THE ADDITIONAL CHIEF SECRETARY FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT AND ORS. Vs. V. RADHAKRISHNAN NAIR

JUDGEMENT

(1.) The order passed by the Kerala Administrative Tribunal on 11.5.2015 allowing O.A. No. 2445 of 2014 filed by the respondent is under challenge in this original petition filed under Article 226 and 227 of the Constitution of India. The brief facts of the case are as follows: - -

(2.) While the respondent herein was working as Joint Secretary in the Finance Department of the Government of Kerala, he was considered for promotion to the cadre of Additional Secretary to Government for the year 2011 by the Departmental Promotion Committee constituted for the purpose. Relying on uncommunicated adverse remarks in his confidential reports for the period from 10.3.2009 to 23.10.2009, the Departmental Promotion Committee superseded him. He represented against the super cession, but it was rejected. He thereupon moved the Kerala Administrative Tribunal by filing O.A. No. 556 of 2012. After notice to the respondents therein namely, the State of Kerala, represented by the Principal Secretary to Government, Finance Department, the Convener of the Departmental Promotion Committee and his juniors who were arrayed as respondents 3 to 21 therein, the Kerala Administrative Tribunal held that the decision of the Departmental Promotion Committee to superceded the respondent is vitiated. The Kerala Administrative Tribunal accordingly quashed the communication issued by the Convener of the Departmental Promotion Committee rejecting his representation against his supersession and directed that the promotions effected by the Government order dated 31.3.2011 based on the list prepared by the Departmental Promotion Committee will be treated as provisional and that it will be reviewed based on the reconsideration of the claim of the respondent for inclusion in the select list for the year 2011. The Kerala Administrative Tribunal also directed as follows: - -

(3.) The State of Kerala and the convener of the Departmental Promotion Committee challenged that order by filing O.P.(KAT) No. 1604 of 2013 in this Court. By judgment delivered on 27.6.2013, a Division Bench of this court, to which one of us (Babu Mathew P. Joseph, J.) dismissed the original petition and directed implementation of the order passed by the Tribunal at the earliest. The Division Bench also took note of the fact that following the directions issued by the Tribunal, the claim of the respondent for inclusion in the select list has been considered and he has been included in the select list as Sl. No. 4A. The Division Bench accordingly directed that further action on this basis should be proceeded with at the earliest. The Government thereupon issued G.O. (Rt.) No. 9329 of 2013 dated 20.11.2013 to notionally promote the respondent to the cadre of Additional Secretary in the scale of pay of Rs. 46640 -59840 (revised) with effect from 1.4.2011, the date on which his junior Smt. S.J. Valsala assumed charge of the post of the Additional Secretary subject to the condition he will not be entitled to arrears of salary and allowances. It was also clarified that such promotion will be for the limited purpose of pensionary benefits as contemplated in Rule 23 (C) of Part I, Kerala Service Rules. The first respondent thereupon moved the Government by submitting a representation dated 10.1.2014 and prayed for re -consideration of the decision promoting him on a notional basis without arrears of salary and allowances. The request was rejected and the decision communicated to him by letter dated 4.3.2013. He thereupon filed O.A. No. 2445 of 2014 before the Kerala Administrative Tribunal challenging the Government order dated 20.11.2013 and the Government letter dated 4.3.2014. The Government order dated 20.11.2013 was produced and marked as Annexure A1 and the Government letter as Annexure A2. One of the main grounds raised by the respondent in his petition before the Kerala Administrative Tribunal was that Rule 23(C) is meant to be applied in cases where promotions are made to posts even though vacancies do not exist, that it applies only to those who do not assume charge even after issuance of the promotion order and therefore, Annexure A1 order to the extent it denies arrears of salary and allowances to him, is liable to be quashed. The State of Kerala and the respondents in O.A. No. 2445 of 2014 opposed the application by filing a reply statement. The Kerala Administrative Tribunal considered the rival contentions and allowed O.A. No. 2445 of 2014 by Ext. P3 order passed on 11.5.2015. The Tribunal held that as the petitioner was promoted against a clear vacancy and he was denied promotion at the appropriate time, he cannot be denied arrears of salary. The Kerala Administrative Tribunal accordingly directed disbursement of arrears of salary and allowances to the respondent with effect from the date of promotion to the cadre of Additional Secretary, within two months from the date of receipt of copy of the order. The said order is under challenge in this original petition filed under Articles 226 and 227.