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2023 DIGILAW 448 (KER)

State Of Kerala v. Uthaman Nayyan, S/o Sankaran N

2023-06-13

ALEXANDER THOMAS, C.JAYACHANDRAN

body2023
JUDGMENT : Alexander Thomas, J. The afore-captioned two Original Petitions instituted under Article 226 and 227 of the Constitution of India are directed against the impugned final verdict rendered by the Kerala Administrative Tribunal, Ernakulam Bench in O.A(Ekm).Nos.905/2018 and 1222/2018. Petitioners in both the O.Ps are the respondents in the respective O.A's. The sole respondent in the former O.P. is the sole applicant in O.A.(Ekm).No.905/2018. The 4 respondents in the latter O.P are the original applicants in O.A(Ekm).No.1222/2018. It is common ground that the applicants 2 to 4 in the latter O.A(Ekm).No.1222/2018 were already promoted before the verdict was rendered and therefore, their claims had become infructuous. So the claim only in respect of the first applicant in O.A.(Ekm).No.1222/2018 had survived for consideration. 2. The Tribunal after hearing both sides has rendered the impugned common final verdict on 26.06.2019 in the instant O.A(Ekm).Nos.905/2018 and 1222/2018 whereby those O.A's were disposed of with the clear finding that the act of the respondents in the O.A. in not promoting the above respective applicants in these O.As to the post of Principal of Government Higher Secondary School, from the date on which the select list was published on 25.05.2018 and well before the retirement from service on 30.06.2018 is illegal and ultravires and that, their exclusion from the actual promotion merely on the ground that the actual promotion was done by the respondents in the O.A in pursuance of the select list dated 25.05.2018 only on 30.07.2018. is also illegal. Consequently, the Tribunal has found that the aforesaid two respective applicants in these two O.As are entitled for notional promotion to the post of Principal, Government Higher Secondary School with effect from 25.05.2018 and to grant them consequential benefits thereon. A copy of the said common final verdict has been produced as Ext.P6 in the former O.P. and as Ext.P4 in the latter O.P. 3. Heard Sri.Ashok M. Cherian, learned Additional Advocate General, instructed by Smt.Sabeena P. Ismail, learned Government Pleader appearing for the petitioners in these two O.Ps and Sri.Murali Pallath, learned counsel appearing for the sole respondent in the former O.P/sole applicant therein. As already mentioned hereinabove, the Tribunal has found that the respondents 2 to 4 in the latter O.P has already been promoted before the retirement and before the rendering of the verdict and therefore, they are unnecessary parties. As already mentioned hereinabove, the Tribunal has found that the respondents 2 to 4 in the latter O.P has already been promoted before the retirement and before the rendering of the verdict and therefore, they are unnecessary parties. Since we have decided not to admit this case, notice to the first respondent in O.P(KAT).No.166/2023 (first applicant in O.A.(Ekm).No.1222/2018) will stand dispensed with. 4. We will be giving reasons for arriving at a conclusion for the dismissal of these O.P.s hereinafter. Before that, it will be pertinent to refer to the facts of the case in these two matters. 5. The sole applicant in the former O.A was in the feeder source of Higher Secondary School Teacher (Senior) in Government Higher Secondary School and was eligible for consideration of promotion to the next higher category post of Principal, Government Higher Secondary School through the DPC process. Whereas the first respondent in the latter O.P. was in the feeder source of Headmaster of Government Higher Secondary School and was entitled to be considered for by-transfer appointment to the post of Principal, Government Higher Secondary School. Both the above said appointments to the category of Principal is through the DPC (higher) process. 6. In the case of the former applicant, he was included in Annexure-A1 dated 26.05.2014 seniority list of Higher Secondary School teachers for eligibility to the promoted to the cadre of Principal and the serial number assigned to him in the said afore Annexure-A1 is serial number 518. 7. It is the common ground that the incumbents upto serial no.470 were already promoted to the next category of Principal and at the relevant time, there were about 139 vacancies of Principals in various schools. By Annexure-A2 circular dated 18.01.2017, steps were taken for effecting promotion and for calling for confidential reports from the eligible candidates and the last date for reaching the confidential reports before the authority concerned was 25.01.2018. There is no dispute that the former applicant had indeed submitted all the documents as well as the confidential report within time but, no effective steps were taken to convene the Department Promotion Committee. It is in these circumstances that these applicants had preferred the above O.As before the Tribunal. The Tribunal had passed the interim order dated 22.06.2018 in these cases, which reads as follows: "Admit. It is in these circumstances that these applicants had preferred the above O.As before the Tribunal. The Tribunal had passed the interim order dated 22.06.2018 in these cases, which reads as follows: "Admit. Learned Government Pleader takes notice on behalf of the respondents in both the Original Applications. 