IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 WP(C).No. 2310 of 2009(Y) ------------------------- PETITIONER: --------------- P.RENUKADEVI JOINT REGIONAL TRANSPORT OFFICER THIRUVANANTHAPURAM. BY ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE SRI.P.K.MANOJKUMAR SMT.SUSHYA RAJAN RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT (FINANCE) SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENRAL (A&E) KERALA M.G.ROAD, P.B.NO. 5607, THIRUVANANTHAPURAM 695 039. 3. THE TRANSPORT COMMISSIONER TRANS TOWERS, VAZHUTHAKAD, THIRUVANANTHAPURAM. R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI. S. ABDUL SALAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2310 of 2009(Y) APPENDIX PETITIONER'S APPENDIX: EXT.P1 : THE PHOTOSTAT COPY OF THE PROMOTION ORDER NO. A3- 836/TC/04 DATED 9.6.2004 ISSUED BY THE TRASPORT COMMISSIONER EXT.P2 : THE PHOTO COPY OF THE OBJECTION STATEMENT LNO. GE21/Mov/c/1444/7104 DATED 17.1.2007 SENT TO THE THIRD RESPONDENT EXT.P3 : PHOTOCOPY OF THE REPRESENTATION DATED 11/2007 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT EXT.P4 : PHOTOCOPY OF THE COMMUNICATION NO. GE21/C/Mov/R- 47/738/197 DT.3.7.2007 SENT BY THE SECOND RESPONDENT TO THE 3RD RESPONDENT EXT.P5 : PHOTOCOPY OF THE COMMUNICATION NO. 11762/C3/2007/TRAN. DATED 31.1.2008 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT EXT.P6 : PHOTOCOPY OF THE RELEVANT CLAUSE RELATING TO EXERCISE OF OPTION ON PROMOTION AS CONTAINED IN THE GOVERNMENT ORDER ACCEPTING THE 8TH PAY REVISION COMMISSION REPORT G.O(P) NO.145/2006/FIN. DATED 25.3.2006 EXT.P7 : PHOTOCOPY OF THE REVIEW PETITION DATED 17.2.2008 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR FINANCE, THIRUVANANTHAPURAM EXT.P8 : PHOTOCOPY OF THE ORDER NO. 19124/PRU-3/08/FIN. DATED 12.8.2008 ISSUED BY THE 1ST RESPONDENT REJECTING ECT.P7 REVIEW PETITION EXT.P9 : PHOTOCOPY OF THE REPRESENTATION DT. 3.9.2008 SUBMITTED BY THE PETITIONER TO THE MINISTER FOR TRANSPORT, THIRUVANANTHAPURAM EXT.P10 : PHOTOCOPY OF THE EXTRACT OF THE FINAL SENIORITY LIST SHOWING THE SENIORITY OF THE PETITIONER DATED 1.1.2005 EXT.P10(a) : PHOTOCOPY OF THE PROCEEDINGS OF THE JOINT TRANSPORT COMMISSIONER APPENDED TO EXT.P10 LIST ORDER NO. A3-243/TC/2005 DT.5.5.2005 RESPONDENTS' EXHIBITS: NIL //TRUE COPY// jma P.S. TO JUDGE K.Vinod Chandran, J. ---------------------------------------- W.P.(C).No.2310 of 2009-Y ---------------------------------------- Dated this, the 21st day of November, 2011 JUDGMENT The petitioner, a Joint Regional Transport Officer, who is due to retire on 31.3.2012, challenges Exhibits P5 and P8 Government Orders rejecting her claim for exercising option to continue in the pre-revised scale in the post of Junior Superintendent, by virtue of Exhibit P6 Government Order and for re-fixation of pay accordingly. 2. The petitioner entered Government service as a Lower Division Typist in the Treasury Department on 17.9.1977 and later on selection by the Public Service Commission shifted to the Public Works Department as Lower Division Clerk on 5.3.1980; from where, by inter-departmental transfer, she came to the Motor Vehicles Department on 13.3.1981 and has been continuing there till date. 3. In the Motor Vehicles Department, she was promoted as Upper Division Clerk on 23.1.1986 and as Head Clerk/Head Accountant on 11.2.1998. She was promoted as Junior Superintendent by Exhibit P1 order dated 9.6.2004 and though Exhibit P1 order states that the promotion is to be provisional, the counsel for the petitioner would contend that Exhibit P10 would WP(C).2310 of 2009-Y - 2 - amply demonstrate that her promotion to the post of Junior Superintendent was approved from the date of Exhibit P1, since she has been granted seniority from that date. The promotion though granted by Exhibit P1 dated 9.6.2004, the petitioner specifically contends that she was relieved only on 5.7.2004 and joined duty in the promotional post on 8.7.2004. The petitioner also has stated about her later promotions to the post of Senior Superintendent, Assistant Secretary of State Transport Authority and Joint Regional Transport Officer, which are not relevant to the dispute raised in the above writ petition. The petitioner's counsel contends that the promotion of the petitioner having been approved from 9.6.2004, the petitioner ought to have been granted the option exercised by her by virtue of Exhibit P6, since Exhibit P6, specifically clause 7(3), prevents only employees promoted on or after 1.7.2004 from exercising option to continue in the pre-revised scale of the lower post beyond the date of such promotion. The petitioner's counsel contends that the fortuitous circumstance by which she was relieved only on 5.7.2004, more than a month after her promotion was made as per Exhibit P1, was only due to the administrative reasons of the Government for which she cannot be held responsible. WP(C).2310 of 2009-Y - 3 - 4. The learned Government Pleader, however, opposes the prayer of the petitioner on the ground that the petitioner having joined duty as Junior Superintendent on 8.7.2004, the petitioner would not be entitled to exercise the option since Exhibit P6 specifically prohibits the same. 5. I have heard learned Senior Counsel Sri.N.Nandakumara Menon as also the learned Senior Government Pleader Sri.S.Abdul Salam. 