Dismissed

State of Kerala v. P.J.Mathew

Kerala HC22 May 2014WA/2761/2007

Case brief

AI extract

What is this about?

A writ appeal filed by the State against a Single Judge order that granted a petitioner deemed promotion as Deputy Tahsildar, Tahsildar, and Deputy Collector. The High Court dismissed the appeal, holding that the earlier judgment establishing the petitioner's deemed promotion date had attained finality and could not be reopened.

What did the court decide?

The appeal is dismissed; the appellants are directed to complete the promotion process expeditiously within two months.

State of Kerala Vs P.J.Mathew — Pension and Retirement Benefits | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THURSDAY, THE 22ND DAY OF MAY 2014/1ST JYAISHTA, 1936

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WA.No. 2761 of 2007 ( ) IN OP.14936/2002

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AGAINST THE JUDGMENT IN OP 14936/2002 of HIGH COURT OF KERALA DATED 09-03-2007

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APPELLANT(S)/RESPONDENTS::

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THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE SECRETARIAT, THIRUVANANTHAPURAM.

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THE COMMISSIONER (LAND REVENUE) THIRUVANANTHAPURAM.

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BY SR.GOVT. PLEADER SRI.JOSEPH GEORGE

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RESPONDENT(S)/PETITIONER::

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P.J.MATHEW, S/O.JOSEPH, SENIOR SUPERINTENDENT, REVENUE DIVISIONAL OFFICE MUVATTUPUZHA.

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R, BY ADV. SRI.V.A.MUHAMMED

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & ALEXANDER THOMAS, JJ. ----------------------------------W.A.No.2761 of 2007

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----------------------------------Dated this the 22^nd day of May, 2014

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JUDGMENT

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Antony Dominic, J.

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1.This writ appeal is filed by the respondents in OP.14936/02. The OP was filed by the respondent herein challenging Ext.P10 order passed by the Government rejecting his representation and seeking a direction to the appellants to promote him based on his deemed promotion to the post of U.D.Clerk with effect from 28.10.1971. He also sought for consequential promotions in the cadres of Deputy Tahsildar, Tahsildar and Deputy Collector and also monetary benefits.

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2.By the judgment under appeal, relying on Ext.P9 judgment of the Division Bench of this Court in W.A.1371/00 and on the basis of the promotions given to one Abraham Mathew, who is stated to be the respondent's junior in service, the learned single Judge allowed the OP with the following directions:

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WA.2761/07

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“In the above circumstances, I am satisfied that the petitioner should be given notional promotion as Deputy Tahsildar, Tahsildar and Deputy Collector at least from the dates when Sri.Abraham Mathew was promoted to those posts. Accordingly, I direct the respondents to assign notional dates of promotion to the petioner with effect from the dates when Sri.Abraham Mathew was promoted as Deputy Tahsildar, Tahsildar and Deputy Collector as above and fix his pay and consequent pensionary benefits accordingly. However, I make it clear that the petitioner would not be entitled to any arrears of monetary benefits arising out of such promotion except arrears of retirement benefits. Orders in this regard shall be passed within a period of two months from the date of receipt of a copy of this judgment and arrears of retirement benefits shall be disbursed to him within a further period of one month therefrom.”

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It is this judgment which is under challenge before us.

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3.We heard the learned Government Pleader for the appellants and the counsel appearing for the respondent/petitioner.

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WA.2761/07

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4.The contention raised by the learned Government Pleader was that Ext.P9 judgment could not have governed the date of promotion of the respondent as UDC for the reason that following the issuance of the amended special rules with effect from 1.11.1956, integrated seniority list of officers of the Revenue and Village departments was published on 8.3.1993. According to him, as a result of the prescription in the special rules that for completion of probation, two year's service was required, the seniority of the respondent was pushed down in the integrated seniority list published and hence the date of his deemed promotion as UDC also stood altered. On this basis, the Government Pleader contended that the learned single Judge erred in placing reliance on Ext.P9 judgment. He further contended that the learned single Judge also acted illegally in finding that Sri.Abraham Mathew mentioned above was junior to the respondent for the reason that in the writ petition, there was no pleading concerning the said person.

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WA.2761/07

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5.Both the above contentions raised by the learned Government Pleader were contradicted by the learned counsel appearing for the respondent/petitioner.

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6.We have considered the submissions made. In so far as the first issue raised by the learned Government Pleader that the learned single Judge ought not to have placed reliance on Ext.P9 judgment in w.A.1371/00 is concerned, what we notice is that the said judgment was rendered on 30.10.2001 and in that judgment, it has been specifically directed that the Government shall re-consider the question of promotion of the respondent herein “on the basis of the deemed date of promotion given to him in the cadre of UDC”. The special rules were already published on 12.6.1985 and the integrated seniority list was also published as on 8.3.1993. Therefore, if the findings in Ext.P9 judgment that the respondent herein is entitled to have his claim for promotion worked out on the basis of his deemed date of promotion as UDC, viz., 28.10.1971 was illegal for any reason, the remedy available to the appellants was to challenge Ext.P9 judgment in appropriate

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proceedings, which was not done. In other words, by the inter parte judgment evidenced by Ext.P9, declaring the entitlement of the respondent herein, the benefits of further promotion on the basis of his deemed promotion with effect from 28.10.1971 having attained finality and it is not open for the appellants now to rely on the special rules or the integrated seniority list as is sought to be done before us.

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7.Further contention of the learned Government Pleader that the entitlement of the respondent cannot be worked out on the basis of his deemed date of promotion as UDC because of the judgment of this Court in WA.162/91 also does not merit acceptance for the reason that the said judgment also has been referred to in Ext.P9 judgment. Therefore, for both these reasons, the first contention raised by the learned Government Pleader cannot be accepted.

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8.Another contention raised by the learned Government Pleader is that equilization of the respondent with Sri.Abraham Mathew mentioned in the judgment is

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illegal. This contention was urged on the basis that in the pleadings of the respondent, the service particulars regarding Sri.Abraham Mathew were not furnished.

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9.Although it is true that in the OP, these particulars were not pleaded, we find it in the reply affidavit filed by the respondent. He had averred thus:

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“Sl.No.2973 Abraham Mathew joined Revenue Department on 16.3.1971, got regularised as U.D.Clerk from 16.3.1972 and assigned U.D.Cadre on 29.7.1972, got promotion as Deputy Tahsildar on 22.2.1988 and Tahsildar on 14.9.1994 and became Deputy Collector in 2000. There are so many such cases.”

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10.From the statements in paragraph 7 of the judgment under appeal, we also notice that the aforesaid statements made in the reply affidavit were not disputed by the appellants. In such a situation, when the learned single Judge has accepted the case of the respondent, we cannot find any fault with the conclusions in the judgment. In such circumstances,

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the appeal does not suffer from any illegality to be interfered with.

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The appeal is dismissed. The appellants are directed to complete the process as ordered by the learned single Judge as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment.

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Sd/ANTONY DOMINIC, Judge.

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Sd/ALEXANDER THOMAS, Judge.

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kkb.

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/True copy/

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PS to Judge

State of Kerala v. P.J.Mathew

Case brief

What is this about?

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State of Kerala v. P.J.Mathew

Case brief

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