. It is borne out from the pleadings on record that another Rajendran (C.P.Rajendran) and K.Asokan were accommodated against the subsequent promotion and the retirement vacancies as per order dated 04.06.2004. Even according to the petitioner, immediately thereafter, disciplinary proceedings were initiated against him and he came to be suspended from service on 05.06.2004, which continued till 02.12.2004. Thereafter, the petitioner was considered for promotion against the vacancy that arose on 20.04.2005 (on retirement of the 3rd respondent) and accordingly, he was given promotion to the post in question, who retired from the post of Joint O.P.(KAT).No.366 of 2017 4 Director on 30.04.2005. It is stated that the petitioner has been filing several representations for retrospective promotion and finally, he was let known by the Government as per Ext.P17 that his claim was not liable to be entertained. This made the petitioner to challenge the proceedings by approaching the Tribunal with the prayers as already extracted hereinbefore.
6. The claim of the petitioner was resisted by the respondents by filing a detailed counter affidavit. After hearing both the sides and considering the materials on record, the Tribunal observed that the idea and understanding of the petitioner as to the case projected by him with reference to Rule 28(b)(i)(9) Part II KS & SSR, was quite wrong and unfounded. The factual position and the sequence of events were discussed in detail and it was held that, by virtue of the relinquishment of promotion by the petitioner, the filling up of the post of Joint Director (which occurred during the said period) was quite in order. It was also observed that, since the person by name Asokan, who was admittedly senior to the petitioner, who came back after deputation, was accommodated against an available vacancy, there was no requirement to have reverted the 3rd respondent, which position was also stated as accepted. As there could not be any valid challenge, more so, in view of the turn of events including the disciplinary proceedings and the suspension, it was only on expiry of the period of suspension, O.P.(KAT).No.366 of 2017 5 that the case of the petitioner could be considered and he was given promotion against the vacancy which occurred on 20.04.2005. The discussions made by the Tribunal as discernible from paragraph 10 and 11 are relevant, which are reproduced below for convenience of reference :
"10. It is noted that the relinquishment by the applicant of his right for promotion to the post of Joint Director for a period of one year is the starting point of the proceedings which are now impugned in this Transferred Application. The relinquishment was for a period of one year from 24.3.2003 to 23.3.2004. The applicant as per the conditions of the relinquishment as contained in Rule 38 Part II KS & SSR and the Government order, G.O.(P)No.39/1999/P&ARD dated
7.12.1999 was not eligible for being considered for promotion during the above period of one year. The applicant, as rightly pointed out by the learned Government Pleader, was only eligible for a vacancy which arose from 24.3.2004. The reliance placed on Rule 28(b)(i)(9) of Part II KS & SSR by the counsel for the applicant cannot be accepted. What is put forth by the counsel is that the applicant who was included in the earlier select list has to be ranked above the persons included in the subsequent select list. It is stated that since the applicant was included in the select list for the year 2003, he ought to have been included at the top of Ext.P3 select list for the year 2004. For appreciation of the above contention Rule 28(b)(i)(9) has to be looked into. The same is extracted herein below:-
"28(b)(i)(9). The "Select List" shall be reviewed annually and it shall remain in force until it is revised. Names of those officers who have already been appointed shall be removed from the list and O.P.(KAT).No.366 of 2017 6 the rest of the names along with those officers who may now be included in the field of choice, shall be considered for the "Select list" for the subsequent period. A person included in an earlier select list, shall, however, be ranked above a person considered for a subsequent list, unless his conduct and work subsequent to such inclusion renders it necessary that he should be placed lower in the list or his name may be omitted from the list, if there is definite deterioration in the work and conduct of the Officer subsequent to his inclusion in the select list for the previous year, as the case may be."
As evident therefrom the name of officers who had already been appointed was to be removed from the list and the rest was to be included in the field of choice and considered for the select list for the subsequent period. In the present case, the applicant was initially included in Ext.P1 select list published on 6.2.2003, but he relinquished his right for promotion for a period of one year from 24.3.2003 ie., till 23.3.2004. The subsequent select list was prepared by the Departmental Promotion Committee which met on 31.12.2003 and the list Ext.P3 was published on 16.1.2004. The applicant could not be considered for the zone of consideration since the convening of the Departmental Promotion Committee and the preparation of the select list was during the relinquishment period of the applicant. The applicant could not therefore, be included at the top of Ext.P3 select list.
