IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 OP.No. 2244 of 2001(P) ---------------------- PETITIONER: ------------ A.B. SADARAM, AMBATTUKRISHNALAYAM, AKAPPARAMBU, P.O. MEKKADU-683 589. BY ADV. SRI.BABU CHERUKARA RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. COMMISSIONER, LAND REVENUE, TRIVANDRUM. 3. DISTRICT COLLECTOR, ERNAKULAM,. 4. ACCOUNTANT GENERAL (A& E), KERALA, TRIVANDRUM. BY G.P. SHRI BENJAMIN PAUL P. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 6.12.1999 EXT.P2-TRUE COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO R2 DATED 8.12.1999 EXT.P3-TRUE COPY OF REPRESENTATION SENT BY THE PETITIONER TO R2 DATED 9.12.99 EXT.P4-TRUE COPY OF JUDGMENT IN OP 32662/99 DATED 24.12.99 OF THIS COURT EXT.P5-TRUE COPY OF ORDER IN CMP 392/2000 IN OP 263/00 DATED 4.1.2000 OF THIS COURT EXT.P6-TRUE COPY OF ORDER DATED 31.1.2000 OF R2 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.2244 of 2001-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of January, 2008. JUDGMENT The petitioner retired from service on 31.1.2000 while she was working as Valuation Assistant at Edamalayar Irrigation Project, Angamaly. The case of the petitioner is that even though she acquired the necessary qualifications to be promoted as Tahsildar, she was not given promotion and her juniors were given promotion as per Ext.P1 dated 6.12.1999. It is stated that all the persons promoted as per Ext.P1 beyond serial No.109, i.e. serial Nos.110 onwards are juniors to the petitioner. Aggrieved by the denial of promotion, she filed Ext.P2 representation before the Commissioner, Land Revenue, Trivandrum specifically pointing out that her junior, viz. Shri D. Paulose has been promoted. Ext.P3 is a further representation filed by the petitioner. It is submitted that these representations were forwarded by the third respondent to the second respondent and on 10.12.1999 the petitioner went to Trivandrum and explained her grievances to the Asst. Commissioner also. Again, she filed O.P. No.32662/1999 seeking for appropriate directions in the matter. By Ext.P4 judgment, this court directed the competent authorities to dispose of OP 2244/2001 -2- the representation before the date of retirement of the petitioner. Ext.P6 is the order thus passed by the Commissioner, Land Revenue, Trivandrum. From Ext.P6, it is clear that the petitioner was actually promoted to the cadre of Deputy Tahsildar as per proceedings dated 30.4.1997 of the erstwhile Board of Revenue. The date of test qualification was not available in that office at the time of promotion order issued on 6.12.1999 and her name happened to be omitted in the promotion list. She has acquired the criminal judicial test qualification in December 1997. This was reported by the District Collector, Ernakulam vide letter No.E1 3/99 dated 9.12.1999. It is further pointed out in Ext.P6 that an interim order dated 4.1.2000 in C.M.P.No.392/2000 in O.P.No.263/2000 was in force directing that Deputy Tahsildars who had been appointed after 6.11.1995 shall not be promoted as Tahsildar before the petitioners are promoted (Ext.P5 herein). Therefore, it is stated that in view of the interim order, the petitioner cannot be promoted as Tahsildar at present. This order is seen passed on 31.1.2000, i.e. on the date of retirement of the petitioner. 2. Learned counsel for the petitioner pointed out that as the petitioner had all the requisite qualifications for promotion and as there was no dispute regarding her eligibility and in view of the clear admission in Ext.P6 that her name was omitted only because of the fact that the date of test OP 2244/2001 -3- qualification was not available in the office of the Commissioner for Land Revenue, the petitioner cannot be denied the benefit of promotion and consequent monetary benefits legally due to her. Learned counsel also brought to my notice an order dated 14.6.2000 passed by this court in C.M.P.No.26320/2000 in O.P.No.259/2000 and other connected matters, vacating the interim order, Ext.P5. In the order vacating the interim order, this court had clarified that even if the seniority list dated 19.11.1999 is only provisional, promotion to the existing vacancies will have to be made on the basis of the provisional list. 3. It is seen that the name of the petitioner was omitted in the promotion list, Ext.P1 only because of the fact that the date of test qualification was not available at that time. Nothing has been attributed against the petitioner regarding the said aspect. It is clear from Ext.P6 that as per letter No.E1 3/99 dated 9.12.1999 of the District Collector, Ernakulam, the details regarding the acquisition of criminal judicial test qualification by the petitioner was available with the Commissioner, Land Revenue, Trivandrum. The interim order in O.P.No.263/2000 and connected cases was passed only on 4.1.2000. Therefore, there was ample time from 9.12.1999 for the competent authority to issue orders as regards the promotion claimed by the petitioner. Apart from that, the respondents OP 2244/2001 -4- could have brought the matter to the notice of this court and got the interim order modified, for enabling the authority to pass orders of promotion in respect of the petitioner. In view of the above aspects, it is clear that the petitioner had been denied illegally her legitimate right for promotion as Tahsildar, even though there was no fault on her part and clearly it is a case of absence of prompt action on the part of the competent authority. 4. Now that the petitioner has retired from service on 31.1.2000 in the cadre of Deputy Tahsildar and as she has not worked in the post of Tahsildar, the claim raised by the petitioner for payment of salary with effect from 6.12.1999 in the post of Tahsildar cannot be sustained, but she will be entitled to all other eligible benefits, counting the period from 6.12.1999, i.e. the date of Ext.P1 till the date of her retirement as if she had been promoted as Tahsildar for the purpose of computing the retirement benefits. Admittedly, her juniors were promoted on 6.12.1999. Denial of promotion will, therefore, be arbitrary and violative of articles 14 and 16 of the Constitution of India. 5. Hence, the petitioner will be notionally promoted to the post of Tahsildar, with effect from 6.12.1999 which will make her eligible to compute the period from 6.12.1999 till the date of superannuation, for the purpose of pensionary benefits. The second respondent is directed to pass OP 2244/2001 -5- appropriate orders in the matter within a period of four months from the date of receipt of a copy of this judgment and pay arrears as on that date without any further delay. The original petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 2244/2001 -6- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.2244 of 2001-P - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 2nd January, 2008.