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2021 DIGILAW 1102 (KER)

Additional Chief Secretary v. P. R. Jayasree

2021-12-02

ALEXANDER THOMAS, VIJU ABRAHAM

body2021
JUDGMENT : Alexander Thomas, J. The sole respondent herein has filed in the instant Ext.P-1 original application, O.A.No.2311/2019 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench, with the following prayers: “(i) To issue appropriate direction or orders, declaring that applicant is entitled to treat her compulsory waiting period as duty and thus entitled for all consequential benefits arising there from; (ii) To issue appropriate direction or orders, directing the respondents to treat the compulsory waiting period for posting as duty and grant all consequential benefits as expeditiously as possible; (iii) To issue appropriate direction or orders, quashing Annexures A.14 orders as it is illegal, arbitrary against the lay laid down by the Apex Court on the point; (iv) To issue appropriate direction or orders, staying the operation of Annexure A.14; (v) Such other order or direction which this Hon'ble Tribunal may deem fit considering the facts and circumstances of the case.” 2. The Tribunal after hearing both sides, has rendered the impugned Ext.P-4 final order dated 28.1.2021, whereby the O.A. has been finally disposed of by allowing the main pleas of the applicant by quashing the impugned Anx. A-14 G.O(Rt.)No. 2229/19/LSGD dated 10.10.2019 issued by the competent authority of the State Government in the Local Self Government Department, whereby the plea of the original applicant for treating the compulsory waiting period after deputation as duty for all purposes including pay and allowances has been rejected and the said period has been treated only for the purpose of eligible leave, etc. It is this verdict of the Tribunal at Ext.P-4 that is under challenge in the instant Original Petition filed under Arts.226 and 227 of the Constitution of India, at the behest of the State of Kerala and their officials concerned. 3. The prayers in the instant O.P(KAT) are as follows: “(i) to set aside Exhibit P-4 Order of the Kerala Administrative Tribunal Order dated dated 28.01.2021 in O.A.No. 2311/2019 and dismiss the Ext.P-1 Original Application. (ii) Any other order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.” 4. Heard Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the petitioners in the OP/respondents in the O.A. and Sri.P.R.Jayakrishnan, learned counsel appearing for the sole respondent in the O.P./sole applicant in the O.A. 5. (ii) Any other order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.” 4. Heard Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the petitioners in the OP/respondents in the O.A. and Sri.P.R.Jayakrishnan, learned counsel appearing for the sole respondent in the O.P./sole applicant in the O.A. 5. The respondent herein/original applicant was earlier sent on deputation from her parent Department, viz., Town Planning Department, to the Greater Cochin Development Authority (GCDA), Ernakulam, for a period of one year, which period was later extended and ultimately her deputation period was over on 28.6.2017. Well before the expiry of the deputation period, the applicant had taken steps to intimate her head of the Department, viz., Chief Town Planner that on expiry of the deputation period, she has to immediately join her parent Department and requested to provide her immediate posting, etc. The said matter has also consistently been taken up before the competent authority of the State Government in the Local Self Government Department. 6. Citing the ground of non-availability of vacancies, the applicant had to wait for quite a long time and ultimately, she was permitted to rejoin her parent Department only on 20.2.2017, pursuant to the permission granted to her as per Anx.A-10 G.O(Rt.) dated 18.11.2017. The applicant's specific case is that either the junior most incumbent should have been reverted by the competent authority of the State Government and the Chief Town Planner or since deputation requests were made by certain incumbents to other Departments/ organizations, the same could have been allowed well in advance so as to ensure the creation of a vacancy to accommodate the applicant and the same was not done and ultimately, the deputation request of another incumbent was allowed belatedly and it is only in that consequential deputation vacancy, that the applicant was provided with posting back in the parent Department. 7. The request of the applicant to treat the abovesaid period of compulsory waiting, as duty for all purposes including pay and allowances for the period from 1.7.2017 to 21.11.2017 has been rejected by the competent authority of the State Government as per Anx.A-14 order dated 10.10.2019 and the said period has been treated as eligible leave. 