Dismissed

M.K.Radhakrishnan, v. State of Kerala

Kerala HC2 Sept 2022WP(C)/6363/2022

Case brief

AI extract

What is this about?

Petitioner sought retirement as Administrative Officer with higher grade benefits after provisional promotion. Court held promotion remained subject to Government sanction which was never obtained. Reversion was upheld and petition dismissed as no subsisting right to promoted post existed.

What did the court decide?

Petition dismissed; respondents directed to release all retiral benefits as calculated by them.

M.K.Radhakrishnan, Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2022)

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W.P.(C).No.6363 of 2022

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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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FRIDAY, THE 2^ND DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 WP(C) NO. 6363 OF 2022

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PETITIONER:

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M.K.RADHAKRISHNAN, AGED 69 YEARS S/O. KUNJAN, ADMINISTRATIVE OFFICER, (RETIRED), KERALA STATE FILM DEVELOPMENT CORPORATION, THIRUVANANTHAPURAM 695 014. RESIDING AT KALAPPURAKKAL HOUSE, KOTTUVALLY, N . PARAVUR ERNAKULAM 683 519.

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BY ADVS. T.P.DEYANANTHAN S.KRISHNALAL

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF CULTURAL AFFAIRS, GOVERNMENT, SECRETARIAT THIRUVANANTHAPURAM 695 001.

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2 KERALA STATE FILM DEVELOPMENT CORPORATION (KSFDC), REPRESENTED BY THE MANAGING DIRECTOR, KALA BHAVAN, BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 014.

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W.P.(C).No.6363 of 2022

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BY ADVS. A.SUDHI VASUDEVAN (SR.) JOSE JONES JOSEPH SHILPA SATHISH INDRAJITH S KAIMAL APARNA NAIR

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OTHER PRESENT:

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M.RAJEEV-GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2022, THE COURT ON 02.09.2022 DELIVERED THE FOLLOWING:

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W.P.(C).No.6363 of 2022

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ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = =

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W.P.(C).No.6363 of 2022

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= = = = = = = = = = = = = = = = Dated this the 2^nd day of September, 2022

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JUDGMENT

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1.This writ petition is filed seeking the following reliefs:-

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“i)to call for files relating to Ext. P14, P24, P26, P27 and P28 and to issue a writ of certiorari or any other writ direction or order and quash the same to extent those infringed the right of the petitioner and direct the respondents to consider and pass orders that the petitioner had retired from service as Administrative Officer with effect from the AN of 30-11-2011 and he is entitled to all consequential benefits including two higher grades of 10 & 8 years with back arrears of pay for those illegally denied and terminal benefits accordingly with 18% interest and cost.

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ii) to issue a writ of mandamus or any other writ direction or order directing the 2^nd respondent to pass orders that the petitioner had retired from service as Administrative Officer with effect from the AN of 30-11-2011 and to grant two higher grades of 10 and 8 years in the same service with back arrears of pay and consequential terminal benefits with 18% interest on arrears and cost.

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iii)To declare that the petitioner was entitled to retire as Administrative Officer with effect from the AN of 30-11-2011 with two higher grades in that cadre with back arrears of pay and consequential terminal benefits with interest at the rate of 18% with cost.”

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W.P.(C).No.6363 of 2022

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2.Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned counsel appearing for the 2^nd respondent.

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The case of the petitioner, as disclosed from the pleadings in the writ petition, is that the petitioner was appointed as Assistant Administrative Officer in the 2^nd respondent Corporation on 18.1.1986. By Exhibit P3, the Board of Directors in their meeting held on on 30.12.1992 decided to appoint the petitioner as Administrative Officer. His probation was declared by Exhibit P5. The date of superannuation of the petitioner was on 30.11.2011. While so, Exhibit P9 memo of charges was issued on 22.2.2011. The petitioner submitted Exhibit P11 reply. A domestic enquiry was ordered based on which Exhibit P22 enquiry report was filed. On 28.11.2011 by Exhibit P17 the petitioner was reverted retrospectively w.e.f.3.10.2011 as Assistant Administrative Officer and a deputationist was permitted to join as Administrative Officer. W.P.

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W.P.(C).No.6363 of 2022

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(C).No.4974/2013 was filed by the petitioner challenging the disciplinary proceedings, enquiry report, reversion etc. Exhibit P23 judgment was rendered on 9.8.2021 directing reconsideration of Exhibit P17 herein and not to take further action pursuant to the enquiry proceedings. Thereafter, Exhibit P26 order was passed on 7.12.2021, upholding the reversion of the petitioner, but, dropping disciplinary proceedings and directing disbursal of all retirement benefits. The petitioner has now moved this Court for directions to the respondents to pass orders considering him to have retired from service as Administrative Officer w.e.f. 30.11.2011 and seeking consequential benefits, including higher grade, taking note of the fact that he had continued as Administrative Officer.

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The learned counsel for the petitioner relies on the decisions of this Court in Somedh Thapliyal v. Vice Chancellor HNB Garhwal University and another [(2021) 10 SCC 116], Punjab Water Supply and Sewage Board v. Ranjodh Sing and others [AIR 2007 SC 1082],

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W.P.(C).No.6363 of 2022

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Viswamithran P. v. Manager Sree Narayana College and others [1997 (2) ILR 463], Union of India v. Sacheti Food

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Products Ltd [ 2015 (15) SCC 447]. State of Punjab v. M/s.Bandeep Singh and others [(2016) 1 SCC 724] Union

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of India v. CEMES Group A (Direct Recruits) Asssociation, CPWD and others [AIR 2008 SCC 3] etc.

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A detailed counter affidavit has been placed on record by the 2^nd respondent. It is submitted that the petitioner's provisional promotion as Administrative Officer was specifically subject to Government's approval and that the Government had never approved the said promotion and therefore the petitioner had no right to continue as Administrative Officer. It is stated that the petitioner had been permitted to continue in the promoted post till his reversion to the entry post and to avail all service benefits till the date of his reversion. It is stated that since the reversion now stands upheld, the petitioner cannot claim the benefits of higher grades in the promoted post to which he is not entitled. It is submitted that in the year 1991, the

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petitioner had approached this Court seeking consideration of this claim for promotion as Administrative Officer. It was pursuant thereto that the petitioner was promoted provisionally as Administrative Officer in anticipation of Government approval. But the Government did not approve the petitioner's promotion and on 20.12.1993 an Under Secretary from the Government Secretariat was appointed as Administrative Officer on deputation, which was challenged by the petitioner in O.P.1155/1994. By Exhibit R2(b) judgment, the said original petition was dismissed holding that since the Government did not approve the petitioner's appointment as Administrative Officer and since the post stands filled up by deputation, the petitioner has no claim to continue in the post of Administrative Officer. It is submitted that decision relied on by the petitioner, that is,

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C.Manoharan and others v. State Warehousing Corporation and another [(2007) 3 KLT 459] has been overruled and that the petitioner is well aware of the said fact. It is submitted relying on Ext.R2(d) Recruitment Rules that the method of appointment to the post of Administrative

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Officer is either by promotion of Assistant Administrative Officers with minimum of five years experience as Assistant Administrative Officer/ Assistant Accounts Officer or by deputation from State Government or public sector undertakings. It is submitted that the Government had, in the year 1993 itself, declined approval for promotion of the petitioner to the post of Administrative Officer and had directed that the post should be filled up by deputation. It is submitted that during the period when the petitioner functioned as Administrative Officer in anticipation of sanction of the Government, he was given pay and allowances of the post of Administrative Officer. However, once the sanction for the said promotion was rejected by the Government and the challenge against the appointment by deputation was repelled by this Court, the petitioner had no subsisting legally enforceable claim either for continuing in the post of Administrative Officer or for drawing the pay in the said scale. It is submitted that the entire gratuity, leave surrender benefits and all other benefits due to the petitioner had been calculated and paid to him and that the

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petitioner can have no further grievance, in view of the dismissal of his earlier writ petition. It is submitted that Exhibit P26 proceedings have been passed after hearing the petitioner and after considering all his contentions. The learned counsel for respondents 2 and 3 relies on a decision of a Full Bench of this Court in Sasi P.K. and others v. State of Kerala and others [2020(1) KHC 531] to contend that the lien of the petitioner was in the post of Assistant Administrative Officer and he cannot have a claim to continue in a post to which he was provisionally promoted.

