Kerala High Court
State Of Kerala,Represented By Its ... vs Krishnan N.V on 3 February, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
OP(KAT) NO. 352 OF 2024 1
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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
MONDAY, THE 3RD DAY OF FEBRUARY 2025 / 14TH MAGHA, 1946
OP(KAT) NO. 352 OF 2024
AGAINST THE JUDGMENT DATED 11.01.2024 IN OA (EKM)
NO.1444 OF 2021 OF KERALA ADMINISTRATIVE TRIBUNAL AT
THIRUVANANTHAPURAM (ADDITIONAL BENCH, ERNAKULAM)
PETITIONERS/RESPONDENTS IN O.A(EKM):
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF TAXES,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM,
PIN - 695001
2 THE COMMISSIONER OF EXCISE,
COMMISSIONERATE OF EXCISE,
THIRUVANANTHAPURAM,
PIN - 695001
3 THE JOINT EXCISE COMMISSIONER,
COMMISSIONERATE OF EXCISE,
THIRUVANANTHAPURAM,
PIN - 695001
BY SRI.SUNILKUMAR KURIAKOSE, GOVERNMENT PLEADER
RESPONDENT/APPLICANT IN O.A(EKM):
KRISHNAN N.V.,
AGED 68 YEARS
OP(KAT) NO. 352 OF 2024 2
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S/O. LATE KORAN N.V.,
PREVENTIVE OFFICER(RETIRED)
RESIDING AT VIDHYA NIVAS,
D.H.S.S. ROAD,
KANHANGAD P.O.,
KASARGOD,
PIN - 671315
BY ADVS.
M.A.VAHEEDA BABU
BABU KARUKAPADATH
ARYA RAGHUNATH
KARUKAPADATH WAZIM BABU
P.LAKSHMI
AYSHA E.M.
ABUASIL A.K.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 03.02.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(KAT) NO. 352 OF 2024 3
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JUDGMENT
A.Muhamed Mustaque, J.
The State assails an order of the Tribunal granting
notional fixation of pay to the respondent, who was the
applicant before the Tribunal in the cadre of Assistant Excise
Inspector and Excise Inspector. The respondent retired from
the service on 31.01.2008 and had never assumed the above
positions before his retirement. This issue arose in the context
of a court case in relation to the non-finalisation of the
seniority list. It is an admitted position that the respondent
was entitled to be promoted to the post of Excise Inspector as
on the date of his retirement, considering the vacancy
position. The Tribunal granted the relief by granting the
notional promotion and the fixation of pay.
2. The State has come up with this original petition
challenging the order, mainly relying upon the judgment of
the Apex Court in Government of West Bengal v. Dr.Amal
Satpathi; [2024 KHC OnLIne 8525], and also placing reliance
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on Rule 23(a) of Part I of the Kerala Service Rules (KSR).
3. In the Apex Court judgment, while interpreting
West Bengal Service Rules, 1971, it was declared that a
Government employee who was recommended for promotion
before retirement but did not obtain the actual promotion due
to administrative delay, is not entitled to notional financial
benefits of the promotional post after retirement. The Rule
interpreted in the Apex Court judgment is Rule 54(1)(a) of the
West Bengal Service Rules. The relevant provision referred to
in the above judgment is extracted herein below:
"Pay on Officiating Appointment - 54(1)(a):
Subject to the provisions of Chapter VII, a Government
employee who is appointed to officiate in a post shall
not draw pay higher than* "his substantive pay" in
respect of a permanent post, other than a tenure
post, unless the officiating appointment involves
the assumption of duties and responsibilities of
greater importance than those attaching to the
post, other than a tenure post, on which he holds a
lien, or would hold a lien had it not been
suspended:
Provided that the Governor may specify posts outside
the ordinary line of a service the holders of which may,
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notwithstanding the provisions of this rule and subject to
such conditions as the Governor may prescribe, be given
any officiating promotion in the cadre of the service
which the authority competent to order promotion may
decide, and may thereupon be granted the same pay as
they would have received if still in the ordinary line."
4. Rule 23(a) of Part I of the KSR is similarly worded
and reads as follows;
"23. (a) Subject to any exceptions specifically made
in these rules, an Officer shall begin to draw the pay
and allowances attached to his tenure of a post with
effect from the date he assumes the duties of that
post, and shall cease to draw them as soon as he
ceases to discharge those duties. If the charge is
transferred afternoon, the transfer does not affect pay
and allowances until the next day."
5. On going by the Rule 23(a) of Part I of the KSR,
we would have been persuaded to accept the argument of the
learned Government Pleader, relying on the Apex Court
judgment. However, the learned counsel for the respondent
points out to Rule 23(c) of the Part I of the KSR and Rule
28(b)(14) of the Kerala State & Subordinate Services Rules
(KS & SSR), 1958.
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6. Rule 23(c) of the Part I of KSR reads as follows;
"23(c) In the case of notional promotions
back arrears of pay and allowances are not admissible."
7. Rule 28(b)(14) of KS & SSR, reads as follows;
"28(b)(14) Notwithstanding anything
contained under this rule, the Government may by
order effect promotion/appointments by transfer
notionally without monetary benefit of pay and
allowances but with consequential pensionary benefits,
to a pensioner without having to follow the procedures
such as preparation, publication and review of select list
by convening the Departmental Promotion Committee,
if it is found later on after his retirement that he would
have become eligible at any time during the course of
his service for being promoted or appointed to such
posts, categories or grade in that service had due
procedure according to the rule existing at that time or
made applicable thereafter been followed at the
appropriate time."
