IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 WP(C).No. 31386 of 2004(S) ------------------------------------- PETITIONER: ------------------ P.E. KESAVAN, AGED 61 YEARS, S/O. SANKARAN EACHARAN (LATE) RETIRED ADMINISTRATIVE OFFICER, ALL INDIA RADIO, CALICUT, RESIDING AT RAJESH BHAVAN, BERNARD JUNCTION, KALAVOOR, ALLEPPEY. BY ADV. SRI.M.R.SUDHEENDRAN RESPONDENTS: ----------------------- 1. THE DIRECTOR GENERAL, ALL INDIA RADIO, S-II SSECTION, AKASHVANI BHAVAN, PARLIAMENT STREET, NEW DELHI-110 011. 2. THE STATION DIRECTOR, ALL INDIA RADIO CALICUT-673 032. 3. UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF INFORMATION AND BROADCASTING, NEW DELHI. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2008, THE COURT ON 31/01/2008 DELIVERED THE FOLLOWING: WPC. NO.31386/2004 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ORDER NO. 1/14/98-SII/460 DT. 17.7.2000 OF THE IST RESPONDENT. EXT.P2:- COPY OF THE OFFICE ORDER NO.59/SII/96 DT. 24.12.96. EXT.P3:- COPY OF THE ORDER DT. 20.11.97 IN OA. 1470/96 OF THE CAT, ERNAKULAM BENCH. EXT.P4:- COPY OF THE FINAL ORDER DT. 13.7.1998 IN CMP. 39816/97 OF THIS HONOURABLE COURT. EXT.P5:- COPY OF THE ORDER DT. 21.10.98 IN CMP. NO.34634/98 OF THIS HONOURABLE COURT. EXT.P6:- COPY OF THE ORDER NO.33/98-SII DT. 20.11.98 ISSUED FOR IST RESPONDENT. EXT.P7:- COPY OF THE REPRESENTATION DT. 6.1.99 MADE BY THE PETITIONER. EXT.P8:- COPY OF THE ORDER NO.1/14/98-SII/504 DT. 7.4.1999 ISSUED FOR THE IST RESPONDENT. EXT.P9:- COPY OF THE JUDGMENT DT. 24.1.2000 IN OP. 22168/97 ON THE FILE OF THIS HONOURABLE COURT. EXT.P10:- COPY OF THE REPRESENTATION DT. 29.3.2000 MADE BY THE PETITIONER. EXT.P11:- COPY OF THE JUDGMENT DT. 8.7.02 IN OP. 23887/2000 ON THE FILE OF THIS HONOURABLE COURT. EXT.P12:- COPY OF THE OA. 665/02 FILED BEFORE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH. EXT.P13:- COPY OF THE REPLY STATEMENT, IN THE ABOVE OA IN OA 665/02 FILED BEFORE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P14:- COPY OF THE OFFICE MEMORANDUM NO.22011/5/86-ESTT(D) DT. 10.4.89. EXT.P15:- COPY OF THE ORDER NO.1(8) 95-SII DT. 13.11.96 OF IST RESPONDENT. EXT.P16:- COPY OF THE ORDER DT. 19.2.04 IN OA. 665/02 OF THE CAT, ERNAKULAM. EXT.P17:- COPY OF THE ORDER DT. 30.12.96 IN OA. 1470/96 OF THE CAT, ERNAKULAM BENCH. /TRUE COPY/ P.S. TO JUDGE tss C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).NO.31386 of 2004-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of January, 2008. JUDGMENT T.R. Ramachandran Nair, J. The challenge is against the order passed by the Central Administrative Tribunal in O.A. No.665/2002 which was filed by the petitioner herein. Even before disposing of the O.A., the petitioner had retired from service. He retired as Administrative Officer. The substantial prayer in the O.A. was for a direction to the respondents to reckon the seniority of the applicant with effect from 24.11.1996 in the cadre of Administrative Officer and to grant all consequential benefits. 2. The facts are in a narrow compass. The petitioner herein was promoted as Administrative Officer as per order dated 28.4.1994 and was transferred to Vishakhapatanam. According to him, due to ill health and other family problems, he was forced to decline the transfer and he remained in Kerala. Later, by Order dated 24.12.1996, he was promoted as Administrative Officer and was transferred to Doordarshan Kendra, Gulbarga and by an office order dated 26.12.1996, one Smt. Usha Devi was promoted as Administrative Officer and posted at Doordarshan Kendra, WPC 31386/2004 -2- Trivandrum. The applicant challenged his transfer to Gulbarga in O.A. No.1470/1996. As per Annexure A2 order referred to in Ext.P12, the said O.A. was allowed by the Tribunal. The party respondent in O.A. No.1470/1996 challenged the said order in O.P.No.22168/1997 before this court and obtained an interim stay in the light of which, Smt. Usha Devi continued at Trivandrum. Subsequently, by a separate order, the interim order of stay was clarified, whereby the respondents were directed to post the petitioner as Administrative Officer in Kerala Zone. By a later order dated 21.10.1998 the respondents were directed to pass orders before 21.11.1998. Ext.P6 herein is the consequential order passed by the respondents, by which the petitioner was transferred to All India Radio, Calicut. He joined there on 30.11.1998. Thereafter, he filed Ext.P7 representation claiming seniority and consequential benefits of promotion with effect from 30.12.1996. The same was rejected by Ext.P8. Ext.P9 is the judgment in O.P. No.22168/1997 filed by Smt. Usha Devi, wherein the only observation was that the benefits claimed shall be worked out by the authorities in accordance with law. Again, he filed Ext.P10 representation which was rejected by Ext.P11. 3. The Tribunal was of the view that there is no justification in praying for a direction to reckon the seniority with effect from 24.11.1998 WPC 31386/2004 -3- with consequential benefits. It was also noticed that he has retired from service already. 