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2019 DIGILAW 788 (KER)

State of Kerala Represented by Its Secretary, Department of Land and Revenue Government v. K. Indira, Special Tahsildar (La. Nh A1), Unit No. 3

2019-09-30

K.VINOD CHANDRAN, V.G.ARUN

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JUDGMENT : Arun, J. The State and its officials have filed this original petition, aggrieved by the order of the Kerala Administrative Tribunal in T.A. No. 4385 of 2012 allowing the transferred application, finding the applicant/first respondent herein to be eligible for second higher grade benefit from 23.3.1991, on completion of eight years of service in the promoted post of Upper Division Clerk. 2. An encapsulation of facts, as narrated in the original petition, with reference to the parties and documents as in the transferred application, is as under: The applicant had commenced her service as Lower Division Clerk in the Revenue Department on 1.3.1988. On 27.6.1996 she was promoted as Upper Division Clerk with effect from 20.5.1996 and her pay was fixed accordingly. On 12.8.1996 Exhibit P2 proceedings was issued granting retrospective promotion to the applicant as Upper Division Clerk with effect from 23.3.1991. Thereafter, by Exhibit P3 proceedings dated 6.3.2006, the applicant was granted grade promotion to the scale of Rs.4600-7125 with effect from 23.3.1991. The grade promotion was granted on completion of eight years of service in the cadre of Upper Division Clerk, reckoning the applicant's date of promotion as 23.3.1991. The arrears due to the applicant consequent to such re-fixation were also disbursed. 3. As per Exhibit P4, audit objection was raised against counting of applicant's service as Upper Division Clerk with effect from 23.3.1991 for the purpose of granting grade promotion. According to the audit team, the applicant's service from 20.5.1996 alone should have been reckoned, since the retrospective promotion with effect from 23.3.1991 was notional promotion, which cannot be taken into account for the purpose of granting grade promotion. Exhibit P5 reply was given to the audit objection stating that as per Rule 23(c) of Part-I KSR, prior to its amendment by G.O(P)83/07/Fin. dated 1.3.2007, promotions which did not involve change of duties shall have effect from the date of the vacancy which occasioned the promotion. It was explained that though the 1st respondent was originally promoted as Upper Division Clerk with effect from 20.5.1996, the Department later realised that in accordance with the ratio 1:1 between LD and UD Clerks, few more posts of LD Clerks had to be upgraded retrospectively. That, on the basis of qualification and seniority, the applicant was entitled for promotion as UD Clerk with retrospective effect from 23.3.1991 and the same was granted under Exhibit P2. That, on the basis of qualification and seniority, the applicant was entitled for promotion as UD Clerk with retrospective effect from 23.3.1991 and the same was granted under Exhibit P2. It was submitted that the administrative delay in granting timely promotion should not be taken as a reason to deny eligible benefit to the applicant. The explanation was rejected and Exhibits P6 and P7 proceedings issued, proposing recovery of the amounts alleged to have been received in excess by the applicant, based on the wrong fixation of her date of promotion. By Exhibit P10 direction was issued to recover the excess pay granted to the applicant. The proceedings for recovery was challenged in W.P(C).No.37230 of 2009 and pending the writ petition Exhibit P11 letter was issued informing that after detailed examination of the case, objection against irregular grant of higher grade is dropped. Since the proceedings against her was based on the audit objection, dropped as per Exhibit P11, the applicant withdrew W.P(C).No.37230 of 2009, without prejudice to her right to approach the court, in the event of there being any change in the decision communicated under Exhibit P11. By Exhibit P13, the applicant was informed that the period of retrospective/notional promotion cannot be reckoned as qualifying service in the promoted post for the purpose of granting time bound higher grade promotions and that the position had been upheld by this Court in the judgment in W.A.No.759 of 2007. The transferred application was thereupon filed by the applicant seeking the following reliefs: “i. Quash Exhibit P6 issued by the 3rd respondent, Exhibit P7 order issued by the 3rd respondent, Exhibit P10 order and Exhibit P13 letter issued by the 1st respondent by the issuance of writ of certiorari or other appropriate writ, order or direction. ii. Declare that the petitioner is entitled to get her service with effect from 23.3.1991 in the cadre of U D Clerk to be counted for the purpose of grant grade promotion on completion of eight years of service and direct the respondents to restore to the petitioner the grade promotion on completion of eight years with effect from 23.3.1999 granted to her as per Exhibit P3 order by the issuance of writ of mandamus or other appropriate writ, order or direction. iii. iii. Declare that no amount is recoverable from the petitioner on the ground of excess pay on wrong fixation and direct the respondents not to recover any amount from the petitioner on the ground of excess pay on wrong fixation by issuance of writ of mandamus or other appropriate writ, order or direction.” 4. In the counter affidavit filed before the Tribunal, the respondents stated that time bound higher grade promotion is a benefit granted to those employees who stagnate in the entry cadre post without promotion after completion of the prescribed period of qualifying service and that the period of retrospective/notional promotion cannot be reckoned as qualifying service in the promoted post for the purpose of granting time bound higher grade promotion. It was pointed out that the position has been upheld as per the judgment of the High Court in W.A.No.759 of 2007. As such, for the purpose of granting time bound higher grade to the applicant, the qualifying service to be taken into consideration was from 5.4.2006, the date on which the applicant was originally promoted to the cadre of UD Clerk and not 23.3.1991, the date from which the promotion was given retrospective effect. 