IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942
OP(KAT).No.447 OF 2020
AGAINST THE ORDER IN OA (EKM) 416/2015 DATED 27-05-2019 OF KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
A.K.SREEDEVI
AGED 56 YEARS
D/O.LATE KESAVAN,
JOINT BLOCK DEVELOPMENT OFFICER (RH)
(RETIRED), BLOCK PANCHAYATH OFFICE,
PALAKKAD, PRESENTLY RESIDING AT JAYASREE,
PALLIMALAKUNNU, KOTTOOLI P.O., KOZHIKODE-673 016.
BY ADVS.
SRI.AASHIQUE AKTHAR HAJJIGOTHI
SMT.KEERTHANA J. RAMESH
RESPONDENTS/RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY
TO THE GOVERNMENT,
DEPARTMENT OF RURAL DEVELOPMENT,
GOVERNMENT OF KERALA, TRIVANDRUM-695 001.
2 THE COMMISSIONER,
RURAL DEVELOPMENT DEPARTMENT, TRIVANDRUM-695 033.
3 SMT.ELISA P.D.(WD),
POVERTY ALIENATION UNIT, RURAL DEVELOPMENT, CIVIL
STATION, ERNAKULAM-682 030.
BY ADV.
SRI.T.RAJASEKHARAN NAIR, SR.GOVT.PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 04.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT).No.447 OF 2020
2
ALEXANDER THOMAS & T.R.RAVI, JJ.
=======================
O.P.(KAT) No. 447 of 2020
=======================
Dated this the 04th day of January, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayers in the above O.P.(KAT) filed under Section 227 of the Constitution of India are as follows:
"i) (sic) An order setting aside the Exhibit P2 order dated 27.05.2019 in O.A.(EKM)No.416/2015 passed by the Kerala Administrative Tribunal, Additional Bench Ernakulam.
ii) To pass an order directing the respondents 1 and 2 to consider the case of the petitioner by granting her retrospective promotion and thereby revising her pensionary benefits.
iii) To direct the 1st respondent to consider the claim of the petitioner through Exhibit P7 representation submitting by the petitioner and direct the 1 st respondent to revise the pensionary benefits of the petitioner.
iv) To direct the 2nd respondent to consider the claim of the petitioner through the Exhibit P6 appeal submitted by the petitioner before the 2nd respondent and grant her retrospective promotion.
v) Issue such other appropriate orders or directions as this Hon'ble Court deems fit in the nature and circumstances of the case.
vi) Grant any other further or consequential reliefs, as may be prayed for and deemed fit by this Hon'ble Court.
OP(KAT).No.447 OF 2020 3
2. Heard Sri.Aashique Akthar Hajjigothi, the learned counsel appearing for the petitioner and Sri.T.Rajasekharan Nair, the learned Senior Government Pleader appearing for respondent Nos. 1 and 2. In the nature of orders proposed to be passed by this Court in this original petition, notice to contesting respondent No.3 will stand dispensed with. Moreover, it is seen that notice to contesting respondent No.3 was also dispensed by the Tribunal while rendering at Ext.P1. The petitioner has filed Ext.P2 O.A.No.416/2015, before the Kerala Administrative Tribunal, with the following prayers:
"(i) To quash Annexure A5, Annexure A6 and Annexure A10 the extent the Applicant is denied promotion as BDO and DWWO.
(ii) To direct the Respondents 1 and 2 to conduct a review DPC in accordance with law to the post of BDO and District Women's Welfare Officer (DWWO) by considering the CRs of the Application for the years from 2008 to 2012 presently on record and to include the name of the Applicant in Annexure A5 Select List and grant all consequential benefits including arrears of Pay and postings based on preference of seniority with effect from the date of promotion of her immediate junior.
(iii) Grant such other reliefs as may be prayed for and as the Court may deem fit to grant; and
(iv) Grant the cost of this Original Application."
3. The Tribunal has rendered the impugned Exhibit P1 OP(KAT).No.447 OF 2020 4 order dated 27.05.2019, which reads as follows:
"(i) To quash Annexure A5, Annexure A6 and Annexure A10 the extent the Applicant is denied promotion as BDO and DWWO.
(ii) To direct the Respondents 1 and 2 to conduct a review DPC in accordance with law to the post of BDO and District Women's Welfare Officer (DWWO) by considering the CRs of the Application for the years from 2008 to 2012 presently on record and to include the name of the Applicant in Annexure A5 Select List and grant all consequential benefits including arrears of Pay and postings based on preference of seniority with effect from the date of promotion of her immediate junior.
(iii) Grant such other reliefs as may be prayed for and as the Court"
This Original Application was filed seeking to quash Annexures A5, A6 and A10 orders to the extent it denies promotion to the applicant as Block Development officer and District Women's Welfare Officer.
2. This Original Application filed on 21.05.2015 has not been admitted so far. It was being adjourned at the instance of the applicant. The applicant was directed to produce the relevant Rules by order dated 17.06.2015 which have not been produced so far. This OA was never moved at the instance of the applicant. Going by the age of the applicant as shown in the OA, she might have retired from service long back.
