IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 OP.No. 24531 of 2001(U) ---------------------------------- PETITIONER: ------------------- V.J.ISSAC, JOINT DIRECTOR OF ECONOMICS AND STATISTICS AT PRESENT WORKING AS JOINT DIRECTOR, DIRECTORATE OF ANIMAL HUSBANDRY, VIKAS BHAVAN, THIRUVANANTHAPURAM. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP.BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF ECONOMICS AND STATISTICS, VIKAS BHAVAN, (5TH FLOOR), THIRUVANANTHAPURAM- 33. BY GOVERNMENT PLEADER SRI.P.A.SALIM THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/01/2008, THE COURT ON 18/01/2008 DELIVERED THE FOLLOWING: OP. NO.24531/2001 ORDER ON CMP. NO.40131/2001 IN OP. NO.24531/2001 DISMISSED 18.01.2008 SD/- P.N.RAVINDRAN , JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION NO.16882/B3/97/PLG., DT. 4.12.98 OF THE CONVENER, DEPARTMENT PROMOTION COMMITTEE(HIGHER). EXT.P2:- COPY OF THE G.O.(RT) NO.7/99/PLG. DT. 4.1.88. EXT.P3:- COPY OF THE G.O.(MS) NO.652/2001/(103)/FIN. DT. 30.3.2001. EXT.P4:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DT. 7.4.01. EXT.P5:- COPY OF THE LETTER NO.EB(1)17622/2001/DES., DT. 2.8.01 OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS EXT.R1(a):- GOVT. LR.NO.5361/B3/2001 PLG. DT. 23.7.01. EXT.R1(b):- GOVT.LETTER NO.66045/PRC:C1/2001 FIN DT. 6.8.01. EXT.R2(a):- COPY OF THE GOVT. LETTER NO.5361/B3/2001 PLG. PLANNING AND ECONOMIC AFFAIRS DT. 23.7.01. EXT.R2(b):- COPY OF THE GOVT.LETTER NO.66045/(PRC:C) /2001 FIN DT. 6.8.01 FINANCE (PRC:C) DEPARTMENT. /TRUE COPY/ P.S. TO JUDGE tss P.N.Ravindran, J. =============== O.P.No.24531 of 2001 =============== Dated this the 18th day of January, 2008. JUDGMENT The petitioner entered service as Research Officer in the Department of Economics and Statistics. In due course, he was promoted as Assistant Director and Deputy Director. The next higher post in the Department of Economics and Statistics is that of Joint Director. The post of Joint Director in the Economics and Statistics Department is a selection post. A vacancy of Joint Director arose on 31.10.1998 on the retirement of Sri. R.Mohandas, who was working as Joint Director, Western Ghat Cell in the Planning and Economic Affairs Department. 2. The Departmental Promotion Committee (hereinafter referred to as "the D.P.C.") that met on 17.9.1998 and 13.10.1998 finalised the select list of Deputy Directors eligible for promotion to the category of Joint Director, in respect of the vacancies that arose during various years. In the select list for OP 24531/01 -: 2 :- the year 1998, the petitioner was ranked as serial No.5. The select list was approved by the Government as per Ext.P1 notification dated 4.12.1998 published in the Kerala Gazette Extraordinary dated 10.12.1998. Pursuant to Ext.P1 notification, the petitioner was promoted to the post of Joint Director and posted as Joint Director, Planning & Economics Affairs (Western Ghats Cell) Department, as per Ext.P2 order dated 4.1.1999. Ext.P2 discloses that on promotion as Joint Director, the petitioner was placed in the revised scale of pay of Rs.10,000 - 15,150. The petitioner joined duty as Joint Director on 7.1.1999. 3. Prior to the 1997 pay revision, Joint Directors in the Department of Economics and Statistics were in the scale of pay of Rs.3900-5075. As per the pay revision ordered by G.O.(P) No.3000/98/Fin dated 25.11.1998, Joint Directors in the Economics and Statistics Department were categorised as Senior Joint Directors and Joint Directors, and placed in the revised scale of pay of Rs.12600-15600 and Rs.10000-15150 respectively. Since Joint Directors who were in office prior to 25.11.1998 in the pre-revised scale of Rs.3900-5075 were not placed in the OP 24531/01 -: 3 :- scale of pay of Senior Joint Directors (Rs.12600-15600), they represented to the Government and the Government thereupon issued Ext.P3 Government Order dated 30.3.2001. By Ext.P3 order, the State Government ordered that those Joint Directors in the Economics and Statistics Department, who were in the pre- revised scale of pay of Rs.3900-5075 and were holding the post of Joint Director between 1.3.1997 and 25.11.1998 will also be allowed the corresponding revised scale of pay of Rs.12600- 15600 with effect from 1.3.1977 or from the date of assumption of charge as Joint Director. 4. The petitioner thereupon submitted Ext.P4 representation dated 7.4.2001 to the Secretary to Government, Planning and Economic Affairs Department stating that he was denied the scale of pay of Rs.12600-15600 on promotion to the post of Joint Director ordered as per Ext.P2, due to the delay in preparing and finalising the select list for the year 1998. In Ext.P4, the petitioner contended that the vacancy of Joint Director against which he was promoted, arose on 31.10.1998 on the retirement of the incumbent and that his promotion was delayed since there was no select list for the post. The petitioner OP 24531/01 -: 4 :- further contended in Ext.P4 that it was solely on account of the delay in preparing the select list that he was not promoted as Joint Director