6. The facts are not in dispute, except the date on which the petitioner was promoted to the post of Junior Superintendent and the resultant eligibility of the petitioner to exercise option by virtue of Exhibit P6 for being continued in the pre-revised pay. Exhibit P1 is a provisional order, promoting 10 persons of whom petitioner is the 9th person and the said order specifically mentions that the promotion is provisional. However, Exhibit P10 seniority list published by the Department would show that her seniority has been taken into account in the promoted post of Junior Superintendent from the date of Exhibit P1, i.e. 9.6.2004. On exercising option under Exhibit P6, though an order accepting the option is not produced, it is revealed from Exhibit P2 that the same was objected to by the office of the Accountant General on the sole ground that the date of promotion of WP(C).2310 of 2009-Y - 4 - the petitioner as Junior Superintendent was 8.7.2004 and hence the petitioner is disentitled from exercising the option in accordance with Caluse 7(3). Exhibit P4 is yet another communication from the office of the Accountant General, which specifically refers to the clarification furnished, vide reference A3/2804/TC/2007 dated 22.2.2007; apparently by the Government, but again not found favour with the Accountant General. It was in this context Exhibits P5 and P8 orders were passed rejecting the claim for option exercised by virtue of Exhibit P6. The subsequent proceedings taken by the petitioner also did not find favour and, therefore, the petitioner is before this Court seeking Exhibits P5 and P8 orders to be set aside and for a declaration that she is entitled to the pay revision as sought by her by virtue of Exhibit P6, since her promotion has to be counted from the date of Exhibit P1, i.e. 9.6.2004. 7. The Government Pleader though would assert that she had joined duty only on 8.7.2004 as a Junior Superintendent, there is no reply to the petitioner's assertion that she was relieved only on 5.7.2004 and hence she joined duty on 8.7.2004. Moreover, the clear admission made by the Government in its counter affidavit dated 13.7.2010 in para 4 is that - WP(C).2310 of 2009-Y - 5 - “The petitioner was relieved from the post of public relations officer only on 05.07.2004, which is purely an administrative matter and the Government has nothing to do with it”. The assertions made in the counter affidavit regarding the date of joining duty, in my opinion, does not have any bearing on the dispute regarding the date of promotion which would decide the entitlement of the petitioner to exercise option in the pre-revised pay as per Exhibit P6. The Government itself having reckoned her date of promotion as 9.6.2004 for the purpose of reckoning seniority, I am of the opinion that for the purpose of exercising option by virtue of a subsequent Government Order, the Government cannot turn round and say that it is the date of joining that has to be reckoned and not the date of promotion. The prohibition contained on Ext.P6 also is with reference to the date of promotion. 8. In the circumstances stated above, it is declared that the petitioner's date of promotion is to be reckoned as 9.6.2004 and the petitioner should not be prohibited from exercising her option in the pre-revised pay by the reason only of the prohibition contained in Clause 7(3) of Exhibit P6 Government Order, since the prohibition is only with respect to those persons promoted after 1.7.2004. However, it is for the Government to consider her claim for the WP(C).2310 of 2009-Y - 6 - pre-revised pay by virtue of Exhibit P6 taking into account all circumstances as also the declaration made by this Court above, which exercise shall be done within a period of three months from the date of receipt of a copy of this judgment. The writ petition is allowed on the following terms: (i) Exhibits P5 and P8 orders of the Government are hereby quashed and set aside. (ii) There will be a declaration that the petitioner's date of promotion is to be reckoned as 9.6.2004 and the petitioner should not be prohibited from exercising her option in the pre-revised pay by the reason of the prohibition contained in Clause 7(3) of Exhibit P6 Government Order, since the prohibition is only with respect to those persons promoted after 1.7.2004. (iii) The petitioner shall immediately on receipt of a copy of this judgment produce the same before the competent authority and the competent authority shall consider the same and pass orders within a period of three months from the date of receipt of a copy of this judgment. K.Vinod Chandran, vku/- Judge.