5. The Tribunal found that as per Exhibits P2 and P3 orders, the Government had, while assigning promotion to the applicant in the post of UDC with effect from 23.3.1991, specifically held that she would be entitled for all consequential benefits including arrears of pay. That, while granting the second time bound higher grade, the fact that arrears of pay was disbursed with effect from 23.3.1991 onwards was taken note of by the respondents. By Exhibit P3 order the Tribunal held that, having assigned the date of promotion as 23.3.1991 and having granted fixation of pay with effect from that date, as also the arrears from 23.3.1991 to 20.5.1996 based on such fixation, the promotion granted to the 1st respondent with effect from 23.3.1991 could not be held to be notional promotion and hence the applicant was eligible for second higher grade on completion of eight years service from 23.3.1991. By the impugned order the objection raised as per Exhibit P4 and the recovery initiated as per Exhibits P6, P7 and P10 was found to be bad. It was held that Exhibit P13 clarification cannot be pressed into service as far as the applicant is concerned. By the impugned order the objection raised as per Exhibit P4 and the recovery initiated as per Exhibits P6, P7 and P10 was found to be bad. It was held that Exhibit P13 clarification cannot be pressed into service as far as the applicant is concerned. It was directed to re-fix the pay of the applicant by granting the benefit of the second time bound higher grade with effect from 23.3.1991. 6. The main challenge in this original petition is against the finding of the Tribunal that, for the purpose of grant of second time bound higher grade, the period from the date of retrospective promotion could be reckoned as qualifying service. Reliance is placed on Exhibit P14 judgment of this Court in W.A.No.759 of 2007 to contend that, in identical circumstances, this Court has held such promotion to be notional, which cannot be reckoned as qualifying service for the purpose of time bound higher grade. The short question that arises for consideration in this original petition is as to whether the retrospective promotion granted to the applicant was notional or not. 7. The meaning of the word 'notional' in the Chambers Dictionary is “ideal; fanciful; imaginary; unreal”. A 'notion' is an idea; an opinion, especially one not very well founded. Therefore, a notional promotion is not akin to actual promotion and is more in the nature of temporary promotion granted for the purpose of meeting a contingency or a particular situation. It is a practise often judicially employed to adjust equities in case of employees who were denied a promotion, at the same time not prejudicing the State to pay salary for work which was not carried out; though by reason of an irregular or illegal denial. Notional promotions do not usually carry the benefits which would accrue to an employee on grant of regular promotion. In the instant case, as per Exhibit P2, the applicant was sanctioned fixation of pay from 23.3.1991 with consequential arrears of pay. Notional promotions do not usually carry the benefits which would accrue to an employee on grant of regular promotion. In the instant case, as per Exhibit P2, the applicant was sanctioned fixation of pay from 23.3.1991 with consequential arrears of pay. The following portion of Exhibit P3 proceedings, by which the applicant was granted second time bound higher grade, assumes relevance: “As per the rules laid down in the G.O. (P)No.3000/98/Fin dated 25.11.98 the second higher grade on completion of either 8 years of service in the first promoted post or a total service of 18 years in the entry post and the first regular promotion post/time bound higher grade together, which ever is earlier will be granted. Thus the incumbent is eligible for 2nd higher grade in the scale of pay 4000-7125 with effect from 23.3.99.” 8. In Exhibit P5 reply to the audit objection, the specific stand of the respondents, was as under: “Smt.K.Indira was originally promoted as U.D.Clerk with effect from 20.5.1996. Later the Department had found that on the ratio 1:1 in between L.D and U.D Clerks a few more posts of L.D.Clerks had to be upgraded retrospectively. Accordingly on qualification and seniority Smt.Indira was entitled to get promoted with retrospective effect from 23.3.1991. She has been given retrospective promotion as U.D.Clerk from 23.3.1991. Therefore it was fair and justice to reckon her service from 23.3.1991 as U.D.Clerk with all entitlements attached to the post of U.D.Clerk in terms of rule 23(c) prevailed till 1.3.2007. The administrative delay in giving earlier promotion could not have been taken as a reason to deny the benefit admissible as per rule 23(c) Part I of KSRs prevailed till 1.3.2007.” 9. In the above factual background, the respondents cannot be heard to contend that the retrospective promotion granted to the appellant was notional promotion, which cannot be reckoned for the purpose of granting time bound higher grade. The specific case of the respondents in Exhibit P5 was that, there being no change in the duties and responsibilities of LD Clerks and UD Clerks, the grant of promotion to the 1st respondent as UD clerk with effect from a retrospective date can be reckoned as qualifying service for the purpose of time bound higher grade. The specific case of the respondents in Exhibit P5 was that, there being no change in the duties and responsibilities of LD Clerks and UD Clerks, the grant of promotion to the 1st respondent as UD clerk with effect from a retrospective date can be reckoned as qualifying service for the purpose of time bound higher grade. The findings in Exhibit P14 judgment even if rendered on similar facts and circumstances, the learned Judges understood the promotion therein to be merely notional; which admittedly is not the case here. The dictum therein is clearly applicable only to notional promotions and cannot be applied as far as the instant case is concerned. For the reasons mentioned above, no interference with the impugned order in T.A.No. 4385 of 2012of the Kerala Administrative Tribunal is warranted. In the result, the original petition is dismissed. No order as to costs.