IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 WA.No. 1196 of 2007() --------------------- AGAINST THE JUDGEMENT IN OP.19883/2001 Dated 05/01/2007 .................... APPELLANT(S): RESPONDENTS. -------------------------- 1. FOOD CORPORATION OF INDIA, 16-20 BARAKAMBHA LANE, NEW DELHI, 110 001 REPRESENTED BY ITS CHAIRMAN. 2. ZONAL MANAGER, FOOD CORPORATION OF INDIA, ZONAL OFFICE, NO.2, HADDOWS ROAD, CHENNAI-600 006. BY ADV. SRI.K.P.SREEKUMAR RESPONDENT(S): PETITIONER. -------------------------- C.I.TIMOTHY, ASST.GRADE 1 (DEPOT), FOOD CORPORATION OF INDIA, KUTTIPURAM, PERMANENTLY RESIDING AT CHERUKKARAN HOUSE, PANANCHERRY LANE, NELLIKUNNU, THRISSUR-680 005. ADV. SRI.MILLU DANDAPANI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. ````````````````````````````````````````````````````````````` W.A. No. 1196 of 2007 ````````````````````````````````````````````````````````````` Dated this the 9th day of June, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J.Chelameswar, C.J. The respondents in O.P. No.19883/2001 are the appellants herein aggrieved by the judgment therein dated 05.01.2007. The sole respondent herein joined the service of the first appellant Corporation on 30.06.1975 as Assistant Grade-III. He was promoted as Assistant Grade-II on 27.08.1994 with effect from 19.12.1989. It appears that, from 1979 onwards, there were some enquiry pending against the respondent, the details of which may not be necessary for the present purpose. On 04.10.1985, disciplinary proceedings were initiated against the respondent by issuing a charge memo, which was followed by a departmental enquiry, in which, the respondent was W.A. No.1196/2007 : 2 : found guilty and a punishment of withholding of annual increment for a period of four years without cumulative effect commencing from 01.01.1988 was given, which punishment was eventually set aside by an order in revision dated 30.07.1993. 2. Therefore, in 1994, the respondent was promoted with retrospective effect. 3. Subsequently, the respondent was promoted as Assistant Grade-I, by an order dated 25.05.2000, once again with retrospective effect from 10.10.1995. Thereafter, the respondent made certain representations, the details of which may not be necessary for the purpose on hand. The said representations were rejected by an order dated 02.04.2001. Challenging the said decision, the respondent approached this Court by way of the above mentioned O.P. No.19883/2001 with prayers as follows:- “(i) Call for the records leading to the issue of Ext.P5 and issue a writ of W.A. No.1196/2007 : 3 : certiorari, quashing the same; (ii) Issue a writ of mandamus or any other appropriate writ, order or direction, declaring that the petitioner is entitled to all monetary benefits in the post of Assistant Grade-II(D) with effect from 22.11.1978 and in the post of Assistant Grade-I(D) with effect from 10.10.1995; (iii) Stay operation of Ext.P5 thereby directing the second respondent to disburse all monetary benefits due to the petitioner in the post of Assistant Grade-II(D) with effect from 22.11.1978 and in the post of Assistant Grade-I(D) with effect from 10.10.1995 forthwith pending disposal of the OP.” 4. Essentially, the case of the respondent is that he is entitled for promotion as Assistant Grade-II with effect from 22.11.1978, the date on which his immediate junior was promoted as Assistant Grade-II and consequentially, his further promotion and seniority are required to be re- fixed. W.A. No.1196/2007 : 4 : 5. By the judgment under appeal, the claim of the respondent for promotion to the post of Assistant Grade-II retrospectively from the year 1978 was rejected by the learned Judge on the ground that such a claim is belated and that conclusion has become final as the respondent has not preferred an appeal against the conclusion. 6. The learned Judge, by the judgment under appeal, also rejected the claim of payment of arrears of salary in the category of Assistant Grade-II, on the ground that the claim is belated as the respondent raised such a claim for the first time in the year 2000 notwithstanding with the fact that he was promoted in the year 1994 with retrospective effect from 1989. 7. The only other aspect which the learned Judge considered is the arrears of pay of the respondent in the post of Assistant Grade-I to which post he was promoted by an order dated 25.05.2000 with retrospective effect from W.A. No.1196/2007 : 5 : 10.10.1995. The learned Judge, by the judgment under appeal, opined that such a claim was diligently pursued by the respondent, immediately commencing from the year 2000 itself and, therefore, held that the respondent is entitled for the arrears of salary for the said period. Hence, the appeal. 8. The learned counsel for the appellant Sri.K.P.Sreekumar placed reliance on the circular of the appellant dated 11.02.1985. Clause 3 of which reads as follows:- “ In cases where seniority is revised as a result of court orders and notional promotions are given from retrospective date, the pay of the employees concerned should be fixed notionally with reference to the year/date of empanelment in the higher post as the employee concerned has been deprived of his legitimate right to promotion on the due date. The monetary benefit shall however be given w.e.f. the actual date from W.A. No.1196/2007 : 6 : which the employee has joined the higher post.” and, therefore, argued that the respondent is not entitled for arrears of the salary even in the promoted post of Assistant Grade-I as the circular only allows the benefit of payment only with effect from the date on which the employee actually joined service in the promoted post. 9. We reject the submission for two reasons. First of all, the language of the above extracted clause does not deal with retrospective promotions pursuant to the exoneration of an employee in a pending departmental proceeding. Secondly, assuming for the sake of arguments that such is the policy of the appellant, in our view, such a policy would be wholly arbitrary policy to tell an employee that he is not entitled for the benefit of salary and other emoluments notwithstanding the fact that he was granted promotion with retrospective effect. More particularly when such a situation of conferring a retrospective benefit arose W.A. No.1196/2007 : 7 : as a consequence of a legally untenable departmental enquiry pending against the employee at the appropriate point of time when the employee was entitled for consideration of his case for promotion. We, therefore, see no merits in the appeal. The writ appeal is dismissed. Sd/- (J.CHELAMESWAR, CHIEF JUSTICE) Sd/- (ANTONY DOMINIC, JUDGE) aks/10.06 // True Copy // P.A. To Judge