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2018 DIGILAW 689 (KER)

K. J. Peter v. State of Kerala

2018-08-30

A.M.BABU, C.T.RAVIKUMAR

body2018
JUDGMENT : Ravikumar, J. This original petition is filed against the order dated 16.2.2018 passed by the Kerala Administrative Tribunal in T.A.No.2640 of 2012. The petitioner herein was the applicant therein. He filed W.P.(C)No.35527 of 2008 before this Court seeking mainly the following relief’s:- “(i) issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Ext.P25 and quashing the same. (ii) issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1 and 2 to give repatriation to the petitioner to the Ministerial Wing and restore his seniority in the posts in the Ministerial Service before the position of the 3rd respondent and also to give promotion to the category of Senior Superintendent with effect from 26.2.2008 with all consequential benefits. (iii) issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1 and 2 to repatriate the petitioner to the Ministerial Wing and grant him all consequential benefits including promotion to the post of Senior Superintendent with effect from 26.2.2008. (iv) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the petitioner is entitled to be repatriated to the Ministerial Wing and grant him all consequential benefits including promotion to the post of Senior Superintendent in accordance with his seniority in the category of L.D. Clerk in the Ministerial Wing. (v) issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1 and 2 to repatriate the petitioner to the Ministerial Wing in the light of the decisions reported in 1998 (1) KLT 766 , 2003 (2) KLT 922 and in the light of Exts.P21, P22 and P23 judgments and restore his seniority in the posts of Head Clerk and Junior Superintendent in the Ministerial Service and all consequential benefits and promotions in Ministerial Service.” 2. Upon constitution of the Kerala Administrative Tribunal the said writ petition was transferred and renumbered as T.A.No.2640 of 2012. On 16.2.2018 the case was taken up for final hearing and the Tribunal dismissed the T.A. as infructuous stating that due to the intervening developments the Transferred Application had become infructuous. Upon constitution of the Kerala Administrative Tribunal the said writ petition was transferred and renumbered as T.A.No.2640 of 2012. On 16.2.2018 the case was taken up for final hearing and the Tribunal dismissed the T.A. as infructuous stating that due to the intervening developments the Transferred Application had become infructuous. It is the contention of the petitioner that due to an inadvertent omission on the part of the clerk attached to the office of the counsel appearing for the petitioner before the Tribunal the posting of the T.A. could not be noticed and it is in the said circumstances that the impugned order came to be passed. It is the further submission that the conclusion arrived at by the Tribunal that due to intervening developments the T.A. had become infructuous is not true to facts and in fact, the grievance of the petitioner still survives. Taking note of the said submission made by the learned counsel we have heard the learned counsel at length to find out whether there is merit in the said submission. In that context it is only appropriate to refer to certain aspects. 3. Essentially, the grievance of the petitioner is that the third respondent who is junior to him in the Ministerial Service of the Industries Department is getting higher pay. In such circumstances, virtually, the claim of the petitioner is to step up his pay at par with that of the third respondent. Service particulars of the petitioner vis-a-vis the third respondent requires consideration to find whether there is any substance in the said contention. The petitioner was firstly appointed as Typist-Clerk in the Department of Factories and Boilers pursuant to the advice of the Kerala Public Service Commission. While so, he got inter-departmental transfer as Typist-Clerk in the Industries Department, as per Ext.P1 order dated 4.12.1981. A Typist-Clerk in the Industries Department was entitled to give option within one month upon joining, either to continue as L.D Typist or to become L.D. Clerk. The petitioner opted the post of L.D. Clerk. While so, his probation was declared with effect from 4.1.1984, as per Ext.P2. Later, the petitioner was promoted as U.D Clerk as per Ext.P3 order dated 8.6.1986 and thereafter he was promoted as Auditor as per Ext.P4 order dated 27.5.1994. He was again promoted as Head Clerk as per Ext.P5 order dated 7.6.1994. While so, his probation was declared with effect from 4.1.1984, as per Ext.P2. Later, the petitioner was promoted as U.D Clerk as per Ext.P3 order dated 8.6.1986 and thereafter he was promoted as Auditor as per Ext.P4 order dated 27.5.1994. He was again promoted as Head Clerk as per Ext.P5 order dated 7.6.1994. While continuing as Head Clerk as per Ext.P6 order dated 24.6.1994 he was appointed by transfer as Junior Co-operative Inspector, a post born in the Industries Subordinate Service. While continuing as Junior Co-operative Inspector he was appointed as Junior Superintendent by Ext.P7 order dated 24.12.1998. It is a post born in the Ministerial Service of the Industries Department. Later, as per Ext.P8 order dated 21.4.1999 he was appointed as Industries Extension Officer in the Industries Subordinate Service. While continuing so, the Special Rules for Kerala Industries Subordinate Service, 2001 was brought into force, as per Ext.P9. After the issuance of Ext.P9 Special Rules option from officers who