IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WP(C).No. 27212 of 2007(M) -------------------------- PETITIONER(S): --------------- 1. S.SUNIL KUMAR, S/O.SUKUMARAN, SURVEYOR GRADE I, OFFICE OF THE ASST.DIRECTOR RE-SURVEY, KOLLAM. 2. ANILKUMAR K.K., S/O.KUMARAN, SURVEYOR GRADE I, OFFICE OF THE RE-SURVEY SUPERINTENDENT, ALAPPUZHA. 3. SASIKUMAR P., S/O.PRABHAKARAN NAMBIAR, SURVEYOR GRADE I, TALUK OFFICE, THIRUVALLA. 4. P.SUNILKUMAR, S/O.PARAMESWARAN PILLAI, SURVEYOR GRADE I, OFFICE OF THE RE-SURVEY SUPERINTENDENT, ALAPPUZHA. 5. AJAYAKUMAR A.S., S/O.N.SASIDHARAN, SURVEYOR GRADE I, OFFICE OF THE RE-SURVEY SUPERINTENDENT, CHERTHALA. 6. PRAMOD C.V., S/O.VIJAYAN, SURVEYOR GRADE I, OFFICE OF THE RE-SURVEY SUPERINTENDENT, CHERTHALA. 7. AJITHA A., W/O.SUNIL, SURVEYOR GRADE-I OFFICE OF THE RE-SURVEY SUPERINTENDENT ANCHAL. 8. K.ANILKUMAR, S/O.KUMARAN V., SURVEYOR GRADE I, OFFICE OF THE RE-SURVEY SUPERINTENDENT, KARUNAGAPPALLY. 9. ABDUL KALAM AZAD, S/O.A.SULAIMAN KUNJU, SURVEYOR GRADE I OFFICE OF THE RE-SURVEY SUPERINTENDENT, CHERTHALAI 10. ANILKUMAR.A., S/O.ANATHAN PILLAI SURVEYOR GRADE I, TALUK OFFICE, KOTTARAKKARA. 11. C.SUDHAKARAN PILLAI, S/O.CHELLAPPAN PILLAI, SURVEYOR GRADE I, TALUK OFFICE, KOLLAM. 12. S.SAJEEV, S/O.N.SANKARA PILLAI, SURVEYOR GRADE I, OFFICE OF THE RE-SURVEY SUPERINTENDENT, KARUNAGAPPALLY. 13. SUNDARESAN PILLAI.G. S/O.GOPALA PILLAI, SURVEYOR GRADE I, TALUK OFFICE, KOTTARAKKARA. 14. D.UDAYAN, S/O.DAMODARAN ACHARI, SURVEYOR GRADE I, TALUK OFFICE, KARUNAGAPPALLY. 15. T.SREEKUMAR, S/O.THANKAPPAN PILLAI, SURVEYOR GRADE I, OFFICE OF THE RE-SURVEY SUPERINTENDENT, KARUNAGAPPALLY. BY ADV. SRI.M.V.THAMBAN SRI.V.K.SATHYANATHAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT DEPARTMENT OF FINANCE, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF SURVEY & LAND RECORDS, VAZHUTHACAUD, THIRUVANANTHAPURAM. 4. THE ASSISTANT DIRECTOR OF RE-SURVEY OF LAND RECORDS, KOLLAM. 5. THE SUPERINTENDENT OF SURVEY & LAND RECORDS (RE-SURVEY) ANCHAL, KOLLAM DISTRICT. 6. THE TAHSILDAR, TALUK OFFICE, KOTTARAKKARA. 7. THE TAHSILDAR, TALUK OFFICE, KOLLAM. 8. THE TAHSILDAR, TALUK OFFICE, THIRUVALLA. 9. THE TAHSILDAR, TALUK OFFICE, KARUNAGAPPALLY. 10. THE SUPERINTENDENT OF SURVEY & LAND RECORDS (RE-SURVEY), ALAPPUZHA. BY SHRI N. MANOJ KUMAR GOVERNMENT PLEADER FOR R1 TO 10 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF THE ORDER DATED 17.4.2004 EXT.P2-TRUE COPY OF ORDER DATED 6.10.2001 EXT.P3-TRUE COPY OF PROCEEDINGS DATED 30.12.2003 EXT.P4-TRUE COPY OF CIRCULAR DATED 16.2.2005 EXT.P5-TRUE COPY OF ORDER DATED 5.10.2004 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.27212 of 2007-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of April, 2009. JUDGMENT The petitioners are First Grade Surveyors under the third respondent. The main prayer in the writ petition is one seeking to quash Exts.P4 and P5 and declare that the petitioners are entitled to the scale of pay attached to the promoted post from the respective dates of assigned dates of promotion shown in Ext.P3 with arrears of salary with interest at 12%. The resume of facts as revealed from the writ petition shows the following: 2. In para 2 of the writ petition the details in respect of each petitioners, their dates of joining the department, date of original promotion and reassigned date of promotion, etc. are shown. The petitioners contend for the position that there is no difference in the nature of duties performed by Surveyors Grade I or Grade II. Earlier, by proceedings Ext.P1, the Superintendent of Survey and Land Records, Re-survey, Attingal reassigned the date of promotion and refixation of pay giving the benefit of Rule 23© of Part I K.S.R. Ext.P1 shows that the pay fixed from 25.6.2001 at the first instance has been changed from the assigned earlier dates of promotion and accordingly they were paid arrears also. wpc 27212/2007 2 3. Going by Rule 23(c) of Part I K.S.R., in case the promotion does not involve change of duties, the promotion shall be effected from the date of occurrence of vacancy. It is pointed out that as per Ext.P2, they were promoted as Surveyor Grade I in the year 2001. However, retrospective promotions were assigned while issuing the final seniority list after ascertaining the actual vacancy position from 1999-2000. The petitioners therefore submit that as there is no difference in the nature of duties in the two posts, they are entitled to the actual salary with arrears from the dates they have become eligible for promotion. 4. The petitioners also relied upon Ext.P4 which is an order dated 16.2.2005 passed in the case of similarly placed persons whereby the benefit was denied. Another circular was issued to effect recovery which was stayed in Writ Petition No.26818/04. The issue was pending before this court in various writ petitions. Learned counsel for the petitioners relied upon the decision of a Division Bench of this court in Sucheendran v. State of Kerala (2005 (3) KLT 499) to contend for the position that while considering the applicability of Rule 23(c) of Part I K.S.R., there is no question of change of duties and it is only promotional aspect with a change of salary alone. Following the said judgment of the Division Bench, a wpc 27212/2007 3 learned Single Judge of this court in Writ Petition No.11676/2005 arising from the same department, quashed similar orders and directed the first respondent to reconsider the matter in the light of the decision of the Division Bench noted above. 5. Heard learned counsel for the petitioners and the learned Govt. Pleader. 6. Clearly, the matter is covered by the two decisions cited above in favour of the petitioners. In the judgment in Writ Petition No.11676/2005, it was held in para 6 thus: “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,w here 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 rule 'no work, no pay'. It makes it clear that in a case where there are vacancies and promotion is ordered notionally wpc 27212/2007 4 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. The learned Judge was pleased to hold further that Rule 23(c) has been interpreted by the Division Bench and there is no dispute also that in a case where there is 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. I respectfully agree with the said view. The same principle applies to the facts of this case. 8. In the light of the above, the writ petition is allowed. Ext.P4 is quashed. There will be a direction to the respondents to reconsider the matter in the light of the decision in Sucheendran’s case (2005 (3) KLT 499) and that of the judgment in Writ Petition No.11676/2005 concerning the very same department and in the light of the findings rendered herein. Appropriate orders will be passed within a period of three months from the date of receipt of a copy of this judgment after hearing the petitioners also. wpc 27212/2007 5 The benefit accrued to the petitioners will be disbursed without further delay. (T.R. Ramachandran Nair, Judge.) kav/