IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 WP(C).No. 23525 of 2006(A) ---------------------------------------- PETITIONER(S): ------------------------ N.SUDHARMAN, L.D.CLERK, SUB REGIONAL TRANSPORT OFFICE, ADOOR. BY SRI.GOVIND K.BHARATHAN, SENIOR ADVOCATE BY ADV. SRI.MANU MOHAN SRI.M.S.SARUN KUMAR RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, THIRUVANANTHAPURAM. 2. THE TRANSPORT COMMISSIONER, TRANSPORT DEPARTMENT, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.23525/2006 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE REPRESENTATION SENT TO THE 2ND RESPONDENT BY THE PETITIONER ON 26/02/1999. P2 COPY OF THE REPRESENTATION SENT TO THE 2ND RESPONDENT BY THE PETITIONER DATED 24/09/03. P3 COPY OF THE JUDGEMENT IN O.P.NO.14738/94 DATED 09/01/2002. P4 COPY OF THE GOVERNMENT ORDER NO.G.O.(RT)NO.261/2003/TRAN DATED 03/07/2003 ISSUED BY THE 1ST RESPONDENT. P5 COPY OF THE JUDGEMENT IN WP(C)NO.22761 OF 2004 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. P6 COPY OF THE REPRESENTATION DATED 14/08/2004 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. P7 COPY OF THE REPRESENTATION TO THE 1ST RESPONDENT SENT BY THE PETITIONER DATED 20/11/2004. P8 COPY OF THE LETTER/REMINDER SUBMITTED BY THE PETITIONER DATED 20/09/2005. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S.SIRI JAGAN, J. ================== W.P.(C).No. 23525 of 2006 ================== Dated this the 11th day of October, 2011 J U D G M E N T The petitioner is a Lower Division Clerk, who joined the Transport Department of the Government of Kerala on 2.3.1988. On 15.10.1991, he was suspended from service. Originally he was punished with barring of increments and the suspension period was treated as eligible leave. The petitioner challenged the same before this Court and this Court directed reconsideration of the issue. Pursuant thereto, by Ext.P4 order dated 3.7.2003, the charges against the petitioner were dropped and the period of suspension was directed to be treated as duty for all purposes. The petitioner further contends that he has been denied his rightful promotion on the ground that he has not passed the obligatory departmental test. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) declare that the petitioner ought to be granted notional promotion and all other consequential benefits thereof from 1989 onwards; ii) issue a writ of mandamus or any other appropriate writ, order or direction to the 1st respondent directing to issue orders promoting the petitioner from 1989 and grant him all other consequential benefits thereof; iii) issue a appropriate writ, order or direction to the respondents directing them to disburse the interest on the salary for the period from 15.10.1991 to 02.07.1993 which was granted in October, 2003. w.p.c.23525/06 - : 2 :- iv) issue a writ of mandamus or any other appropriate direction to the 1st respondent directing him to disburse festival allowance which would have accrued to the petitioner as per Exhibit P2 order from 15.10.1991 to 02.07.1993; According to the petitioner, being a Scheduled Caste employee the petitioner is entitled to exemption from passing the obligatory departmental test for the purpose of promotion in view of Rule 13AA of the KS&SSR. But the petitioner is not being given the said benefit is the contention regarding promotion. This is answered by the 1st respondent stating that in the Government order issued in accordance with Rule 13AA, such benefit is restricted to persons who entered service on or before 31.12.1985. As far as the contention regarding delayed payment of salary for the period from 15.10.1991 to 2.7.1993 is concerned, it is submitted that the petitioner was exonerated by Ext.P4 order only on 3.7.2003 and immediately thereafter, salary was paid to the petitioner. Therefore, there is no delay in payment of salary warranting payment of interest, is the contention raised. But in respect of festival allowance for the period from 15.10.1991 to 2.7.1993, there is no averment in the counter affidavit filed by the 1st respondent. 2. I have considered the rival contentions in detail. 3. As far as the question of promotion is concerned, the petitioner has not been able to satisfy me that the petitioner is entitled to promotion without passing the obligatory departmental test. The petitioner has not been able to show me any Government order issued exempting Scheduled Caste employees from passing departmental w.p.c.23525/06 - : 3 :- tests for the purpose of promotion irrespective of their date of entry in service. On the other hand, in the counter affidavit, it is specifically stated that as per the Government orders issued under Rule 13AA the said benefit is restricted to persons, who entered service on or before 31.12.1985. Admittedly the petitioner has entered service only on 2.3.1988. As such, the petitioner is not entitled to the benefit of the said order. Therefore, the petitioner cannot aspire for promotion without passing the obligatory departmental test. 4. As far as the delay in disbursal of salary for the period from 15.10.1991 to 2.7.1993 is concerned, admittedly the petitioner was under suspension pending enquiry. He was originally imposed with punishment. But later on, by Ext.P4 order dated 3.7.2003, he has been exonerated and his period of suspension was directed to be considered as duty for all purposes consequent to which salary for the period has been paid to him. In the above circumstances, I do not find any delay as such in disbursing salary insofar as the salary has been disbursed in October, 2003. Therefore, I am not inclined to direct payment of interest to the petitioner for the said alleged delayed payment of salary. But in respect of the petitioner for festival allowance, there is no averment in the counter affidavit. In the above circumstances, the 2nd respondent shall consider the claim of the petitioner for festival allowance for the period from 15.10.1991 to 2.7.1993 and pass orders in respect of the same, as expeditiously as possible, at any rate, within w.p.c.23525/06 - : 4 :- two months from the date of receipt of a certified copy of this judgment. If the petitioner is found eligible for the same, the same shall be disbursed to him within another month. Interlocutory applications stand closed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge