Kerala High Court
State Of Kerala ,Represented By vs Biju Ramachandran on 15 November, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
OP(KAT)No.474/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 15TH DAY OF NOVEMBER 2024 / 24TH KARTHIKA, 1946
OP(KAT) NO. 474 OF 2024
AGAINST THE ORDER DATED 31.05.2024 IN OA NO.1166 OF 2023
OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 3 IN O.A.:
STATE OF KERALA REPRESENTED BY
ITS THE SECRETARY TO GOVERNMENT,
TAXES DEPARTMENT, GOVERNMENT SECRETARIAT,
1
THIRUVANANTHAPURAM,
KERALA, PIN - 695001
THE INSPECTOR GENERAL OF REGISTRATION,
OFFICE OF THE IG REGISTRATION,
2 VANCHIYOOR, THIRUVANANTHAPURAM,
PIN - 695035
THE ACCOUNTANT GENERAL (A&E),
3 AG'S OFFICE, THIRUVANANTHAPURAM,
PIN - 695001
BY SR.GOVERNMENT PLEADER SMT.NISHA BOSE
RESPONDENTS/APPLICANT IN O.A.:
BIJU RAMACHANDRAN,
AGED 55 YEARS, S/O K.RAMACHANDRAN NAIR, PRESENTLY
OP(KAT)No.474/2024
2
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WORKING AS DISTRICT REGISTRAR (AUDIT),
THIRUVANANTHAPURAM, RESIDENT OF BIRALA, PLOT
NO.125, P.T.P NAGAR P.O, THIRUVANANTHAPURAM,
PIN - 695038
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 15.11.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
OP(KAT)No.474/2024
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JUDGMENT
P.Krishna Kumar, J.
The State of Kerala challenges the order
passed by the Kerala Administrative Tribunal in
O.A.No.1166/2023, by which it declared that the
respondent would be entitled to get arrears of pay on
being notionally promoted retrospectively, with
effect from 28/10/2020. His promotion was initially
denied on account of the pendency of a disciplinary
proceeding, which was later concluded by finding that
the respondent was not guilty. In the Government
order which was challenged before the Tribunal, it
was found that he is not eligible for arrears of pay
though he is entitled to retrospective notional
promotion.
2. By referring to the decisions in State of
Kerala v. E.K.Bhaskaran Pillai [(2007) 6 SCC 524],
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Union of India v. K.V.Janakiraman & Others [AIR 1991
SC 2010], State of A.P. v. K.V.L.Narasimha Rao and
Others [AIR 1999 SC 2255], Ramesh Kumar v. Union of
India [AIR 2015 SC 2904] and Gowramma v. Manager
(Personnel) Hindustan Aeronautical Ltd. [2022 (1) KLT
Online 1085 (SC)], the Tribunal held that while
considering the question of admissibility of arrears
of pay in retrospective promotion, the principle of
"no work no pay" cannot be accepted as a rule of
thumb and in situations where the administration has
wrongly denied the promotion, the employee should be
given full benefits including the monetary benefits,
even if the post carries higher grade.
3. The Tribunal further found that, by virtue of
note (ii) of Rule 28(b)(i)(7) of Part II of the
Kerala State & subordinate Services Rules (for short,
'KS & SSR'), when a disciplinary proceeding is
pending against an employee, the Departmental
Promotion Committee has to make a finding as to the
position of the employee in the select list as if
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there were no disciplinary action against him and the
vacancy in which he would have been promoted has to
be reserved for him by filling up the same only
temporarily.
4. The petitioner/State assailed the finding of
the Tribunal for the reason that the legal principles
followed by the Tribunal were judicially settled in
cases with different sets of facts, and hence,
retrospective pay ought not to have been ordered by
the Tribunal. The petitioners heavily relied on Rule
23(c) of Part I of Kerala Service Rules for denying
back arrears on granting notional promotion.
5. We find no reason to uphold the contentions
of the petitioner/State. The order passed by the
Tribunal perfectly aligns with the well-settled law
regarding the entitlement of officers who were not
promoted in time owing to the pendency of
disciplinary action, but later it turned in their
favour. In Gowramma's case (supra), the Honourable
Supreme Court held as follows:
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"The most important question is whether the
employee is at fault in any manner. If the
employee is not at all at fault and she was
kept out of work by reasons of the decision
taken by the employer, then to deny the
fruits of her being vindicated at the end
of the day would be unfair to the employee"
6. A Division Bench of this court in State of
Kerala v. Dr.P.K.Sundara Raj in O.P.(KAT) No.427/
2019 dated 19/11/2019 considered almost all the
points canvassed by the petitioner/State, including
the applicability of 23(c) of Part I, KSR in the
light of the law laid down in Ramesh Kumar's case
(supra). In the said case also, a junior was promoted
in place of the officer who was facing disciplinary
action. In paragraph 11 of the said judgment, the
court observed as follows:
"11. Even though, as per Rule 23(a) of
Part I KSR, an officer shall begin to
draw the pay and allowances attached to
the tenure of a post, only with effect
from the date he assumes the duties of
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that post, Rule 23(c), prior to its
amendment, provided that promotions
which do not involve change of duties
should be given effect from the date on
which the vacancy arose. In Exhibit P10
the Government have found that the
applicant was entitled for promotion
with effect from 1.5.1998. The delay in
effecting the promotion being not
attributable to the applicant in any
manner and on the contrary, being
attributable to the administrative
delay, the applicant cannot be denied
the benefits legitimately due to him.
