IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 OP.No. 32237 of 2000(K) ----------------------- PETITIONER: ------------ V. SREEKANTAN NAIR, SENIOR FINANCE OFFICER (RTD), JAYASREE, NCC ROAD, AMBALAM JUNCTION, THIRUVANANTHAPURAM. BY ADV. DR.K.P.KYLASANATHA PILLAY SRI.P.SREEKUMAR SRI.B.PRABHAT KUMAR SMT.SREEDEVI KYLASANATH RESPONDENTS: ------------- 1. STATE OF KERALA REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. MANOJ KUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 8.2.2008, THE COURT ON 09/04/2008 DELIVERED THE FOLLOWING: O.P.NO.32237/00 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE ADVICE MEMO DTD 10.4.67 ISSUED BY THE P.S.C EXT.P2 COPY OF THE G.O(RT)NO.384/79/FIN DTD 2.2.79. EXT.P3 COPY OF THE G.O.(RT)NO.2622/82/FIN DTD 26.6.82. EXT.P4 COPY OF THE JUDGMENT IN OP.1193/85 DTD 30.7.90. EXT.P5 COPY OF THE REPRESENTATION DTD 27.12.90 SUBMITTED BY THE PETITIONER. EXT.P6 COPY OF THE REPRESENTATION DTD 21.1.91 SUBMITTED BY THE PETITIONER BEFORE R1. EXT.P7 COPY OF THE JUDGMENT DTD 22.3.91 IN OP.3225/91. EXT.P8 COPY OF THE JUDGMENT IN OP.3818/92. EXT.P9 COPY OF THE G.O.(MS)NO.261/96/FIN.DTD 19.3.96. EXT.P10 COPY OF THE JUDGMENT IN C.C.C.NO.411/99 DTD 27.9.99. EXT.P11 COPY OF THE G.O.(RT) NO.2798/00 DTD 29.4.2000. EXT.P12 COPY OF THE PETITION DTD 9.5.2000 SUBMITTED BY THE PETITIONER BEFORE THE R1. EXT.P13 COPY OF THE G.O.(P)NO.388/92/FIN DTD 6.5.92. EXT.P14 COPY OF THE COMMUNICATION NO.38888 ESTT/B2/2000/FIN. DTD 1.8.2000. /TRUE COPY/ cl P.N. RAVINDRAN, J. --------------------------------------------------------------- O.P.NO.32237 OF 2000 -------------------------------------------------------------- Dated this the 9th day of April, 2008. JUDGMENT The petitioner was appointed by direct recruitment to the post of Divisional Accountant in the Kerala General Service. He was advised for appointment on 10.4.1967. His probation in the Category of Divisional Accountant was declared to have been satisfactorily completed with effect from 1.5.1970. He was provisionally promoted as Financial Assistant Gr-II (re- designated as Financial Assistant) by Ext.P2 government order dated 2.2.1979. By Ext.P3 government order dated 26.6.1982, he was provisionally promoted as Financial Assistant Gr-I (re- designated as Finance Officer Gr-II). Thereafter, he was promoted as Finance Officer Gr-I on 14.12.1992 and as Senior Finance Officer on 29.6.1996. The petitioner retired from the service as Senior Finance Officer on 30.6.1998, on attaining the age of superannuation. 2. As the petitioner's initial appointment as Divisional Account in O.P.NO.32237/2000 . 2 the Kerala General Service was not regularised and the provisional promotions given to him to the higher post had not been regularised, he along with two others who had similar grievances, filed O.P.No.1193 of 1985 in this Court. The petitioner was at that time working as Finance Officer Gr-II. By Ext.P4 judgment delivered on 30.7.1990, this Court disposed of O.P.No.1193 of 1985 with the observation that, if the petitioners therein have any grievance about the ranking assigned to them in the category of Financial Assistant/Finance Officer or a grievance that their promotions were unduly delayed without any reason, it is up to them to file a representation pointing out their grievances to the State Government. The petitioner, thereafter, filed Ext.P5 representation dated 27.12.1990 addressed to the Chief Secretary to Government of Kerala and the Commissioner and Secretary to Government, Finance Department, followed by Ext.P6 representation dated 21.1.1991 addressed to the Commissioner and Secretary to Government, Finance Department. In Ext.P5, the petitioner projected two main grievances. His first grievance was that though he had completed his probation after undergoing the prescribed training and passing the required departmental tests and had become eligible for regularisation as Divisional Account on 1.5.1970 and O.P.NO.32237/2000 . 3 for regular promotion as Financial Assistant Grade-II (re-designated as Financial Assistant) under the 50% quota reserved for Divisional Accountants, it was after about 10 years of regular service that he was promoted as Financial Assistant Gr-II (re-designated as Financial Assistant) on 2.2.1979 and that there was delay on the part of the State Government in convening the Departmental Promotion Committee for preparing the select list of Divisional Accountants eligible for promotion to the post of Financial Assistant. The petitioner also complained that on account of the delay on the part of the Government in convening the Departmental Promotion Committee, he was not given the promotions due in time. In Ext.P5, the petitioner also stated that though he was entitled to be included in the select list of Divisional Accountants eligible for promotion as Financial Assistant Gr-II (re-designated as Financial Assistant) as early as in November, 1970, the select list has not been prepared even in June, 1984, as a result of which, he was placed below Financial Assistants appointed in June 1984. The second grievance voiced by the petitioner in Ext.P5 representation was that as on 1.4.1982 there were 39 posts of Financial Assistants, that 50% of the posts (19) were reserved for Divisional Accountants, that out of the 19 Divisional Accountants who were O.P.NO.32237/2000 . 