had lien in the Ministerial Service as also Industries Subordinate Service were called for, as per Ext.P11 circular dated 27.7.2001. The contention of the petitioner is that Ext.P11 was not circulated among different officers and hence he was not aware about the said circular dated 27.7.2001 inviting options. The offer was to opt Ministerial Subordinate Service and going by the same the optee should relinguish the right to promotion in Kerala Industries Subordinate Service. So also, as per the same right to opt Kerala Industries Subordinate Service was also available with the condition that the optee should relinguish promotions in Ministerial Subordinate Service. The third respondent obviously continued in the Ministerial Service of the Industries Department and she was promoted to the post of Junior Superintendent as per Ext.P14 dated 26.2.2008 along with three others. A perusal of Ext.P14 would reveal that the said promotion of the third respondent and the other promotees was effected on regular basis. Needless to say that based on the promotion granted as per Ext.P14 the third respondent happened to get a higher pay than the petitioner. The petitioner who was then working as Industrial Extension Officer, a post which carries lesser pay than that of the pay attached to the post of Junior Superintendent in the Ministerial Wing filed representations before the authorities. The petitioner who was then working as Industrial Extension Officer, a post which carries lesser pay than that of the pay attached to the post of Junior Superintendent in the Ministerial Wing filed representations before the authorities. It is the inaction on the part of the authorities that constrained the petitioner to approach this Court by filing W.P.(C)No.35527 of 2008 which was transferred pursuant to the constitution of the Kerala Administrative Tribunal and re-numbered as T.A.No.2640 of 2012. It is to be noted that prior to the filing of W.P.(C)No.35527 of 2008 the petitioner had approached this Court by filing W.P.(C)No.19297 of 2008. This Court as per judgment dated 30.6.2008 disposed of the said writ petition directing the authorities to consider the grievance ventilated by the petitioner through Ext.P24 representation. Pursuant to the said direction Ext.P24 representation was considered and it was rejected as per Ext.P25 order dated 17.10.2008. In fact, it is challenging Ext.P25 order seeking consequential relief that W.P.(C)No.35527 of 2008 which was transferred and re-numbered as T.A.No.2640 of 2012, was filed. As noticed hereinbefore, it is the said Transfer Application which was considered by the Tribunal and ultimately dismissed as per Annexure-D order dated 16.2.2018. 4. At the first blush the contention raised by the petitioner that he is entitled to get stepping up of pay to bring it at par with the third respondent would appear to be acceptable. But, at the same time, a scanning of the materials on records and a deep consideration of the contentions raised by the petitioner would reveal the hollowness of the claim. As noticed hereinbefore, the prime contention of the petitioner is that he was not aware about the option called for as per Ext.P11 circular dated 27.7.2001. A perusal of Ext.P25 order dated 17.10.2008 would reveal that the Director of Industries and Commerce vide Lr.No.EE1/11332/08 dated 11.8.2008 informed that after the implementation of the Special Rules one time option was allowed to all officers under subordinate service, either to opt Kerala Industries Subordinate Service or Ministerial Subordinate Service, relinquishing the other service, vide circular dated 27.7.2001. It is also relevant to note that on completion of the option procedure the second respondent, the Director of Industries and Commerce published the seniority list of Junior Co-operative Inspectors and that the petitioner had not filed any objection against the said seniority list. It is also relevant to note that on completion of the option procedure the second respondent, the Director of Industries and Commerce published the seniority list of Junior Co-operative Inspectors and that the petitioner had not filed any objection against the said seniority list. At the time of hearing afforded to the petitioner pursuant to the directions in the judgment dated 30.6.2008 in W.P.(C)No.19297 of 2008 the petitioner submitted that he was unaware about the circular dated 27.7.2001 and as a result, he could not file any objection. At the same time, a careful scrutiny of the circumstances would reveal that there is no bona fides in that contention. That position would be revealed by the following paragraph in Ext.P25. It reads thus:- “The officials of the Directorate of Industries & Commerce had, at the time of hearing informed that the name of the petitioner is included in the select list of officers for promotion to the post of Assistant District Industries Officer in the scale of pay of Rs.11070-18450, while the scale of pay of Senior Superintendent is Rs.10790-18000.” It is thus obvious that the petitioner was included for promotion to the post of Assistant District Industries Officer which carries the scale of pay of Rs.11070-18450 which was then higher than the scale of pay of Senior Superintendent viz., Rs.10790-18000. Evidently, the petitioner opted to accept the promotion to the post of Assistant District Industries Officer. There is no dispute with respect to the position that after accepting the said promotion he continued in the Subordinate Service as Assistant District Industries Officer and it is also an indisputable fact that pursuant to Ext.P11 circular dated 27.7.2001 he had not opted to come over to the Ministerial Service. The third respondent who was in the Ministerial Service was considered for promotion to the post of Senior Superintendent which then was carrying only the pay scale of Rs.10790-18000 and was promoted, as per Ext.P14. The third respondent who was promoted to the post of Senior Superintendent obtained further promotion to the post of Administration Assistant which carries the scale of pay of Rs.12,250-19800. It is taking into account the aforesaid aspects that the grievance of the petitioner that the third respondent was getting higher pay than him, has to be considered. 5. The third respondent who was promoted to the post of Senior Superintendent obtained further promotion to the post of Administration Assistant which carries the scale of pay of Rs.12,250-19800. It is taking into account the aforesaid aspects that the grievance of the petitioner that the third respondent was getting higher pay than him, has to be considered. 5. The facts thus expatiated above would reveal that the petitioner had not opted to come over to Ministerial Service pursuant to Ext.P11 circular dated 27.7.2001 and at the same time, the third respondent who, then belonged to the Ministerial Service of the Industries Department accepted promotion as Senior Superintendent as per Ext.P14. It is also relevant to note that at that point of time, the petitioner was included in the select list of officers for promotion to the post of Assistant District Industries Officer carrying a higher scale of pay of Rs.11070-18450 than the scale of pay attached to the post of Senior Superintendent. It is also relevant to note that the petitioner had not chosen to challenge Ext.P14 whereby the third respondent was promoted to the post of Senior Superintendent. Evidently, he had also not chosen to challenge the same even thereafter, at any point of time. The promotion of the third respondent made as per Ext.P14 dated 26.2.2008 was to a post carrying a lesser scale of pay of Rs.10790-18000 and she happened to receive a higher scale of pay solely due to her subsequent promotion to the post of Administration Assistant. In the contextual situation, it is only relevant to refer to a decision of a Division Bench of this Court in which one among us (C.T. Ravikumar, J.) was a party, in G.C.D.A. v. Shanavas ( 2010 (1) KLT 598 ). In the said decision this Court observed that the concept of junior-senior fixation finds statutory recognition in Rule 28A of Part I of the Kerala Service Rules and that ruling No.1 there under permits stepping up of the pay of the senior who draws lesser pay than his junior. In paragraph 6 this Court held that:- “It is well settled that there is no universal principle that the senior in a cadre must always draw higher pay than the junior. On valid grounds, it may so happen that the junior may draw higher pay than the senior......” 6. In paragraph 6 this Court held that:- “It is well settled that there is no universal principle that the senior in a cadre must always draw higher pay than the junior. On valid grounds, it may so happen that the junior may draw higher pay than the senior......” 6. In the light of the said decision we will have to consider whether the petitioner is entitled to get stepping up of pay based on ruling No.1 under 28A of Part I of KSR. From the discussion as above, it is evident that at the time when Ext.P14 was issued whereby the third respondent was promoted to the post of Senior Superintendent the scale of pay attached to the said post was Rs.10790-18000. The petitioner who was then working in the Subordinate Service accepted the promotion to the post of Assistant District Industries Officer carrying a scale of pay viz., Rs.11070-18450. It is also a fact that though as per Ext.P11 circular dated 27.7.2001 right to opt was given to persons working under the Subordinate Service to come over to Ministerial Service he had not chosen to opt. In other words, despite the issuance of Ext.P7 circular dated 27.7.2001 the petitioner continued in the Subordinate Service. The third respondent who opted the Ministerial Service was initially promoted to the post of Senior Superintendent and by virtue of her seniority in that cadre she got promotion to the post of Administration Assistant. As noticed hereinbefore, the petitioner had not challenged the promotion of the third respondent to the post of Senior Superintendent as also her subsequent promotion to the post of Administration Assistant. By virtue of the promotion to the post of Administration Assistant the third respondent happened to get higher pay than the petitioner. In the said circumstances, it is evident that the petitioner cannot legally have any contention so also grievances on account of the fact that the third respondent is getting higher pay. In the light of the decision in Shanavas case (supra) we do not find any reason to hold that the petitioner is entitled to get stepping up of pay to bring it at par with the pay which was being drawn by the third respondent at the relevant point of time. In the said circumstances, we do not find any merit in the claims and contentions of the petitioner. In the said circumstances, we do not find any merit in the claims and contentions of the petitioner. When that be so, we find absolutely no reason to interfere with Annexure-D order dated 16.2.2018 and to remand the matter for further consideration by the Tribunal as even in case of such remand it will only end in a futile exercise. In the light of the said circumstances, this original petition must fail and accordingly, it is dismissed.