11. It is noted that as far as the vacancies against which Sri.S.Rajendran and the third respondent were appointed, the above vacancies have arisen within the relinquishment period. Sri.S.Rajendran was appointed by Ext.R2(b) order dated 24.2.2004 and the third respondent by O.P.(KAT).No.366 of 2017 7 an order dated 20.3.2004. The promotion of the third respondent was on 20.3.2004 again during the relinquishment period. Since a vacancy was in existence as on the above date and the appointing authority found it fit to fill up the above substantive vacancy, the applicant cannot be aggrieved by the appointment. The contention of the applicant that a senior hand Sri.Asokan had returned from deputation and on his seeking permission to rejoin, the juniormost had to be retrenched, cannot be accepted. On the above date a vacancy was available in the Department and the Department chose to accommodate Sri.Asokan against the above open vacancy. This cannot be found fault with since it was for the Department to decide as to whether a person had to be retrenched for inducting some one back from deputation or chose to accommodate him against an existing vacancy. The vacancies that have arisen thereafter, it is noted, have been filled up by posting two seniors of the applicant, ie. Sri.C.P.Rajendran and Sri.Asokan, the former who had proceeded on leave and against which post the third respondent was promoted and the latter, the person who had come back from deputation. Both the above employees are admittedly seniors to the applicant and therefore, the applicant cannot have any grievance against them."
7. From the above, it is clear that the merit of the case was considered by the Tribunal and it was held against the petitioner/applicant. It was over and above the said aspect, that reference was made to the 'inordinate delay' on the part of the petitioner in projecting his grievance, by filing the case originally as a writ petition before this Court, which subsequently came to be transferred to the Tribunal, where it is numbered as T.A.No.1396 of O.P.(KAT).No.366 of 2017 8 2012. It was in the said context, that an observation was made in paragraph 12, that the applicant had already retired from service on 30.04.2005, whereas, the case was filed before this Court for the first time only in the year 2007. It was also observed that the persons concerned, against whom the claim was sought to be projected by the petitioner/applicant, were actually not included in the party array, though there was a case for the petitioner that, he having retired from the service, granting relief to him would not prejudicially affect or cause inconvenience to any of those employees. It has however been observed by the Tribunal that, if the relief for giving retrospective promotion to the post of Joint Director was to be granted to the petitioner, the promotion/appointment given to those persons would have to be readjusted or regulated. It was in the light of the above observations, that interference was declined and the T.A was dismissed.
8. During the course of the submissions, the learned counsel for the petitioner pointed out that though there is some delay in approaching this Court by filing the writ petition, it was never willful and further that, the petitioner has been projecting the grievance by filing various representations at different point of time, which were not acted upon. The learned counsel also sought to rely on some portions of the judgments of the honourable Supreme Court in O.P.(KAT).No.366 of 2017 9 Union of India and Others v. Tarsem Singh [(2008) 8 SCC 648], State of Uttaranchal and Another v. Shiv Charan Singh Bhandari and Others [(2013) 12 SCC 179], Asger Ibrahim Amin v. Life Insurance Corporation of India [(2016) 13 SCC 797] and Pepsu Road Transport Corporation, Patiala through its Managing Director & Another v. S.K.Sharma & Others [2016 (9) SCC 206], which are dealing with the general principles of delay, the necessity to consider the merit in appropriate cases and such other aspects. It is also pointed out that interference was declined in State of Uttaranchal and Another v. Shiv Charan Singh Bhandari and Others [(2013) 12 SCC 179] as the case therein was projected after a period of 17 years, whereas in the instant case, the representation was filed by the petitioner within 6 months, though the writ petition was filed only two years after his retirement.
9. Having gone through the above judgments, we find that the said decisions do not support the case of the petitioner in any manner, but for the necessity to examine the case on a 'case to case basis' and as to the declaration of the general principles. In the case delivered by the honourable Apex Court in Asger Ibrahim Amin v. Life Insurance Corporation of India [(2016) 13 SCC 797] and Union of India and Others v. Tarsem Singh [(2008) 8 SCC 648], it was in relation to the grievance projected by the O.P.(KAT).No.366 of 2017 10 parties to get pension. The legal position made clear by the honourable Apex Court was that it is a 'continuing cause of action' and as such, the delay could not bar the way of the litigant. Unlike this, the grievance projected by the petitioner in the instant case is with reference to the claim for 'retrospective promotion' to the post of Joint Director and against the proceedings of the Departmental Committee held at that point of time, which cause of action is not liable to be treated as a continuing one. The filing of repeated representations cannot stretch the original cause of action as held by the honourable Apex Court as per the decision reported in State of Tamil Nadu v. Seshachalam [(2007) 10 SCC 137] and State of Uttaranchal and Another v. Shiv Charan Singh Bhandari and Others [(2013) 12 SCC 179]. In the said circumstance, despite the best efforts taken by the learned counsel for the petitioner, we find it difficult to entertain the matter, as there is no merit as well.
In the result, interference is declined and this Original Petition is dismissed.
Sd/-
P.R.RAMACHANDRA MENON (JUDGE) Sd/-
SHIRCY V. (JUDGE) AV