8. 7. The request of the applicant to treat the abovesaid period of compulsory waiting, as duty for all purposes including pay and allowances for the period from 1.7.2017 to 21.11.2017 has been rejected by the competent authority of the State Government as per Anx.A-14 order dated 10.10.2019 and the said period has been treated as eligible leave. 8. The Tribunal after hearing both sides, has taken the view as per the impugned Ext.P-4 final verdict that the said stand of the State Government is arbitrary and unreasonable and the applicant being a senior incumbent, had to be provided a posting back in the parent Department and if at all there was lack of vacancy, it was the bounden duty of the State Government and the Department concerned to revert the junior most incumbent so as to provide a vacancy to accommodate the applicant so that she could join back in the parent Department. 9. As a matter of fact, the Tribunal found that the request for deputation of another junior incumbent in the category of the applicant was pending for quite a long time and the same was belatedly allowed by the Government and it is only in that deputation vacancy, that the applicant has been accommodated. In the light of these aspects, the Tribunal has taken the considered view that the rejection of the main plea of the applicant for treating the said compulsory waiting period as duty for all purposes including pay and allowances, is arbitrary and unreasonable and that the said period should be forthwith treated as duty for all purposes including pay and allowances, etc. 10. A brief recital to the factual scenario in this case may be necessary: The applicant was holding the post of Town Planner under the Town Planning Department. The applicant was sent on deputation from the parent Department to an autonomous statutory body viz., Greater Cochin Development Authority [GCDA] for the period of one year from 29.6.2015, which period was later extended by one year, which period also expired on 28.6.2017. Well prior to the expiry of the deputation period, the applicant had intimated R-1 in the OA (Addl. Chief Secretary in the Local Self Government Department) about the expiry of the deputation period and that the applicant may be immediately provide a posting, etc. Well prior to the expiry of the deputation period, the applicant had intimated R-1 in the OA (Addl. Chief Secretary in the Local Self Government Department) about the expiry of the deputation period and that the applicant may be immediately provide a posting, etc. As a matter of fact, the applicant was relieved from the borrowing Department, viz., GCDA, as per Anx. A-1 order dated 27.6.2017 issued by the competent authority of the GCDA. After availing joining time on 1.7.2017 the applicant had moved R-4 in the O.A., viz., Chief Town Planner, for posting as per Anx. A-2 request dated 1.7.2017. Further it is seen that the applicant had also submitted representation as per Anxs.A-3 and A-4 on 20.2.2017 and 1.7.2017 respectively, prior to the expiry of the deputation period and also immediately after reporting for duty seeking an early posting. R-4 in the OA [Chief Town Planner(C.T.P)] as per Anx. A5 letter dated 24.3.2017 had forwarded the request of the applicant to R-1 in the OA (Addl. Chief Secretary) seeking clarifications therein. The Chief Town Planner was again constrained to send Anx.A-6 reminder dated 4.7.2017. It is thereafter that R-1 in the OA has forwarded Anx.A-7 letter dated 25.7.2017 instructing the C.T.P. to forward a proposal or recommendation for reversion of the junior most incumbent in the post of Town Planner in order to create a vacancy to accommodate the applicant, etc. The C.T.P. as per Anx. A8 letter dated 3.8.2017 had immediately responded by stating that the junior most Town Planner is one Smt.M.V.Shari, who has to be reverted to accommodate the applicant. It was further pointed out therein that as a matter of fact one Sri.T.N.Rajesh, another incumbent holding the post of Town Planner, has sought for deputation either to GCDA or to Cochin Metro, which was then waiting consideration before the 1st respondent. Even after submission of Anx. A8 proposal, by the C.T.P. on 3.8.2017, no orders were passed by the competent authority of the State Government. This impelled the applicant to again move the authorities as per Anx.A-9 representation dated 9.10.2017. Thereafter, it appears that abovesaid incumbent, Sri.T.N.Rajesh, Town Planner was sent on deputation to GCDA and in that consequential vacancy, the applicant was accommodated as