2. The applicants in the above Original Applications are aggrieved by the denial of promotion to the cadre of Principal, Government Higher Secondary Schools. In fact, the Original Applications are filed alleging that there is undue delay in the matter. When O.A.(Ekm) No. 905 of 2018 came up for consideration on 19.6.2018, the learned Government Pleader submitted that the files are pending with the Ministry for taking final decision in the matter. Today, it is submitted that no orders have been passed so far. 3. Learned counsel for the applicants submits that as far as the applicant in O.A. (Ekm) No. 905 of 2018 is concerned, he will be retiring on 30.6.2018. Same is the case of the first applicant in O.A.(Ekm) No. 1222 of 2018. The remaining applicants in O.A.(Ekm) No. 1222 of 2018 will attain superannuation on 31.7.2018. 4. The eligibility of the applicants for promotion will have to be considered. As the applicants are before this Tribunal, it is made clear that attaining of superannuation will not prejudice their right to get promotion and consequential benefits including monetary benefits, if ultimately they are found eligible." 8. Thus, it can be seen from a reading of paragraphs 3 and 4 of the order dated 22.06.2018 rendered by the Tribunal in the above O.As that the aforesaid applicants in these two cases were to retire from service on 30.06.2018. The respondents 2 to 4 in the latter O.P (applicants 2 to 4 in the latter O.A) were to retire from service on 31.07.2018. The Tribunal ordered and declared as per the said order dated 22.06.2018 that the applicants had already approached the Tribunal, the mere fact that they may later attain the age of superannuation before the promotion takes place will not prejudice their right to get promotion including consequential benefits, if ultimately they are found suitable. The Tribunal ordered and declared as per the said order dated 22.06.2018 that the applicants had already approached the Tribunal, the mere fact that they may later attain the age of superannuation before the promotion takes place will not prejudice their right to get promotion including consequential benefits, if ultimately they are found suitable. In that regard, it is pertinent to note that even before the interim order was passed on 22.06.2018 in these O.As, the competent authority had convened the DPC meeting on 22.05.2018 and the select list was published dated 25.05.2018 (produced as Annexure-A5/R1(a) in the former case). A reading of the aforesaid Annexure-A5/R1(a) would make it clear that the former applicant has been placed as serial no.47 in the select list of Principals from the feeder source of Higher Secondary School Teachers. So also the latter applicant has been placed as serial no.1 in the select list of Principals from the feeder source of Headmasters. There is no dispute that vacancies are available to immediately promote or appoint by transfer the aforesaid two applicants to the next higher category of Principals of Government Higher Secondary School. It is also common ground that the Directorate had made proposal immediately after the publication of select list dated 25.05.2018 that promotion should be immediately given effect to. For reasons which are not very clear, the Government took longer time and actually issued promotion order only on 30.07.2018. By that time, both the aforesaid applicants had retired from service on 30.06.2018, this is so, inspite of specific order passed by the Tribunal on 22.06.2018. The other applicants in the latter O.A, namely applicants 2 to 4 therein, who are juniors to these applicants could actually secure the benefit of promotion ordered as per Annexure-A5 select list dated 25.05.2018, because they were in service as on 30.07.2018 and as they retired from service on 31.07.2018. 9. In the light of these aspects, the Tribunal is fully justified and right in finding that the respondents in the O.A have committed illegality in not promoting these two applicants immediately after the issuance of the aforesaid Annexure-A5/R1(a) select list dated 25.05.2018. Atleast after the issuance of the order dated 22.06.2018, the former O.A was filed before the Tribunal on 31.03.2018, whereas the latter O.A was filed on 15.06.2018. Atleast after the issuance of the order dated 22.06.2018, the former O.A was filed before the Tribunal on 31.03.2018, whereas the latter O.A was filed on 15.06.2018. In the instant case, all what the Tribunal has ordered is that the respective applicants should be given notional promotion/notional appointment to the post of Principal, Government Higher Secondary Schools with effect from 25.05.2018 ie, the date of issuance of the select list, only on a notional basis. In other words, no actual arrears of pay or allowance was ordered to be granted. So all what is to be done by the petitioners is to