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I have considered the contentions advanced. From the pleadings placed on record, the facts that emerge are as follows:-

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The petitioner was appointed as Assistant Administrative Officer on 18.1.1986. He filed O.P.No.11204/1991 seeking promotion as Administrative Officer. By Exhibit P3 dated 4.1.1993 a decision was taken to provisionally promote him to the post of Administrative Officer in anticipation of Government sanction. By Exhibit P4, the Government

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appointed an Under Secretary to Government as Administrative Officer, on deputation. The petitioner challenged the said order in O.P.No.1155 of 1994, which was dismissed as Exhibit R2(b) judgment. However, since the deputationist failed to join the post, the petitioner was allowed to continue provisionally. While so, he was issued with memo of charges on 22.2.2011, alleging negligence of duty and fraud. Exhibit P11 reply was filed. An enquiry was conducted and an enquiry report was submitted. In the meanwhile, the 2^nd respondent permitted Sri.Sathyakumar.S to join duty as Administrative Officer w.e.f. 3.10.2011 and the petitioner was reverted as Assistant Administrative Officer. W.P.(C).No.4974/2013 was filed by the petitioner challenging the disciplinary proceedings, enquiry report as well as the reversion order. By Exhibit 23 judgment, this Court directed as follows:-

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“8.When I evaluate the allegations in Ext.P9, it is rendered indubitable that they are not serious enough to warrant a major disciplinary punishment against the petitioner, though there are allegations thereon that he did not discharge his duties to the extent to which he was expected. However, as I have already said

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above, since no disciplinary action has begun against the petitioner pursuant to Ext.P9 until now and since this Court has interdicted such through the earlier interim order, I am of the firm view that there will be no purpose left in allowing such an action to be pursued at this point of time, particularly because the petitioner has retired from service more than 10 years ago.

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That said, with respect to Ext.P16, I find some favour with the submissions of Sri.Titus Mani that it has been issued without hearing his client, though a demotion has been ordered against him. I am certain that before any such detriment could have been imposed against the petitioner, whatever be the contention of the KSFDC, he ought to have been given an opportunity of being heard.

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In the afore circumstances, I order this writ petition, directing the 2^nd respondent not to take any further action pursuant to Exts.P9, P17 or P18; with a further direction to the said respondent to reconsider Ext.P16 and issue fresh orders thereon, however, only after hearing the petitioner and after recording his version. The afore exercise will be completed by the 2nd respondent as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment.

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I further make it clear that all retiral benefits of thepetitioner, in terms of the afore decision, shall be released to him within a period of two months thereafter, however, leaving full liberty to the petitioner to challenge any order that may be issued resultant to this directions as he may be advised.”

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Pursuant to the said judgment, the petitioner was heard and Exhibit P26 proceedings were issued. It is stated therein that the appointment of the petitioner to the post of Administrative Officer was purely provisional and subject to ratification by the Government. It is stated that the Government did not ratify the appointment and had directed reversion. In the above view of the matter, it was decided not to pursue the disciplinary proceedings against the petitioner and to confirm the reversion of the petitioner.

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Having considered the contentions advanced, I notice that the petitioner's promotion as Administrative Officer was purely provisional and subject to sanction of the Government. The Government had never ratified the appointment of the petitioner as Administrative Officer made as per Exhibit P3. The contention of the petitioner is that since he had actually worked as Administrative Officer, he is entitled to all the benefits attached to the post. The respondents specifically contend that all the pay and allowances due to the petitioner for the period during which he had actually worked as

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Administrative Officer had been released to him. The further contention of the petitioner is that the reversion to the post of Assistant Administrative Officer was bad in law. I notice that the petitioner's substantial appointment was as Assistant Administrative Officer. His provisional promotion as Administrative Officer was specifically subject to Government sanction. It is not in dispute before me that the Government never granted sanction for the said appointment. On the contrary, the Government made an appointment to the post of Administrative Officer by deputation, which was challenged by the petitioner. This led to Exhibit R2(b) judgment of this Court. It is thereafter that the disciplinary proceedings were initiated against the petitioner. In Exhibit P23 judgment, this Court had directed the consideration of the contention of the petitioner that the disciplinary proceedings initiated against him are unsustainable and that his reversion is bad in law. After considering the contentions advanced, as directed, Exhibit P26 order has been passed dropping the disciplinary proceedings but upholding the order of reversion.

