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2002 DIGILAW 481 (KER)

V. Govindan kutty v. The state of Kerala

2002-07-18

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Nair, J. The bone of contention in this case is the comparative seniority of the petitioner vis-à -vis respondents 3 and 4 who are all employees of the Heath Service Department. The petitioner retired while working as Health Inspector Grade-I on 30-4-1989. 2. The substance of the petitioner’s contention is that notwithstanding certain breaks during his early periods of service and the Malabar Integration pursuant to the States re-organization the petitioner is entitled to get seniority with effective date of appointment as 8-12-1953 and that if so calculated the petitioner, at the time of retirement on 30-4-1989 should have been promoted to the cadre of Technical Assistant Grade-I and that he should be given all pensionary benefits as though he was so promoted with effect from 1-7-1988. It is also his case that the breaks in his service were all condoned by the Government and hence the department is bound to treat him as a person with continuous service with effect from 8.12.1953 which was the date of joining duty, as evident from Ext. P1 seniority list which was published by the department. 3. The petitioner has been fighting out the matter well over quarter of a century. Based on the decision to upset Ext.P1 seniority, the petitioner was once reverted from the post of Health Inspector Grade-II. The O.P. filed challenging the reversion was allowed and the reversion quashed. When further promotion was denied, he again move this court with O.P., which was O.P. 3790/1976 and this court directed that his claim for promotion might be considered. Later on he was promoted on a provisional basics as directed in his third O.P. which was O.P.979/1979. When a final seniority list was published in 1984 the petitioner again became junior to respondents 3 and 4. The petitioner challenged the said development by filling O.P.5583/1988. His claim was that he should have been promoted as Technical Assistant Grade-I, which was equivalent to the post of District Health Educational Officer. Nearly a decade ago this court disposed of the O.P. vide Ext.P4 judgment. The department had contended that the continuous service of the petitioner commenced on 27-9-1961 only and hence the seniority petition mentioned in the view list of 1984 was correct. Nearly a decade ago this court disposed of the O.P. vide Ext.P4 judgment. The department had contended that the continuous service of the petitioner commenced on 27-9-1961 only and hence the seniority petition mentioned in the view list of 1984 was correct. The court noted that respondents 3 and 4 were claiming seniority above the petitioner only based on the date of commencement of his ‘continuous service’ and ignoring the fact that the breaks in service which the petitioner had rendered earlier had been condoned by the Government. The court ultimately held that the denial of promotion to the petitioner on the basis of the combined gradation list of 1984 was illegal and improper and declared that the petitioner should have been given promotion in terms of Ext.P1 before giving promotion to respondents 3 and 4. However, instead of issuing mandamus against respondents 1 and 2 therein, the court only directed that the petitioner’s claim might be looked into on the basis of the observations in the judgment. It was also observed that the promotion and refixation of salary should be taken into account only for affording the pensionary benefits and that no arrears of salary would be payable to him. 4. The present grievance of the petitioner is that Ext.P4 direction was complied with only in part in so far as he was given promotion as Technical Assistant Grade-II with effect from 24-9-1985 but denied the further promotion which was due to him on 1-7-1988. The fact that the petitioner was promoted as Technical Assistant Grade-II in compliance with the directions in Ext.P4 judgment is clear from Ext.P7(a) proceedings. Once the direction in the judgment is so complied with, it should have been done in full and not in part. The effect of Ext.P7, when viewed in the light of Ext.P4 judgment is that it was complied with only in part. During hearing the learned Government Pleader could not bring to my notice any reason why the second promotion due to the petitioner as Technical Assistant Grade-I also should not be given as directed in Ext.P4 judgment except stating that the department has not yet taken a final decision with regard to the seniority of the petitioner. 5. As already mentioned, the fight for seniority and consequential service benefits on the part of the petitioner started more than 25 years ago. 5. As already mentioned, the fight for seniority and consequential service benefits on the part of the petitioner started more than 25 years ago. 10 years have passed by after passing Ext.P4 judgment also. Still the department appears to be helpless or disinterested in taking a decision. It is 13 years now since the petitioner has retired from service. There is no justification at all for not taking necessary decisions even after the expiry of such a long period. Once a decision is taken to implement the direction in Ext.P4 and to give due promotion, certainly it has to be done in full and such implementation of Ext.P4 will enable the petitioner to get the second promotion due to him based on the seniority position contemplated in Ext.P1; that is taking into account the commencing date of continuous service as 8.12.1953 itself. 6. In the circumstances, the Original Petition is disposed of with direction to respondents 1 and 2 to give promotion to the petitioner as Technical Assistant Grade-I on the correct date on which such promotion would be due to him based on Ext.P1 seniority list. Of course this will be subject to the rider added in Ext.P4, namely, that this will only enable him to get refixation of pension and that no arrears of salary would be due to him. Necessary orders promoting him as above will be passed within a period of two months from the date on which a copy of this order is produced before the second respondent. The third respondent is directed to implement the revision of pension and other retirement benefits based on the prospective order of the second respondent without any delay and in any case within a period of two months from the date on which the promotion orders are received by him. 7. Considering the special facts of this case and past history of lethargy it is further directed that the petitioner would be entitled to get interest at 10% per annum on his dues in case the above direction is not complied with on the dates mentioned above. Of course the first respondent will be free to recover such amount from the officers of the Health Service Department who might be responsible for the lapse, if any in complying with the directions in this judgment.