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2025 DIGILAW 1195 (KER)

State of Kerala v. V. Murugan

2025-05-19

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : MURALEE KRISHNA, J. 1. The issue involved in all these writ appeals is as to whether the respondents in these writ appeals are entitled to pay and allowances in their promotion posts, under the 7-tier system in view of the Government Order dated 20.06.1998 bearing No. G.O. (MS) No.46/98/PWD or under the 5-tier system which existed prior to the said order and was revived as per the Government Order dated 07.10.2003 bearing No. G.O (MS) No.54/03/PWD? Since the issue involved in all these writ appeals is the same, they are heard together and are being disposed of by this common judgment. For convenience, the parties are referred in this judgment in their status as they were in the writ petitions, unless otherwise stated. 2. All these writ appeals are filed by the State and its officials under Section 5(i) of the Kerala High Court Act, 1958, against the common judgment of the learned Single Judge in the respective writ petitions, holding that the issue is fully covered in favour of the petitioners by virtue of the Division Bench judgmentin W.A. No.2503 of 2005 rendered on 11.01.2010. By the impugned judgment, the learned Single Judge disposed of the writ petitions directing the respondents to disburse the monetary benefits and revised pensionary benefits to the petitioners on the basis they were promoted under the 7-tier system introduced in the Public Works Department (‘PWD’ in short). It was directed that the benefits shall be disbursed as expeditiously as possible, at any rate, within two months from the date of production of a copy of those judgments. 3. The petitioner in W.P.(C)No.15633 of 2004 from which W.A. No. 426 of 2011 arose, joined service in PWD on 01.03.1973 as Junior Engineer. He was promoted as Assistant Executive Engineer on 15.03.1985. With effect from 01.01.1996, he was promoted as Executive Engineer. He claims that the said promotion was in pursuance of restructuring of 5-tier system to 7-tier system. According to the petitioner, by Ext.P1 order dated 20.06.1998 bearing No. G.O.(MS)No.46/98/PWD produced in that writ petition he was promoted as Special Grade Assistant Executive Engineer and as Executive Engineer with effect from 01.01.1996. He retired on superannuation on 31.10.2001.However, his pay was not fixed to the scale applicable to the post of Executive Engineer. According to the petitioner, by Ext.P1 order dated 20.06.1998 bearing No. G.O.(MS)No.46/98/PWD produced in that writ petition he was promoted as Special Grade Assistant Executive Engineer and as Executive Engineer with effect from 01.01.1996. He retired on superannuation on 31.10.2001.However, his pay was not fixed to the scale applicable to the post of Executive Engineer. He was not considered for his next promotion as Special Grade Executive Engineer for the vacancy that arose prior to his retirement. Pointing out his grievance, the petitioner filed O.P. No. 31731 of 2001 before this Court which was disposed of by Ext.P2 judgment dated 22.10.2001 with a specific direction to the 1 st respondent to pass appropriate orders granting him benefits of the promotion. However, the 1 st respondent declined to grant the benefits while deciding the matter as per Ext.P4 order dated 11.12.2003, claiming that the petitioner was already promoted and was continuing as Executive Engineer before the decision of the Government to withdraw the 7-tier system on 07.10.2003. Then the petitioner filed W.P.(C) No.15633 of 2004 under Article 226 of the Constitution of India, seeking a declaration that the non-inclusion of his name in the beneficiary list dated 07.10.2003 passed by the Government limiting the benefit of 7-tier system to 13 promotees alone and also a writ of mandamus commanding the respondents to fix his pay scale as applicable to Executive Engineer, on 01.01.1996. 4. The petitioner in W.P.(C) No.3949 of 2004 from which W.A. No.444 of 2011 arose, entered the service as Assistant Engineer on 02.07.1973. He was promoted as Assistant Executive Engineer on 18.04.1989. He was promoted as Executive Engineer with effect from 31.05.2000. He joined that post on the forenoon of 31.05.2000 and retired in the afternoon. Claiming his promotion also under the 7-tier system, the petitioner in W.P.(C)No.3949 of 2004 filed that writ petition under Article 226 of the Constitution of India with the same relief as that claimed by the petitioner in W.P.(C) No.15633 of 2004. 5. The petitioner in W.P.(C)No.7011 of 2004 from which W.A.No.492 of 2011 arose, entered the service as Assistant Engineer on 28.08.1973. He was promoted as Assistant Executive Engineer on 06.06.1982 under the Special Recruitment to schedule caste and was granted higher grade with effect from 06.04.1982. 5. The petitioner in W.P.(C)No.7011 of 2004 from which W.A.No.492 of 2011 arose, entered the service as Assistant Engineer on 28.08.1973. He was promoted as Assistant Executive Engineer on 06.06.1982 under the Special Recruitment to schedule caste and was granted higher grade with effect from 06.04.1982. He was promoted as Special Grade Assistant Executive Engineer and Executive Engineer with effect from 01.01.1996 as per the order dated 20.06.1998 referred to above under the 7-tier system. Though several representations were filed by the petitioner to fix his pay, no action was followed. Hence, he approached this Court with O.P.No.35797 of 2002, in which vide judgment dated 28.11.2002, the Government was directed to pass orders on the representation filed by the petitioner within three months. The petitioner was constrained to file a contempt case also before this Court since no orders were passed in pursuance of the direction in the original petition. Finally, as per the order dated 12.11.2003, the claim of the petitioner was rejected by the Government. Thereafter the petitioner in W.P.(C)No.7011 of 2004 filed that writ petition claiming the very same relief as that claimed in the remaining two writ petitions. 6. All three writ petitions were disposed of by the learned Single Judge by the impugned common judgment as mentioned above. Being aggrieved, the State and its officials filed these writ appeals under Section 5(i) of the Kerala High Court Act, 1958. 7. Heard the learned Senior Government Pleader and the learned counsel appearing for the party respondents-petitioners in the writ petitions. 8. The learned Senior Government Pleader argued that the learned Single Judge disposed of the writ petitions relying on a Division Bench judgment dated 11.01.2010 in W.A. No.2503 of 2005. But that judgment is not applicable to the facts of the secases. The reliefs granted to the beneficiary of that judgment was a person who was promoted under the 7-tier system and had actually discharged the duties under the 7-tier system. However, the petitioners herein, even though promoted as per the relevant Government Orders mentioned, the same were not implemented and they have not discharged the duties in the promoted post under the 7-tier system. The petitioners continued in the post even after the issuance of the Government order of promotion and they got promotion only under 5-tier system. However, the petitioners herein, even though promoted as per the relevant Government Orders mentioned, the same were not implemented and they have not discharged the duties in the promoted post under the 7-tier system. The petitioners continued in the post even after the issuance of the Government order of promotion and they got promotion only under 5-tier system. The petitioners have not pleaded in the writ petitions that they worked in the 7-tier system after promotion. The learned Senior Government Pleader vehemently argued that promotion becomes effective upon actual assumption of duties in the promotional post. Notional financial benefits cannot be granted, when the employee did not assume the duties of the promotion post. Even if actual promotion was not effected due to administrative delay the employee cannot claim financial benefit of notional promotion. It is further submitted by the learned Senior Government Pleader that the 5-tier system was re-introduced by the Government and from Ext.P4 Government Order dated 11.12.2003 produced in W.P.(C)No.15633 of 2004 it is clear that the promotion ordered by way of implementing the 7- tier system of promotion could not be implemented on account of certain Court cases and by considering the huge financial commitment involved in allowing the monetary benefits under the 7-tier system, Government have decided to revoke the implementation of 7-tier system and to revive 5-tier system. 9. On the other hand, the learned counsel for the petitioners-respondents argued that the petitioners were promoted under the 7-tier system and that was specifically pleaded in the writ petition. Therefore, they are entitled to the financial benefit under the 7-tier system and no interference is needed to the impugned judgment of the learned Single Judge. 10. The respondents in these writ appeals/writ petitioners were promoted by Ext.P1 order dated 20.06.1998 issued by the Government, produced in W.P.(C) No.15633 of 2004. They claim that the promotion was effected under the 7-tier system with effect from 01.01.1996 at the place of 5-tier system. But from the pleadings in the writ petitions, it is evident that none of the respondents were given financial benefits or in other words, their pay scale was not revised in accordance with Ext.P1 order. They claim that the promotion was effected under the 7-tier system with effect from 01.01.1996 at the place of 5-tier system. But from the pleadings in the writ petitions, it is evident that none of the respondents were given financial benefits or in other words, their pay scale was not revised in accordance with Ext.P1 order. Eventhough the appellant in W.A. No.426 of 2011 approached this Court by filing O.P. No.31731 of 2001 and obtained Ext.P2 judgement directing the State to consider his case and grant the entitled benefits, by Ext.P4 order the claim was declined by the Government. From the perusal of Ext.P4 order of the Government, it could be seen that in paragraph 3 of that order, it is stated that the promotion effected by way of implementing the 7-tier system of promotion introduced by the Government could not be implemented on account of certain court cases. By considering the huge financial commitment involved in allowing the monetary benefits under the 7-tier system, the Government has decided to revoke the implementation of the 7-tier system of promotion in PWD and to revive the 5-tier system. From these documents, it is evident that though notional promotion was given to the petitioners by Ext.P1 order dated 20.06.1998, the same was never implemented. On the other hand, the said decision was revisited by the Government and by the order dated 07.10.2003 bearing No. G.O.