P N SIVARAJAN Vs. STATE

JUDGEMENT

(1.) THE petitioner in O. P. No. 9800 of 1989 is the appellant herein. The respondents herein are the respondents in the original petition-State of Kerala and the Director of Scheduled Castes Development Department. The petitioner entered service as Lower Division Clerk in the Harijan Welfare Department on September 23, 1957. He retired from service on superannuation in 1984. His main complaint is that his legitimate promotion was withheld and was not given. For no fault of the petitioner, he was not actually promoted on the due dates and was prevented from working in a post which he was entitled. In other words, the petitioner was unreasonably and illegally denied the legitimate promotions, and was prevented from working in higher posts.

(2.) THE original petition was filed to quash Exts. P5 and P6 (a)proceedings of the Government dated June 24, 1987 and proceedings of the Director of Scheduled Caste Development Department dated June 22, 1988. There was also a prayer for a declaration that the petitioner is entitled to all benefits-including monetary benefits-consequent on his notional promotion such as arrears of pay and allowances, refixation of pay, etc. The petitioner also prayed for the issue of a writ of mandamus directing the respondents to give the petitioner the full benefits consequent on his notional promotion such as arrears of pay and allowances, refixation of pay, etc.

(3.) THE litigation initiated by the petitioner had a chequered career. The short facts are the following: The appellant-petitioner was appointed as Lower Division Clerk in the Harijan Welfare Department through Public Service Commission on September 23, 1957. He is a graduate. According to the rules in force then, graduates had preference for the post of Upper Division Clerk in the ratio of 3:1 between graduates and non-graduates. This was the rule in force till October 31, 1957. The appellant-petitioner was promoted as Upper Division Clerk on July 25, 1958. According to him, he should have been promoted as Upper Division Clerk even earlier, on October 10, 1957. The seniority list of Upper Division Clerks in the Harijan Welfare Department was published in December 1972. Then only, the appellant-petitioner knew that he was entitled to promotion even earlier than July 25, 1958 on which day he was promoted as Upper Division Clerk. The appellant and others filed O. P. No. 1673 of 1972 before this Court. That original petition was disposed of on condition that the Government will prepare and publish a fresh gradation list applying the ratio of 3:1 between graduates and non-graduates expeditiously. A fresh list was published. It was not proper. The petitioner and others filed O. P. No. 67 of 1974. In this Court, an undertaking was given that the grievances of the petitioners will be examined by the Government. On December 6, 1976, the Government published a fresh seniority list of the Upper Division Clerks. That was also incorrect. Two aggrieved persons filed O. P. No. 248 of 1977. This Court directed the respondents to consider the seniority afresh. The second respondent passed an order on November 12, 1979. Even then, grievance of the appellant and others remained unredressed. Against the decision in O. P. No. 248 of 1977, W. A. No. 194 of 1979 was filed. In the meanwhile, the Government issued Ext. Pl granting benefits to the petitioners in O. P. No. 248 of 1977. The benefit was denied to the appellant petitioner herein stating that he was not a party to O. P. No. 248 of 1977. The appellant filed Ext. P2 representation dated February 18, 1981 and also filed O. P. No. 1229 of 1981. That original petition was disposed of by this Court on January 8, 1987 (Ext. P3 ). This Court held that the Government will consider whether the appellant is eligible for promotion on the basis of the principles evolved in G. O. (Rt) No. 2459/80/dd Development (C) Department dated September 6, 1980. Since it turned out that the appellant had retired from service by then, this Court also held that the benefits to which the appellant will be entitled to, if he is found eligible for promotion, must be given notwithstanding his superannuation. The Government was directed to give all benefits to the appellant, if he is found eligible for promotion as per the Government order dated September 6, 1980. Ext. P3 judgment is inter parties and has become final. By Ext. P5 order dated June 24, 1987, the Government held that the appellant will be entitled for promotion on October 10, 1957 and only notional promotion will be given to him on October 10, 1957 on condition that he will be eligible for back arrears (his promotion from October 10, 1957 will be reckoned) only in respect of pension. Exts. P5 and P6 were assailed by the appellant before the Government by filing Exts. P7 and P8 representations. Subsequently O. P. No. 9800 of 1989 was also filed. The learned single Judge, by judgment under appeal dated November 23, 1989, dismissed the original petition. The learned single Judge took the view that the notional promotions and fixation of pay will be reckoned only for the purpose of pension and that Ext. P5 is valid in law. Since the appellant did not discharge the duties attached to the post to which he was notionally promoted, the learned single Judge held that the appellant is not entitled to claim the salary attached to that post. According to the learned single Judge, the petitioner will not be entitled to claim the salary attached to that post to which he was notionally promoted. The original petition was dismissed. Aggrieved by the aforesaid judgment of the learned single Judge dated November 23, 1989, the petitioner in the original petition has come up in writ appeal.