JOHN T.SAM Vs. HIGH COURT OF KERALA

JUDGEMENT

(1.) The petitioner is aggrieved by the rejection of his request for promotion as Assistant Registrar and Deputy Registrar with effect from the date on which his juniors were promoted. He is also aggrieved by the denial of monetary benefits based on the notional promotion granted to him to the posts of Section Officer/Court Officer (Higher Grade) and Court Fee Examiner (re-designated as Filing Scrutiny Officer)

(2.) While the petitioner was working as a Section Officer, disciplinary proceedings were initiated against him, by issuing a memo of charges in 2008 with respect to purchase of a property and it culminated in Ext.P1 order dated 26.06.2014 awarding him a punishment of compulsory retirement. In appeal, the penalty was modified as barring of one increment temporarily for a period of two years and he was reinstated as per Ext.P2 order dated 29.01.2015. Thereafter, as per Ext.P4 order dated 23.07.2015 he was promoted to the category of Section Officer (HG)/Court Officer (HG) with effect from 01.06.2015. Pointing out the promotions granted to several of his juniors to the categories of Section Officer(HG)/Court Officer (HG) and to that of Court Fee Examiner during the pendency of the disciplinary proceedings i.e from 11.08.2008 to 25.06.2014, the petitioner filed Ext.P6 appeal dated 18.10.2015. He pointed out that his immediate junior was granted promotion against vacancy of Court Officer(HG)/Section Officer(HG) which arose on 10.03.2011, as Court Fee Examiner against a vacancy which arose on 20.11.2013. In the appeal he requested to set aside the regularisation of promotions granted to his juniors and to grant him promotion to that post with retrospective effect from 12.04.2011 with all consequential benefits. In Ext.P7 order dated 24.07.2018 the appeal committee directed that the petitioner be granted promotion as Section Officer(HG)/Court Officer(HG) as also to the post of Court Fee Examiner with effect from the dates on which his immediate junior Sri A.S.Manoharan was promoted. It was also ordered that he shall be given the pay and allowances applicable to those posts from the respective dates. However, it was ordered that the next higher post, i.e. Assistant Registrar, being a selection post, he would be entitled to be considered only after 25.06.2019. The appeal committee found that the petitioner was excluded from consideration for promotion when his juniors were considered and promoted. Seeing that he was denied promotion solely on account of the pendency of the disciplinary proceedings, applying the principles contained in Note (ii) of Rule 28(b)(i)(7) of Kerala State and Subordinate Service Rules, 1958 (KS&SSR) the appeal committee held that when the post of Section Officer(HG)/Court Officer(HG) is not a selection post, the principles contained in those provisions could not have been applied to deny him promotion. It was found that the provisions of KS&SSR are not adopted in the High Court Service Rules and therefore if at all the principles contained in KS&SSR were to be the guiding factors, the principles contained in Rule 28(b)(ii) should have been applied and hence there would not have been any impediment in granting promotion to the petitioner as Section Officer(HG)/Court Officer(HG). It was found that the petitioner was entitled to be promoted accordingly as Section Officer(HG)/Court Officer(HG) with effect from 10.3.2011 with consequential monetary benefits. Regarding the promotion as Court Fee Examiner it was found that his immediate junior was promoted on 18.11.2013. Seeing that the post of Court Fee Examiner was not treated as a selection post till 11.08.2014 and as his junior was promoted on 11.08.2013, based on seniority alone, it was found that he was entitled to be promoted as Court Fee Examiner from 18.11.2013, the date on which his junior was promoted. However, while considering his claim for promotion as Assistant Registrar, it was found that it is a selection post. It was found that the punishment of compulsory retirement awarded to him on 25.06.2014, was modified as barring of increment for two years on 23.01.2015; in view of the circular issued by the High Court on 14.08.2014, fixing the criteria for effecting promotion to selection posts in Rule 20(1)(a) of the Kerala High Court Service Rules that officers with adverse remarks in the ACR of last 5 years under consideration and those who are awarded punishment during that period are not fit for promotion, it was found that the petitioner was not entitled to further promotions for a period of 5 years from 25.06.2014. It was further found that in the light of the principles contained in Rule 34(b) of KS&SSR, the promotions granted to his juniors overlooking the claim of the petitioner before orders were passed in his apppeal against the penalty of compulsory retirement, should have been subject to the outcome of his appeal. Hence the appeal committee directed to issue orders promoting the petitioner to the post of Section Officer(HG)/Court Officer(HG) as well as Court Fee Examiner with effect from the date of promotion of his immediate junior Sri. A.S Manoharan and to give him pay and allowances applicable to the posts with effect from such dates. It is stated that the Registry had sought a clarification in the matter in respect of implementation of Ext.P7 order, in the light of Rules 23(a) and 23(d) of Part I of the KSR. Stating that those rules do not have any application in the case of the petitioner as it was found that he was kept away from the higher posts at a time when his juniors were permitted to work in the said posts, it was directed that the pay and allowances applicable to the promotion posts shall be fixed in tune with Ext.P7 order.

(3.) Thereafter, as per Ext.P9 order dated 28.03.2019 the petitioner was appointed as Section Officer (HG)/Court Officer (HG) w.e.f 10.03.2011 and as Court Fee Examiner w.e.f 20.11.2013. However, arrears of pay was not given as ordered in Ext.P7. Thereupon, he submitted Ext.P11 appeal before the appeal committee for a direction to grant him promotion as SO(HG)/CO(HG) and as Filing Scrutiny Officer with all consequential benefits from the date of promotion of his juniors and for a declaration that he was entitled to promotion as Assistant Registrar and Deputy Registrar w.e.f 01.06.2015, stating that the penalty imposed on him ceased to exist on that day. As per Ext.P12 order dated 09.04.2019, the petitioner was informed that the appeal committee directed the Registry to place the matter before the Hon'ble the Chief Justice stating that it did not have the power to review and that the Hon'ble the Chief Justice declined his request in view of clause vi of the guidelines dated 16.05.2018 regarding the criteria and procedure to effect promotion to selection posts enumerated under Rule 20(1)(a) of the Kerala High Court Service Rules, 2007.