IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 WP(C).No. 28716 of 2003(R) -------------------------- PETITIONER(S): --------------- DR.MAYA MATHEW, W/O. MATHEW, GOVT.HOMEO DISPENSARY, NEDIYASALA, THODUPUZHA, WORKING AS NON-CADRE MEDICAL OFFICER, HEALTH DEPT. BY ADV. SRI.RAJU JOSEPH RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HOMEOPATHY, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.K.SANIL KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/6/2009, THE COURT ON 09/07/2009 DELIVERED THE FOLLOWING: WP(C).28716/03 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:-TRUE COPY OF THE ORDER DT.10.8.2000 ISSUED BY R2 EXT.P2:-TRUE COPY OF ORDER DT.7.8.2000 ISSUED BY R1 EXT.P3:-TRUE COPY OF ORDER DT. 19.10.2000 ISSUED BY R1 EXT.P4:-TRUE COPY OF JUDGMENT IN OP.9081/02 OF THIS COURT DT.3.9.02 EXT.P5:-TRUE COPY OF ORDER DT. 23.10.02 OF R1 EXT.P6:-TRUE COPY OF ORDER DT.21.5.03 ISSUED BY -DO EXT.P7:-TRUE COPY OF LETTER DT. 31.7.03 ISSUED BY R1 RESPONDENT'S EXHIBITS:- NIL okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No.28716 OF 2003 ------------------------------ Dated this the 9th day of July, 2009 J U D G M E N T ---------------------- 1. The writ petitioner is a non-cadre Medical Officer, in the Department of Homoeopathy of the State Government. She entered service as Pharmacist with effect from 28.5.1999 and got promotion to the post of Non-Cadre Medical Officer by virtue of Ext.P6 order dt:21.5.2003. As per the Special Rules, G.O(P) No:185/1991/H&FWD, dt:27.5.1999, one of the method of appointment to the post of Medical Officer, is by way of transfer from category of Pharmacist (Homoeopathy). According to the petitioner, while she was working in the cadre of Pharmacist, there existed 59 vacancies of Medical Officers, during the year 2000. The Government through Ext.P1 order, dt:10.8.2000 effected temporary appointment of 9 persons as Medical Officers, including 7 Pharmacists. Thereafter by virtue of Ext.P2 order 25 qualified Homoeo Doctors working in the cadre of Pharmacist were re-designated as non-cadre Medical Officers, by upgrading their post to the revised scale of pay of Medical Officers. Ext.P3 is the consequential order by which the 25 persons were given appointment as non-cadre Medical Officers. 2. In the meanwhile, certain provisional promotees in the cadre of Medical Officers had approached this Court in W.P.(C).28716/03 2 OP.No.9081/02 claiming regular promotion with respect to vacancies arose between 1996-99. In the said writ petition the Government took a stand that regular promotions could not be effected because of pending stay order issued by this Court in some other case. Further, it is contended that new Special Rules have came into force with effect on 12.4.1999 and therefore the claim of those persons could not be considered during that time. But this Court while disposing O.P.No:9081/02 in Ext.P4 Judgment, observed that, the claim of the petitioners therein for promotion has to be decided with respect to date of occurrence of vacancies, in the light of the Rules then in force. Accordingly a direction was issued to the 2nd respondent to pass orders on the claim of the petitioners therein, for effecting regular promotion to the vacancies which arose between 1996-99. In compliance with the directions contained in Ext.P4, the 2nd respondent issued Ext.P5 order promoting 12 persons to the post of Medical Officers on regular basis. The 12 persons to whom regular promotions were given through Ext.P5, include 6 persons who got temporary promotion through Ext.P1 and 6 persons who got non-cadre promotion through Ext.P3. As a consequence of Ext.P5, there arose 6 vacancies in the 25 non- cadre posts of Medical Officers. In order to fill up those vacancies 5 persons including the petitioner were given non- W.P.(C).28716/03 3 cadre promotion by virtue of Ext.P6 order. 3. According to the petitioner, inspite of the fact that there arose so many vacancies in the cadre of Medical Officers during the period between 1996 to 1999, regular promotions were not effected due to mere laches on the part of the respondents. If the petitioners in Ext.P4 Judgment, who were admittedly seniors in service to the petitioner in the cadre of Pharmacist, would have given regular promotions earlier, as and when vacancies arose in the cadre of Medical Officers, the petitioner would have got promotion to the non-cadre post as on the date of Ext.P2, when such posts were created. Therefore the petitioner alleges that she was denied of promotion to the post of non-cadre Medical Officer with effect from the date of Exts.P2 and P3, due to fault on the part of the 2nd respondent. Since the regular promotions in Ext.P5 was effected with retrospective effect corresponding with the date of arising vacancies in the cadre of Medical Officers, the petitioner is entitled to be treated as promoted to the Non-cadre post of Medical Officer with effect from the date of Ext.P3 and is entitled for all incidental benefits including pay and allowances in the scale of pay attached to the post of Medical Officer, with retrospective effect, is the claim. The petitioner made a request to the 2nd respondent in this regard. But the 2nd respondent rejected the same through W.P.(C).28716/03 4 Ext.P7, stating the reason that the petitioner could not be sanctioned with salary and other benefits for the period for which she was not actually worked as Medical Officer. Petitioner is challenging Ext.P7 order, and also seeking directions to effect promotion to the post of non-cadre Medical Officers with effect from 7.8.2000, along with salary and other monetary benefits in the cadre of Medical Officer from that date onwards. 