Allowed

V.Nandakumaran v. the High Court of Kerala

Kerala HC25 Sept 2018WP(C)/4033/2017

Case brief

AI extract

What is this about?

Retired Court Officer sought notional promotion to fix pay on newly introduced higher grade scale effective 2011. Court struck down order denying promotion on ground of retirement, holding physical presence unnecessary for pay fixation.

What did the court decide?

Ext.P5 order set aside; petitioner declared entitled to promotion notionally from 01.02.2011; direction to refix pay and sanction arrears of pensionary benefits within three months.

V.Nandakumaran Vs the High Court of Kerala — 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 SMT. JUSTICE P.V.ASHA

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TUESDAY ,THE 25TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940

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WP(C).No. 4033 of 2017-R

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PETITIONER/S:

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V.NANDAKUMARAN AGED 61 YEARS COURT OF OFFICER, (RETIRED), HIGH COURT OF KERALA, ERNAKULAM.COCHIN.31.RESIDING AT 'RAJANENDU'EROOR NORTH PO, ERNAKULAM.

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BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN

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RESPONDENT/S:

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1 THE HIGH COURT OF KERALA, ERNAKULAM KOCHI- 682031, REPRESENTED BY ITS REGISTRAR GENERAL.

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2 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 695001.

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BY ADVS. SRI.ELVIN PETER P.J.

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OTHER PRESENT:

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SR.GP.SMT MARY BEENA JOSEPH

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC NO.4033/17

JUDGMENT

The petitioner, who retired from service on

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31.03.2011, while working as Court Officer in the High Court of Kerala, is aggrieved by Ext.P5 order by which his request for grant of promotion as Office Superintendent(Higher Grade), is rejected. He seeks a declaration of his entitlement to be promoted as Office Superintendent (Higher Grade) with effect from 01.02.2011, in accordance with Ext.P2.

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2. The petitioner commenced his service as a Peon in the High Court. On further promotions, he was appointed as Office Superintendent with effect from 07.07.2001 in the scale of pay of Rs.5800-9425/-. He was granted further promotion as Court Officer with effect from 22.02.2006, in the very same scale of pay.

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3. Government issued orders revising the pay of Government employees as per G.O(P) No.85/11/Fin dated 26.02.2011, consequent to the recommendations of 9^th pay revision commission. The pay revision of the employees of the High Court was ordered as per Ext.P2 order - G.O(MS) No.257/2011/Home dated 18.11.2011, with effect

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from 01.07.2009. The date of effect of ratio based/time bound higher grades was ordered from 01.02.2011. Ext P2 order introduced Higher Grade to the post of Office Superintendent in the ratio of 1:1. The scale of pay of the post of Office Superintendent (Higher Grade) was Rs. 20740-36140. The scale of pay of the Office Superintendent was revised as Rs.18740-33680, as in the case of Court Officer/Section Officer.

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4. On the basis of Ext.P2 order, the High Court granted promotion to 9 Officers, including 3 Section Officers/Court Officers as Office Superintendent (HG), as per order dated 13.04.2012 (Ext R1(a)). By that time petitioner had retired from service on 31.3.2011. Seeing this, petitioner submitted Ext.P3 representation requesting for promotion as Office Superintendent (Higher Grade) with effect from 01.02.2011, pointing out that 7 posts were available for OS(HG) with effect from 01.02.2011 and 9 posts were available as on 01.01.2012 and therefore he was entitled to be promoted as OS(HG) with effect from 01.02.2011, in terms of Ext.P2 pay revision orders. A hearing was held on

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WPC NO.4033/17

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15.02.2013, in which petitioner and others appeared. The petitioner was given to understand that he was not eligible for promotion since he had already retired from service on 31.03.2011. This writ petition was filed at that stage seeking directions to grant him promotion as OS(HG). Petitioner thereafter received a copy of Ext.P5 order issued on 01.07.2013, in which his claim for promotion was not granted. The writ petition was amended incorporating the challenge against Ext.P5 order, pointing out that the denial of promotion to petitioner is illegal.

