Partly allowed

State of Kerala, v. K. Sudhakara Bhat

Kerala HC9 Nov 2018OP(KAT)/395/2018

Case brief

AI extract

What is this about?

The High Court of Kerala, through the Kerala Administrative Tribunal, modified an order granting notional promotion with arrears. It held that notional promotion carries benefits upon re-fixation of pay and pension, but arrears of pay are not payable when the promotion itself is notional as per Government Order, though consequential pensionary benefits and re-fixation of terminal benefits are gran

What did the court decide?

Impugned order modified to grant re-fixation of pay, pension, and terminal benefits; arrears of pay struck down; entitlement to grade promotion to be considered if applicable.

State of Kerala, Vs K. Sudhakara Bhat — Pension and Retirement Benefits | Kerala HC (2018)

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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 C.T.RAVIKUMAR

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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FRIDAY ,THE 09TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940

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OP(KAT).No. 395 of 2018

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AGAINST THE ORDER/JUDGMENT IN TA 401/2013 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 18-08-2017

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PETITIONERS/RESPONDENTS IN T.A:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

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2 THE CHIEF ENGINEER (ADMINISTRATION), KERALA PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM, PIN-695033.

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BY ADV. GOVERNMENT PLEADER

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RESPONDENT/APPLICANT IN THE T.A:

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K. SUDHAKARA BHAT, (RETIRED EXECUTIVE ENGINEER) (P.A. TO SUPERINTENDING ENGINEER, N.H.(C.C), VYTILA), KUSHASTHALI, 47/1216, SASTHRI ROAD, VADUTHALA, PIN - 682 023.

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BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.K.N.REMYA SMT.L.ANNAPOORNA SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SRI.V.VARGHESE

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OP(KAT).No. 395 of 2018

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GP- SRI ANTONY MUKKATH.,SRI S.P ARAVINDAKSHAN PILLAY.

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 09.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP(KAT).No. 395 of 2018

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JUDGMENT

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C. T. Ravikumar, J.

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The challenge in this original petition is against

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the order dated 18.08.2017, passed by the Kerala Administrative Tribunal in T.A. No.401/2013. The respondent herein, infact, moved this Court by filing W.P(C). No.19085/2009 which was transferred to the

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Kerala Administrative Tribunal pursuant to its constitution and was renumbered as above, with the following prayers:-

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i. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2^nd respondent to implement Ext.P10 and disburse the consequential monetary benefits to the petitioner within a time limit to be fixed by this Hon'ble Court.

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ii. Issue a writ of mandamus or any other

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appropriate writ, order of direction

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OP(KAT).No. 395 of 2018

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commanding the 1^st respondent to ensure that the 2^nd respondent implements Ext.P10 within a time limit to be fixed by this Hon'ble Court.

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And

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iii. Grant such other reliefs as this Hon'ble

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Court deems fit and proper in the circumstances of the case including the costs of this Writ Petition (Civil).

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A perusal of the prayers made by the respondent

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herein viz., the applicant in the transfer application would reveal that he virtually wanted implementation of Ext.P10 order passed by the Government. As per the

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same, Government had directed the Chief Engineer Administration to take steps to revise the respondent's

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seniority and grant him certain consequential service benefits. The claims and contentions of the respondent

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herein were stoutly resisted by the petitioners

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herein/respondents therein. However, the Tribunal

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repelled their contentions and allowed the transfer

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OP(KAT).No. 395 of 2018

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application. As per the impugned order the Tribunal declared that the respondent/applicant was entitled to promotion with effect from the dates on which his immediate junior Sri.V.K. Rajendran, was promoted to the posts of Assistant Executive Engineer, Executive Engineer and Superintending Engineer. The following directions were also issued by the Tribunal:-

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“The applicant shall be granted notional promotion

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to the above post with fixation of benefits. The pay of the applicant shall be accordingly re-fixed and the pensionary benefits also be revised. The arrears of pay, revised pensionary benefits and arrears of pensionary benefits shall be disbursed to the applicant on issuance of orders of notional promotion”

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It is on being aggrieved by the aforesaid

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directions given by the Tribunal as per the impugned order that the captioned original petition has been filed.

