IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 WP(C).No. 36249 of 2005(M) -------------------------- PETITIONER(S): ---------------------- C.PANDARI BHAI, W/O.NARAYANA MOORTHY, T.C.28/1902, SHREYAS, J.S.N. IYER STREET, PAZHAVANGADI FORT P.O., THIRUVANANTHAPURAM- 695 023.(WORKING AS ADDL.DIRECTOR IN SCHEDULED CASTES DEVELOPMENT DEPARTMENT (RETIRED). BY ADV. DR.K.P.KYLASANATHA PILLAY SRI.T.P.DEYANANTHAN SMT.SREEDEVI KYLASANATH SMT.S.PREETHA RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY SCHEDULED CASTE AND SCHEDULED TRIBE DEVELOPMENT DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR, SCHEDULED CASTE DEVELOPMENT DEPARTMENT. 3. SMT.K.S.RETNAMMA, ADDITIONAL DIRECTOR (RTD), SCHEDULED CASTE DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R3 SRI.S.SUJIN FOR R3 SRI.M.C.GOPI FOR R3 SMT.SOWMIAVADHY, SPL GOVERNMENT PLEADER FOR SC/ST THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2011, THE COURT ON 29/7/11 DELIVERED THE FOLLOWING: WPC NO.36249/05 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER G.O(MS) NO.74/82/DD.DATED 16.7.1982 OF THE Government OF KERALA. EXT.P1(a): TRUE COPY OF THE ORDER NO.A1-7297/03 DATED 31.3.2003 OF THE DIRECTOR SCHEDULED CASTES DEVELOPMENT DEPARTMENT TO THE PETITIONER. EXT.P1(b): TRUE COPY of THE R.T.C. DATED 31.3.2003. EXT.P2: TRUE COPY OF THE ORDER G.O.(RT) NO.1077/03/SCSTDD DATED 30.12.2003 OF THE GOVERNMENT OF KERALA. EXT.P2(a): TRUE COPY OF the REPORT OF TRANSFER OF CHARGE DT 1.1.2004. EXT.P3: TRUE COPY OF THE SUBMISSION AND REPRESENTATION DATED 1.1.2004 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P4: TRUE COPY OF THE ORDER GO(RT) NO.262/04/SCSTDD DATED 18.3.04 OF THE GOVERNMENT OF KERALA. EXT.P4(a): TRUE COPY OF THE RTC DATED 19.3.2004. EXT.P5: TRUE COPY OF the ORDER A1-6952/04(1) DATED 31.3.2004. EXT.P5(a): TRUE COPY OF THE RTC DATED 31.3.2004. EXT.P6: TRUE COPY OF THE ORDER GO(RT) NO.497/04/SCSTDD DATED 3.7.2004 OF THE GOVERNMENT OF KERALA. EXT.P6(a): TRUE COPY OF THE RTC DATED 3.7.2004. EXT.P7: TRUE COPY of THE REPORT OF THE 2ND RESPONDENT TO THE 1ST RESPONDENT IN LETTER NO.A1021246/04 DATED 31.1.2005. EXT.P8: TRUE COPY of THE REPLY NO.21494/C1/05/SCST/DD DATED 3.9.2005 OF THE 1ST RESPONDENT TO THE PETITIONER. EXT.P8(a): TRUE COPY OF THE LETTER NO.A1-21246/05 DATED 15.10.2005 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXTS. OF R3 EXT.R3(a): TRUE COPY OF THE SENIORITY LIST PUBLISHED BY THE DEPARTMENT ON 13.5.99. WPC NO.36249/2005 -2- EXT.R3(b): TRUE COPY OF THESELECT LIST PUBLISHED DEPARTMENT ON 21.2.2004. EXT.R3(c): TRUE COPY OF THE SELECT LIST FOR THE CATEGORY OF JOINT DIRECTOR. EXT.R3(d): TRUE COPY OF THE JUDGMENT IN OP 749/03 DATED 27.8.2003 OF THIS HON'BLE COURT. EXT.R3(e): TRUE COPY OF THE PROCEEDINGS DATED 23.12.2003 ISSUED BY THE 1ST RESPONDENT. EXT.R3(f): TRUE COPY OF THE ORDER DATED 18.3.2004 REVERTING THE PETITIONER. //TRUE COPY// P.A. TO JUDGE Rp J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.P.(C). NO.36249 OF 2005 ==================== Dated this the 29th day of July, 2011 J U D G M E N T Antony Dominic, J. Petitioner was working as Additional Director in the Scheduled Caste Development Department. She retired from service on 30/4/2005. 2. While working as Vigilance Officer in the cadre of Joint Director, as per Ext.P1(a) order dated 31/3/2003, she was given full additional charge of the post of Additional Director. Subsequently, as per Ext.P2 order dated 30/12/2003, being the senior most person in the cadre of Joint Director, she was promoted to the cadre of Additional Director. This promotion was ordered under Rule 31(a)(1) of the General Rules. 3. While continuing to hold additional charge of Additional Director, she submitted representations for regularizing her promotion w.e.f. 01/04/2003. While so, Ext.P4 oder dated 18/3/2004 was issued reverting the petitioner to the cadre of Joint Director and promoting the 3rd respondent to the cadre of WP(C) No.36249/05 : 2 : Additional Director under Rule 31(a)(1) of the General Rules. Accordingly, the 3rd respondent assumed charge and she retired from service on 31/3/2004. 4. Thereupon Ext.P5 order was issued on 31/3/2004 again giving additional charge of the post of Additional Director to the petitioner. She again assumed charge and while continuing in the post, the Government issued Ext.P6 order dated 3/7/2004 once again promoting the petitioner to the cadre of Additional Director under Rule 31(a)(1) of the General Rules. 5. During all these periods, she has been repeatedly representing for regularization of her promotion. However, the claim was eventually rejected by the Government as per Ext.P8 order. She continued as such and subsequently on attaining the age of superannuation, retired from service on 30/4/2005. It is in these circumstances, the writ petition has been filed seeking to quash Exts.P4 and P8 and to direct the respondents to promote the petitioner as Additional Director w.e.f. 01/04/2003 and release all consequential service benefits. 6. A counter affidavit has been filed by the 1st respondent and the 3rd respondent. Although the facts pleaded are not in dispute, the contention of the official respondents is that the WP(C) No.36249/05 : 3 : regular promotion in the SC/ST Department was not ordered to the post of Additional director for the reason that special rules laying down the method and qualification for appointment were not framed and therefore, the promotion to the post was being ordered as per Rule 31(a)(i) of the KS&SSR only. It is also stated that, as there was no select list of the post, there was no provision to order regular promotion as per Rule 28 of KSSR. It is also contended that as the petitioner was holding the post based on orders giving her additional charge, she was entitled only to charge allowance and that as per Rule 23A of the General Rules, an officer is eligible for pay and allowances in a post only from the date of taking charge. 7. Admittedly petitioner assumed charge of the post of Additional Director only on the basis of Ext.P1(a) and Ext.P5, by which she was given additional charge. Subsequently as per Exts.P2 and P6, she was promoted to that post under Rule 31(a) of the General Rules. None of these promotions were regular promotions, and if that be so, for the period when she held the higher post, she can only claim the benefits which are admissible under the Rules. 8. In the counter affidavit filed by the 1st respondent, the WP(C) No.36249/05 : 4 : reason for not effecting regular promotion has been explained, which is mainly the absence of Special Rules and the consequent non availability of a select list. In such circumstances, if regular promotion was not ordered and temporary promotion was effected under Rule 31, that was the only course of action that could have been pursued by the Government. 9. We agree with the official respondents that before effecting regular promotion, the criteria to be followed and the eligibility to be satisfied by the candidates are to be laid down and a select list in accordance with such rules ought to be prepared. In this case, such course was not possible, and in such a situation, this Court cannot direct the Government to treat the petitioner's period of temporary promotion as regular and disburse monetary benefits on that basis. 10. Counsel contended that it was within the power of the Government to invoke Rule 39 of the General Rules and grant monetary benefits on that basis. Rule 39 confers power on the Government to deal with the case of any Government servant, in any manner it may appear to the Government to be just and equitable. This Court by a writ of mandamus cannot direct the Government to invoke such powers, in a case of this nature where WP(C) No.36249/05 : 5 : the petitioner herself has no case that any other similarly situated person has been given regular promotion or consequent monetary benefits and that she has been discriminated. On the other hand, if this Court is to direct the Government to grant her the benefits claimed by her, this Court will be forcing the Government to show favoritism to the petitioner and discriminate all other persons who have retired from service without enjoying the benefit of promotion or consequential monetary benefits. Therefore, we are not satisfied that the petitioner has made out a case for any such direction. 11. In these circumstances, we do not find that any of the rights of the petitioner were violated by the impugned action of the Government warranting interference of this Court in exercise of its powers under Article 226 of the Constitution of India. Writ petition fails and is dismissed. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC JUDGE. Rp