The Honourable Apex Court in Ramesh
Kumar, held that the principle of 'no
work no pay' cannot be applied as a rule
of thumb and would depend on the facts
and circumstances of each case. It was
also held that the principle of 'no work
no pay' would not apply when the
employer was at fault in not considering
the case of the incumbent for promotion
and not allowing him to work in a post
carrying a higher grade."
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7. We are not persuaded to take a different
view in the present case. The crucial question is
whether the delay in effecting the promotion is
attributable to the respondent in any manner or is
due to the administrative delay. As the records do
not show that the petitioner had any role in causing
the delay, he cannot be denied the benefits
legitimately due to him.
8 . In Annexure A14, the Government arrived at a
conclusion that the respondent is eligible only for
notional promotion with effect from the date of
promotion of his immediate junior (from 28/10/2020)
for the reason that in the case of a selection post,
a person can be given promotion only if he is
included in the selection list and hence it cannot be
insisted that promotion/notional promotion has to be
effected from the date of occurrence of the vacancy.
As the Tribunal correctly found in paragraph 6 that
in view of Rule 28(b)(i)(7) of Part II, KS & SSR, the
procedure ought to have been adopted by the
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Government was not as contemplated in Annexure A14
and thus, the promotion given to his junior can only
be treated as provisional, for reserving the vacancy
for the respondent, if he would be found suitable in
the future. Hence, there is no reason to interfere
with the impugned order.
Therefore, the original petition is dismissed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
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APPENDIX OF OP(KAT) 474/2024
PETITIONER'S ANNEXURES
TRUE COPY OF THE GO (RT)
NO.573/2021/TAXES DATED 24.08.2021 OF THE
Annexure A1
1ST RESPONDENT
TRUE COPY OF THE ORDER NO.E7-6473/18/REG.
TVM DATED 21.12.2018 OF THE SECOND
Annexure A2
RESPONDENT
TRUE COPY OF THE MEMO OF CHARGES AND
STATEMENT OF ALLEGATIONS BEARING
Annexure A3
NO.13/E1/2019/LAW DATED 15.02.2019.
TRUE COPY OF THE COMMON ORDER DATED
15.11.2019 IN OA NO.2504/2018 OF THE
Annexure A4
TRIBUNAL
TRUE COPY OF THE FINAL ORDER DATED
04.08.2020 IN OA NO.2457/2019 OF THE
Annexure A5
TRIBUNAL
TRUE COPY OF THE JUDGMENT DATED
08.09.2020 IN OP(KAT) NO.261/2020 OF THE
Annexure A6
HONOURABLE HIGH COURT OF KERALA
TRUE COPY OF THE MINUTES OF THE MEETING
Annexure A7 HELD ON 21.10.2020
TRUE COPY OF THE GO (P) NO.144/2020/TD
Annexure A8 DATED 23.10.2020 OF GOVERNMENT OF KERALA
TRUE COPY OF THE GO (P) NO.728/2020/TAXES
Annexure A9 DATED 28.10.2020 OF GOVERNMENT OF KERALA
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TRUE COPY OF THE COMMON FINAL ORDER DATED
10.03.2021 IN OA NO.951/2020 AND OA
Annexure A10
NO.1665/2020 OF THE TRIBUNAL
TRUE COPY OF THE GO (P) NO.59/2021/TAXES
Annexure A11 DATED 11.08.2021 OF GOVERNMENT OF KERALA
TRUE COPY OF THE GO (RT)
NO.185/2022/TAXES DATED 18.03.2022 OF
Annexure A12
GOVERNMENT OF KERALA
TRUE COPY OF THE REPRESENTATION DATED
15.09.2021 SUBMITTED BY THE APPLICANT
Annexure A13
BEFORE 1ST RESPONDENT
TRUE COPY OF THE GO (RT)
NO.690/2022/TAXES DATED 03.09.2022 OF
Annexure A14
GOVERNMENT OF KERALA
TRUE COPY OF THE GO (P) NO.629/2010/FIN.
Annexure R1(a) DATED 25.11.2010 (SRO NO.1084/2010)
TRUE COPY OF THE O.A NO.1166/2023
Exhibit P1
TRUE COPY OF THE REPLY STATEMENT FILED BY
THE FIRST PETITIONER ON 25.10.2023 IN OA
Exhibit P2
TRUE COPY OF THE IMPUGNED ORDER BY THE
Exhibit P3 TRIBUNAL ON 31.05.2024 IN OA NO.1166/2023
