IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 WP(C).No. 26818 of 2004(P) -------------------------------------- PETITIONERS: ------------------ 1. M.G.RAJU GOPAL, S/O.K.GOPALA PILLAI, SURVEYOR GRADE I, OFFICE OF THE RE-SURVEY SUPERINTENDENT, CHERTHALA, ALAPPUZHA DISTRICT. 2. N.VISHNU NAMBOODIRI, S/O.V.NARAYANAN NAMBOODIRI, SURVEYOR GRADE I, OFFICE OF THE RE-SURVEY SUPERINTENDENT, CIVIL STATION, KOZHIKODE. 3. J.S.RAVI, S/O.N.JAYACHANDRAN, SURVEYOR GRADE I, OFFICE OF THE ASSISTANT DIRECTOR RE-SURVEY, WAYANAD,MEENANGAD VIA, WAYANAD DISTRICT. BY ADV. SRI.M.V.THAMBAN RESPONDENTS: ----------------------- 1. THE SURVEY SUPERINTENDENT(RE-SURVEY), CHERTHALA. 2. SURVEY SUPERINTENDENT (RE-SURVEY), KOZHIKODE. 3. THE ASSISTANT DIRECTOR(RE-SURVEY), WAYANAD. 4. THE DIRECTOR, SURVEY & LAND RECORDS, THIRUVANANTHAPURAM. 5. THE SURVEY SUPERINTENDENT (RE-SURVEY) KALPETTA, WAYANAD DISTRICT. 6. STATE OF KERALA, REP. BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SPL. GOVERNMENT PLEADER SRI.MANOJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2008, ALONG WITH WPC. NO.12425, 11676/2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.26818/2004 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE FIXATION DT. 26.3.04 IN RESPECT OF 3RD AND 2ND PETITIONER THE 5TH RESPONDENT. EXT.P2:- COPY OF THE PROCEEDINGS NO.A1-133/04 DT. 19.7.04 BY THE 5TH RESPONDENT. /TRUE COPY/ P.A. TO JUDGE tss K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) Nos.26818 of 2004 & 11676 & 12425 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of January, 2008 JUDGMENT Common questions arise in these writ petitions and they are disposed of by a common judgment. 2. Petitioners in W.P.(C) Nos. 26818 of 2004 and 11676 of 2005 were working as Surveyor Grade- II. They were given promotion on various dates. Thereafter Government ordered notional promotion with respect to dates anterior to the dates of actual promotion. They were paid difference in pay on the basis that they are entitled to difference in pay consequent upon their being entitled to promotion from earlier dates. Steps have been taken to recover the excess pay on the basis that the petitioners got the difference in pay even though they were not worked from the dates on which they were given notional promotion. 3. In W.P.(C) 12425 of 2005, petitioner No.1 is similarly placed as the petitioners in the other writ petitions, and recovery is started against him. As far as the third petitioner is concerned, his complaint is that though he was given notional promotion as Surveyor Grade I from an earlier date, he is not given difference in pay which he is entitled to under Rule 23 WPC. 26818/04 & con.cases. 2 (c) of Part I Kerala Service Rules. Rule 23(c) of Part I K.S.R. Reads as follows: “23(c) Promotions which do not involve a change of duties shall have effect from the date of the vacancy which occasions the promotion.” Interpretation to the said provision is no longer res integra as it received construction at the hands of a Division Bench of this court in Sucheendran M.K. v. State of Kerala (2005(2) K.L.J. 401). The Division Bench held as follows: “There is no question of 'no work' in the promoted post. The matter is covered by the service rules, Rule 23(c). There is a clear provision in the service rules that promotions which do not involve a change of duties should be given effect from the date on which the vacancy arose. Here, there is no change of duties. It is only promotional aspect with a change of salary alone and for no fault of the petitioner, he was denied promotion at the particular date.” 4. In the light of this pronouncement by the Division Bench, the petitioners are entitled to succeed. But the learned Special Government Pleader (Finance) Sri. Manoj would contend that what is done in this case is only the ordering of a notional promotion from earlier dates and this may be WPC. 26818/04 & con.cases. 3 done on the basis of court direction or on the basis of revision of seniority. Special Government Pleader points out that while it may be true that if there are vacancies in the lower post and promotion is ordered with reference to those dates and there is no change of duty, the person will be entitled to pay attached to the promoted post from the date of the vacancy. He refers to the counter affidavit filed in W.P.(C) 26818 of 2004 to show that actually the vacancies were not there. 5. A reply is no doubt filed by the petitioners. 6. Whenever notional promotion is granted, it cannot be an inexorable rule that the person is entitled to higher pay with reference to the date on which the notional promotion is ordered. It will depend upon the facts and circumstances of each case as held by the Division Bench in the decision referred to above. But Rule 23(c) clearly provides an exception to the general principle that when there is no work, there cannot be pay. This is apparently for the reason that as held by the Division Bench, when a person is promoted to a post, where there is no change of duty, he must be deemed to be working from the day on which the vacancy arises in the higher post. In other words, cases where there are vacancies in the higher cadre and when there is no change in the duty constitute an exception to the WPC. 26818/04 & con.cases. 4 rule 'no work, no pay'. It makes it clear that in a case where there are vacancies and promotion is ordered notionally and there is no change of duties, the employee will be entitled to the higher pay attached to the promotional post from the date of the notional promotion. In the nature of the pleadings, I think that the matter has to receive reconsideration. 7. Learned Government Pleader also presses Ext.R1(a) Government Order dated 12.7.2000 to contend that after considering Rule 23(c), Government has clarified that there cannot be higher pay. It is contended by him that there is no challenge to the said order. He would also submit that the Division Bench did not consider the said Government Order when it pronounced its verdict. Rule 23(c) is a statutory provision and it cannot be said that Government order can go against the statutory rule and it is the case of the learned Government Pleader that it is not contrary also. Rule 23(c) has been interpreted by the Division Bench and there is no dispute also that in a case where there in identity of duties in the lower post and higher post the promoted employee is entitled to higher pay from the date of occurrence of the vacancy in the higher post. In such circumstances, I feel that the matter has to receive the attention of the authority. The impugned orders, that is, Ext.P2 in W.P.(C) 26818/2004 and WPC. 26818/04 & con.cases. 5 Exts.P7, P8 and P9 in W.P.(C) 11676 of 2005 are quashed and there will be a direction therein to the first respondent in W.P.(C) 11676 of 2005 and sixth respondent in W.P.(C) 26818 of 2004 to take a decision in the matter in the light of the decision of the Division Bench reported in Sucheendran M.K.'s case (2005(2) K.L.J. 401) after affording an opportunity of hearing to the parties. 6. W.P.(C) No. 12425 of 2005 is allowed and Exts.P1 and P2 are quashed, and the matter will be considered by the first respondent in the light of the judgment reported in Sucheendran M.K's Case after affording an opportunity of hearing to the parties. A decision will be taken within a period of two months from the date of receipt of a copy of this judgment. The claim of the third petitioner will also depend upon the decision to be taken by the Government. (K.M. JOSEPH, JUDGE) sb