IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 29242 of 2008(F) ---------------------------------------- PETITIONER(S): -------------------------- P.M.RAVINDRAN (RETIRED ADMINISTRATIVE ASSISTANT, OFFICE OF THE DEPUTY INSPECTOR GENERAL OF POLICE, THRISSUR RANGE, THRISSUR), POOLOTH HOUSE, THIROOR, MULANKUNNATHUKAVU PO., THRISSUR DISTRICT. BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, MR.K.A.BALAN, MR.PETER JOSE CHRISTO, MR.S.A.ANAND. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM, 695 010. R1 & R2 BY GOVERNMENT PLEADER MR. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29242/2008 F APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION IN G.O.(P) NO.99/2007/HOME DTD. 11/05/2007. EXT.P2: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO GOVERNMENT. EXT.P3: COPY OF THE LETTER NO.A5/47790/2007 DTD. 4/07/2007 OF THE 2ND RESPONDENT. EXT.P4: COPY OF THE GOVERNMENT LETTER NO.49959/H2/2007/HOME DTD. 26/10/2007 ADDRESSED TO THE DIRECTOR GENERAL OF POLICE. EXT.P5: COPY OF THE REPRESENTATION DTD. 16/01/2008 SUBMITTED BY THE PETITIONER BEFORE GOVERNMENT. EXT.P6: COPY OF THE G.O.(RT) NO.3222/2007/HOME DTD. 28/11/2007. EXT.P7: COPY OF THE G.O.(RT) NO.1335/2004/HOME DTD. 18/06/2004. EXT.P8: COPY OF THE GOVERNMENT LETTER NO.21054/H2/2008/HOME DTD. 26/05/2008 ADDRESSED TO THE DIRECTOR GENERAL OF POLICE. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.29242/2008-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 17th day of February, 2009 J U D G M E N T The petitioner retired from service as Administrative Assistant in the office of the Deputy Inspector of Police, Thrissur, on 28/02/2007. The petitioner was aspiring for promotion as Senior Administrative Assistant, which is a selection post. In the select list (Ext.P1), he was included as serial No.2 for promotion to the post of Senior Administrative Assistant for the year 2005 (for the vacancies in 2006). 2. A vacancy arose in the year 2006, consequent on the retirement of Sri.M.Rajasekharan Nair, Senior Administrative Assistant on 31/08/2006. 3. Ext.P1 shows that the Departmental Promotion Committee (Higher) met on 24/01/2007 and the select list was published only on 19/05/2007. It is patently because of the delay in convening the D.P.C that the proceedings was delayed and, therefore, the petitioner could not obtain promotion prior to his retirement. 4. Subsequent to his retirement from service, he filed Ext.P2 representation seeking for grant of notional promotion with effect from 01/09/2006. One Smt.Ambika Kumari who was serial No.1 in the said list W.P.(C) No.29242/2008 -:2:- was promoted in a vacancy which arose in 01/07/2006, consequent on the retirement of Sri.T.Rajan, Senior Administrative Assistant on 30/06/2006, even though the same was ordered subsequent to his retirement. By Ext.P3 his representation was forwarded by the Director General of Police to the Government. It was pointed out therein that a vacancy arose on 01/09/2006 consequent on the retirement of Sri.M.Rajasekharan Nair on 31/08/2006. It was further pointed out that he is eligible to be promoted as Senior Administrative Assistant with effect from 01/09/2006, but he could not be promoted due to the procedural delay in convening Departmental Promotion Committee and the publication of the select list as per G.O. dated 11/05/2007. 5. But by Ext.P4, a reply was given by the Government declining the request for notional promotion. It is stated that notional promotions are ordered under exigencies of service owing to retrospective revision of seniority and also based on Court directions or in cases where the officers have been superseded by the Juniors. Again the petitioner submitted Ext.P5 representation before the Government which was rejected by Ext.P8 order. 6. The petitioner has produced Exts.P6 and P7 to show that in respect of other Officers promotions have been granted to the very same posts. In Ext.P7 notional promotion was ordered in respect of one Sri.J.Joy. 7. In the counter affidavit, the stand taken is that the existence of W.P.(C) No.29242/2008 -:3:- vacancy will not vest any right to an employee for promotion against that vacancy. It is admitted that his promotion was delayed on account of the non-convening of the D.P.C due to administrative reasons. It is also stated that claim for notional promotion is justified only under certain conditions like retrospective revision of pay scale in the lower category, Court directions and supersession of the original seniority by a junior and, the case of the petitioner does not come under any of the above categories. 8. In paragraph (7) of the counter affidavit, it is admitted that the Sri.J.Joy who was serial No.1 in select list for the vacancies in the year 2002 was eligible to be promoted against a vacancy that arose on 01/03/2002. He retired from service on 30/04/2002. Even though there was a proposal for temporary promotion under consideration of the Government before the issuance of the order he retired from service, thereafter, he was notionally promoted with effect from 01/03/2002. It is stated that the case of the petitioner is not similar to that of Sri.J.Joy. But going by the facts of the case, the said stand taken cannot be accepted. There is no material difference between these two. The petitioner could claim notional promotion only after retirement, as the select list was published only in May 2007. Therefore, the contention that he claimed notional promotion only after retirement cannot have any merit. As regards one Smt.R.Syamalakumari and Smt.K.Sakunthala, what is stated in paragraph W.P.(C) No.29242/2008 -:4:- (9) is that as their case was very hard and genuine as the incumbents were to retire within a period of six months and there were not a large number of seniors to be promoted. 9. Going by the facts of the case, petitioner cannot be denied the benefit of notional promotion sought for. It is admitted that the meeting of the D.P.C was delayed due to administrative reasons. Going by the Rules they should have met sufficiently earlier and if so, the select list would have been published before the end of the previous year. Herein, the list was published only on 19/05/2007. Therefore, the contention that the petitioner cannot claim notional promotion after retirement on the ground that there existed a vacancy prior to his retirement cannot be accepted. As regards the vacancy position also, in the vacancy which arose in 01/07/2006 consequent on the retirement of Shri.T.Rajan, Smt.Ambika Kumari who was Sl.No.1 in Ext.P1 was promoted as Senior Administrative Assistant per order dated 26/06/2007. Even though it is submitted in the counter affidavit that the petitioner cannot claim promotion as a matter of right, it is evident from the facts stated that the other persons have been chosen for promotion. In that view of the matter, it is not a case where the petitioner could be denied it on the ground that he has no vested right. But as a matter of fact, the Government has been conveniently conferring the benefit to other persons in whose case also the promotion was delayed. W.P.(C) No.29242/2008 -:5:- 10. For all these reasons, the stand taken that notional promotion cannot be granted, as reflected in Exts.P4 and P8, is untenable. The case of Sri.J.Joy is identical with that of the petitioner. There also, there is no retrospective revision of seniority or court directions. Therefore, the petitioner is also entitled for similar treatment. 11. The writ petition is allowed. Exts.P4 and P8 are quashed. Appropriate orders granting notional promotion to the petitioner as Senior Administrative Assistant with effect from 01/09/2006 will be issued and the consequential benefits by revision of pension and other retirement benefits will be disbursed without any further delay. Appropriate orders shall be passed within two months from the date of receipt of the copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) ms