IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM THURSDAY, THE 17TH DAY OF NOVEMBER 2011/26TH KARTHIKA 1933 WP(C).No. 35719 of 2010 (L) ---------------------------- PETITIONER(S): -------------------------- 1. P.N.RAMESH RAJU, ADDITIONAL SECRETARY TO GOVERNMENT (RETIRED), 'ZWEDA',T.R.A.156, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM-695 013 2. K.D.GOVINDANKUTTY, ADDITIONAL SECRETARY TO GOVERNMENT, ON OTHER DUTY AS REGIONAL DIRECTOR, I.M.G., KOCHI. BY ADVS.SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-PIN-695 001 2. THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATON (SPECIAL B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAUPRAM-695 001 3. THE COMMISSIONER FOR RURAL DEVELOPMENT, L.M.S.COMPOUND, THIRUVANANTHAPURAM-695 001 BY GOVERNMENT PLEADER SMT. RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.35719/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER, G.O. DATED 28/1/1995 ISSUED BY THE GOVERNMENT P2 COPY OF THE ORDER DATED 28/9/1993 ISSUED BY THE 3RD RESPONDENT. P3 COPY OF THE ORDER DATED 28/8/1995 ISSUED TO THE 1ST PETITIONER. P4 COPY OF THE ORDER DATED 28/8/1995 ISSUED TO THE 2ND PETITIONER. P5 COPY OF THE ORDER DATED 26/8/2000 ISSUED TO THE 1ST PETITIONER. P5(A) COPY OF THE ORDER DATED 26/8/2000 ISSUED TO THE 2ND PETITIONER. P6 COPY OF THE REPRESENTATION DATED 2/6/2003 FILED BY THE 1ST PETITIONER. P7 COPY OF THE REPRESENTATION DATED 30/5/2003 FILED BY THE 2ND PETITIONER. P8 COPY OF THE JUDGMENT DATED 12/1/2004 IN WP(C)NO.1054/2004 OF THIS HON'BLE COURT P9 COPY OF THE COMMUNICATION DATED 7/7/2001 ISSUED BY THE GOVERNMENT. P10 COPY OF THE ORDER DATED 8/7/2004 ISSUED BY THE 3RD RESPONDENT ALONG WITH THE APPENDIX P11 COPY OF THE ORDER G.O. DATED 9/7/2004 ISSUED BY THE GOVERNMENT P12 COPY OF THE JUDGMENT DATED 13/7/2007 IN WP(C)NO.23343/2004 OF THIS HON'BLE COURT. P13 COPY OF THE JUDGMENT DATED 7/4/2008 IN W.A.NO.2785/2007 OF THIS HON'BLE COURT P14 COPY OF THE ORDER DATED 19/1/2010 IN S.L.P. NO.13339/2008 OF THE HON'BLE SUPREME COURT P15 COPY OF THE ORDER, G.O. DATED 23/3/2010 ISSUED BY THE GOVERNMENT P16 COPY OF THE ORDER, G.O. DATED 9/4/2010 ISSUED BY THE GOVERNMENT P17 COPY OF THE ORDER, G.O. DATED 11/6/2010 ISSUED BY THE GOVERNMENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ sts P.A.TO.JUDGE C.K. ABDUL REHIM, J. ------------------------------------------------- W.P.(c) No. 35719 OF 2010 ------------------------------------------------- DATED THIS THE 17th DAY OF NOVEMBER, 2011. J U D G M E N T The petitioners while working as 'Senior Grade Assistants' in the Administrative Secretariat of the State Government, were appointed by transfer as Block Development Officers (BDO) in the Rural Development Department, respectively on 14-10-1993 and 15-10-1993. They joined service as BDOs on 16-10-1993 and 18-10-1993, respectively. Before declaring probation in the post of BDO, the petitioners submitted requests on 21-04-1994, for reversion to the Administrative Secretariat. The 3rd respondent declined the request through Exts.P3 and P4 for the reason that, it cannot be granted in view of the decision of this Court in WA No.980/1987. But later a Full Bench of this Court had reversed the decision in WA No.980/1987, holding that lien of a member in service to a post in the parent department will not be lost automatically when he W.P.(c) No.35719/2010 -2- joins another department. But the lien can be terminated only after hearing the concerned person. It is further observed that, even by mere completion of probation it cannot be said that the person was substantively appointed to a permanent post. Unless the person is confirmed under Rule 24 of KS & SSR, it cannot be said that the person is substantively appointed to a permanent post. Therefore, it is held that, lien in the parent Department will not be lost, unless a person is confirmed under Rule 24. 2. Based on dictum contained in the above Full Bench decision, which is reported as Balakrishnan Nair V. Ram Mohan Nair (1998 (1) KLT 766 (FB)), the petitioners requested for re-consideration of Exts.P3 and P4. But the Government again declined the requests through Exts.P5 and P5 (a), assigning the reason that a Special Leave Petition filed against the above decision is pending before the Hon'ble Supreme Court as SLP (C) No.14996/1998, and an interim order was granted on 10-09- 1999 directing to maintain status quo. But later on the Hon'ble Supreme Court had upheld the view taken in W.P.(c) No.35719/2010 -3- Balakrishnan Nair's case (cited supra), through the decision reported in Ali V. State of Kerala (2003 (2) KLT 922 (SC)). The Hon'ble Supreme Court observed that, mere completion of probation do not result in automatic confirmation and a person will acquire lien on the post only when was confirmed and made permanent in that post. On the basis of Ali's case (supra) the petitioner again submitted Exts. P6 and P7 representations before the Government requesting repatriation to the Administrative Secretariat, with due promotion assigned to the posts of Section officer and under Secretary, with effect from the dates on which their immediate juniors in the cadre of Assistants were promoted. In Ext.P8 judgment passed in a writ petition filed by the petitioner, this Court directed consideration and disposal of those representations. 3. Exhibit P8 judgment was passed on 12-01-2004. But without complying with the directions contained therein, service of the petitioners in the Rural Development Department were confirmed under Rule 24 of Part II of KS & SSR, respectively with effect from 01-02-1994 and 01-05- W.P.(c) No.35719/2010 -4- 1995. Exhibit P10 is the proceedings issued by the 3rd respondent in this regard. It is evident that Ext.P10 proceedings was issued on the basis of Ext.P9 letter of the 1st respondent directing the 3rd respondent to confirm the appointments made in the Rural Development Department. Based on Ext.P10, claim of the petitioners for repatriation was again rejected by the 1st respondent in Ext.P11 Government order, issued on 09-07-2004. 4. The petitioners along with another person had challenged Exts.P9 to P11 in a writ petition filed before this Court as W.P (c) No.23343/2004. In Ext.P12 judgment this Court found that, confirmation made during the pendency of their request for repatriation, after wrongly rejecting such request, cannot be held valid. This Court observed that the applications for repatriation ought to have been dealt with properly, taking note of the fact that when such applications were submitted they were entitled to come back to the parent Department as they were only probationers. Referring to Balakrishnan Nair's case (cited supra) this court had quashed the orders of confirmation as well as the W.P.(c) No.35719/2010 -5- orders rejecting their claim for repatriation. It was specifically observed that the petitioners are liable to be reverted to the Administrative Secretariat and they are entitled to be considered for further promotions which they could have secured, they been continued in the Administrative Secretariat. Directions were issued to the Government to consider the claim of the petitioners within a time limit stipulated. Even though the Government challenged Ext.P12 judgment in a Writ Appeal, the attempt was unsuccessful. Ultimately the matter was taken up before the Hon'ble Supreme Court. In Ext.P14 judgment, the Hon'ble Supreme Court declined interference, observing that, the issue need not be considered on merits since the 1st petitioner had already retired and the 2nd respondent is due to retire on August 2011. However, it is observed that Ext.P12 judgment cannot be treated as a binding precedent. 5. In view of Ext.P12 judgment, which is confirmed in Exts.P13 and P14 judgments, claim of the petitioners for repatriation was re-considered and Ext.P15 order was W.P.(c) No.35719/2010 -6- issued permitting their reversion to the Administrative Secretariat. The 1st petitioner was placed as immediate senior to one Sri.T.S. Anith in the cadre of selection Grade Assistant. Considering the fact that he had retired from service, notional promotions were given to the posts of Under Secretary with effect from 24-06-2002, Deputy Secretary with effect from 05-11-2004, Joint Secretary with effect from 01-03-2006 and Additional Secretary with effect from 05-09-2007. So also in the case of the 2nd petitioner he was repatriated as Selection Grade Assistant as immediate senior to Sri. K. Karunakaran with notional promotion effected to the cadre of Section officer with effect from 20- 05-1994, Under Secretary with effect from 24-06-2002, Deputy Secretary with effect from 17-12-2004, Joint Secretary with effect from 30-03-2006 and Additional Secretary with effect from 05-09-2007. It is pointed out in Ext.P15 that, in view of the observations made by the Hon'ble Supreme Court in Ext.P14 judgment, the repatriation and consequential notional promotions are given as a special case. W.P.(c) No.35719/2010 -7- 6. On the basis of Ext.P15 the petitioners submitted requests before the Government for payment of arrears of pay and other benefits due on the posts to which they were notionally promoted. The claim was rejected through Ext.P17 stating that, notional promotions were ordered only under exigencies of service based on repatriation and re- fixation of seniority, in compliance with the court directions. Since the liability for payment of salary and other emoluments in any posts will arise only from the date of assuming charge in that post, the request for arrears of pay based on the notional promotions cannot be granted. The petitioners are challenging Ext.P17 in this writ petition. 