per Anx.10 order dated 18.11.2017. This impelled the applicant to again move the authorities as per Anx.A-9 representation dated 9.10.2017. Thereafter, it appears that abovesaid incumbent, Sri.T.N.Rajesh, Town Planner was sent on deputation to GCDA and in that consequential vacancy, the applicant was accommodated as per Anx.10 order dated 18.11.2017. After joining duty at the office of the C.T.P, the applicant on 22.11.2017 had sought for regularization of compulsory waiting period for the period from 1.7.2017 to 21.11.2017. Further, it is seen that the head of the Department, R-4 (C.T.P) in the O.A, has recommended as per Anx. A-12 letter dated 10.1.2018 to the State Government that the abovesaid compulsory waiting period of the applicant has to be regularized as duty all purposes. The applicant has complained that she has not been granted increments for the years 2017 and 2018 due to non regularization of the compulsory waiting period. This again impelled the applicant to move an original application as O.A.No.2122/2018 before the Kerala Administrative Tribunal, in which the Tribunal has granted final order dated 7.11.2018, directing the competent authority of the State Government in the Local Self Government Department to pass orders on the representations preferred by the applicant, etc. Since no compliance was effected, the applicant was constrained to prefer contempt of court petition, C.P.No.66/2019 before the Tribunal arising out of O.A.No. 2122/2018 and it is only thereafter that R-1 in the OA has issued Anx.A-14 order dated 10.10.2019 ordering that the period upto 29.6.2017 will be treated as joining time for the applicant and that the compulsory waiting period from 30.6.2017 to 21.11.2017 will be treated as eligible leave and not as duty for all purposes, including pay and allowances. It is challenging Anx A-14 order that the applicant has moved the instant O.A., which resulted in Ext.P-4 final verdict. 11. It may be pertinent to refer to few statutory provisions in Part I of KSR, which deal with subject issues. Rule 12(7) and Note 4 appended thereunder of Part I KSR, provide as follows: “Rule 12. Unless there be something repugnant in the subject or context, the terms defined in this Chapter are used in the rules in the sense here explained:- (1)........ xxx xxx xxx xxx xxx xxx (7): Duty.- Duty includes-- (i) Service as a probationer or apprentice, provided that such service is followed by confirmation. (ii) Joining time. Unless there be something repugnant in the subject or context, the terms defined in this Chapter are used in the rules in the sense here explained:- (1)........ xxx xxx xxx xxx xxx xxx (7): Duty.- Duty includes-- (i) Service as a probationer or apprentice, provided that such service is followed by confirmation. (ii) Joining time. (iii) A course of instruction or training which an Officer undergoes specially ordered by Government to be treated as duty. Note 1:.......... xxx xxx xxx xxx xxx xxx Note 1:.......... xxx xxx xxx xxx xxx xxx Note.4. When a Government servant on return from leave, training, foreign service or on termination of previous appointment, has compulsorily to wait for orders of posting, the interval between the date of report and the date on which he takes charge of his duties shall be treated as 'duty' provided that the interval between the date of receipt of orders and his assumption of duties shall not in any case exceed the amount of joining time admissible under Rule 125(a). During such period of duty, he will be entitled to pay according to Rule 26. Avoidable delay caused in giving posting orders in such cases shall render the authorities concerned, liable for the excess expenditure, if any, caused thereby.” The operative portion of Rule 26 of Part I KSR provides as follows : “Rule 26. During such period of duty, he will be entitled to pay according to Rule 26. Avoidable delay caused in giving posting orders in such cases shall render the authorities concerned, liable for the excess expenditure, if any, caused thereby.” The operative portion of Rule 26 of Part I KSR provides as follows : “Rule 26. When an officer is treated as on duty under Rule 12(7) (iii), the Government may, at their option, authorise payment to him of the pay of his substantive appointment or of any lower rate of pay which they may consider suitable, provided that the pay admissible may, if the Government so direct, be instead of either of the rates just specified, the pay of any officiating appointment which the Officer would have drawn but for undergoing such training, subject however to the condition that this rate of pay shall not be allowed for a period longer than that for which the Officer would have