(MS)No.54/03/PWD, the 5-tier system was revived. 11. In State of A.P. v. K.V.L. Narasimha Rao and Others, (1999) 4 SCC 181 the Apex Court while considering the question of entitlement of the officers for monetary benefits with retrospective effect, since promotion was delayed due to the delay on the part of the authorities concerned held as under: “In normal circumstances when the retrospective promotions are effected all benefits flowing therefrom, including monetary benefits, must be extended to an officer who has been denied promotion earlier. However, on the reorganisation of States a large number of officers stood allotted from different States to the newly formed State and their services had to be integrated on various principles and several agencies were involved in the same. However, on the reorganisation of States a large number of officers stood allotted from different States to the newly formed State and their services had to be integrated on various principles and several agencies were involved in the same. The steps to be taken thereto were one of formulation of principles, publication of a provisional inter State seniority list, inviting objections thereto, consideration of those objections in consultation with the Central Government and acting upon its directions to bring the seniority list in conformity with such directions. This entire exercise involved a good deal of time and gave rise to an extraordinary situation. It is in those circumstances that the rules contained in Fundamental R.26 or R.40 of the Hyderabad Civil Services Regulations have been framed. As a matter of fact, rules of the erstwhile State regarding seniority are not applicable in the new State as the allottees are governed by the Act and seniority is finalised therein. Even so, we do not see that there is any impediment to frame new rules affecting conditions of service of such allottees but in conformity with the Act. Surely new rules cannot be brushed aside by sayingthat they are not applicable to cases coming under the Act. There is no contention either in the High Court or before us that they are framed in contravention of the Act. In this background, we fail to see as to why the rules are not applicable to the respondents as held by the High Court”. 12. In Union of India v. B.M. Jha, (2007) 11 SCC 632 the Apex Court while considering a similar case of claim for pay and allowances from the date of retrospective promotion held thus: “We have heard learned counsel for the parties. It was argued by learned counsel for the respondent that when a retrospective promotion is given to an incumbent normally he is entitled to all benefits flowing therefrom. However, this Court in the case of State of Haryana and Others v. D.P. Gupta and Others, 1996 (7) SCC 533 and followed in the case of A.K. Soumini v. State Bank of Travancore, JT 2003 (8) SC 35 has taken the view that even in case of a notional promotion from retrospective date, it cannot entitle the employee to arrears of salary as the incumbent has not worked in the promotional post. These decisions relied on the principle of no work no pay. The learned Division Bench in the impugned judgment has placed reliance on the case of State of Andhra Pradesh v. K.V.L. Narasimha Rao and Others, 1999 (3) SCC 205. In our view, the High Court did not examine that case in detail. In fact, in the said judgment the view taken by the High Court of grant of salary was set aside by this Court. Therefore, we are of the view that inthe light of the consistent view taken by this Court in the abovementioned cases, arrears of salary cannot be granted to the respondent in view of the principle of no work no pay in case of retrospective promotion. Consequently, we allow this appeal and set aside the impugned order of the High Court dated 17.5.2000 passed by the Division Bench of the High Court, as also the order dated 11.01.2000 passed by the Central Administrative Tribunal, Principal Bench. (Emphasis supplied) 13. In Government of West Bengal v. Dr. Amal Satpathi, 2024 KHC Online 8525 the Apex Court held thus: “18. Upon a bare perusal of R.54(1)(a) of the West Bengal Service Rules, it is clear that promotion cannot be retrospectively granted after retirement, as it requires the actual assumption of duties and responsibilities of the promotional post. In the present case, since respondent No. 1 superannuated before the final approval of his promotion, he could not have formally assume the charge of the promotional post of Chief Scientific Officer. Therefore, although respondent No. 1 was recommended for promotion, R.54(1)(a) of the West Bengal Service Rules precludes him from getting the financial benefits of the promotional post without having taken on the responsibilities of the said post i.e. Chief Scientific Officer. 19. It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. xxx xxx xxx 20. In the instant case, it is evident that while respondent No. 1 was recommended for promotion before his retirement, he could not assume the duties of the Chief Scientific Officer. xxx xxx xxx 20. In the instant case, it is evident that while respondent No. 1 was recommended for promotion before his retirement, he could not assume the duties of the Chief Scientific Officer. R.54(1)(a) of the West Bengal Service Rules, clearly stipulates that an employee must assume the responsibilities of a higher post to draw the corresponding pay, thus, preventing posthumous or retrospective promotions in the absence of an enabling provision”. 