Allowed

J.Radhakrishnan v. State of Kerala

Kerala HC26 Oct 2016WP(C)/28733/2013

Case brief

AI extract

What is this about?

The petitioner, a Lower Division Clerk promlated by a college, sought retrospective approval of promotion granting salary from the vacancy date. The High Court rejected retroactive salary entitlement but approved the promotion notially from the effective date and directed the director to pass approval orders.

What did the court decide?

Petitioner entitled to notional approval of promotion from 21.04.2011; consequential benefits calculated; Director must approve promotion within one month.

J.Radhakrishnan Vs State of Kerala — Education and Admissions | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938

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WP(C).No. 28733 of 2013 (N)

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PETITIONER(S) :

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J.RADHAKRISHNAN,

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LOWER DIVISION CLERK, SREE SANKARA COLLEGE, KALADY, RESIDING AT SREEKRISHNA VILAS, KALADY-683 574.

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BY ADVS. SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN

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SMT.S.LEENA

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RESPONDENT(S) :

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1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATIONAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2. THE DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN P.O.,THIRUVANANTHAPURAM-695 033.

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3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN P.O.,THIRUVANANTHAPURAM-695 033.

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4. SREE SANKARA COLLEGE, REPRESENTED BY ITS MANAGING DIRECTOR, POST BOX NO.1, KALADY-683 574.

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5. THE PRINCIPAL, SREE SANKARA COLLEGE, POST BOX NO.1, KALADY-683 574.

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..2/-

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..2..

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WP(C).No. 28733 of 2013 (N)

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*** ADDITIONAL R6 IMPLEADED**

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6. A.P.SUBRAHMANIAN POTTY, S/O.LATE PARAMESWARAN EMBRAN, 'SREE RAM' HOUSE, CHOORAKKAD KARA, PATTIMATTOM P.O., PIN - 683 562.

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*** ADDITIONAL R6 IS IMPLEADED AS PER ORDER DATED 02.02.2015 IN I.A.NO. 62 OF 2015.**

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R1 TO R3 BY GOVERNMENT PLEADER SRI. BEJOY CHANDRAN R4 BY SRI.K.ANAND (SENIOR ADVOCATE) ADVS. SMT.LATHA KRISHNAN SRI.JOSEPH SEBASTIAN (PARACKAL) R6 BY ADVS. SRI.A.JAYASANKAR SRI.C.V.MANUVILSAN SRI.MANU GOVIND SMT.B.MEERA SMT.K.VIDYA SMT.K.P.AMRUTHA SMT.A.ANJANA SRI.S.SABARINADH SMT.INDULEKHA JOSEPH

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 28733 of 2013 (N)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1.	TRUE PHOTOCOPY OF THE ORDER OF APPOINTMENT
	NO.1/2011/NTS DATED 18/08/2011 ISSUED BY
	THE 4TH RESPONDENT.

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EXHIBIT P2	TRUE PHOTOCOPY OF THE LETTER NO.39750/D3/11/H.EDN DATED 24/09/2012 OF THE 1ST RESPONDENT TO THE 2ND RESPONDENT.
EXHIBIT P3	TRUE PHOTOCOPY OF THE LETTER NO.F2/6457/2009/COLL.EDN. DATED 19/10/2012 OF THE 2ND RESPONDENT TO THE 5TH RESPONDENT.
EXHIBIT P4	TRUE PHOTOCOPY OF THE LETTER DATED 19/12/2012 OF THE 5TH RESPONDENT TO THE 2ND RESPONDENT.
EXHIBIT P5	TRUE PHOTOCOPY OF THE ORDER NO.ESTT.F2/6457/2009/ COLL. EDN DATED 03/04/2012 OF THE 3RD RESPONDENT.
EXHIBIT P6	TRUE PHOTOCOPY OF THE REPRESENTATION DATED 29/04/2013 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P7	TRUE PHOTOCOPY OF THE LETTER NO.18401/D3/13/H.EDN DATED 09/09/2013 OF THE 1ST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT.

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RESPONDENT(S)' EXHIBITS :

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EXHIBIT R4(A): TRUE COPY OF CIRCULAR DATED 10.11.2008.

//TRUE COPY//

P.A.TO JUDGE.

Msd.

ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = W.P.(C).No.28733 of 2013

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= = = = = = = = = = = = = = = Dated this the 26^th day of October, 2016

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JUDGMENT

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1.This writ petition is filed by the petitioner claiming promotion to the post of Lower Division Clerk (LDC for short) with effect from 21.4.2011 as has been granted to him by Ext.P1 order of the Manager. The petitioner entered service as Last Grade Servant under the 4^th respondent college on 01.06.1992. He was promoted as Lab Assistant on 01.02.2001. By Ext.P1 order dated 18.08.2011 the petitioner was promoted and posted as LDC in the scale of pay of Rs.9940-16580 w.e.f.21.04.2011 against the vacancy of Smt.Sreelekha who was posted as U.D.Typist. The petitioner contends that by Exhibit P2, the Secretary to Government had informed the Director of Collegiate Education that promotion of the petitioner as Lab Assistant is ratified and therefore his promotion as LDC can also be approved. However, by Exhibit P3 dated 19.10.2012, the Director of Collegiate Education rejected the proposal for approval of appointment of the petitioner by promotion w.e.f.21.04.2011 and stated that the

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W.P.(C).No.28733/13

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petitioner would be entitled for promotion as LDC only from the date of Exhibit P1 order. Though the petitioner had preferred Exhibit P6 representation before the Government, the same was rejected on the ground that retrospective effect for promotion as LDC cannot be granted since the nature of work in the post of Lab Assistant and the promoted post is different. It was further stated that the retrospective effect for promotions given in earlier cases pointed out by the petitioner had occurred during the period of ban and that is why the said effect has been granted to them.

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2.Heard learned counsel for the petitioner and learned Government Pleader as well as learned counsel appearing for respondents 4 and 5.

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3.The case of the petitioner is that the post to which he was appointed was a regular sanctioned post. When a vacancy arose in the said post, the petitioner was appointed w.e.f. 21.04.2011. The petitioner as well as the 4^th respondent rely on Exhibit R4(a) circular issued by the 2^nd respondent dated 10.11.2008 to contend that where the sanctioned post is in

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W.P.(C).No.28733/13

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existence, promotions can be granted with effect from the date of occurrence of vacancy. This aspect is also not controverted in the counter affidavit filed on behalf of the 2^nd respondent. It is an admitted fact that there was an open vacancy in existence as on 21.04.2011. It is also not in dispute that the petitioner was qualified and eligible for promotion as LDC with effect from that date. In the light of Exhibit R4(a) circular, the promotion made by the Manager on 18.08.2011 w.e.f. 21.04.2011 is well in order. The Manager was well within his powers in granting such a promotion w.e.f. 21.04.2011.

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4.What remains for consideration is only with regard to the

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claim of the petitioner that he is entitled to retrospective effect of the promotion. From a reading of Exhibit P1 order, it is clear that no such retrospective effect was intended by the Manager to the promotion of the petitioner w.e.f. 21.04.2011. The petitioner can therefore claim only a notional effect of promotion from 21.04.2011. This is the aspect highlighted by the learned Government Pleader also. Though the petitioner relies on the decision of this Court reported in Varghese and

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W.P.(C).No.28733/13

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others v. State of Kerala and others [1981 KLT 458]; Sivarajan v. State of Kerala [1993 (2) KLT 287] and State of Kerala v. Bhaskaran Pillai [2003(1) KLT 60], I am of the view that in the light of the facts and circumstances of the instant case and on examining the order of appointment, he can claim only notional benefits of such promotion. Since the petitioner had started officiating in the post of LDC only on the strength of Exhibit P1 order, he will not be entitled to salary in the promoted post from 21.4.2011. In the result, it is declared that the petitioner will be entitled for approval of his promotion w.e.f. 21.04.2011 notionally. The 2^nd respondent shall pass orders approving the promotion of the petitioner made in Exhibit P1 within a period of one month from the date of receipt of a copy of this judgment. All consequential benefits shall also be calculated and disbursed to the petitioner without delay.

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This writ petition is ordered accordingly.

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Anu Sivaraman, Judge

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sj26/10

J.Radhakrishnan v. State of Kerala

Case brief

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J.Radhakrishnan v. State of Kerala

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