PHILOMINA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE short question which arises for consideration is whether the petitioner is entitled to be paid for the periods between the dates of notional promotion and the dates of actual promotion to the grades in question. THE petitioner was notionally promoted as Assistant Taluk Supply officer with effect from 13-2-1968, although. she was actually promoted and worked in that post only as from 16-6-1970. Subsequently she was promoted as Taluk Supply Officer and actually-worked in that post as from 11-4-1972, although in the integrated seniority list of Taluk Supply Officers and Assistant Taluk Supply Officers, as on 1-8-1975, she is shown to have been notionally promoted with effect from 21-7-1971. THE question, therefore, is whether the petitioner is entitled to receive arrears of salary for the notional service between 13-2-1968 and 16-6-1970 as Assistant Taluk Supply Officer and 21-7-1971 to 11-4-1972 as Taluk supply Officer after deducting the salaries paid to her for the work she actually rendered in the lower grades.

(2.) THE petitioner's counsel Shri. K. Sudhakaran, relying upon certain observations of a Division Bench of this Court in O. P. No. 4125 of 1977 and the judgment of V. Khalid, J. in Narayana Menon v. State of Kerala (1978 KLT. 29) to which the Division Bench made a reference with approval, contends that a person cannot be denied salary for the period covered by notional promotion although on account of mistake or negligence on the part of the Government he was not allowed to work in the post.

(3.) IT has to be noticed that the question which arose before the Division Bench was as regards the right of a person to receive salary for the period when he actually worked. In that case the petitioner had been notionally promoted as a High School Assistant with effect from 23-11-1959. But he was actually promoted and worked as HSA only as from 8-11-1966. He claimed arrears of salary for the period subsequent to 8-11-1966. The only relief which he sought in that proceeding was therefore for arrears for the period when he actually worked, and not for the anterior period covered by the notional promotion. The general observation of the Division Bench disposing of that Original Petition must, therefore, be understood in the light of the general principle stated by Khalid, J. in 1978 KLT. 29 as regards the right of a person who was unlawfully prevented from working by an illegal order of the Government, and also with reference to the relief sought by the petitioner before the Division Bench in O. P. No. 4125 of 1977. IT would not be correct to attribute a wider meaning -- applicable in a wider sphere -- to the observation of the Division Bench. Their observation has to be understood as applicable solely to the reliefs sought by the petitioner. Understood in that limited sense, the decision would be consistent with an earlier decision of the supreme Court in 5. Krishnamoorthy versus General Manager, Southern Rly. , (1976)4 S. C. C. 825, which was apparently not referred to or noticed by the division Bench.