IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 WP(C).No. 11507 of 2007(T) ------------------------------------- PETITIONER : ----------------------- M.SANTHAMMA PILLAI, RETIRED ADDITIONAL DIRECTOR OF TOURISM, A3, SANTHI, SREERANGAL LANE, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM-10. BY ADV. SRI. P.R.VENKETESH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (TOURISM A) DEPARTMENT, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TOURISM, DEPARTMENT OF TOURISM, GOVT. OF KERALA, THIRUVANANTHAPURAM. 3. THE SENIOR ACCOUNTS OFFICER, INDIAN AUDIT AND ACCOUNTS DEPARTMENT, OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA, M.G.ROAD, PB NO.5607, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SRI. NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- WP(C).No. 11507 of 2007(T) APPENDIX PETITIONER'S EXHIBITS: EXT P1: COPY OF THE JUDGMENT OF THE DIVISION BENCH IN WA 78 AND 79 OF 1992 VIDE JUDGMENT DATED 24.01.1992. EXT P2: COPY OF THE ORDER DATED 14.07.2000 IN SLP © 2543-44 OF 1992. EXT P3: COPY OF THE ORDER PASSED BY THE GOVERNMENT DATED 19.08.2004. EXT P4: COPY OF THE LETTER OF DIRECTOR OF TOURISM VIDE COMMUNICATION DATED 06.11.2004. EXT P5: COPY OF THE REPRESENTATION SENT BY PETITIONER DATED 22.11.2004. EXT P6: COPY OF THE ORDER DATED 05.01.2005. EXT P7: COPY OF THE LETTER OF THE DIRECTOR OF DEPARTMENT OF TOURISM DATED 06.05.2006. EXT P8: COPY OF THE COMMUNICATION DATED 03.03.2006 FROM THE ACCOUNTANT GENERAL. RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P.A.TO JUDGE DSV/- S.SIRI JAGAN, J. ================== W.P.(C).No. 11507 of 2007 ================== Dated this the 10th day of November, 2011 J U D G M E N T The petitioner originally entered service in the Department of Tourism on 18.10.1965 pursuant to advice by the Public Service Commission as a Receptionist. The petitioner joined duty in the Mascot Hostel, which was then part of the Tourism Department of the Government of Kerala. Subsequently, the Government handed over the Mascot Hotel to the Kerala Tourism Development Corporation (KTDC), which was a separate entity. The petitioner was given an option either to continue in the KTDC or to revert to the Department of the Tourism of the Government of Kerala. The petitioner opted to revert to the Department of Tourism. But there was delay in granting the petitioner a posting in the Department of Tourism. Ultimately, pursuant to the orders from this Court, the petitioner rejoined the Department of Tourism as a Receptionist on 6.4.1973. The petitioner was the senior most Receptionist at that time. While so, a vacancy of Tourist Information Officer in the gazetted rank arose on 1.6.1979. The feeder category for the post was receptionists. None in the feeder category was qualified. The petitioner being the senior most in the feeder category, was appointed as the Tourist Information Officer with effect from 27.6.1985. But the petitioner was also not qualified to be w.p.c.11507/07 - : 2 :- so appointed. The petitioner actually obtained the necessary qualifications only on 9.4.1987. In the meanwhile, somebody junior to the petitioner who obtained necessary qualification on 27.6.1985 challenged the continuance of the petitioner in that post. A learned Single Judge of this Court in O.P.No.6739/1988 upheld the claim of that person who became qualified on 27.6.1985. The petitioner's appeal against the judgment was dismissed by Ext.P1 judgment in W.A.Nos.78 and 79 of 1992. The petitioner approached the Supreme Court and obtained a stay of reversion. While the matter was pending before the Supreme Court, the petitioner was further promoted as Joint Director and Additional Director. But ultimately, by Ext.P2 order, the stay granted by the Supreme Court was vacated. The Special Leave Petition was also dismissed. In the meanwhile, the petitioner retired from service on 31.8.1998. The Government thereafter passed Ext.P3 order on 19.8.2004 implementing the judgments referred to above by notionally reverting the petitioner with retrospective effect from 27.6.1985 and promoting the petitioner as Tourist Information Officer with effect from 9.4.1987. By Ext.P3 order the excess salary drawn by the petitioner on account of erroneous promotions was directed not to be recovered. But the petitioner's retirement benefits were fixed in accordance with the orders so passed. The petitioner filed a review petition, which was rejected by Ext.P6 order. Consequentially, w.p.c.11507/07 - : 3 :- the Accountant General passed Ext.P8 computation of the pay of the petitioner. The petitioner is challenging Exts.P3, P6, and P8 orders seeking the following reliefs: a. issue a writ in the nature of certiorari quashing Exhibits P3, P6 and P8. b. issue a writ in the nature of mandamus commanding the Government to issue notice to the petitioner or any proposal entertained by the Government for refixation of pensionary benefits drawn by the petitioner if the same is required for the purpose of complying with the directions of Hon'ble Supreme Court as contained in Exhibit P2 Judgment. c. Issue a writ in the nature of mandamus commanding the respondents to refrain from refixing the pensionary benefits being drawn by the petitioner since the date of her superannuation except after compliance with relief (b) above and in accordance with law.” 2. A counter affidavit has been filed by the 2nd respondent supporting the impugned orders. 3. I have considered the rival contentions in detail. 4. Admittedly, the petitioner did not have the requisite qualification for promotion to the post of Tourist Information Officer when the petitioner was promoted. The petitioner's junior obtained necessary qualifications on 27.6.1985. The petitioner obtained qualification only on 9.4.1987. The claim of the junior of the petitioner was upheld by this Court and the Supreme Court. Therefore, the natural consequence of those judgments is that the petitioner is liable to be reverted to the post of Receptionist with effect from 27.6.1985. But on account of fortuitous circumstances, the petitioner was able to w.p.c.11507/07 - : 4 :- cling on to the post and was even favoured with further promotions. But certainly, notwithstanding her subsequent retirement, the judgments of this Court and Supreme Court have to be given effect to. That only has been directed by Ext.P3 order. In fact the petitioner was fortunate enough that the Government decided not to recover the excess salary drawn by the petitioner due to erroneous promotions. The learned counsel for the petitioner submits that that was pursuant to the direction of the Supreme Court. Whatever that be, the fact remains that the judgments had to be given effect to and consequently, the petitioner had to be reverted with effect from 27.6.1985. The natural consequence is that the petitioner's retirement benefits have to be computed in accordance with Ext.P3 order. Of course, the petitioner has a contention that Ext.P8 computation is without affording an opportunity of being heard to the petitioner. The petitioner contends that computation by Ext.P8 is wrong. But I find that Ext.P8 computation was done by the Accountant General, who is the competent authority to do that. The Accountant General cannot be expected to hear an employee while fixing pay of government servant consequent to judgments of this Court. In this writ petition the petitioner has not pointed out any specific discrepancies in the computation in Ext.P8 also. In the above circumstances, this writ petition is dismissed upholding Exts.P3 and P6. With the materials on w.p.c.11507/07 - : 5 :- record I am not inclined to interfere with Ext.P8 also. If the petitioner has any grievance regarding Ext.P8, it is open to the petitioner to take appropriate steps in accordance with law. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge