IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WP(C).No. 15585 of 2005(E) -------------------------- PETITIONER(S): --------------- SHRI T.S. GOPI, RETIRED GENERAL MANAGER, KERALA AGRO MACHINERY CORPORATION LIMITED,PALAKKAD AND KALAMASSERY UNITS RESIDING AT "THEJUS", SOUTH ADUVASSERY POST,ALUVA, ERNAKULAM, KOCHI-683 578. BY ADV. MR.S.RAMESH BABU RESPONDENT(S): -------------------- 1. THE KERALA AGRO MACHINERY CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, ATHANI, ERNAKULAM, KOCHI-683 578. 2. THE SECRETARY (MANAGING DIRECTOR OF KAMCO),KERALA AGRO-MACHINERY CORPORATION EMPLOYEES' GROUP GRATUITY FUND, ATHANI-683 585, ERNAKULAM. ADVS. MR.A.M.SHAFFIQUE, SENIOR ADVOCATE MR.E.K.NANDAKUMAR MR.A.K.JAYASANKAR NAMBIAR MS.PRIYA MAHESH GOVERNMENT PLEADER MS. SMITHA SUKUMAR FOR R.3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13 /02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15585 of 2005 APPENDIX PETITINER'S EXHIBITS EXT.P1: COPY OF JUDGMENT DTD 28.5.2004 IN W.P.(C) NO.15964/04 EXT.P2: COPY OF SERVICE ORDER DTD 23.11.2004. EXT.P3; COPY OF LETTER OF THE PETITIOENR DTD 11.4.2005. EXT.P4: COPY OF THE LETTER OF THE PETITIONER DTD 28.4.2005. EXT.P5; COPY OF THE LETTER DTD 30.4.2005. EXT.P6: COPY OF COMMUNICATION DTD 20.11.04 ISSUED BY GOVT. TO THE MANAGING DIRECTOR, KAMCO. EXT.P7: COPY OF COMMUNICATION DTD 11-12-2004 ISSUED BY KAMCO TO GOVT. EXT.P8: COPY OF COMMUNCATIION DTD 14.3.2005 SENT BY KAMCO TO GOVT. EXT.P9; COPY OF COMMUNICATION DTD 28.5.05 ISSUED BY GOVT. RESPONDENTS' EXHIBITS: EXT.R1(a): COPY OF LETTER NO.KB2/108 DTD 11.12.2004 FROM R1 TO THE PRINCIPAL SECRETARY TO GOVERNMENT, AGRICULTURE (PU) DEPARTMENT, THIRUVANANTHAPURAM. EXT.R1(b); COPY OF ORDER NO.47789/PU3/04/AD, DTD 25.08.2005 FROM THE GOVT. TO R1. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.15585 OF 2005 ---------------------------------------- Dated this the 13th day of February, 2009 JUDGMENT The petitioner retired from the service of the Kerala Agro Machinery Corporation Limited in April 2005. Prior to his retirement, while he was working as Deputy General Manager, he raised a claim for promotion to the post of General Manager. Since his claim was not considered, he approached this Court by filing W.P.(C).No.15946/2004, in which this Court, by Ext.P1 judgment, directed the Government to consider his claim. The Government considered his claim and directed the 1st respondent to promote the petitioner to the post of General Manager with effect from 22.3.2000. In compliance with that direction, by Ext.P2 order dated 23.11.2004, the 1st respondent promoted the petitioner to the post of General Manager in the scale of pay of Rs.16300-45-19900 with effect from 22.3.2000, from the post of Deputy General Manager in the scale of pay of Rs.14300-400- 18300. Barely five months after Ext.P2, the petitioner retired W.P.(C)No.15585/05 2 from service. But the petitioner was not given the scale of pay of General Manger, is the grievance of the petitioner herein. 2. In the counter affidavit filed by the 1st respondent, the 1st respondent took a contention that by Ext.R1(b), the Government themselves clarified that the petitioner is not entitled to monetary benefits attached to the promotion. Subsequently, the petitioner amended the writ petition incorporating a challenge against Ext.R1(b) also by producing the same as Ext.P9. In the above circumstances, the petitioner seeks the following reliefs: “a. issue a writ of mandamus commanding the respondents to abide by the terms of Ext.P2 order of promotion by placing the petitioner in the scale of pay of General Manger ie; in the scale of Rs.16300- 450-19900 with effect from 22.3.2000 to 30.4.2005 and grant all consequential benefits including arrears of pay, arrears of enhanced provident fund and arrears of enhanced gratuity with interest thereon at 12% per annum from the dates on which the amounts became due and payable till date of payment. b. issue a writ of mandamus commanding the respondents to forthwith pay the amount of Rs.60,162/- retained as per Ext.P4 to the petitioner with interest at 12% per annum from 30.4.2005 till date of payment”. c. issue a writ of certiorari calling for the records W.P.(C)No.15585/05 3 leading up to Ext.P9 and quash the same in so far as it denies monetary benefits to the petitioner in the scale of pay of General Manager with retrospective effect at least from 4.1.02.” According to the petitioner, after having promoted the petitioner as General Manager with effect from 22.3.2000, the 1st respondent cannot take a stand that he is not eligible for the scale of pay and monetary benefits attached to that post. 3. In the counter affidavit the stand taken by the 1st respondent is based on Ext.R1(b), which is produced as Ext.P9 in the writ petition. What is stated in paragraphs 7 to 9 of that counter affidavit is as follows: “7. The petitioner was transferred and posted to Palakkad unit and given full additional charge of General Manager (PU) vide Service Order No.PR2/652 dt. 07-04-2003. Thereupon, he assumed charge as General Manager (PU) i/c. On 16.04.2003. He was given charge allowance as per rules. There were three posts of General Managers in the Company as on 31.05.2000, out which one was in the Finance Division. The post of General Manager (Finance) was downgraded to Dy. General Manager and renamed as Dy. General Manager (Finance) and Company Secretary consequent on the retirement of the then General Manager (Finance) as per GO (Rt) No.1006/2000/AD dated 06.06.2000. Subsequently as per G.O.