7. Contention of the petitioners is that there was continued illegal denial of repatriation and denial of promotions. Such illegal denial was continuing despite the legal position settled by the Full Bench of this court in Balakrishnan's case (cited supra), which was confirmed by the Hon'ble Supreme Court in Ali's case (cited supra). According to the petitioners the respondents have adopted a dubious method to circumvent those decisions by W.P.(c) No.35719/2010 -8- confirming service of the petitioners in the Rural Development Department, without considering the application for repatriation, intentionally and in a malafide and ill-motivated manner. Due to such illegal and malafide actions the petitioners were denied of benefits legitimately due, is the contention. 8. Sri. Elvin Peter, learned counsel appearing for the petitioners contended that the action of the authority in this regard was deliberate and willful and is done with an intention to deny such benefits due to the petitioners. Therefore the petitioners are entitled to get all the benefits attached to the posts to which they are notionally promoted, with effect from the respective dates of such promotion. In this regard he had placed reliance on the decision of this court in State of Kerala V. Bhaskaran Pilla (2003 (1) KLT 60). A Division Bench of this Court had followed the dictum laid in a previous Bench decision, in Philomina V. State of Kerala (1984 KLT 59). Deviating from the general rule of “no work no pay”, circumstances were illustrated when exemptions can be drawn if the officers W.P.(c) No.35719/2010 -9- were denied of opportunities to works in the promoted posts for no fault of their own. The following are the contingencies pointed out; (i) When such promotee is kept out of work or denied or deprived of his rightful place by an illegal order which, upon the declaration or admission of its illegality becomes wholly destitute of legal efficacy. (ii) Where the authority has acted malevolently and without bona fides such as where the authority is shown to have deliberately and wilfully denied the officer his due promotion or other benefits with intent to injure him. (iii) Where the authority has in disobedience of a direction of a competent court, denied the officer what has been held to be his due. Based on the legal principles settled as above, on the factual matrix of the case, learned counsel contended that the petitioners are entitled to benefits deriving out of the notional promotions granted in Ext.P15, at least with effect from the date on which the Full Bench of this Court had settled the legal position in Balakrishnan's case. W.P.(c) No.35719/2010 -10- 9. In the counter affidavit of the Government it is stated that, the request was rejected because the petitioners have not actually held the posts, but only notionally promoted, and the “no work no pay” principle is applicable. Reliance is placed on Rule 23 (c) of Part I, KSR to content that back wages is not permissible in notional promotions. It is further contended that it is a policy decision of the Government considering its financial situations. Payment of monitory benefits with retrospective effect in similar cases will have a considerable impact on the resources of the Government, is the contention. Certain decisions of the Hon'ble Supreme Court is relied upon to content that payment of back wages with retrospective effect on notional grant of promotions may not be appropriate in all situations. But in view of the discussions made as above, this court is of the opinion that none of the grounds raised are sustainable to refrain grant of the benefits. 10. In the result, the writ petition is allowed and Ext.P17 order is hereby quashed. It is declared that the W.P.(c) No.35719/2010 -11- petitioners are entitled to all the benefits deriving out of the notional promotions effected through Exts.P15, with effect from the date on which the Supreme Court has settled the legal principles in Ali V. State of Kerala (reported in 2003 (2) KLT 922) i.e; with effect from 22-04-2003. The 2nd respondent is directed to workout the benefits and to take steps to make payment of the same to the petitioners at the earliest possible, at any rate within a period of 3 months from the date of receipt of copy of this judgment. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge