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2018 DIGILAW 64 (KER)

State of Kerala v. V. K. Mohandas

2018-01-17

P.R.RAMACHANDRA MENON, R.NARAYANA PISHARADI

body2018
JUDGMENT : P.R. Ramachandra Menon, J. 1. Petitioners are the respondents in O.A.No.1492/2016. The grievance is against Ext.P3 verdict passed on 26/07/2017 whereby the O.A filed by the respondent herein was allowed setting aside Annexure A4 order declining the claim for promotion to the post of Senior Town Planner and to have Annexure A2 representation submitted by him to be considered and to pass appropriate orders within a time frame as mentioned therein, after affording an opportunity of hearing to the applicant. 2. Heard the learned Government Pleader as well as Adv. Sri. Brijesh Mohan, the learned counsel who entered appearance on behalf of the respondent. 3. The applicant was working as Town Planner, when he was sent on deputation as Member Secretary to the Thrissur Development Authority in February 2016. The next post in the hierarchy of promotion is that of Senior Town Planner. After analysing the credentials of the eligible hands, Annexure A1 select list was prepared and published by the Department on 06/01/2016. According to the respondent/applicant, he was eligible to be promoted to the said post, having been placed at Sl.No.3 in Annexure A1 and that sufficient vacancies were available to have him promoted. However, promotion was not being effected by the Department referring to 'model code of conduct' that came to be notified by the Election Commission, which made the respondent to file Annexure A2 representation dated 11-04-2016 before the Secretary to Government (Urban) seeking for immediate action to promote him, more so, since he was due to retire from service on attaining the age of superannuation on 31/05/2016. Simultaneously, the respondent approached this Court by filing W.P.(C) No.16132/2016, which was disposed of as per Annexure A3 verdict dated 29/04/2016 directing to promote the employee, if he was otherwise eligible and entitled, in accordance with the norms, without delay. Such a direction was given, taking note of the fact that the petitioner/applicant was due to retire from service on 31/05/2016. 4. It is borne out from the materials on record that no further action was taken by the competent authorities, despite Annexure A3 verdict passed by the learned Single Judge of this Court, which made the respondent to file a Contempt of Court Case bearing No.779/2016. 4. It is borne out from the materials on record that no further action was taken by the competent authorities, despite Annexure A3 verdict passed by the learned Single Judge of this Court, which made the respondent to file a Contempt of Court Case bearing No.779/2016. The matter was considered by the Government, in the meanwhile, who rejected the claim as per Annexure A4 order dated 28/05/2016 holding that no vacancy was available to accommodate the respondent/petitioner and that no proposal was there to upgrade the post of Member Secretary of the Thrissur Development Authority. Taking note of Annexure A4 order passed by the Government, the Contempt of Court Case came to be closed. The respondent employee sought to challenge Annexure A4 order before the Tribunal by filing O.A.No.1492/2016, seeking for a positive declaration and direction to promote him to the post of Senior Town Planner. It was also specifically contended that the version of the State/Department that there was 'no vacancy' was absolutely wrong and that two vacancies were already in existence. It was further stated that, by virtue of the Mandate of Section 54F of the Town and Country Planning Act, 2016 (hereinafter referred to as 'the Act') the person to be nominated by the Government as Member Secretary of the Development Authority shall be of the rank of Senior Town Planner. Since the respondent was already holding the post of Member Secretary of the Thrissur Development Authority, on deputation from February 2016, the said vacancy ought to have been considered and he was to be promoted to the said post on a regular basis. The applicant also contended that a proposal in this regard had already been forwarded by the Chief Town Planner to the Government as borne by Annexure A5 dated 30/05/2016, with reference to the relevant facts and figures. A copy of the proceedings of the Chief Town Planner to the Government dated 05/05/2016 was produced as Annexure A7 in support of the contention that there was vacancy. The above proposal made by the Chief Town Planner to the Government was not considered while rejecting the claim as per Annexure A4. A copy of the proceedings of the Chief Town Planner to the Government dated 05/05/2016 was produced as Annexure A7 in support of the contention that there was vacancy. The above proposal made by the Chief Town Planner to the Government was not considered while rejecting the claim as per Annexure A4. It is further pointed out that the respondents were simply waiting to see that the applicant retired from service on 31/05/2016 and shortly thereafter, all other persons who were listed behind the applicant in Annexure A1 were given promotion as Senior Town Planners on 25/08/2016. It reveals the mala fides on the part of the Departmental authorities. The specific dates as to the occurrence of vacancies were never furnished from the part of the Department, despite the specific interim order passed in this regard on 11/04/2017. This was taken note of and it was accordingly, that the O.A was disposed of, virtually accepting the case projected by the applicant that there was a vacancy to have him promoted and that the matter ought to have been pursued in the right spirit and perspective, taking note of the mandate of Section 54F of the Act and Annexure A3 verdict passed by this Court, more so, when the applicant was to retire from service on 31/05/2016. It was accordingly, that a direction was given to have Annexure A2 representation considered with an opportunity of being heard and pass appropriate orders. 5. The stand of the Department is sought to be justified, asserting that no vacancy was available to have the applicant promoted to the post of Senior Town Planner and that only the seniors were given promotion as evident from Annexure A4. The juniors placed in Annexure A1 list came to be promoted only subsequently, that is, on occurrence of vacancies after retirement of the applicant from service on 31/05/2016. 6. When the matter came up for consideration before this Court on 13/12/2017, passing of the interim order dated 11/04/2017 by the Tribunal to furnish the particulars as to the dates of occurrence of vacancies was taken note of and the matter was adjourned to explain the position. An affidavit, dated today, has been filed on behalf of the first respondent. When the matter came up for consideration before this Court on 13/12/2017, passing of the interim order dated 11/04/2017 by the Tribunal to furnish the particulars as to the dates of occurrence of vacancies was taken note of and the matter was adjourned to explain the position. An affidavit, dated today, has been filed on behalf of the first respondent. Respondent herein has filed I.A.No.99 of 2018 producing a copy of the order dated 25/08/2016 giving promotion to the persons enlisted in Annexure A1, except the petitioner herein, as Annexure R1(a). 7. Particulars of the vacancies and the promotion given have been sought to be explained by the first respondent in paragraphs 3 and 4 of the affidavit, which are reproduced below for convenience of reference: “3. It is earnestly submitted that there arose one vacancy of Senior Town Planner on 27.05.2016 consequent to the provisional promotion granted to Shri. Shaji Joseph, Senior Town Planner as Additional Chief Town Planner as per GO(Rt) No.1747/2016/LSGD dated 26.05.2016. On 30.05.2016 as per GO(Rt) No.1783/16/LSGD, Shri. Shaji Joseph was provisionally promoted to the post of Chief Town Planner and consequent to his promotion, Shri. J. Asok Kumar was provisionally promoted to the post of Additional Chief Town Planner. Thus another vacancy of a Senior Town Planner arose on 31.05.2016. Thus there existed only two vacancies of Senior Town Planner as on 31.05.2016. 4. It is further submitted that two persons viz Smt. K.S. Girija and Sri. C.P. Pramod Kumar positioned as 1st and 2nd in the select list vide GO(P) 01/2016/LSGD dated 06.01.2016 were promoted against the two vacancies arose on 27.05.2016 and 31.05.2016 and the vacancies of that arose after 31.05.2016 were filed by promoting the officers positioned as 4th and 5th in the select list as per the GO(Rt) 2502/2016/LSGD, dated 25.08.2016.” 8. The factual particulars given above reveal that, as on the date of retirement of the respondent/applicant on 31/05/2016, only two vacancies were available (according to the respondent State/Department), the first of which arose on 27/05/2016 and the second one on 31/05/2016. The above two slots were filled up by seniors. In short, the availability of the above two vacancies stand undisputed by the State/Department. The above two slots were filled up by seniors. In short, the availability of the above two vacancies stand undisputed by the State/Department. The question to be considered is whether any other vacancy was available or could be deemed as available as on the date of 31/05/2016, if the case put forth by the respondent/applicant with reference to the mandate of Section 54(1)(f) of the Act is correct and acceptable. The said provision reads as follows: 54. The General Council.- (1) The General Council shall be constituted by the Government and shall consist of the following members, namely:- (a) xxx xxxx (f): the Member Secretary of the Development Authority, nominated by the Government who shall be an officer not below the rank of a Senior Town Planner of the Department or Town and Country Planning.” 9. By virtue of the above provision, it is explicitly clear that Member Secretary of a Development Authority has to be a person belonging to the rank of Senior Town Planner. There is no dispute to the fact that, it was none other than the respondent/applicant, who was holding the post of Member Secretary of the Thrissur Development Authority from February 2016, though on deputation. The case put forth by the State/Department is that the post of the Member Secretary of the Thrissur Development Authority was still to be upgraded to that of a Senior Town Planner by the Government, in conformity with the statutory provision and as such, the vacancy was still to occur. This Court finds it difficult to accept the said proposition for more reasons than one: 10. There is no dispute to the fact that the 'Act' was brought into existence by effecting publication of the notification in the Official Gazette as stipulated under the Statute, on 17/03/2016. Once the Statute steps into the field, taking its breadth, the field is taken over in toto and there cannot be any appointment either directly or indirectly contradicting the provisions of the Statute. When the Statute (Section 54(f)) says that the post of Member Secretary of a Development Authority has to be filled up by a person to be nominated by the Government having the rank of Senior Town Planner, right from day one after commencement of the Statute, the post could have been filled up only by such a person. When the Statute (Section 54(f)) says that the post of Member Secretary of a Development Authority has to be filled up by a person to be nominated by the Government having the rank of Senior Town Planner, right from day one after commencement of the Statute, the post could have been filled up only by such a person. In other words, after commencement of the Statute with effect from 17/03/2016, it is quite evident that a post having the rank of Senior Town Planner came to be thrown open in the Thrissur Development Authority as well. To put it more clear, though the post of Member Secretary of the Thrissur Development Authority till 16/03/2016 was of a lower rank, with effect from the date of commencement of the Act i.e. from 17/03/2016, the said post automatically had to be considered for being filled up only by a person having the rank of Senior Town Planner. 11. It is true that the Government had not issued any orders upgrading the post of Member Secretary of Thrissur Development Authority. But that is only a procedural formality, to be completed in terms of the relevant provisions of the Statute. It may take some time as well and once the upgradation is ordered, which is an 'administrative order' to be passed by the competent authority, it will be having the effect from the date of commencement of the Statute, i.e. 17/03/2016, from which day, the post could have been filled up only by a person having the rank of Senior Town Planner. In other words, if the order of upgradation to be passed by the Government/Department on a subsequent date is given effect only from the date of the order or such other date, there will be a vacuum, in respect of the status of the post from 17/03/2016 (date of commencement of the Act) to the date of upgradation. This will virtually reveal an unlawful instance of posting a person permitting him to occupy the said office contrary to the provisions of the Statute. This will virtually reveal an unlawful instance of posting a person permitting him to occupy the said office contrary to the provisions of the Statute. Section 54(f) of the Statute says that post could have been filled up only by a person belonging to Senior Town Planner from the date of commencement of the Act, that is 17/03/2016, and if it is sought to be given effect upgrading the post only from a subsequent date, such order passed by the Executive will run contrary to the legislative intent, which cannot be sustained in any manner. In short, the order of upgradation will take effect from the date of commencement of the Statute, that is 17/03/2016'. 12. In the above circumstances, it has to be held that the post of Member Secretary of Thrissur Development Authority came to be statutorily elevated to the post of Senior Town Planner with effect from 17/03/2016 and the only requirement left over was to fill up the post by the most eligible person from Annexure A1 list. If this exercise was done properly and correctly, it was to be regarded as the first vacancy which arose during the relevant time, which ought to have been filled up by the person at Sl.No.1 in Annexure A1 ranked list, i.e. by promoting Smt. K.S. Girija. The next vacancy arose on 27/05/2016 (as per paragraph No.4 of the affidavit extracted above) was to go to the person by name Sri. C.P. Pramod Kumar, who is at rank No.2 in Annexure A1. Admittedly, since another vacancy arose on 31/05/2016, it was the turn of the respondent/applicant who was placed at Sl.No.3 in Annexure A1 and who retired from the service only on 31/05/2016. We hold that the respondent/ applicant was entitled to be promoted and posted as Senior Town Planner with effect from 31/05/2016 and as such, he ought to have been deemed as retired from service on 31/05/2016, from the said post of Senior Town Planner. 13. In view of the said declaration, further direction given by the Tribunal to pass appropriate orders after affording an opportunity of hearing to the respondent has become otiose-not will not lie anymore and not necessary. However, consequential orders are to be passed by the authorities concerned, giving proper fixation showing the correct category of the post from which the respondent/applicant was deemed to be retired as above. However, consequential orders are to be passed by the authorities concerned, giving proper fixation showing the correct category of the post from which the respondent/applicant was deemed to be retired as above. The pensionary benefits have to be worked out and disbursed accordingly. This shall be done as expeditiously as possible, at any rate, within a period of two months. This Original Petition is disposed of in the above terms.