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Having considered the contentions advanced and in view of Exhibit R2(b) judgment, I am of the opinion that the contention raised by the petitioner that his reversion was bad in law has been properly considered and answered in Exhibit P26. In the light of Exhibit R2(b) judgment, I fail to see any patent illegality or perversity in Exhibit P26 order passed by the respondents. The decisions relied on by the learned counsel for the petitioner have no application, since the substantial right of the petitioner to continue in the post of Administrative Officer stands settled by Exhibit R2(b) judgment. The reliefs sought for in this writ petition cannot be granted. The writ petition fails and the same is accordingly dismissed.

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sd/-

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Anu Sivaraman, Judge

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W.P.(C).No.6363 of 2022

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APPENDIX OF WP(C) 6363/2022

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PETITIONER EXHIBITS

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Exhibit P1	TRUE COPY OF THE KSFDC RULE 1975.
Exhibit P1	(A) TRUE COPY OF THE ART. 44(1) OF KSFDC.
Exhibit P2	TRUE COPY OF THE ORDER NO. 17/86/A-2 KSFDC DATED 18.01.1986 OF THE 2ND RESPONDENT.
Exhibit P3	TRUE COPY OF THE KSFDC DECISION.
Exhibit P4	TRUE COPY OF THE PROMOTION ORDER NO. 17/86/A2/KSFDC DATED 04.01.1993.
Exhibit P5	TRUE COPY OF THE PROCEEDINGS NO. 18/86/A2/KSFDC DATED 24.11.1995.
Exhibit P6	TRUE COPY OF ORDER NO. 17/86/A2/KSFDC DATED 24.11.1997 SANCTIONING ANNUAL INCREMENT.
Exhibit P6	(A) TRUE COPY OF ORDER SANCTIONING ANNUAL INCREMENT NO. 17/86/A2/KSFDC DATED 26.09.1997.
Exhibit P7	TRUE COPY OF PAY REVISION ORDER GO (MS) NO. 30/2009/CAD DATED 24.11.2009.
Exhibit P8	TRUE COPY OF LETTER NO. KSFDC/MD/2005/616 DATED 04.07.2005.
Exhibit P8	(A) TRUE COPY OF LETTER NO. KSFDC /MD/2005/616 DATED 25.04.2009.
Exhibit P8	(B) TRUE COPY OF LETTER NO. KSFDC /LA/12/92 DATED 28.02.2007.

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W.P.(C).No.6363 of 2022

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Exhibit P8 (C) TRUE COPY OF IFS DATED 30.06.1998 ISSUED BY K.G. MOHANLAL. Exhibit P9 TRUE COPY OF MEMO OF CHARGES NO. 17/86/A2/ADMN. /4134 DATED 22.02.2011. Exhibit P10 TRUE COPY OF NOTE NO. 22/97/CONSTRN DATED 27.11.1998 OF THE CONSTRUCTION ENGINEER. Exhibit P10 (A) TRUE COPY OF DOCUMENT NO. SFM/MD/DATED 02.12.1998 REGARDING SALE OF SHOPS IN THRISSUR THEATER COMPLEX. Exhibit P10(B) TRUE COPY OF LETTER NO. 22/97/CONSTN/KSFDC DATED 02.12.98 SEEKING LEGAL ADVICE. Exhibit P10 (C) TRUE COPY OF MINUTES OF M.D. C. & FM AND SITE ENGINEER. Exhibit P10 (D) TRUE COPY OF NOTE OF CONSTRUCTION ENGINEER NO 04/99/CONSTRN DATED 08.09.1999. Exhibit P10 (E) TRUE COPY OF LICENSE DEED DATED 02.08.2000. Exhibit P10 (F) TRUE COPY OF NOTE TO PROJECT ENGINEER BY S & FM. Exhibit P10 (G) TRUE COPY OF PROCEEDINGS APPOINTING LEGAL ASST. NO. 29/A2/89/KSFDC DATED 26.02.1992. Exhibit P10 (H) TRUE COPY OF APPOINTMENT OF LEGAL ADVISOR NO. 87/86/A3/KSFDC DATED 03.08.1992.