prior to 25.11.1998 and hence, he is entitled to notional promotion as Joint Director with effect from 1.11.1998 and to be placed in the scale of pay of Rs.12600-15600. By Ext.P5 letter dated 2.8.2001, the State Government rejected the petitioner's request stating that "It is not mandatory to regularise the promotions with retrospective effect from the date of occurrence of vacancy or date of assignment of vacancy by the Departmental Promotion Committee as promotions cannot be claimed as a matter of right." The petitioner has, in this original petition, challenged Ext.P5 and sought the following reliefs: "i. issue a writ of certiorari or any other appropriate writ order or direction calling for the records leading to Ext.P5 and quash the same; ii. declare that the petitioner was entitled to promotion as Joint Director with retrospective effect from 1.11.98 and to get all consequential service benefits including higher scale sanctioned by Ext.P3; iii. issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to give the promotion of the petitioner OP 24531/01 -: 5 :- as Joint Director retrospective effect from 1.11.98 and give him all consequential service benefits including higher scale of Rs.12,600-15,600 sanctioned by Ext.P3 within a time limit to be fixed by this Hon'ble Court; iv. declare that those who were entitled to promotion as joint Director between 1.3.97 and 25.11.98 are also entitled to the higher scale of Rs.12,600-15,600 sanctioned by Ext.P3 and that the condition in Ext.P3 limiting it to those who were holding the post between 1.3.97 and 25.11.98 is void being arbitrary and discriminatory; v. issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to allow the petitioner the scale of pay of Rs.12,600-15,600 as personal with effect from 1.11.98 within a time limit to be fixed by this Hon'ble court." 5. I have heard Sri.S.P.Aravindakshan Pillay, the learned counsel appearing for the petitioner and Shri.P.A.Salim, the learned Government Pleader appearing for the respondents. The learned counsel for the petitioner submitted that as the vacancy of Joint Director against which the petitioner was promoted was a retirement vacancy that arose on 31.10.1998, under Rule 28(b) OP 24531/01 -: 6 :- (i)(4) (a) and (d) of the Kerala State & Subordinate Services Rules, 1958, (hereinafter referred to as "the K.S. & S.S.R.") it was obligatory on the part of the State Government to take steps to prepare the select list of officers eligible for promotion to the post of Joint Director even in the year 1997 and that the D.P.C. had to be convened during September/October, 1997, the select list prepared and notified before 30.11.1997 and in any case not later than 31.12.1997. The contention of the learned counsel for the petitioner is that it was on account of the failure of the State Government to act in accordance with the aforesaid provisions of the K.S. & S.S.R. that his promotion to the post of Joint Director was delayed till December, 1998 resulting in denial of the benefits granted under Ext.P3 to him. This contention is reflected in ground 'C' of the original petition. 6. The learned Government Pleader appearing for the respondents on the other hand contended that there was no select list in force for promotion to the post of Joint Director, that as per circular dated 15.12.1997, the State Government had imposed a ban on temporary appointments/promotions from 1.1.1998 onwards, that the State Government had in the said OP 24531/01 -: 7 :- circular noticed that resort to provisional appointments under Rule 9(a)(1) or Rule 31(a)(1) of the K.S. & S.S.R. had resulted in the promotion of persons who have no merit and ability to selection posts purely on the basis of seniority, thereby leading to deterioration in the level of efficiency, that it was to avoid such a situation that the Government had banned temporary promotions, that no emergent situation existed to resort to provisional promotion to the category of Joint Director, that there are 10 categories of posts in the Directorate out of which, six categories of posts, namely, Additional Director, Joint Director, Deputy Director, Assistant Director, District Officer/Regional Officer and Administrative Assistant are selection posts, that preparation of select list requires collection and scrutiny of confidential reports of the persons eligible for promotion, that the D.P.C. could not meet during the previous years due to exigencies of administration and that after the D.P.C. met on 17.9.1998 and 13.10.1998 there was no delay in finalising the select list and in promoting the petitioner to the higher post. The learned Government Pleader also contended that the petitioner was never placed in the pre-revised scale of Rs.3900-5075 and OP 24531/01 -: 8 :- hence, he does not come within the category of officers named in Ext.P3. The learned Government Pleader pointed out that the benefits under Ext.P3 were extended only to Joint Directors in the Economics and Statistics Department, who were in the scale of Rs.3900-5075 (pre-revised) and were holding the post between 1.3.1997 and 25.11.1998 by giving them revised scale of pay of Rs.12600-15600 as personal with effect from 1.3.1997 or from the date of assumption of charge as Joint Director. The learned Government Pleader pointed out that the Joint Directors to whom Ext.P3 applied, were promoted before G.O.