held the officiating appointment had he not been placed on such a course of training.” (the provisions contained in Notes 1 and 2 appended thereunder are not quoted above) The operative portion of Rule 23(a) of Part I KSR provides as follows: “Rule 23 (a) Subject to any exceptions specifically made in these rules, an Officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. If the charge is transferred afternoon, the transfer does not affect pay and allowances until the next day.” Rule 125 of Chapter X Part I KSR deals with joining time and the operative portion of Rule 125 of part I KSR provides as follows: “Rule 125. Joining time may be granted to an officer to enable him -- (a) to join a new post to which he is appointed while on duty in his old post; or (b) to join a new post,-- (i) on return from earned leave; (ii) when he has not had sufficient notice of his appointment to the new post, on return from leave other than that specified in sub-clause (i).” (provisions contained in Notes 1 and 2 and the Rulings appended thereunder have not been quoted above). 12. 12. Note 4 appended to Rule 12(7) deals with the norms relating to treatment of compulsory waiting period after orders of posting. It is stipulated therein that when a Government servant on return from leave, training, foreign service or on termination of a previous appointment has compulsorily to wait for orders of posting, the interval between the date of report and the date on which he takes charge of his duties shall be treated as 'duty' provided that the interval between the date of receipt of the orders and his assumption of duties shall not in any case exceed the amount of joining time admissible under 125(a) and that during such period of duty, he will be entitled to pay according to Rule 26. Further that avoidable delay caused in giving posting orders in such cases shall render the authorities concerned, liable for the excess expenditure, if any, caused thereby, etc. 13. The provisions contained in Rule 26 of Part I KSR may not be relevant in as much as, the same deal with scenario covered by Rule 12(7)(iii) which deals with course of instruction or training, which an officer undergoes specifically ordered by the Government to be treated as duty. Since we are concerned mainly with deputation/ foreign service, the said provision may not be much relevant. The operative portion of Rule 23(a) of Part I KSR further provides that subject to any exceptions specifically made in those rules, an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date he assumes the duties of that post and shall cease to draw them as soon as he ceased to discharge those duties, etc. 14. In the instant case, the respondents in the O.A. do not have any serious factual disputes that the applicant had in fact reported to the competent authorities concerned both before the head of the Department as well as to the State Government and that too, well before the expiry of the deputation period that her deputation period will be over shortly and that she should be provided for a posting in the parent Department. 15. 15. The same was not acted upon by the competent authority concerned, presumably on account of delay attributable solely to the respondents in the O.A. In the instant case, since the abovesaid facts will make it clear that all throughout the applicant has been diligently seeking for posting in the parent Department and she had been sending repeatedly representations both to the head of the Department, viz., Chief Town Planner and to the competent authority of the State Government in the Local Self Government Department and since no effective action was forthcoming, she was even constrained to move the Tribunal by filing the original application. The said verdict of the Tribunal was also of no avail which again impelled the applicant to move contempt proceedings, which ultimately resulted in Anx. A-14 rejection order. Therefore, the abovesaid factual aspects mentioned in the previous paragraphs are not in any manner seriously disputed by the respondents in the OA, either in their pleadings before the Tribunal or in the pleadings in the present O.P. Therefore, inordinate delay on the part of the State Government to take necessary action to provide a vacancy for the applicant, cannot be the basis to penalise the applicant. On the other hand, Note 4 appended to Rule 12(7) of Part I KSR specifically mandates that avoidable delay caused in giving posting orders in such cases shall render the authorities concerned liable for excess expenditure, if any, caused thereby. The respondents the OA very well knew that the applicant's deputation period will be over within the time limit concerned and that being a senior most incumbent, she should be provided vacancy either by reverting the junior most incumbent or by creating the vacancy due to other proceedings like allowing deputation request of the junior incumbent, which was then pending. As a matter of fact, even the head of the Department, viz., the Chief Town Planner, has recommended that the abovesaid compulsory waiting period has necessarily to be treated as duty for all purposes including pay and allowances. Presumably the motion of the litigative proceedings by moving the O.A. and the subsequent contempt would have created the present scenario. The applicant cannot be faulted for having litigated for her rights. When there has been total silence on the part of the Governmental authorities, an incumbent like the applicant has to necessarily take recourse to vindicate her rights and interests. The applicant cannot be faulted for having litigated for her rights. When there has been total silence on the part of the Governmental authorities, an incumbent like the applicant has to necessarily take recourse to vindicate her rights and interests. Otherwise, there will be allegations that her subsequently claims made should be treated as vitiated by inordinate delay and laches, etc. 16. If the competent authority had either reverted the junior most Town Planner, viz., Smt.M.V.Shari or had ordered deputation of Sri.T.N.Rajesh, to the organization concerned, then the issue could have been resolved long ago and hence this controversy has been created only on account of the inordinate delay on the part of the Government. For that, the applicant, who has been vindicating her rights, cannot be penalised further by ordering that the compulsory waiting period has to be treated only as eligible leave. The question of double payment may arise only on account of delay and laches of the Government and the provisions contained in Rule 23(a) cannot be permitted to be used against the applicant and if that is permitted, it would amount to Governmental authorities to take advantage of their own wrong. Therefore, we are not impressed with the arguments now advanced before us on the basis of Rule 23(a) of Part I KSR. If the said contentions of the Government are accepted, it would amount to this Court upholding a highly inequitable and unfair stand. 17. The Tribunal has rendered a well considered verdict in the matter. We do not find any reasons to hold that the impugned verdict of the Tribunal suffers either from grave illegality or that the same is vitiated by manifest perversity, unreasonableness, etc. In matters like this, we are of the view that the Government should put a quietus and should not have challenged the instant verdict of the Tribunal, by filing the above OP. 18. The learned Senior Govt. Pleader submits that this Court may grant at least two months' time to the competent authority of the State Government to comply with the directions of the Tribunal. The compulsory waiting period in question in this case is from 1.7.2017 to 21.11.2017. More than 4 years have elapsed thereafter. Two rounds of OA litigative proceedings have been initiated in this case, apart from the writ litigative proceedings before this Court. The compulsory waiting period in question in this case is from 1.7.2017 to 21.11.2017. More than 4 years have elapsed thereafter. Two rounds of OA litigative proceedings have been initiated in this case, apart from the writ litigative proceedings before this Court. Final verdict of the Tribunal as per Ext.P-4 was rendered as early as on 28.1.2021. The present OP has been filed before this Court on 1.12.2021. Having regard to the long delay on the part of the Government that has been taken for complying with the directions of the Tribunal, we cannot grant much time. However, taking note of the submissions made by the learned Senior Govt. Pleader, it is ordered that the competent authority of the State Government in the Local Self Government Department is given four weeks' time to comply with the orders and directions issued by the Tribunal at Ext.P-4 in the matter of passing necessary orders for treating the abovesaid compulsory waiting period of the applicant as duty for all purposes including pay and allowances. It is further ordered that orders should be issued regularizing the abovesaid compulsory waiting period as duty for all purposes including pay and allowances and that on issuance of such orders and regularization of the compulsory waiting period as above, the applicant should also be given increments from the years 2017 orders, which also will have to be disbursed without delay. The petition fails and accordingly, the Original Petition will stand dismissed.