4. It is evident that, out of the 9 persons who were given temporary promotion through Ext.P1 order dated 10.8.2000, 6 persons were given regular promotion pursuant to Ext.P4 Judgment, with retrospective effect corresponding with the date of arising of vacancies during the year 1996 and 1997. In other words, date of regular promotion of those 6 persons were notionally refixed with respective effect based on the date of arising of vacancy in the cadre of Medical Officer. The 25 non- cadre posts of Medical Officers were created in the year 2000 through Ext.P2. As per the notional refixation of date of promotion of 6 Pharmacists included in Ext.P1 with anterior date prior to Ext.P3, it is evident that the 6 persons now given promotion under Ext.P6 order would have become eligible and got promotion to the non-cadre posts which arose on 7.8.2000 (on the date of Ext.P2), but for the delay caused in issuing Ext.P5. Therefore the promotion of the petitioner to that post W.P.(C).28716/03 5 was denied only because regular promotions were not effected to her seniors, inspite of availability of vacancy in the cadre of Medical Officers, at the appropriate due dates. Hence it is to be held that the petitioner is entitled to get her date of promotion to the non-cadre post of Medical Officer refixed as 7.8.2000, i.e: the date of Ext.P2. 5. The next question arising for consideration is as to whether the petitioner is eligible for salary and other benefits attached to the post of non-cadre Medical Officer with effect from the date of promotion to be refixed. In this regard the learned counsel appearing for the petitioner had cited for consideration various decisions of this Court and argued that the rule of “no work no pay”, is not applicable on a universal manner under all circumstances without reference to facts. According to him the grant of monetary benefits from the date of retrospective promotion is the rule and the refusal is the exception. In the decision in Philomina Vs. State of Kerala (1984 KLT 59), a Division Bench of this Court held that the general rule to be followed is that a Government servant is not entitled to be paid for work which he has not done. But specific exceptions were indicated therein. There may be cases, where on account of mistakes in the method of reckoning length of service or seniority of persons and such innocent errors which are not W.P.(C).28716/03 6 uncommon in matters of administration, the authority if makes an honest attempt to do justice to the concerned officers by proper readjustment of promotions, such persons cannot justifiably claim salary for the period when he actually did not work in the higher post and albeit for no fault of his. Thus it is appeared that “no work no pay”, is the rule to be followed in normal cases unless it falls within one of the specific exceptions, and the Government servant retrospectively promoted shall not be eligible for monetary benefits. After Philomina's Case (cited supra) in Sivarajan Vs. State of Kerala (1993 (2) KLT 287) another Division Bench took the view that persons who were promoted with retrospective effect is entitled for all monetary benefits consequent on such promotions, unless there are satisfactory reasons to deny the same to him. Further in State of Kerala Vs. V.J. Joseph Ceasar (ILR 1998 (3) Ker 190) and in State of Kerala Vs. Jacob (2000 (3) KLT 556) this Court took the view that such promotees are entitled for monetary benefits for the period during which they have not actually rendered any work in the promoted post. But in a later decision in State of Kerala Vs. Bhaskaran Pillai (2003(1) KLT 60) another Division Bench referring to two decisions of the Hon'ble Supreme Court in Vasant Rao Raman Vs. Union of India (1993 Supp (2) SCC 324) and in State of A.P. Vs. K.V.L. W.P.(C).28716/03 7 Narasimha Rao ((1999) 4 SCC 181) held as follows: “ In short the normal rule must be that where there is no fault on the part of the officer concerned, he must be paid the monetary benefits due to him consequent to the retrospective promotion. In appropriate cases it could be denied to him for valid reasons. In the three categories of cases enumerated in Philomina such benefits cannot be denied to him. The dictum in Philomina cannot be held to be valid any more in view of the decisions of the Supreme Court referred above to the extent that it stipulates a rule of general application that no Government servant is entitled to be paid for work which he has not done. This conclusion appears to be inevitable in view of the subsequent declaration of law by the Supreme Court in the decisions referred above.” 6. Putting the facts of this for a test in view of the dictum laid in the rulings cited above, it is evident that till 26.6.2003 (the date on which the petitioner submitted representation before the 2nd respondent for refixation of the date of promotion and for consequential benefits) the petitioner had never made any complaint or representation alleging denial of any legitimate promotion due to her. Further, the benefit which now being claimed by the petitioner was in consequence of promotions effected to those who are included in Ext.P5 list with retrospective effect. It is pertinent to note that those persons included in Ext.P5, eventhough were given refixation of date of promotion, were not awarded with any monetary benefits arising out of such refixation. There is no case for the petitioner that W.P.(C).28716/03 8 she was denied of promotion due to any illegal order or due to any malafide and deliberate action of the authority concerned or due to any disobeyance of any direction of the competent court. In that view of the matter, “no work no pay” principle alone can be adopted in this case. Therefore it is to be held that the petitioner is not at all eligible for any monetary benefits on her refixation of date of promotion in the non-cadre post of Medical Officer. In the result, the writ petition is disposed of directing the 2nd respondent to issue orders refixing the petitioner's date of promotion from the cadre of Pharmacist to the non-cadre post of Medical Officer with effect from 7.8.2000, without there being payment of any consequential monetary benefits on the basis of such refixation. C.K.ABDUL REHIM, JUDGE. okb