14. In Dr. Amal Satpathi [2024 KHC Online 8525] the question considered was the entitlement of an employee who retired from service before the finalisation of the seniority list. In the instant cases, the system under which the promotion was effected itself was not implemented and subsequently, the system under which notional promotion was given was discarded and the previous system was revived. The principle laid down in the above judgments is that an employee is entitled to the benefits of promotion in his or her pay and other emoluments, only if the promotion has taken effect and he or she worked in the promoted post. 15. The respondents produced the judgment of a Division Bench of this Court dated 03.02 2025 in O.P.(KAT)No.352 of 2024 wherein the judgment in Dr. Amal Satpathi [2024 KHC Online 8525] was differentiated in view of Rule 28(b)(14) of the Kerala State and Subordinate Services Rules (KS&SSR), 1958. The learned Senior Government Pleader submitted that against that judgment, a Special Leave Petition was filed by the State before the Apex Court. While going through the facts of the Division Bench judgment, we notice that in that case, the entitlement of the employee therein for notional promotion on the basis of seniority was not in dispute. But in the instant cases, the entitlement of the respondents for promotion itself is in dispute. Therefore, the judgment of the Division Bench in O.P. (KAT)No.352 of 2024 is not applicable to the facts of the cases in our hands. 16. In HAV (OFC) RWMWI Borgoyary v. Union of India , (2020) 15 SCC 546 the Apex Court held thus: “It is trite law that the right to equality cannot be claimed in a case where a benefit has been given to a person contrary to law. 16. In HAV (OFC) RWMWI Borgoyary v. Union of India , (2020) 15 SCC 546 the Apex Court held thus: “It is trite law that the right to equality cannot be claimed in a case where a benefit has been given to a person contrary to law. If a mistake has been committed by the authorities in appointing few persons who were not eligible, a claim cannot be made by other ineligible persons seekinga direction to the authorities to appoint them in violation of the instructions. After referring to several judgments, this Court in State of Odisha & Anr. v. Anup Kumar Senapati & Anr., 2019 SCC Online SC 1207 held that there is no concept of negative equality under Art.14 of the Constitution of India. The Appellants cannot, as a matter of right, claim appointment on the basis of two ineligible persons being given the benefit and no direction can be given to the Respondents to perpetuate illegality”. 17. The Apex Court in State of U.P. and Others v. Rajkumar Sharma and Others, (2006) 3 SCC 330 held thus: “Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Art.14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. [See Sneh Prabha v. State of U.P. (1996) 7 SCC 426 ; Secy. Jaipur Development Authority v. Daulat Mal Jain, (1997) 1 SCC 35 ; State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321 ; Faridabad C.T. Scan Centre v. D.G., Health Services, (1997) 7 SCC 752 ; Jalandhar Improvement Trust v. Sampuran Singh, (1999) 3 SCC 494 ; State of Punjab v. Dr. Rajeev Sarwal, (1999) 9 SCC 240 ; Yogesh Kumar v. Govt. of NCT, Delhi, (2003) 3 SCC 548 ; Union of India v. International Trading Co. (2003) 5 SCC 437 and Kastha Niwarak Grihnirman Sahakari Sanstha Maryadit v. President, Indore Development Authority, (2006) 2 SCC 604 ].” 18. As rightly contended by the appellants, the judgment in W.A. No.2503 of 2005 relied by the learned Single Judge is a case wherein the promotees were actually discharging their duties under the promoted post under the 7-tier system. (2003) 5 SCC 437 and Kastha Niwarak Grihnirman Sahakari Sanstha Maryadit v. President, Indore Development Authority, (2006) 2 SCC 604 ].” 18. As rightly contended by the appellants, the judgment in W.A. No.2503 of 2005 relied by the learned Single Judge is a case wherein the promotees were actually discharging their duties under the promoted post under the 7-tier system. Similarly, the direction given by this Court in Ext.P5 judgment pertains to the individual case of the petitioner therein, noting the Cabinet decision that the persons who had already been promoted shall not be reverted. Therefore, the dictum in those judgments is not applicable to the facts of the case at hand. Similar is the situation of Ext.P6 Government order. The said order was passed in favour of 13 persons who obtained specific orders from this Court. Viewed in the light of the judgments of the Apex Court in HAV (OFC) RWMWI Borgoyary, (2020) 15 SCC 546 and Rajkumar Sharma (2006) 3 SCC 330 even if any such benefits were given to some disentitled persons, the petitioners cannot claim the same treatment, since in effect it will be a perpetuation of illegality. 19. Having considered the pleadings and materials on record and the submissions made at the Bar, we find that theimpugned common judgment passed by the learned Single Judge is without considering these legal and factual aspects. The respondents/writ petitioners are therefore not entitled to the reliefs sought in the writ petitions. 20. In the result, these writ appeals are allowed by setting aside the impugned common judgment dated 12.08.2010 passed by the learned Single Judge and the writ petitions stand dismissed.