notionally fix the last pay of these two applicants as on 30.06.2018 by treating as if they were holding the post of Principal as on 30.06.2018 in as much as they are to be treated as notionally promoted with effect from 25.05.2018 and their retirement benefits should be revised and re-computed and the difference in the arrears consequent to such revision of pensionary benefits is to be disbursed to them. There is no question of actual grant of arrears of pay and allowances during the period from 25.05.2018 upto 30.06.2018. In the light of the very limited directions issued by the Tribunal and in the light of the indisputed facts, we fail to understand as to why the present O.P has been filed. That apart, the impugned verdict of the Tribunal has been rendered as early as on 26.06.2019, the former O.P has been filed before this Court only as late as on 13.04.2023, whereas latter O.P has been filed before this Court on 20.03.2023. There is long and inordinate delay in instituting these O.Ps for challenging the verdict of the Tribunal. The petitioners would urge that they were disabled from approaching this Court due to COVID-19 pandemic period. It is true that the period from 15.03.2020 upto 28.02.2022 could be excluded for the purpose of determining delay or computing limitation in view of the orders passed by the Apex Court. 10. The verdict of the Tribunal rendered on 26.06.2019 should have been challenged atleast within a reasonable period of 3 to 6 months thereafter. 6 months period should have been expired atleast by December 2019. The lock-down on account of COVID-19 was declared only on 20th of March 2020. Therefore the excuse put up on the basis of COVID-19 pandemic period does not impress us. 6 months period should have been expired atleast by December 2019. The lock-down on account of COVID-19 was declared only on 20th of March 2020. Therefore the excuse put up on the basis of COVID-19 pandemic period does not impress us. Therefore, these cases could be dismissed even on the ground of unexplained delay and latches. That apart, even on merits, we are convinced that theses O.Ps are not to be entertained or allowed. We are fortified in arriving at this conclusions by the views rendered by this Court in the decisions as in the judgment rendered on 18.02.2022 in O.P(KAT).No.38/2022 and series of other cases. That apart, in the instant case, none other the respondents in the O.A have voluntarily issued Annexure-A5 select list on 25.05.2018 finding that these two applicants are entitled to be promoted as Principals. So also, the rule making authority has amended the provisions of Rule 28 by inserting Rule 28(b)(i)(14) of the KS & SSR Part II with effect form 23.02.2010 as per S.R.O No.183/2010 which reads as follows: Notwithstanding anything contained under this rule, the Government may by order effect promotion/appointments by transfer notionally without monetary benefit of pay and allowances but with consequential pensionary benefits, to a pensioner without having to follow the procedures such as preparation, publication and review of select list by convening the Departmental Promotion Committee, if it is found later on after his retirement that he would have become eligible at any time during the course of his service for being promoted or appointed to such posts, categories or grades in that service had due procedure according to the rule existing at that time or made applicable thereafter been followed at the appropriate time. ' 11. ' 11. By virtue of the abvoesaid provision contained in Rule 28(b)(i)(14) of KS & SSR Part II, it is stipulated that the Government may by order effect promotions/appointments by transfer notionally without monetary benefit of pay and allowances but with consequential pensionary benefits, to a pensioner without even having to follow the procedures such as preparation, publication and review of select list by convening the DPC, if it is found later on or after the retirement of the incumbent concerned that he/she would have become eligible at any time during the course of his/her service for being promoted or appointed to such posts, categories or grades in that service had such procedure according to the rule existed at that time or made applicable thereafter been followed at the appropriate time. 12. In the instant case, after the issuance of Annexure-A5 select list dated 25.05.2018 and the request made before the authorities concerned immediately before the promotion order, there was no proper reason for the further delay in the former issuance of the promotion order, which was issued only on 30.07.2018, by which time, two applicants had retired from service. Hence, we do not see any valid grounds to accede to the prayers in these O.Ps filed by the State authorities. However, it is made clear that the time limit for compliance of the directions of the Tribunal will be two months from the date of receipt of a copy of this judgment. The Registry will furnish a copy of this judgment to R1 in O.P(KAT).No.166 of 2023 for necessary information. With these observations and directions, both the Original Petitions will stand dismissed.