IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26217 of 2010(S)
1. THULE GOPAL WASUDEO, AGED 42 YEARS,
... Petitioner
Vs
1. UNION OF INDIA, REPRESENTED BY THE
... Respondent
2. THE DIRECTOR GENERAL,
3. THE ZONAL DIRECTOR,
4. SMT.K.K.AMBIKA, SENIOR CLERK,
For Petitioner :SRI.T.C.GOVINDA SWAMY
For Respondent :SMT.M.K.PUSHPALATHA,SC,COCHIN CORPORATI
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :20/08/2010
O R D E R
THOTTATHIL B.RADHAKRISHNAN &
S.S.SATHEESACHANDRAN, JJ.
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W.P(C).No.26217 OF 2010
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Dated this the 20th day of August, 2010
JUDGMENT
1.The petitioner, an employee of the Fishery Survey of India,
was posted in Cochin. While working in the Cochin office, an
issue arose as to whether he was eligible for being considered
for promotion to the category of UDC. The issue was as to
whether a Hindi Typist should be treated as equivalent to an
LDC. The petitioner moved the Ernakulam Bench of the
Central Administrative Tribunal. The Tribunal held that the
post of Hindi Typist is on par with Junior Clerks/LDC and
accordingly ordered a review DPC. Review DPC was held and
it was observed that the petitioner was eligible to be
promoted. As a result, Smt.K.K.Ambika, the 4th respondent
herein, who stood promoted at an earlier point of time, was
reverted to provide room to accommodate the petitioner.
After so promoted to the category of UDC, the petitioner was
transferred to Mumbai. A question then arose as to whether
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the promotion of the petitioner is to be made with effect from
the date on which Smt.K.K.Ambika, his admitted junior, was
promoted. The petitioner made different representations.
Going by the stand of the establishment, though they would
attempt to justify their view in the matter, admittedly, they did
not issue any order on any of the representations of the
petitioner in this regard. Ultimately, the petitioner moved the
Ernakulam Bench of the Tribunal for relief. The Tribunal,
however, held that the representations having been made
while the petitioner was working in Mumbai and he being
stationed in Mumbai, the jurisdiction of the Ernakulam Bench
of the Tribunal could not be invoked. It was also held that the
claim is barred by limitation.
2.Having heard learned counsel for the petitioner and learned
Additional Solicitor General, we are of the view that the
findings of the learned Tribunal are totally misplaced. For one
thing, the right of the applicant, if any, to claim eligibility for
promotion with effect from the date on which Smt.K.K.Ambika
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stood promoted was an issue that arose while he worked in
Cochin. He was kept out of the zone of consideration at the
first instance on the ground that he is only a Hindi Typist. He
agitated that issue before the Ernakulam Bench and pursuant
to the directions of the Ernakulam Bench, his case was
considered in a review DPC. That was also done while he was
working in Cochin. Therefore, the question of promotion of
the petitioner as UDC was an issue which arose, and he was
considered for such promotion, while he worked in Cochin.
His transmission from Cochin to Mumbai came only as a
transfer generated following his promotion as UDC.
Therefore, we are of the clear view that the Ernakulam Bench
of the Tribunal had the jurisdiction to decide on the matter.
3.On the question of limitation, as submitted on behalf of the
establishment, there is nothing on record to show that the
petitioner’s representations referred to in paragraph 4 of the
Original Application have been answered by communicating
any decision to the employee. When an employee makes
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representations making certain claims, the establishment has
to take a decision, if necessary, after hearing the employee and
communicate the decision to him. It is only thus that a
representation gets ultimately disposed of. We may also recall
that in terms of Section 20 of the Administrative Tribunals Act,
an employee has to first take recourse to the other available
remedies before approaching the Tribunal. Under such
circumstances, we are of the view that the plea of the question
of limitation is also misplaced. We, therefore, vacate the order
of the Tribunal.
4.With this, we would have normally remitted the matter to the
Tribunal for consideration further on merits in relation to the
pleadings on board. However, in view of Section 20 of the Act,
it is necessary that the establishment takes a decision on the
representations of the petitioner and communicates it to him
before he gets enabled to move the Tribunal, if ultimately that
becomes necessary.
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5.For the aforesaid reasons, preserving all rights of the
petitioner, this writ petition is allowed vacating all findings in
the impugned order and setting aside Ext.P1 order and
further, directing respondents 1 to 3 to ensure that the
representations of the petitioner referred to in the Original
Application in relation to the relevant issue are taken up by the
competent authority and disposed of in accordance with law.
We may also state that having regard to the fact situation,
there is no reason why the petitioner should be refused the
benefit claimed by him since an erroneously refused promotion
would at least generate entitlement to claim benefits, at least
notionally. Let a decision be taken and communicated to the
petitioner within a period of four months from the date of
receipt of a copy of this judgment. The writ petition is ordered
accordingly. No costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
Sd/-
S.S.SATHEESACHANDRAN,
Judge.
kkb.6/08.