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Exhibit P11 TRUE COPY OF REPLY OF THE PETITIONER 23.03.2011. Exhibit P12 TRUE COPY OF THE SUBMISSION DATED 21.03.2011 MADE BY CHANDRA BABU ASARI. Exhibit P13 TRUE COPY OF REQUEST FOR S & FM TEMPORARY ARRANGEMENT NO. 58/07 ADMN. / 5421 DATED 31.08.20211. Exhibit P14 TRUE COPY OF DEPUTATION OF A AO GO (RT) NO. 7448/2011/GAD DATED 01.10.2011. Exhibit P15 TRUE COPY OF SUBMISSION BY PETITIONER TO R2 DATED 20.10.2011. Exhibit P16 TRUE COPY OF LEAVE APPLIED DATED 21.10.2011. Exhibit P17 TRUE COPY OF PROCEEDINGS REVERTING THE PETITIONER NO. 17/A2/86/KSFDC DATED 28.11.2011. Exhibit P18 TRUE COPY OF APPOINTMENT O F ENQUIRY OFFICER LETTER NO KSFDC /22/86/A3/5916 DATED 23.11.2011. Exhibit P19 TRUE COPY OF NOTICE OF ENQUIRY DATED 13.12.2011. Exhibit P20 TRUE COPY OF VIGILANCE ENQUIRY REPORT NO . E8/(VE 09/11/TSR), 28800/1 DATED 06.10.2012. Exhibit P21 TRUE COPY OF REPRESENTATION ON 16.01.2013. Exhibit P22 TRUE COPY OF DOMESTIC ENQUIRY REPORT DATED 31.01.2013.

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Exhibit P22 (A) TRUE COPY OF LETTER NO. 3906/14/KSFDC DATED 29.09.2014 FOR WARDING ENQUIRY REPORT TO THE PETITIONER. Exhibit P23 TRUE COPY OF JUDGMENT DATED 09.08.2021 IN WPC NO. 4974/2013. Exhibit P24 TRUE COPY OF PROCEEDINGS AGAINST THE PETITIONER NO. 1428/EI/2020/KSFDC DATED 22.10.2021. Exhibit P25 TRUE COPY OF HEARING NOTE DATED 29.11.21. Exhibit P26 TRUE COPY OF PROCEEDINGS OF 2ND RESPONDENT NO. 1428 /EI/2020/KSFDC DATED 07.12.2021. Exhibit P27 TRUE COPY OF STATEMENT REDUCING THE PAY NO. 17/EI/86/KSFDC DATED 19.12.2011. Exhibit P28 TRUE COPY OF LETTER NO. A3/ACCOUNTS/2022 /KSFDC DATED 04.02.2022 FORWARDING CHEQUE. Exhibit P29 TRUE COPY OF THE RELEVANT PORTION OF G.O(P) NO. 145/2006/FIN. DATED 25/03/2006 RESPONDENT EXHIBITS Exhibit R2(A) TRUE COPY OF THE RELEVANT PAGES OF THE ARTICLES OF ASSOCIATION OF THE 2ND RESPONDENT Exhibit R2(B) TRUE COPY OF THE JUDGMENT DATED 27/06/1994 IN O.P 1155/1994 PASSED BY THIS HONOURABLE COURT

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Exhibit R2(C) TRUE COPY OF THE LETTER NO. KSFDC/13/08/ADMN/581 DATED 21/04/2008 SUBMITTED BY THE 2ND RESPONDENT TO THE SECRETARY TO GOVERNMENT Exhibit R2(D) TRUE COPY OF THE RELEVANT PAGES OF THE RECRUITMENT RULES OF THE 2ND RESPONDENT

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True copy

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PS to Judge

M.K.Radhakrishnan, v. State of Kerala

Case brief

What is this about?

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M.K.Radhakrishnan, v. State of Kerala

Case brief

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