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5. Ext.P5 order was passed by the High Court after the hearing was held on 15.02.2013. The 2^nd respondent noticed that some of the Office Superintendents were already appointed as Section Officers/Court Officers and that there was change in the duties attached to the posts of Section Officer/Court Officer and that of Office Superintendents. It was found that the Section Officers/Court Officers cannot be posted back as Office Superintendents with retrospective effect. Therefore it

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was decided that those who were working as Office

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Superintendents as on 1.2.2011 would be eligible to be granted higher grade with retrospective effect, subject to the condition that there was no change in the duties, during the period of retrospective promotion. Accordingly, 7 persons were granted promotion as Office Superintendents (Higher Grade) with effect from 1.2.2011. Nothing was stated with respect to the claim of petitioner. Petitioner complains that the order Ext.P5 was not communicated to him.

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6. In the statement filed by the 1^st respondent it is stated that consequent to the introduction of 1:1 ratio as per Ext.P2 Government order issued on 18.11.2011, the post of Office Superintendent (Higher Grade) was incorporated in the High Court Service Rules, 2007 as category no.1 in sub division 10 under division I, with the method of appointment: “by promotion from Office Superintendent. Those Office Superintendents promoted as Court Officers under the repealed rules or as a Section Officer/Court Officer/Court Fee examiner under rule 20(2) (c) of these rules shall also be considered for promotion as

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Office Superintendent (Higher Grade), in accordance with their seniority in the category of Office Superintendent”. The respondent has stated that there were some Office Superintendents who have been appointed as Section Officers/Court Officers under the repealed rules. The cadre strength of posts of OS(HG) and OS was 8 and 7 as on 01.02.2011 and 9 and 8 as on 01.01.2012. As on 01.02.2011, there were 7 vacancies in the Higher Grade. There is no change in the duties attached to the post on promotion to Higher grade. At the same time the duties attached to the post of Section Officer/Court Officer and that of Office Superintendent (Higher Grade) are different. It was stated that, on appointment of Section Officer/Court Officer as Office Superintendent (Higher Grade), there is change of duties, the Office Superintendents who were promoted as Section Officers/Court Officers under the repealed rules could not be posted back as Office Superintendent(Higher Grade) with retrospective effect. The Honourable the then Chief Justice therefore ordered that only prospective promotion be resorted to in the

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cadre of promotion from Office Superintendent to Office Superintendent (Higher Grade). Therefore all the 9 vacancies of Office Superintendent (Higher Grade) which existed then were filled up with prospective effect as per Ext.R1(a) order on 13.04.2012. It is stated that the 9 promotees included 3 Office Superintendents who were working as Section Officer/Court Officer as on 13.4.2012. Consequent to their promotion as Office Superintendent (Higher Grade) with prospective effect, they were directed to take charge in the promoted post

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and accordingly they took charge as Office Superintendent (Higher Grade) on 13.04.2012. In the case of the petitioner, it is stated that as he was not in service as on 13.04.2012, he was not considered for

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promotion. The 1^st respondent stated that the representation of petitioner and certain others for promotion to Higher Grade was considered by a committee constituted by the then Honourable the Chief Justice and the committee after hearing the complainants, resolved that M/s.Saithumohammed, Remani and Omana were eligible for promotion to Higher Grade with effect from

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01.02.2011, as they had been working as Office Superintendents subject to the provisions of GO(P) No.515/2007/Fin dated 19.10.2007. It is stated that since the petitioner was working as Court Officer as on 01.02.2011 and retired on 31.03.2011 while working as Court Officer, it was resolved that he was not eligible to be assigned Higher Grade in the category of Office Superintendent. It is further stated that the committee considered the matter again on 20.03.2013 and resolved that M/s.A.N.Sudhamani and V.G.Venugopal, though were working as Section Officers as on 01.02.2011 and got promotion as Court Officers on 16.02.2011 and 11.08.2011, were not eligible for promotion as Office Superintendent (Higher Grade) since there was change in duties. The Honourable the Chief Justice thereafter ordered that those Office Superintendents working in that category as on 01.02.2011 were eligible for higher grade with retrospective effect provided there occurred no change of duty.

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7. It is also stated that the petitioner could not have been relieved from the post of Court Officer with

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retrospective effect, since he retired from service on 31.3.2011. In the case of Sri.Saithumohammed, it is stated that he could be given retrospective promotion with effect from 1.2.2011. According to the respondents, there was change of duty between the post of Court Officer/Section Officer and Office Superintendent. Therefore retrospective promotion was not possible.