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The core contention of the petitioners is that

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the Tribunal had lost sight of a crucial aspect while

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OP(KAT).No. 395 of 2018

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issuing direction. The respondent herein/ applicant therein had retired from service on superannuation on 28.02.2004 and his immediate junior Sri. P.K Rajendran

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as also his senior one Mr. Raju were promoted to the cadre of Superintending Engineer only on 01.10.2004. In other words, it is their precise contention that, those persons were given promotion only after about 7 months from the retirement of the respondent. In short, the contention is that in the said

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circumstances, the respondent herein/applicant therein was not entitled to get promotion to the post of Superintending Engineer.

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The learned counsel Sri. Aravindakshan Pillai,

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respondent/applicant would admit that the petitioner's immediate junior Sri.V.K. Rajendran and his senior Sri. Raju were promoted to the cadre of Superintending

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Engineer only after the retirement of the respondent/applicant. In such circumstances, there can be little doubt with respect to the position that the directions issued by the Tribunal in the impugned order

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OP(KAT).No. 395 of 2018

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to the extent it ordered to grant promotion to the

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petitioner to the post of Superintending Engineer cannot be sustained.

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The learned Government Pleader further

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submitted that the very prayers made by the petitioner

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in the transfer applications would reveal that all along he was seeking for implementation of Ext.P10 Government Order. In Ext.P10 virtually, such benefits were ordered to be given only notionally. Ignoring the

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said fact the Tribunal in its order issued direction to grant arrears of pay after granting promotions. In short, the contention is that even if the respondent is entitled to get notional promotion so long as it is to be granted notionally in terms of Ext.P10, as claimed by the respondent, he is not entitled to get the

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arrears of pay. We may hasten to add, at this juncture that the learned counsel appearing for the respondent submitted that some of the juniors as also seniors of

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the respondent were granted grade promotion. At the

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same time, no material is on record evidencing the

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grant of such benefit to any of the juniors of the

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OP(KAT).No. 395 of 2018

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respondent. At the same time, there can be no doubt

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with respect to the position that if the juniors to the petitioner were granted such benefits the entitlement of the respondent to grade promotion is a matter to be considered. In such circumstances, if it is found that the respondent is entitled to get grade promotion then he will be entitled to get the consequential monetary benefits viz. the arrears. In the said circumstances, we are of the considered view that the impugned order passed by the Tribunal requires modification to the extent it directed for promoting the petitioner to the post of Superintending Engineer as well notionally and

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also to grant arrears of pay on such notional promotion/promotions. As noticed earlier, the very prayer of the petitioner is to implement Ext.P10. It

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is true that he has also sought for consequential monetary benefits. When promotions are sought to be granted notionally and ordered to be granted notionally there can be no question of granting arrears of pay. In such circumstances, the respondent/ applicant is entitled to get re-fixation of his pay and consequent

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OP(KAT).No. 395 of 2018

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to re-fixation, he is also entitled to get re-fixation of pension and other terminal benefits and to get the consequential monetary benefits pursuant to re-fixation of pension and terminal benefits. The petitioners shall also consider the entitlement of the respondent/applicant for grade promotion if any of his juniors was granted the same, subject to the satisfaction of conditions therefor. The impugned order stands modified to the aforesaid extent. The original petition is disposed of, as above.