4 promoted as Financial Assistants, he was ranked 14, that all the persons directly recruited as Financial Assistants were appointed from August, 1982 onwards in excess of the quota available for direct recruits, that as a result thereof, he came to be lower down in the list, that he is stagnating in the post of Finance Officer Gr-II and that he was entitled to be promoted as Finance Officer Gr-I in January, 1983. In Ext.P6 representation, the petitioner reiterated the contentions set out in Ext.P5. The petitioner thereafter filed O.P.No.3225 of 1991 in this Court aggrieved by the delay in the disposal of Exts.P5 and P6 representations. By Ext.P7 judgment delivered on 22.3.1991, this Court directed the first respondent to consider and pass orders on the said representations as expeditiously as possible. When no action was taken even after Ext.P7 judgment, the petitioner filed O.P.No.3818 of 1992 in this Court complaining that on account of the delay in regularising his provisional promotions, persons who were directly recruited much later as Financial Assistants have been placed above him and promoted to higher posts. The petitioner further contended that if the Departmental Promotion Committee had met and prepared the select lists for promotion to the post of Finance Officer Gr-I and Senior Finance Officer, he would have become entitled to O.P.NO.32237/2000 . 5 earlier promotion. By Ext.P8 judgment delivered on 6.2.1995, this Court directed the Commissioner and Secretary to Government, Finance Department and the State of Kerala, represented by the Chief Secretary to Government, who were respondents 1 and 2 respectively in O.P.No.3818 of 1992, to take immediate steps to convene the Departmental Promotion Committee for regularising the promotions made to the posts of Financial Assistant/ Finance Officer Gr-II and to publish the select list within four months. It was also observed that if on finalisation of the promotion, the petitioner is aggrieved of his ranking in the select list , it will be open to him to challenge it before this Court. 3. As directed by this Court in Ext.P8 judgment, a Departmental Promotion Committee was constituted to regularise the promotions made to the post of Finance Assistant during the period from 1965 to 1994. The select list prepared by the Departmental Promotion Committee was approved by the Government and thereupon, Ext.P9 government order was issued regularising the promotion of the petitioner and others to the post of Financial Assistant. By Ext.P9, the promotion of the petitioner to the post of Financial Assistant was regularised with effect from 7.11.1981. O.P.NO.32237/2000 . 6 In view of Ext.P9 order, the petitioner's seniority over 19 junior officers (direct recruits), who were wrongly placed above him was restored. Though Ext.P9 order was issued regularising the promotion of the petitioner as Financial Assistant with effect from 7.11.1981, the respondents in O.P.No.3818 of 1992 did not take steps to convene the Departmental Promotion Committee for regularising the promotions given to the petitioner as Finance Officer Gr-I and Senior Finance Officer. Aggrieved by the non- implementation of Ext.P8 judgment in full, the petitioner filed C.C.C.No.411 of 1999. When C.C.C.No.411 of 1999 came up for hearing before a Division Bench of this Court, it was submitted on behalf of the Commissioner and Secretary to Government, Finance Department that in view of the orders passed by this Court in another case, there was some difficulty in implementing the directions given in Ext.P8 judgment and that nevertheless steps have been taken to comply with the directions therein. In view of the said submission, C.C.C.No.411 of 1999 was closed by Ext.P10 judgment delivered on 27.9.1999. Thereafter, the State Government issued Ext.P11 order dated 29.4.2000 regularising the provisional promotions granted to the petitioner to the post of Finance Officer Gr-II, Finance Officer Gr-I and Senior Finance O.P.NO.32237/2000 . 7 Officer with effect from 26.6.1982, 6.1.1988 and 16.3.1992 respectively. However, the Government ordered that these promotions will be notional and that the petitioner will not be entitled to get any monetary benefit. Aggrieved by the denial of monetary benefits in Ext.P11, the petitioner, who had in the meantime retired from service on 30.6.1998, sent Ext.P12 letter dated 9.5.2000 to the Chief Secretary to Government and to the Principal Secretary to Government, Finance Department, wherein he questioned the stand taken by the State Government in Ext.P11 that the duties, powers and responsibilities of Finance Officer Gr-II, Finance Officer Gr-I and Senior Finance Officer are different and that as the persons appointed to the said posts have to be on probation for a period of one year on duty within a continuous period of two years, the eligibility for monetary benefits would arise only from the actual date on which the petitioner took charge in the respective posts and not from the date of occurrence of the vacancy. In Ext.P12, the petitioner contended that the powers and duties of Finance Officer Gr-II, Finance Officer Gr-I and Senior Finance Officer are one and the same. Reliance was placed in support of the said contention on G.O.(P) No.7/86/Fin. Dated 1.1.1986 and G.O.(P)No.901/86/Fin, O.P.NO.32237/2000 . 8 dated 15.12.1986. In Ext.P12, the petitioner prayed that monetary benefits may be extended to him with effect from the revised dates of regular promotion mentioned in Ext.P11. By Ext.P14 letter dated 1.8.2000, the Principal Secretary to government, Finance Department informed the petitioner that he is not eligible for monetary benefits as claimed by him. The petitioner has thereupon filed this original petition challenging Ext.P14 and seeking the following reliefs. “(i) to issue a writ of certiorari or any other writ or order calling for the records relating to Ext.P14 and to quash the same. (ii) to declare that the petitioner is entitled to get his pay and pension refixed in the light of the retrospective promotions granted to him as per Ext.P11 and also for all other monetary benefits reckoning his promotions as Finance Officer Gr-II, Grade-I and Senior Finance Officer with effect from 26.6.1982,6.1.1988 and 16.3.1992 respectively. (iii) to issue a writ of mandamus or any other writ or order directing the first respondent to refix the pay and pension of the petitioner reckoning his promotions to the post of Finance Officer Grade -II, Grade-I and Senior Grade with effect from 20.6.1982, 6.11.1998 and 16.3.1992 respectively and to disburse the arrears of pay, pension and other allowances due to him. (iv) to issue a writ of mandamus or any other writ or order directing the 1st respondent to pay O.P.NO.32237/2000 . 9 interest at the rate of 18% per annum to the petitioner on the arrears for its delayed payment.” 4. The main ground raised by the petitioner in the original petition is that his promotions to the post of Finance Officer Gr- II, Finance Officer Gr-I and Senior Finance Officer were held up solely on account of the unduly long delay on the part of the State Government in convening the Departmental Promotion Committee, that the Departmental Promotion Committee had not been convened for a long number of years, that it was only due to the direction issued by this Court in Ext.P8 judgment that the Departmental Promotion Committee was convened, that it was taking note of the petitioner's eligibility that Ext.P11 order was passed regularising his promotion as Finance Officer Gr-II, Finance Officer Gr-I and Senior Finance Officer with retrospective effect and that the stand taken by the respondents in Exts.P11 and P14 that the powers, duties and responsibilities of the three posts are different cannot stand scrutiny in the light of Ext.P13 government order. The petitioner contends that Ext.P13 government order dated 6.5.1992 proves that the duties, responsibilities and powers of Financial Assistant and Finance Officer are one and the same and therefore, on that count, he O.P.NO.32237/2000 . 10 cannot be denied the monetary benefits. 5. A counter affidavit has been filed on behalf of the first respondent contending inter alia that due to various administrative reasons, the Departmental Promotion Committee could not be convened during the period 1965 - 1995, that in the absence of a select list, promotions were being made on a provisional basis during the said period, that the powers and duties of Finance Officer Gr-II, Finance Officer Gr-I and Senior Finance Officer are different and therefore, the petitioner is eligible for monetary benefit only with effect from the actual date on which he started discharging the duties of the said posts. Reliance is also placed on Rule 23 (a) of Part I K.S.R in support of the said contention. The counter affidavit proceeds to state that based on Ext.P11 government order dated 29.4.2000 a direction was issued to the second respondent to revise the petitioner's pay based on the pay revision orders issued during the period from 1983 to 1996 and that as there was no change in the petitioner's pay during the last 23 months prior to his retirement from service, the refixation of pay has no impact on his pensionary benefits. It is also contended that the powers, O.P.NO.32237/2000 . 11 duties and responsibilities of Finance Officer Gr-II, Finance Officer Gr-I and Senior Finance Officer are different and therefore, the Special Rules prescribe probation in each cadre. It is further contended that the prescription of a period of probation in each cadre indicates that there is a change of duty in the three posts. 6. The petitioner has filed a reply affidavit reiterating his contention that promotions legitimately due were not given to him in time. He also contends that the Special Rules prescribing promotions in the three cadres came into force only on 1.4.1991 and that as his grievance regarding the delay in regularisation of the promotion stands redressed by regularising his promotion with effect from 26.6.1982, in the category of Finance Officer Gr- II and with effect from 6.1.1988 in the category of Finance Officer Gr-I, the Special Rules cannot be relied on to deny him retrospective monetary benefits. The reply affidavit proceeds to state that the State Government has not adverted to Ext.P13 government order dated 6.5.1992, which prescribes the duties, powers and responsibilities of Financial Assistants/Finance Officers. 7. I heard Smt. Sreedevi Kylasanath, the learned counsel for the O.P.NO.32237/2000 . 12 petitioner and Sri.N. Manoj Kumar, the learned Government Pleader appearing for the respondents. The learned counsel for the petitioner submitted that the stand taken by the respondents in Exts.P11 and P14 and in the counter affidavit filed on behalf of the first respondent that the powers, duties and responsibilities of Finance Assistants/Finance Officers are different is untenable having regard to the stipulations in Ext.P13 government order. The learned counsel submitted that it was taking note of the petitioner's eligibility that the Departmental Promotion Committee regularised his promotion as Finance Officer Gr-II with effect from 26.6.1984, as Finance Officer Gr-I with effect from 6.1.1988 and as Senior Finance Officer with effect from 16..3.1992. The learned counsel further contended that as there is no change of duty in the promoted posts, the reliance placed on Rule 23(a) of Part I KSR is misconceived and is not tenable. The learned counsel for the petitioner also contended that as the Special Rules were issued in G.O.(P).No.327/1991/Fin. dated 1.4.1991, it cannot govern the regularisation of promotion to the post of Finance Officer Gr-II and Finance Officer Gr-I with retrospective effect from 26.6.1982 and 6.1.1988 respectively and therefore, the respondents cannot rely on the prescription of probation in the Special Rules to contend O.P.NO.32237/2000 . 13 that as probation has been prescribed for the posts separately, it implies a change in the duties. The learned counsel for the petitioner further contend that the Government does not dispute the applicability of Ext.P13 and therefore, the stand taken by the respondents that the powers, duties and responsibilities of Financial Assistants/Finance Officers are different and distinct is untenable. Lastly, the learned counsel for the petitioner submitted that as there is no change in the powers, duties and responsibilities of Financial Assistants/Finance Officers, Rule 23 (c) of Part I KSR would apply and therefore, the promotion given to the petitioner will take effect from the date on which the vacancy arose, thereby entitling him to monetary benefits. The learned counsel for the petitioner also relied on the Division Bench decisions of this Court in Rajappan Nair v. State of Kerala and Others (1984 KLT 141), Sivarajan v. State of Kerala (1993 (2) KLT 287), State of Kerala v. Bhaskaran Pillai (2003 (1) KLT 60), Sucheendran v. State of Kerala (2005 (3) KLT 499) and decision of the Apex Court in State of Kerala and Others v. Bhaskaran Pillai, E.K (ILR 2007 (3) Kerala 107). 8. Per contra, the learned Government Pleader appearing for O.P.NO.32237/2000 . 14 the respondents contended, relying on the Special Rules issued as per G.O.(P) No.327/91/Fin dated 1.4.1991 and Rule 23 (a) of Part I KSR, that as a period of probation has been prescribed for Finance Officer Gr-II, Finance Officer Gr-I and Senior Finance Officer, it implies a change in their duties and responsibilities and therefore, the petitioner is entitled to emoluments in the promoted posts only from the date on which he actually started discharging the functions of that post. The learned Government Pleader placed reliance on the decision of the Apex Court in Soumini v. State Bank of Travancore (2004 (1) KLT 1022). 9. I have considered the rival contentions. The short point that arises for consideration is whether it is Rule 23 (a) of Part I KSR or Rule 23 ( c ) thereof that would govern the case on hand. It is not in dispute that for three decades (1965 to 1995) the Departmental Promotion Committee had not been convened. It was only by the reason of the petitioner approaching this Court by filing O.P.No.3818 of 1992, which resulted in Ext.P8 judgment that the Departmental Promotion Committee was convened for regularising the promotions made to the post of Financial Assistant/Senior O.P.NO.32237/2000 . 15 Finance Officer during the period from 1965-1966 to 1993 - 1994. The petitioner was found eligible to be included in the select list for the post of Finance Officer Gr-II, Finance Officer Gr-I and Senior Finance Officer. Though by Ext.P9, the promotion of the petitioner to the post of Financial Assistant Gr-I (Re-designated as Finance Officer Gr-II) was regularised with effect from 7.11.1981, by Ext.P11, the promotion of the petitioner to the post of Finance Officer Gr-II was regularised only with effect from 26.6.1982, the date on which he was provisionally promoted. It implies that there was a vacancy to accommodate the petitioner in the category of Finance Officer Gr-II as on 26.6.1982. Likewise, the provisional promotion of the petitioner as Finance Officer Gr-I with effect from 14.12.1992 was regularised with effect from 6.1.1988 and the provisional promotion of the petitioner as Senior Finance Officer with effect from 29.6.1996 was regularised with effect from 16.3.1992. It is not in dispute that there were vacancies to accommodate the petitioner in the said three posts on the dates from which his promotions were regularised. It is clear from the findings of this Court in Ext.P8 judgment that the delay in regularising the promotions was solely due to the failure of the State Government to convene the Departmental Promotion Committee. The only O.P.NO.32237/2000 . 16 reason stated in Ext.P11 to deny monetary benefits to the petitioner with effect from the dates on which his promotion as Finance Officer Gr-II, Finance Officer Gr-I and Senior Finance Officer was regularised is that in the Special Rules issued by G.O. (P) No.327/91/Fin dated 1.4.1991, probation had been prescribed for all the three posts and therefore, the duties, powers and responsibilities attached to the three posts are different. This stand is reiterated in Ext.P14. The State does not dispute the averment made by the petitioner in the original petition that Ext.P13 is the government order in force which prescribes the duties and powers of Financial Assistants/Finance Officers. Going by Ext.P13, the powers and duties of Financial Assistants/Finance Officers are one and the same. It is only on the short ground that there is change in the duties, that monetary benefits were denied to the petitioner in Exts.P11 and P14. In the light of Ext.P13 and taking note of the fact that the State Government does not dispute the applicability of Ext.P13, I hold that the powers, duties and responsibilities of Finance Officer Gr-II, Finance Officer Gr-I and Senior Finance Officer are one and the same and that the stand taken in Exts.P11 and P14 is untenable. The other ground stated in Exts.P11 and P14 that the Special Rules prescribe a period of O.P.NO.32237/2000 . 17 probation for the posts of Finance Officer Gr-II, Finance Officer Gr-I and Senior Finance Officer and therefore, the petitioner can claim monetary benefits only from the dates on which he started discharging the duties of the respective posts, is also untenable. The Special Rules were admittedly issued only as per government order dated 1.4.1991. Long before the said order was issued, the petitioner had been promoted though provisionally as Finance Officer Gr-II and Finance Officer Gr-I and he was discharging the duties of the said posts. The petitioner's promotion as Finance Officer Gr-II has been regualised with effect from 26.6.1982, as Finance Officer Gr-I with effect from 6.1.1988 and as Senior Officer with effect from 16.3.1992. It is also not in dispute that vacancies existed on the respective dates against which the promotions given to the petitioner were regularised. The delay in effecting promotion was solely on account of the long delay on the part of the State Government in convening the Departmental Promotion Committee during the period from 1966 to 1995. 10. The consistent view taken by this Court in the decisions referred to and relied on by the learned counsel for the petitioner is that if for no fault of a Government servant, his promotion O.P.NO.32237/2000 . 18 is delayed, the Government Servant is entitled for restoration of the benefits, which he had lost not on account of his conduct or laches but on account of the delay on the part of the State Government. A Division Bench of this Court in State of Kerala v. Bhaskaran Pillai (2003 (1) KLT 60), after an eloborate analysis of the case law held as follows: “22. In short the normal rule must be that where there is no fault on the part of the officer concerned, he must be paid the monetary benefits due to him consequent to the retrospective promotion. In appropriate cases it could be denied to him for valid reasons. In the three categories of cases enumerated in Philomina such benefits cannot be denied to him. The dictum in Philomina cannot be held to be valid any more in view of the decisions of the Supreme Court referred above to the extent that it stipulates a rule of general application that no Government servant is entitled to be paid for which he has not done. This conclusion appears to be inevitable in view of the subsequent declaration of law by the Supreme Court in the decisions referred above.” 11. The decision of this Court in State of Kerala v. Bhaskaran Pillai (supra) was affirmed by the Apex Court in the decision reported in State of Kerala & Others v. Bhaskakran