4. Learned counsel for the petitioner submitted that the view taken by the Tribunal is totally perverse. It was argued that the petitioner was entitled for counting seniority from the date of Ext.P2, i.e. 24.12.1996. It is submitted that O.A. No.1470/1996 was allowed and there was a further direction in the interim order in O.P.No.22168/1997 to give him a posting in the next vacancy in Kerala. It is therefore submitted that the posting of the petitioner was denied only because of the attitude of the respondents, for which he cannot be faulted. It is therefore prayed that the order passed by the Tribunal may be reversed and since the petitioner has retired from service, at least the period from 24.12.1996 till the date of his retirement should be ordered to be counted for the purpose of calculating the retirement benefits after fixing the scale of pay notionally in the post of Administrative Officer. 5. At the outset, we notice that even though the petitioner was promoted and transferred to Gulbarga, he did not join in the promoted post at that time. Even though according to the petitioner, he had sent a joining report to join at Trivandrum, the respondents have a definite case that no such report was received by them. Therefore, the petitioner remained in the WPC 31386/2004 -4- lower post even though he was promoted and fault, if any, cannot be attributed to the respondents. It is true that initially, O.A. No.1470/1996 was allowed in his favour, but that was stayed by this court. This is noticed in Ext.P4 order passed by the Division Bench dated 13.7.1998. The direction in Ext.P4 order passed in C.M.P. No.39816/1997 in O.P.No.22168/1997 was to give him a posting in Kerala Zone. It is true that by Ext.P5, a time limit was fixed to consider his case and finally the order was passed on 20.11.1998. Therefore, only by way of that order alone, the petitioner could join in the promoted post and function as such. It cannot be disputed that till that time he was working only in the post of Accountant/Head Clerk. The order in O.A.No.1470/1996 of the Tribunal is dated 20.11.1997 and therein, what was ordered was that he was entitled to be considered for promotion and appointment as Administrative Officer in the vacancy available in Kerala Zone. Respondents 1 to 3 therein were directed to consider the applicant “for promotion and posting” as Administrative Officer in Kerala Zone within a period of one month from the date of receipt of a copy of the order. It is important to notice that there was no direction to consider him as having been promoted with effect from 24.12.1996, the date of Ext.P2. In the final judgment in O.P.No.22168/1997 also, there was no direction in his favour to count his seniority from that WPC 31386/2004 -5- date, viz. 24.12.1996. Therefore, the petitioner has failed to obtain a direction to count his seniority in the cadre of Administrative Officer from the date of Ext.P2. According to us, this will go a long way to reject the claim now raised by the petitioner. Learned counsel for the petitioner submitted that he cannot be faulted for the interim orders passed by this court after O.A.No.1470/1996 was allowed by order dated 20.11.1997. This argument is also not correct, in view of the facts noted above, as even the order in O.A.No.1470/1996 did not protect his promotion from the date of Ext.P2. 6. In the order impugned, the Tribunal has discussed the matter elaborately. The Tribunal noticed that the applicant was given promotion twice and he remained back to have a station of his choice without joining the promoted post. The cadre is a centralised one. The Tribunal has dealt with the argument raised by the petitioner that he had given a joining report as Administrative Officer to the Director, Doordarshan Kendra, Trivandrum on 30.12.1996. It was noticed that there is no evidence of the joining report having been accepted. The Tribunal noticed that in Ext.P2, there was a clear stipulation that regular promotion like the one in the case of the petitioner, will be effective from the date he actually assumes charge and therefore nothing turns in his favour in view of the fact that he has not WPC 31386/2004 -6- proved that any joining report had been properly sent and accepted by the respondents. The Tribunal also noticed that he had been consistently refusing to move out from Kerala to join the promoted post. 7. According to us, since he had been working only in the lower post and since the promotion is effective only from the date of joining of the said post, merely on the ground that by Ext.P2 he was ordered to be promoted, he cannot claim any benefit from the date of Ext.P2 in the promoted post. Therefore, the prayer to count the said period for the purpose of fixing the pensionary benefits, after fixing his notional pay to be effective from that date, cannot be sustained. 8. We find that the order of the Tribunal is not so perverse warranting any interference at our hands in exercise of the jurisdiction under Article 227 of the Constitution of India. Hence, the writ petition is dismissed. (C.N. Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) kav/