Sd/-

C.T.RAVIKUMAR

JUDGE

Sd/-

V.G.ARUN

JUDGE

avs

OP(KAT).No. 395 of 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE P1	TRUE COPY OF T.A NO. 401/2013 ALONG WITH EXHIBITS P1 TO P12 BEFORE THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL
EXHIBIT P1	TRUE COPY OF THE MEMORANDUM NO.RII A(3) 40714/74 DATED 07.09.74 OF THE PUBLIC SERVICE COMMISSION.
EXHIBIT P2	TRUE COPY OF THE ORDER NO.48919/EIC/75 DATED 5.6.75 OF THE CHIEF ENGINEER GENERAL AND BUILDING AND ROADS.
EXHIBIT P3	TRUE COPY OF THE ORDER NO.5/SC(i)/PW/81 DATED 18.6.1988 OF THE 2ND PETITIONER.
EXHIBIT P3 A	TRUE COPY OF THE APPENDIX I ATTACHED TO EXHIBIT P3.
EXHIBIT P4	TRUE COPY OF THE ORDER NO.SC2/431/SPL.CELL.94 DATED 02.09.1994 OF THE 2ND PETITIONER.
EXHIBIT P4 A	TRUE COPY OF THE RELEVANT PORTION OF THE SENIORITY LIST OF ASSISTANT ENGINEERS(GRADUATE).
EXHIBIT P5	TRUE COPY OF THE JUDGMENT IN O.P.NO.5840/09 DATED 25.08.2000.
EXHIBIT P6	TRUE COPY OF THE ISSUED ORDER NO.LB(3)6394/98 DATED 4.7.98 OF THE 2ND PETITIONER.
EXHIBIT P7	TRUE COPY OF THE PETITION SUBMITTED BY THE APPLICANT BEFORE THE GOVERNMENT DATED 3.6.2001.
EXHIBIT P8	TRUE COPY OF THE PETITION SUBMITTED BY THE APPLICANT BEFORE THE GOVERNMENT ON 9.9.2001.
EXHIBIT P9	TRUE COPY OF THE JUDGMENT IN OP NO.6118/03- C OF THIS HON'BLE COURT.

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OP(KAT).No. 395 of 2018

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EXHIBIT P10	TRUE COPY OF THE G.O.(RT)NO.978/08/PWD DATED 07.07.2008.
EXHIBIT P11	TRUE COPY OF THE JUDGMENT IN C.O.C.NO.915/2008 OF THIS HON'BLE COURT ON 11.07.2008.
EXHIBIT P12	TRUE COPY OF THE REPRESENTATION DATED 26.12.2008 WAS SUBMITTED BY THE RESPONDENT TO THE 2ND PETITIONER CHIEF ENGINEER.
ANNEXURE P2	TRUE COPY OF THE COUNTER AFFIDAVIT DATED 21.01.2012 FILED BY THE FIRST RESPONDENT IN THE AFORESAID TRANSFER APPLICATION
ANNEXURE P3	TRUE COPY OF THE M.A NO. 2475/2017 ALONG WITH ANNEXURES A13 TO ANNEXURE A18
EXHIBIT P13	TRUE COPY OF THE LETTER NO.EB1-2161/2017 DATED 18.03.2013 ISSUED BY THE 2ND PETITIONER
EXHIBIT P14	TRUE COPY OF THE REPLY DATED NIL TO THE 2ND PETITIONER
EXHIBIT P15	TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 2ND PETITIONER DATED 3.01.2017
EXHIBIT P16	TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD
EXHIBIT P17	TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 1ST PETITIONER DATED 03.01.2017
EXHIBIT P18	TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD
ANNEXURE P4	TRUE COPY OF THE ORDER OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL DATED 18.08.2017.
ANNEXURE P5	TRUE COPY OF G.O (Rt.)NO. 954/04/PWD DATED 1.10.2004

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OP(KAT).No. 395 of 2018

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ANNEXURE P6 TRUE COPY OF M.A NO.1115/2018 ALONG WITH ANNEXURES MA1 TO ANNEXURES MA3 BEFORE THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL ANNEXURE MA1 TRUE COPY OF THE ORDER OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL DATED 18.08.2017 ANNEXURE MA2 TRUE COPY OF THE G.O(Rt)NO.53/2018/PWD DATED 06.01.2018 ANNEXURE MA3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE RESPONDENT DATED 16.02.2018

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RESPONDENT'S/S EXHIBITS:

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avs //TRUE COPY// P.A TO JUDGE

State of Kerala, v. K. Sudhakara Bhat

Case brief

What is this about?

What did the court decide?

State of Kerala, v. K. Sudhakara Bhat

Case brief

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What did the court decide?

What the court decided

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