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8. Heard the learned Counsel appearing on both sides. The post of Office Superintendent (Higher Grade) was introduced in Ext.P2 order issued by the Government, providing 1:1 ratio between Office Superintendent and Office Superintendent(HG)with effect from 01.02.2011. There is no change in the duties attached to those two posts. The juniors of the petitioner have already been granted promotion as Office Superintendent (Higher Grade). But the petitioner who was working as Office Superintendent from 07.07.2001 onwards is denied the benefit on the sole ground that he retired from service and therefore he cannot be posted back as Office Superintendent (HG).

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Petitioner retired as Section Officer (Higher Grade)/Court Officer (Higher Grade) which is in the same scale of pay of Rs.20740-36140, as in the case of the Post of Office Superintendent (Higher Grade), which was introduced in Ext.P2 order.

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9. The respondents have stated that the High Court Rules were amended incorporating the post of Office Superintendent (Higher Grade) including the Court Officers appointed as per the repealed rules in the feeder category. Those amendments have been incorporated with effect from 01.02.2011. Therefore petitioner would have been eligible for promotion as Office Superintendent (Higher Grade) in case promotions were made with effect from 01.02.2011. Therefore the denial of notional promotion to petitioner to the newly introduced post is illegal and arbitrary.

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10. When the petitioner got promotion as Court Officer from the post of Office Superintendent and a Higher Grade was introduced to the post from which he was promoted and that newly introduced post was having a higher scale of pay than that of the post to which he

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got promotion, it was only fair, just and proper at least to fix the pay of such persons who could not be physically posted to the newly introduced post and to enable him to draw pay at least on par with his junior. 11. The petitioner retired from service only on 31.3.2011. Therefore when the juniors of the petitioner were granted promotion with effect from 01.02.2011, irrespective of the fact that they were working as Court Officers, there is no justification for denying promotion to the petitioner also with effect from 01.02.2011, when he was very much available in service. The denial of promotion in the above circumstances on the sole ground that petitioner was not physically available at the time when promotions were effected or that it was not possible to post him back is arbitrary. In order to extend the benefit of fixation of pay, on notional promotion physical presence ought not have been insisted, especially when the respondents amended the rules enabling promotion of persons like petitioners.

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In the result Ext.P5 order to the extent it denies

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promotion to petitioner as Office Superintendent (Higher Grade) with effect from 01.02.2011 is set aside. It is declared that the petitioner was entitled to promotion as Office Superintendent (Higher Grade) with effect from 01.02.2011 notionally. There shall be a direction to the 1^st respondent to refix the pay of petitioner on the basis of the notional promotion with effect from 01.02.2011 and to recompute his terminal benefits including pension, DCRG and other pensionary benefits and to sanction, authorise and disburse the arrears of pensionary benefits due to him accordingly within a period of three months from the date of receipt of a copy of the judgment.

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The writ petition is allowed as above.

Sd/-

P.V.ASHA JUDGE

rkc

WPC NO.4033/17

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY	OF THE JUDG	MENT DATED
	3.11.2016 THIS HON'B	IN WP(C) NO.24 LE COURT.	850/2010 OF
EXHIBIT P2	TRUE C NO.257/201 ISSUED BY	OPY OF THE 1/HOME DATED THE GOVERNMENT.	G.O(MS) 18.11.2011
EXHIBIT P3	TRUE COPY	OF THE REPRESEN	TATION DATED
	26.4.2012 BEFORE THE	ISSUED BY THE 1ST RESPONDENT.	PETITIONER
EXHIBIT P4	TRUE COPY 13045/2009 THE 1ST RE	OF THE NOTICE DATED 12.2.2013 SPONDENT TO THE PE	VIDE NO.A5- ISSUED BY TITIONER.
EXHIBIT P5	TRUE COPY DT.1.7.13	OF ORDER NO.A ISSUED BY THE 1ST	5-13045/2009 RESPONDENT
RESPONDENTS' EXHIBITS
ANNEX.R1A	TRUE COPY NO.A5-1304	OF HIGH COURT 5/2009(2) DT.13.4.	PROCEEDINGS 12
ANNEX.R1B	TRUE COPY DT.15.2.13	OF MINUTES OF OF THE HOGH COURT	THE MEETING COMMITTEE.

V.Nandakumaran v. the High Court of Kerala

Case brief

What is this about?

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V.Nandakumaran v. the High Court of Kerala

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