8. A combined reading of the above provisions
makes it clear that there is no embargo under the Kerala
Rules in considering the claim for promotion on a notional
basis after retirement. Rule 28(b)(14) of KS & SSR specifically
states that such a claim is admissible even after retirement on
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the circumstances referred to therein for the purpose of
pension. Rule 23(c) of KSR also states that, in the case of
notional promotions, back arrears of pay and allowances are
not admissible. That itself implies that, for the purpose of
pension, pay can be refixed in accordance with the
promotional post when granted a notional promotion.
9. In Ground B of the original petition, the State
states that, if the applicant had not retired at the time of
publication of the seniority list, he would have been given
promotion as an Excise Inspector. That means there was no
quarrel in regard to the claim for the promotional post but, he
was not given seniority at the time of retirement due to the
non-finalisation of the seniority list on account of court cases.
10. This Court has consistently taken such a view
following judgments of this Court in State of Kerala and
Others v. Jayakrishnaraj G; [2024 (6) KLT 600], State of
Kerala v. Abdul Rahiman; [2021 (3) KLT 1181], State of
Kerala v. Uthaman Nayyan; [2023 KHC 433] and State of
Kerala v. Bhaskaran Pillai; [2003(1) KLT 60] to fortify the
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legal position as above.
In the light of the peculiar law in the State, we find
absolutely no scope for interference in this matter. This
original petition is dismissed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P.KRISHNA KUMAR
JUDGE
rkj
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APPENDIX OF OP(KAT) 352/2024
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE JUDGMENT DATED
27.11.2007 OF THE HON'BLE HIGH COURT OF
KERALA IN WP(C) NO. 35006/2007 FILED BY
THE APPLICANT
Annexure A2 TRUE COPY OF THE COMMUNICATION NO. XD1-
32170/07 DATED 04.02.2008 ISSUED BY THE
2ND RESPONDENT TO THE APPLICANT.
Annexure A3 TRUE COPY OF THE RELEVANT PAGES OF THE
ORDER NO.XD3-3907/2008 DATED 16.12.2008
OF THE 2ND RESPONDENT PUBLISHING THE
STATE WISE FINAL SENIORITY LIST OF
PREVENTIVE OFFICERS FOR THE PERIOD FROM
02.02.1993 TO 30.06.2003
Annexure A4 TRUE COPY OF THE PROCEEDINGSL ORDER
NO.XD3-5200/16 DATED 10.05.2017 OF THE
2ND RESPONDENT PUBLISHING THE FINAL
SENIORITY LIST OF EXCISE INSPECTORS.
Annexure A5 TRUE COPY OF THE REPRESENTATION DATED
12.09.2019 SUBMITTED BY THE APPLICANT
BEFORE THE 1ST RESPONDENT.
Annexure A6 TRUE COPY OF THE ORDER NO.XD3-32000/11
DATED 17.02.2012 AND THE RELEVANT PAGES
OF THE FINAL SENIORITY LIST OF ASSISTANT
EXCISE INSPECTORS FOR THE PERIOD FROM
01.01.2004 TO 31.12.2008 PUBLISHED BY THE
2ND RESPONDENT SHOWING THE DATE OF
ASSIGNMENT OF THE APPLICANT AS ASSISTANT
EXCISE INSPECTOR AS 01.03.2005
Annexure A7 TRUE COPY OF THE REPRESENTATION DATED
15.11.2019 SUBMITTED BY THE APPLICANT
BEFORE THE 1ST RESPONDENT.
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Annexure A8 TRUE COPY OF THE JUDGMENT/FINAL ORDER
DATED 06.12.2019 IN O.A (EKM)
NO.2106/2019 OF THIS HON'BLE TRIBUNAL.
Annexure A9 TRUE COPY OF THE ORDER OF THE GO(RT) NO.
164/2021/DEPARTMENT OF TAX DATED
23.02.2021 REJECTING ANNEXURE A-7.
Annexure A10 A TRUE COPY OF THE ORDER NO. XD3-
3083/09(1) DATED 17.08.2009 ISSUED BY THE
3RD RESPONDENT THE 1ST ORDER OF PROMOTION
TO THE CADRE OF ASSISTANT EXCISE
INSPECTORS AND EXCISE INSPECTOR, AFTER
FINALIZATION OF ANNEXUREA-3 FINAL
SENIORITY LIST OF PREVENTIVE OFFICERS
DATED 16.12.2008.
Annexure A11 A TRUE COPY OF GO(RT) NO.2039/2021/HOME
DATED 19.07.2021 ISSUED BY THE HOME
DEPARTMENT OF GOVERNMENT OF KERALA WITH
RESPECT TO A RETIRED INSPECTOR OF POLICE,
GRANTING NOTIONAL PROMOTION
Annexure A12 TRUE COPY OF THE GO(RT) NO.520/2013/TD
DATED 03.7.2013
Exhibit P1 A TRUE COPY OF THE O.A.(EKM) NO.1444/2021
OF KAT, ERNAKULAM
Exhibit P2 A TRUE COPY OF THE REPLY STATEMENT FILED
BY THE 1ST RESPONDENT DATED 10.01.2023
Exhibit P3 A COPY OF THE REPLY STATEMENT FILED BY
THE 2ND RESPONDENT DATED 18.11.2022
Exhibit P4 TRUE COPY OF THE REJOINDER DATED
13.01.2023
Exhibit P5 A COPY OF THE ORDER DATED 11.01.2024 IN
Exhibit P6 TRUE COPY OF RELEVANT PAGES OF PROCEEDING
NO. EXC3318/2024-XD3 DATED 13.11.2024
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RESPONDENT EXHIBITS
Exhibit R1(a) A true copy of the Judgment dated
07/09/2022 of Hon'ble Supreme Court of
India in Civil Appeal No.3913-3931/2011,
