IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 WP(C).No. 13519 of 2005(H) --------------------------------------- PETITIONER: ------------------ FRANCIS SUNNY, S/O. FRANCIS, AGED 45 YEARS, NO.834070028 CONSTABLE, C.I.S.F. UNIT COCHIN SHIPYARD, COCHIN. BY ADV. SRI.B.N.SHIV SHANKAR RESPONDENTS: ----------------------- 1. DEPUTY COMMANDANT, C.I.S.F. UNIT, COCHIN SHIPYARD, COCHIN. 2. THE COMMANDANT, COCHIN PORT TRUST, KOCHI-9. 3. UNION OF INDIA, REP. BY THE SECRETARY (MINISTRY OF HOME AFFAIRS), NEW DELHI. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).13519/2005-H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN O.P.3804/1994 DATED 22/02/2002. EXT.P2: COPY OF THE ORDER IN W.A.1034/2002 DATED 27/08/2003. EXT.P3: COPY OF THE CIRCULAR NO.18/2004 FOR THE POSTING OF C.I.S.F PERSONAL DATED 20/11/2004. EXT.P4: COPY OF THE COMMUNICATION DATED 03/03/2005. EXT.P5: COPY OF THE ORDER DATED 12/03/2005 IMPLEMENTING THE HIGH COURT ORDER. EXT.P6: COPY OF THE FINAL REPRESENTATION DATED 07/03/2005. RESPONDENT'S EXHIBITS: EXT.R1: COPY OF THE ORDER DATED 21/05/2005 ISSUED BY THE 1ST RESPONDENT. EXT.R1(a): COPY OF THE RECEIPT OF THE PAYARREARS PAID TO THE PETITIONER DATED NIL. EXT.R1(b): COPY OF THE LETTER DATED 19/11/2003 ISSUED BY THE 1ST RESPONDENT. EXT.R1(c): COPY OF THE LETTER DATED 04/05/2004 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.R1(d): COPY OF THE TRANSFER ORDER DATED 13/04/2005 ISSUED BY THE INSPECTOR GENERAL, CISF. EXT.R1(e): COPY OF THE COMMUNICATION DATED 01/04/2005 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. // TRUE COPY // P.A. TO JUDGE Rs/ P.N.RAVINDRAN,J. =========================== W.P.(C) No.13519 of 2005 =========================== Dated this the 7th day of August 2008 JUDGMENT The petitioner is a Constable in the Central Industrial Security Force. While he was serving in the Cochin Shipyard, he was placed under suspension with effect from 31.3.1992. He was dismissed from service on 21.8.1993. The petitioner challenged the order of dismissal in O.P.No.3804 of 1994. By Ext.P1 judgment delivered on 22.2.2002, a learned Single Judge of this Court held that the finding of guilt is not sustainable. Taking note of the submission made by the petitioner that he is prepared to forego back wages in the event of being reinstated, this Court in Ext.P1 judgment directed as follows: “Taking note of the scenerio, the petitioner submits that he is prepared to forego his back wages, but would very much require a reinstatement. Taking note of the above submission, I am of the view that ends of justice will be met if, Ext.P40 is set aside. Doing so, I direct the respondent to reinstate the petitioner in service with continuity of service, but without any monetary benefits for the period he had been kept out. For the above said period, the petitioner will notionally be treated as having continued in service, for the purpose of fixation of pay, and for retirement benefits. He is to be reinstated by 20th April, 2002.” 2. The respondents carried the matter in appeal. By Ext.P2 W.P.(C)13519/2005 2 judgment delivered on 27.8.2003 in W.A.No.1034 of 2002, the direction issued by the learned Single Judge was upheld. The petitioner was thereafter reinstated in service in 12.11.2003. According to the petitioner, his pay as on 20.4.2002 has not been fixed as directed by the learned Single Judge, taking note of the pay which his batchmates were drawing and that he is entitled to notional fixation of pay and payment of arrears from 20.4.2002 onwards. The petitioner also contends that he has not been given promotion which was given to his batchmates. The petitioner has in this writ petition prayed for the following reliefs: i) to issue a writ of mandamus directing the respondents to give all benefit arising out of continuity of service for the periods, the petitioner was kept out of service,including increments, leave eligibilities and encashment, leave account details and tenure completion in Home zone as per Ext.P3 consequential to Exts.P1 and P2 orders of this Hon'ble Court. ii) to prohibit the respondent by an appropriate writ or order from treating the petitioner as having been punished as per the order of termination which was quashed by Exts.P1 and P2 order of this Hon'ble Court, or treating the said orders as modification of the termination orders which is quashed by this Hon'ble Court by Exts.P1 and P2. W.P.(C)13519/2005 3 3. After the petitioner was reinstated in service as directed by this Court in Ext.P1 judgment, his pay was fixed notionally and arrears of salary and allowances for the period from 20.4.2002 to 12.11.2003 was disbursed. As regards the petitioner's claim for fixation of pay in accordance with the pay drawn by his batchmates, the counter affidavit states that the petitioner was asked by Ext.R1 (c) letter dated 4/5/2004 to submit a fresh application furnishing the details and pay particulars of his batchmates/juniors who were allegedly drawing higher pay, but the petitioner did not furnish the details as sought for. As regards the petitioner's claim for promotion, though it is conceded that he has passed the Promotion Cadre Course held in the year 2004, he was not granted the benefits under the Assured Career Progression Scheme as he was not found fit by the Departmental Promotion Committee for the benefits thereunder. Reference is made to Ext.P5 order dated 7.3.2005 which states that the Scrutiny Committee that met on 18.1.2005 at Group Head Quarters, Cochin considered the claim of the petitioner for grant of benefits under the Assured Career Progression Scheme and found him not yet fit for the same. 3. I have considered the submissions made at the Bar by the learned counsel appearing on either side. Though the petitioner W.P.(C)13519/2005 4 claims benefit under the Assured Career Progression Scheme, he has not chosen to challenge Ext.P5. Therefore no relief in this regard can be granted by this Court. As regards the claim of the petitioner for payment of salary and allowances for the period from 20.4.2002 to 12.11.2003 and for the period thereafter at par with his batchmates/juniors, the petitioner may furnish the details sought in Ext.R1(c) letter dated 4.5.2004 within two months from today. On receipt of the same the respondent shall verify the particulars furnished by the petitioner and if it is found that his batchmates or juniors were drawing a higher pay than the petitioner in the post held by the petitioner, he shall also be given the benefits of the higher pay with effect from 20.4.2002. Orders in that regard shall be passed within three months after the receipt of the details furnished by the petitioner. The benefits payable shall also be disbursed thereafter. The writ petition is disposed of with the above directions. No costs. P.N.RAVINDRAN, JUDGE css/