In such circumstances, the Original Application is dismissed."
4. Reading of impugned Exhibit P1 order rendered by the Tribunal dismissing O.A.No.416/2015 on 27.05.2019, would show that the said decision has been rendered without entering into the merits of the controversy and on the main ground that the petitioner might have retired from service long back etc. One of OP(KAT).No.447 OF 2020 5 the primary grounds of the petitioner is that the petitioner was illegally superseded by Departmental promotion Committee on the sole ground that her Annual Confidential Records (ACR) for the year 2011 was found missing in the service records. The petitioner would point out that the ACR of the petitioner for the period 2011 duly available and it was found missing by the authorities concerned, the petitioner cannot be penalised on account of the latches and omission on the part of the Administrative Authorities for the custodians of the ACR. Further the petitioner would also point out various other aspects in the matter as can be seen from Para 6 to Para 14 as well as Para 17 of the memorandum of this original petition which read as follows:
6. It is further submitted that in both the petitions, she had requested the authority to conduct an adhoc - DPC and to keep in abeyance the operation of the result of DPC held on 31.05.2013, till a decision is taken, in view of the fact that she was having hardly one and half years service to retire on superannuation. Thereafter the result of the DPC was published in Gazette dated 02.07.2013. The 3rd respondent at Sl.No.9, and 11 others in the list are juniors to the applicant.
7. Implementing Annexure A5 of Exhibit P2, the respondents had effected transfers and postings by Order dated 11.12.2013 thereby many of her juniors in service became her superiors by the wrongful action of the respondents. The 3rd respondent is at Sl.No.2 in the 2nd part of the Order.
8. It is understood clearly from Annexure A6 of Exhibit P2 that Joint Block Development Officers were OP(KAT).No.447 OF 2020 6 given notional promotion as BDOs and then to the higher post of DWWO. It is submitted that as a result of a Court Verdict, the practice of appointing women officials as BDO had been stopped and they will only be placed notionally in the BDO cadre and then to the post of DWWO.
9. The petitioner had been denied with her promotions on earlier occasions as well i.e., to the post of Extension Officer (Women's Welfare). Her service particulars were provided as unknown in the Incumbency List. She had to represent against the denial of promotion and subsequently, she was given promotion with effect from the date of promotion of her immediate junior.
10. Even at every stages of her career, the petitioner was denied her promotions on technicalities. Each time she had to represent and get the mistakes rectified to sanction her right. The respondents were bound to rectify their mistakes by conducting a review DPC and to grant the petitioner promotion with all consequential benefits as done in Exhibits P8.
11. At this juncture it is respectfully submitted that the petitioner approached Hon'ble Kerala Administrative Tribunal in OANo.181/2014 and it was disposed of directing the 2nd respondent to convene a review DPC and to place her petition before them.
12. Due to non-compliance of the directions of the Hon'ble Tribunal, the petitioner had to move CP(C)No.85/2014. The Contempt was closed by an Order dated 15.07.2014 based on the instructions of the Government Pleader that regular DPC was convened on 03.04.2014 and the petitioner was superseded. The petitioner obtained material particulars as regards to the proceedings of the DPC and filed MA No.712/2015 for reopening the matter. In consequence to it the Contempt Petition was restored and it was directed to the respondents to report compliance within one month.
13. It is submitted that the respondents issued an Order in purported compliance with the direction of the Hon'ble Tribunal. Though they claims to have conducted a review DPC. The proceedings were in the nature of an original DPC
14. It is submitted that the petitioner was denied her promotion on the ground that the petitioner is not a graduate. From Annexure A10 of Exhibit P2 it is clear that such a view was taken based on a clarification by the Government Letter dated 11.04.2014. As per the letter, till OP(KAT).No.447 OF 2020 7 11.04.2014, graduation was not insisted for promotion as BDO by the Department. The claim of the petitioner relates back to the DPC held in the year 2013. Therefore, the condition as on the date of Original DPC would only have been insisted upon the petitioner also. Moreover, in the DPC held on 30.05.2013 which is relevant to the petitioner, 8 officials promoted as BDO and 6 officials to the next grade, were non-graduates. This information was released under RTI Act also.
15. xxx xxx xxx
16. xxx xxx xxx
17. As per Exhibit P4, it is seen that by G.O. (P)No.2730/2015/LSGD dated 08.09.2015 the existing non-graduated BDOs who were promoted to the post of Secretary, Block Panchayath were considered as a special case and were regularized using the special power under Rule 39, Part II, KS & SSR. Moreover the Government letter dated 11.04.2014 by which the petitioner was denied promotion in the DPC held on 24.04.2015, was not made applicable to those appointments. The true copy of the G.O. (P)No.2730/2015/LSGD dated 08.09.2015 issued by 1st respondent is produced herewith and marked as Exhibit P5."
5. The petitioner has also placed reliance on Ext.P5 G.O.
(P).No.2730/2015/LSGD dated 08.09.2015, which is set to have been passed by the State Government by invoking the powers under Rule 39 of Part II, KS & SSR etc.