(P)No.3000/98/Fin dated 25.11.1998 was issued and that as the petitioner was promoted after 25.11.1998, he is not entitled to the benefit of Ext.P3. 7. I have considered the rival contentions. As rightly pointed out by the learned Government Pleader appearing for the respondent, Ext.P3 applies only to Joint Directors in the Economics and Statistics Department, who were holding the post between 1.3.1997 and 25.11.1998 (date of the pay revision order) in the pre-revised scale of pay of Rs.3900-5075. The petitioner was promoted to the post of Joint Director only on OP 24531/01 -: 9 :- 4.1.1999 and was placed in the scale of pay of Rs.10000-15150. The petitioner was not holding the post of Joint Director prior to 25.11.1998. After 25.11.1998, a Deputy Director on promotion as Joint Director, was entitled only to the scale of pay of Rs.10000-15150, in contra distinction to Senior Joint Directors, who alone were entitled to the scale of pay of Rs.12600-15600. Ext.P3 was issued only to rectify the anomaly in the 1997 pay revision order (G.O.(P)No.3000/98/Fin dated 25.11.1998) which resulted in Joint Directors in office on 25.11.1998 being denied the scale of pay applicable to the Senior Joint Directors (Rs.12600-15600) introduced by the said pay revision order. There is hence no merit in the contention of the learned counsel for the petitioner that had the petitioner been promoted with effect from 1.11.1998, he would have been placed in the scale of pay of Rs.12600-15600, applicable to Senior joint Directors. Joint Directors appointed on and with effect from 25.11.1998 were entitled only to the scale of pay of Rs.10000-15150. Ext.P2 discloses that the petitioner was promoted to the post of Joint Director in the scale of pay of Rs.10000-15150 (revised). The petitioner does not challenge the scale of pay in which he OP 24531/01 -: 10 :- was placed on promotion as Joint Director. The petitioner has also no case that when he was promoted as Joint Director, he was not placed in the correct scale of pay. The petitioner's claim, founded on Ext.P3, is plainly untenable. Hence on that short ground itself, the original petition is liable to dismissed. 8. I shall now deal with the contention of the learned counsel for the petitioner based on Rule 28(b)(i)(4)(a) and (b) of the K.S. & S.S.R. The learned counsel for the petitioner contended that the provisions contained in Rule 28(b)(i)(4)(a) and (b) of the K.S. & S.S.R. are mandatory and do not permit any deviation from the time limit stipulated therein. In short, the contention of the learned counsel for the petitioner is that he should have been promoted to the post of Joint Director with effect from 1.11.1998 and that as the rules prescribing the time limit for finalising the select list of officers for promotion to the higher post were not complied with, he cannot be visited with the consequences of the delay. I am of the opinion that there is no merit in the said contention as well. Rule 28(b)(i)(4)(a) and (d) of the K.S. & S.S.R. does not set out what the consequences would, be if the time frame fixed therein, for preparing and OP 24531/01 -: 11 :- finalising the select list is not adhered to. I am therefore inclined to take the view that prescription of the time limit in Rule 28(b)(i)(4)(a) and (b) of the K.S. & S.S.R. is only directory and not mandatory. Further, as stated by the learned Government Pleader, convening of the D.P.C. requires collection of materials including the confidential reports of the officers in the field of choice. Quite often disputes regarding seniority arise, resulting in delay in finalisation of the seniority list. Though seniority alone is not the criteria for promotion to selection posts, it is also a relevant factor. Hence, the petitioner cannot demand clock work precision in the matter of preparation of the select list. If one were to hold that the prescription of the time limit in Rule 28 (b)(i)(4)(a) and (b) of the K.S. & S.S.R. is mandatory and hence inflexible, it can result in denial of promotion to eligible persons. I am therefore of the opinion that prescription of the time limit in Rule 28(b)(i)(4)(a) and (b) of the K.S. & S.S.R. is only directory and that failure on the part of the State Government or its officers to adhere to the time schedule does not entitle the petitioner to claim promotion with effect from 1.11.1998, the date on which the vacancy arose. Further, I have already held OP 24531/01 -: 12 :- that the petitioner cannot claim the benefit of Ext.P3, even if he had been promoted as Joint Director on 1.11.1998. 9. For the reasons stated above, I hold that the original petition is lacking in merit and is liable to be dismissed. I do so. However, in the circumstances of the case, I make no order as to costs. P.N.Ravindran, Judge. ess 14/1