IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 WP(C).No. 26217 of 2010(S) -------------------------- OA.691/2008 of CATL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- THULE GOPAL WASUDEO, AGED 42 YEARS, S/O.WASUDEO, SENIOR CLERK, FISHERY SURVEY OF INDIA BOTAWALA CHAMBERS, SIR P.M.ROAD, MUMBAI-400 001, RESIDING AT 001/D, GROUND FLOOR, MAHALAXMI APARTMENTS, OPPOSITE: RANU GAS GODOWN, MAHALAXMI NAGAR, AMBERNATH, THANA DISTRICT, MAHARASHTRA. BY ADV. SRI.T.C.GOVINDA SWAMY RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF AGRICULTURE, DEPARTMENT OF ANIMAL HUSBANDRY & DAIRYING, KRISHI BHAVAN, NEW DELHI. 2. THE DIRECTOR GENERAL, FISHERY SURVEY OF INDIA, BOTAWALA CHAMBERS, SIR P.M.ROAD, MUMBAI-400 001. 3. THE ZONAL DIRECTOR, COCHIN BASE OF FISHERY SURVEY OF INDIAN, POST BOX NO.853, KOCHI-682 005. 4. SMT.K.K.AMBIKA, SENIOR CLERK, MORMUGAO BASE OF FISHERY SERVEY OF INDIA, POST BOX NO.5, OPPOSITE: MICROWAVE TOWERS, MORMUGAO, GOA-403 803. R1 TO R3 BY SRI.T.P.M.IBRAHIM KHAN,ASST.S.G THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- W.P(C).No.26217 OF 2010 ------------------------------------------- Dated this the 20th day of August, 2010 JUDGMENT 1.The petitioner, an employee of the Fishery Survey of India, was posted in Cochin. While working in the Cochin office, an issue arose as to whether he was eligible for being considered for promotion to the category of UDC. The issue was as to whether a Hindi Typist should be treated as equivalent to an LDC. The petitioner moved the Ernakulam Bench of the Central Administrative Tribunal. The Tribunal held that the post of Hindi Typist is on par with Junior Clerks/LDC and accordingly ordered a review DPC. Review DPC was held and it was observed that the petitioner was eligible to be promoted. As a result, Smt.K.K.Ambika, the 4th respondent herein, who stood promoted at an earlier point of time, was reverted to provide room to accommodate the petitioner. After so promoted to the category of UDC, the petitioner was transferred to Mumbai. A question then arose as to whether WPC.26217/10 2 the promotion of the petitioner is to be made with effect from the date on which Smt.K.K.Ambika, his admitted junior, was promoted. The petitioner made different representations. Going by the stand of the establishment, though they would attempt to justify their view in the matter, admittedly, they did not issue any order on any of the representations of the petitioner in this regard. Ultimately, the petitioner moved the Ernakulam Bench of the Tribunal for relief. The Tribunal, however, held that the representations having been made while the petitioner was working in Mumbai and he being stationed in Mumbai, the jurisdiction of the Ernakulam Bench of the Tribunal could not be invoked. It was also held that the claim is barred by limitation. 2.Having heard learned counsel for the petitioner and learned Additional Solicitor General, we are of the view that the findings of the learned Tribunal are totally misplaced. For one thing, the right of the applicant, if any, to claim eligibility for promotion with effect from the date on which Smt.K.K.Ambika WPC.26217/10 3 stood promoted was an issue that arose while he worked in Cochin. He was kept out of the zone of consideration at the first instance on the ground that he is only a Hindi Typist. He agitated that issue before the Ernakulam Bench and pursuant to the directions of the Ernakulam Bench, his case was considered in a review DPC. That was also done while he was working in Cochin. Therefore, the question of promotion of the petitioner as UDC was an issue which arose, and he was considered for such promotion, while he worked in Cochin. His transmission from Cochin to Mumbai came only as a transfer generated following his promotion as UDC. Therefore, we are of the clear view that the Ernakulam Bench of the Tribunal had the jurisdiction to decide on the matter. 3.On the question of limitation, as submitted on behalf of the establishment, there is nothing on record to show that the petitioner's representations referred to in paragraph 4 of the Original Application have been answered by communicating any decision to the employee. When an employee makes WPC.26217/10 4 representations making certain claims, the establishment has to take a decision, if necessary, after hearing the employee and communicate the decision to him. It is only thus that a representation gets ultimately disposed of. We may also recall that in terms of Section 20 of the Administrative Tribunals Act, an employee has to first take recourse to the other available remedies before approaching the Tribunal. Under such circumstances, we are of the view that the plea of the question of limitation is also misplaced. We, therefore, vacate the order of the Tribunal. 4.With this, we would have normally remitted the matter to the Tribunal for consideration further on merits in relation to the pleadings on board. However, in view of Section 20 of the Act, it is necessary that the establishment takes a decision on the representations of the petitioner and communicates it to him before he gets enabled to move the Tribunal, if ultimately that becomes necessary. WPC.26217/10 5 5.For the aforesaid reasons, preserving all rights of the petitioner, this writ petition is allowed vacating all findings in the impugned order and setting aside Ext.P1 order and further, directing respondents 1 to 3 to ensure that the representations of the petitioner referred to in the Original Application in relation to the relevant issue are taken up by the competent authority and disposed of in accordance with law. We may also state that having regard to the fact situation, there is no reason why the petitioner should be refused the benefit claimed by him since an erroneously refused promotion would at least generate entitlement to claim benefits, at least notionally. Let a decision be taken and communicated to the petitioner within a period of four months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.6/08.