6. After hearing both sides, we are inclined to take the view that the ends of justice would be advanced by the remitting the matter to the Tribunal for consideration of the matter afresh, since the matter has not been decided on merits. The matter would requires serious reconsideration in the hands of the Tribunal in as OP(KAT).No.447 OF 2020 8 much as the above said various aspects urged by the petitioner has not been taken into consideration by the Tribunal while rendering the impugned order.
In that view of the mater it is ordered that impugned Ext.P1 order dated 27.05.2019, rendered by the Kerala Administrative Tribunal O.A.[EKM] No.416/2015 will stand set aside, and consequently the original application O.A.[EKM]No.416/2015 will stand restored to the file of the Kerala Administrative Tribunal for consideration of this matter afresh. The learned counsel for the petitioner would submit that the petitioner may also be permitted to amend the pleading in the O.A. to incorporate various other aspects in the matter. The petitioner may filed separate application seeking for the amendment of the pleading in the above O.A. which may be duly consider by the Tribunal. The Tribunal may also issue notice to the contesting respondent No.3, and may also give minimum time to the respondents in the O.A. to file the reply statements without much delay. Taking into account of the totality of the facts and circumstances of the case and also especially the fact that the above said O.A. has been filed before the Tribunal as early as on 2015, and also taking into account the OP(KAT).No.447 OF 2020 9 fact that the petitioner has subsequently retire from service. We would request the Tribunal to give priority for the hearing and disposal of the above said O.A. without much delay.
The Registry will forward a copy of this judgment to the Kerala Administrative Tribunal, Ernakulam Bench, for necessary information and further action.
With these observations and directions, the above original petition (KAT) will stand disposed of.
Sd/-
ALEXANDER THOMAS JUDGE Sd/-
T.R.RAVI JUDGE VPK OP(KAT).No.447 OF 2020 10 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE PHOTOCOPY OF THE ORDER DATED 27.05.2019 IN O(EKM) NO.416/2015.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE MEMORANDUM OF THE ORIGINAL APPLICATION OA (EKM) NO.416/2015 DATED 21.05.2015.
ANNEXURE A1 A TRUE COPY OF THE NOTIFICATION NO.1237/ESTT.A3/2013/CRD DATED 01.03.2013 ISSUED BY THE 2ND RESPONDENT.
ANNEXURE A2 THE TRUE COPY OF THE CR OF THE PETITIONER FOR THE YEAR 2011.
ANNEXURE A3 TRUE COPY OF THE PETITION DATED 13.09.2013 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
ANNEXURE A4 TRUE COPY OF THE PETITION DATED 13.09.2013 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
ANNEXURE A5 THE TRUE COPY OF THE RELEVANT PAGES OF THE GAZETTE NOTIFICATION PUBLISHING THE ELECT LIST OF THE DPC TO THE POST OF DWWO DATED 02.07.2013 ON BEHALF OF THE 2ND RESPONDENT.
ANNEXURE A6 THE TRUE COPY OF THE ORDER NO.16690/ESTT.D3/2012/CRD DATED 11.12.2013 ISSUED BY THE 2ND RESPONDENT.
ANNEXURE A7 THE TRUE COPY OF THE ORDER NO.ESTT.B1/25920/2006.CRD DATED 20.01.2007 ISSUED ON BEHALF OF THE 2ND RESPONDENT.
ANNEXURE A8 THE TRUE COPY OF THE ORDER DATED 07.02.2014 IN OA NO.181/2014 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM BENCH.
ANNEXURE A9 THE TRUE COPY OF THE ORDER DATED 24.03.2015 IN MA NO.712/2015 IN CP(C) NO.85/2014 IN OA NO.181/2014 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM BENCH.
ANNEXURE A10 THE TRUE COPY OF THE ORDER NO.3703/ESTT.A2/2014/CRD DATED 24.04.2015 ISSUED BY THE 2ND RESPONDENT.
ANNEXURE A11 THE TRUE COPY OF THE LETTER DATED 09.07.2014 SUBMITTED TO THE PUBLIC OP(KAT).No.447 OF 2020 11 INFORMATION OFFICER OF THE 2ND RESPONDENT.
ANNEXURE A12 A TRUE PHOTOCOPY OF THE REPLY DATED 07.08.2014 ISSUED BY THE PUBLIC INFORMATION OFFICER.
EXHIBIT P3 THE TRUE COPY OF THE LETTER DATED 27.02.2019 SUBMITTED TO THE PUBLIC INFORMATION OFFICER OF THE 2ND RESPONDENT.
EXHIBIT P4 THE TRUE COPY OF THE REPLY DATED 21.03.2019 ISSUED BY THE PUBLIC INFORMATION OFFICER.
EXHIBIT P5 THE TRUE COPY OF THE GO(P)2730/2015/LSGD DATED 08.09.2015 ISSUED BY 1ST RESPONDENT.
EXHIBIT P6 THE TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 26.05.2015.
EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT.