IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 17157 of 2007(P) ------------------------------------------- PETITIONER(S): ------------------------- DR. G.PARVATHY, ASSOCIATE PROFESSOR IN ANESTHESIA, MEDICAL COLLEGE, ALLEPPEY. BY MR.N.NANDAKUMARA MENON, SENIOR ADVOCATE RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE (S) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.T.B.RAMANY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.17157/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT DT. 13.1.05 IN WPC. 1253/05(Y) PASSED BY THE HONOURABLE HIGH COURT OF KERALA AT EKM. P2:- COPY OF THE JUDGMENT DT. 28.10.05 IN CON. CASE(C) 549/05 PASSED BY THE HONOURABLE HIGH COURT OF KERALA AT EKM. P3:- COPY OF THE ORDER GO(RT) 3622/05/H & FWD DT. 15.12.05 ISSUED BY THE GOVERNMENT. P4:- COPY OF THE REPRESENTATION DT. 7.3.06 SUBMITTED BY THE PETITIONER TO THE SECRETARY TO GOVERNMENT , HEALTH AND FAMILY WELFARE DEPARTMENT, TRIVANDRUM. P5:- COPY OF THE ORDER GO(RT) 939/07/H & FWD DT. 17.3.07 ISSUED BY THE GOVERNMENT. P6:- COPY OF THE GOVERNMENT ORDER NO.GO(P) 45/2000/H&FWD DT. 16.6.2000 ISSUED BY THE GOVERNMENT. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.17157 of 2007-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this 5th day of June, 2009. JUDGMENT The petitioner herein who was working as Associate Professor in Anesthesiology in the Medical Education Service at the time of filing of this writ petition, has since been retired from service. The issue that is involved in this case is regarding her entitlement for monetary benefits consequent on promotion to the post of Associate Professor between 27.10.2004 to 15.12.2005. 2. The petitioner was initially appointed as a Tutor on 3.7.1985 and was later promoted as Assistant Professor as per Govt. Order dated 7.12.1994. The petitioner was on leave for a period of four years. The next promotion is to the post of Associate Professor and the Departmental Promotion Committee which met on 11.6.2004, did not consider the petitioner's name at that time. The non inclusion of the petitioner was challenged before the Government, but it appears that no steps were taken by the Government at that time. This compelled the petitioner to approach this Court by filing Writ Petition No.1253/2005. Ext.P1 is the judgment rendered in the above case, wherein this court directed the consideration of 17157/2007 2 her representation in accordance with law. Since the directions were not complied with, she filed C.C.C.No.549/2005 which was disposed of by Ext.P2 judgment. By the time the C.C.C. was disposed of, the adhoc meeting of the D.P.C. was held and the select list was revised restoring her position. The order promoting the petitioner is produced as Ext.P3 dated 15.12.2005. 3. Subsequently, the petitioner sought for the monetary benefits from the date on which she was entitled to be promoted, viz. 27.10.2004 by filing Ext.P4 representation. The matter was considered by the Government by Ex.P5. The view taken therein is that the petitioner is eligible for notional promotion with effect from the date on which her junior was promoted, viz. 27.10.2004 on condition that back arrears will not be admissible. The order to the extent it denies back arrears, is challenged in this writ petition. In Ext.P4, the petitioner had made a further claim by way of grant of non cadre promotion in the post of Associate professor in Anesthesiology with effect from 8.6.2004. It is pointed out that in Ext.P5, the above aspect has not been considered. 4. Heard learned counsel for the petitioner and learned Govt. Pleader. It is pointed out by the learned counsel for the petitioner that going by Note 1 to Rule 28(7) of K.S. & S.S.R., the D.P.C. was bound to consider the 17157/2007 3 suitability of the petitioner even though a a disciplinary action was pending at that point of time. It is submitted that only because of the above lapse, the matter has got delayed compelling the petitioner to seek appropriate reliefs. It is further pointed out that going by the dictum laid down by the Apex Court in State of Kerala and others v. E.K. Bhaskaran Pillai {(2007) 6 SCC 524} and the decision of a Division Bench of this court in Sucheendran v. State of Kerala (2005 (3) KLT 499), the petitioner is entitled for payment of back arrears. An unreported decision of this court in Rosamma Mathew v. State of Kerala (W.A.No.242/2005) is also relied upon. 5. The respondents have filed a counter affidavit mainly contending that the principle of 'no work no pay' will apply to the facts of this case. The petitioner was eligible for promotion in a vacancy which arose on 27.10.2004. The D.P.C. meeting was convened on 11.6.2004 and the disciplinary action against the petitioner was culminated by order dated 25.6.2004. The petitioner was not qualified at the time of occurrence of the first vacancy on 1.5.2004 and she became eligible for promotion on 25.6.2004. The date of occurrence of the second vacancy was on 27.10.2004. 