(MS) No.29/2001/AD dt. 01.02.2001, Govt. Kerala directed to fill up one out of the two posts of General Manager W.P.(C)No.15585/05 4 lying vacant through direct recruitment wherein the company candidates can also compete. Since the direction was against the recruitment and promotion rules for the officers of the company, company requested Govt. vide its letter No.KB2/63A/655 dt. 27.04.2001 to review the above Govt. direction. Govt. had not reviewed the decision and hence promotion could not be considered to this post. 8. The petitioner had represented the matter directly to the Govt. to consider him for promotion to the post of General Manager. It is true that Sri. T.S. Gopi had filed a writ petition W.P.(C) No.15946/04 dated 28.05.2004 before this Hon'ble Court against the Govt. and this Hon'ble Court directed the government to consider his representation for promotion to the post of General Manger in KAMCO in accordance with law and to pass appropriate orders thereon within a period of two months from the date of production of a copy of the judgment. In the light of Ext.P1 judgment, Govt. considered his representation and vide letter No.16650/PU3/04/AD dt. 20.11.2004 reviewed its earlier order to fill up one post of General Manager through direct recruitment as it runs contrary to Rule 3(1) of the special rules for recruitment and promotion of the managerial and supervisory employees under the KAMCO employees staff bye-laws 1973 and directed the company to promote Sri. T.S. Gopi, Dy. General Manager to the post of General Manger with effect from 22-03-2000. In the light of the above he was promoted and appointed as General Manager with effect from 22.3.2000 as per service order No.KB2/270 dt. 23.11.2004. However, did not assume the as charge of General Manager on that date. 9. In answer to the averments in paragraphs 5 to W.P.(C)No.15585/05 5 7, it is submitted that the petitioner had requested to disburse the amounts allegedly due to him on account of his promotion as General Manager. His pay on promotion as General Manager has not been fixed on that date for the following reasons. He was on deputation as Managing Director in the Metal Industries and Scooters Kerala Ltd. at the time of the promotion. He rejoined KAMCO only on 04-01-2002. Moreover another D.G.M was holding full additional charge of G.M during the period from 03-01-2001 to 15-04-2003. There was also no such precedence in the Company. In the light of the above, company sought Govt. clarifications wide our letter No.KB2/108 dated 11-12-2004, a copy of which is produced herewith and marked as Exhibit.R1(a) for identification, regarding fixing of his pay in the scale of General Manager. Now Govt. vide their letter No.47789/PU3/04/AD dated 25.08.2005 has given clarification stating that since Shri. T.S. Gopi has never assumed independent charge as General Manager, he is not eligible to enjoy the monitory benefits consequent on promotion as General manager with retrospective effect from 22/03/2000. A true copy of the Government Order No.47789/PU3/04/Ad, dated 25.08.2005, is produced herewith and marked as Exhibit.R1(b) for identification. In view of the above, he is not eligible for monetary benefits even from the date of order of the Managing Director i.e. with effect from 23.11.2004”. 4. I have considered the rival contentions in detail. 5. Admittedly, Ext.P2 promotion order has not been cancelled by the 1st respondent till this date. The petitioner W.P.(C)No.15585/05 6 admits that the petitioner re-joined KAMCO only on 4.1.2002 and prior to that date he was working on deputation elsewhere. That being so, although the petitioner is entitled to have his pay fixed in the scale of pay applicable to the General Manager, he is not entitled to the monetary benefits prior to 4.1.200, since he was not working in the KAMCO during those periods. In so far as Ext.P2 promotion order has not been cancelled, the respondents cannot take a contention that although the petitioner has been promoted, he is not eligible for monetary benefits since he had not assumed independent charge as General Manager. Immediately on the petitioner re- joining duty in the KAMCO after deputation on 4.1.2002, the 1st respondent ought to have put the petitioner in charge as General Manager. Even assuming that the petitioner has not assumed independent charge as General Manager, the fault is that of the 1st respondent and not that of the petitioner. The petitioner having been promoted by Ext.P2 order, he was entitled to be posted as General Manager on his re-joining the KAMCO on 4.1.2002. The contentions raised in that counter affidavit cannot be accepted to deny the petitioner that W.P.(C)No.15585/05 7 benefit. In the above circumstances, Ext.P9 is quashed and the writ petition is disposed of with the following directions. The 1st respondent shall fix the scale of pay of the petitioner with effect from 22.3.2000 in the scale of pay applicable to the General Manager and pay the arrears of monetary benefits which accrues with effect from 4.1.2002 on such fixation of pay till the date of retirement. All his retirement benefits shall also be re-computed on the basis of the re-fixed of pay. Orders in this regard shall be passed and arrears disbursed to the petitioner as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE Acd W.P.(C)No.15585/05 8