17157/2007 4 6. It is clear from the pleadings that the petitioner's junior was granted promotion with effect from 27.10.2004. On that date the petitioner was fully eligible for promotion. The petitioner could get promotion only after approaching this court and after filing the C.C.C. It is clear that the order Ext.P3 was passed only after disposal of the writ petition filed by her and by the order passed in the C.C.C. The date 15.12.2005 is the date on which Ext.P3 order has been passed. Actually that date has no significance with regard to the right of the petitioner for promotion or for her eligibility as such, since it is admitted that she was eligible to be promoted as on 27.10.2004. It is not a case where the convening of the D.P.C. was delayed because of any administrative reasons. Actually, the D.P.C. met at the right point of time and the claim of the petitioner was not considered for the first vacancy because of the pendency of the disciplinary proceedings against her. But still, the procedure contemplated under the Note was not followed by the D.P.C. Even though the disciplinary action was pending, there was no bar for considering her claim, going by the procedure that is prescribed in the Note. It is clear from Note 1 to sub-rule (7) of Rule 28 of the K.S. & S.S.R. that the suitability of such a person for promotion should be assessed at the relevant time by the D.P.C. and a finding reached whether, if the Officer had not been suspended or the criminal 17157/2007 5 proceedings/departmental proceedings had not been pending against him, he would have been recommended/selected for promotion. It is further evident that the question of including him/her in the select list shall be considered when the result of the enquiry is known. 7. If at the relevant point of time the D.P.C. had considered the suitability of the petitioner, even though she was not eligible for the first vacancy, the eligibility for the second vacancy which arose on 27.10.2004 would have been assessed by the D.P.C. In that view of the matter, the delay in ordering promotion occurred only because of the non compliance of Note (i) to Rule 28(7) of K.S. & S.S.R. In that view of the matter, the question is whether it was proper to deny the benefit of back arrears from 27.10.2004, the date on which admittedly her junior was promoted. 8. The Apex Court in State of Kerala's case {(2007) 6 SCC 524} while considering the principle of 'no work no pay', held that the said principle cannot be accepted as a rule of thumb. There are exceptions to the said rule. It was held thus: “ Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date of 17157/2007 6 persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect ad sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle “no work no pay” cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.” A Division Bench of this court in Rosamma's case (W.A.No.242/2005) followed the said dictum and it was held that in circumstances when promotions are wrongfully denied, full back wages are to be paid. The Division Bench was of the view that if departmental enquiry or criminal proceedings are pending, amount of back wages for that period can be reduced depending upon the circumstances. It was finally held that the appellants are entitled to get the monetary benefits from the date on which their juniors were promoted, as they were illegally denied promotion. Herein, the departmental proceedings were over by 25.6.2004 and the eligibility of the petitioner has been found from 27.10.2004. Significantly, as on that date a junior has been promoted. Therefore, the dictum laid down by the Apex Court and by the Division Bench in the above decisions will squarely apply. 17157/2007 7 9. Hence, Ext.P5 to the extent it denies back arrears to the petitioner, is quashed. It is declared that the petitioner is entitled for the payment of salary and other monetary benefits in the promoted post from 27.10.2004. The arrears in that regard will be quantified and disbursed within three months from the date of receipt of a copy of this judgment. The claim of the petitioner for non-cadre promotion from 8.6.2004 will also be considered by the Government and appropriate orders will be passed in the matter within the above period. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/