IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27212 of 2007(M)
1. S.SUNIL KUMAR, S/O.SUKUMARAN,
... Petitioner
2. ANILKUMAR K.K., S/O.KUMARAN,
3. SASIKUMAR P.,
4. P.SUNILKUMAR,
5. AJAYAKUMAR A.S., S/O.N.SASIDHARAN,
6. PRAMOD C.V., S/O.VIJAYAN, SURVEYOR
7. AJITHA A., W/O.SUNIL, SURVEYOR GRADE-I
8. K.ANILKUMAR, S/O.KUMARAN V.,
9. ABDUL KALAM AZAD,
10. ANILKUMAR.A., S/O.ANATHAN PILLAI
11. C.SUDHAKARAN PILLAI,
12. S.SAJEEV, S/O.N.SANKARA PILLAI,
13. SUNDARESAN PILLAI.G.
14. D.UDAYAN, S/O.DAMODARAN ACHARI,
15. T.SREEKUMAR, S/O.THANKAPPAN PILLAI,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE PRINCIPAL SECRETARY TO GOVERNMENT
3. THE DIRECTOR OF SURVEY & LAND RECORDS,
4. THE ASSISTANT DIRECTOR OF RE-SURVEY
5. THE SUPERINTENDENT OF SURVEY & LAND
6. THE TAHSILDAR, TALUK OFFICE,
7. THE TAHSILDAR, TALUK OFFICE, KOLLAM.
8. THE TAHSILDAR, TALUK OFFICE,
9. THE TAHSILDAR, TALUK OFFICE,
10. THE SUPERINTENDENT OF SURVEY & LAND
For Petitioner :SRI.M.V.THAMBAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :03/04/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.27212 of 2007-M
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Dated this the 3rd day of April, 2009.
JUDGMENT
The petitioners are First Grade Surveyors under the third respondent.
The main prayer in the writ petition is one seeking to quash Exts.P4 and P5
and declare that the petitioners are entitled to the scale of pay attached to the
promoted post from the respective dates of assigned dates of promotion
shown in Ext.P3 with arrears of salary with interest at 12%. The resume of
facts as revealed from the writ petition shows the following:
2. In para 2 of the writ petition the details in respect of each
petitioners, their dates of joining the department, date of original promotion
and reassigned date of promotion, etc. are shown. The petitioners contend
for the position that there is no difference in the nature of duties performed
by Surveyors Grade I or Grade II. Earlier, by proceedings Ext.P1, the
Superintendent of Survey and Land Records, Re-survey, Attingal
reassigned the date of promotion and refixation of pay giving the benefit of
Rule 23) of Part I K.S.R. Ext.P1 shows that the pay fixed from 25.6.2001
at the first instance has been changed from the assigned earlier dates of
promotion and accordingly they were paid arrears also.
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3. Going by Rule 23(c) of Part I K.S.R., in case the promotion does
not involve change of duties, the promotion shall be effected from the date
of occurrence of vacancy. It is pointed out that as per Ext.P2, they were
promoted as Surveyor Grade I in the year 2001. However, retrospective
promotions were assigned while issuing the final seniority list after
ascertaining the actual vacancy position from 1999-2000. The petitioners
therefore submit that as there is no difference in the nature of duties in the
two posts, they are entitled to the actual salary with arrears from the dates
they have become eligible for promotion.
4. The petitioners also relied upon Ext.P4 which is an order dated
16.2.2005 passed in the case of similarly placed persons whereby the benefit
was denied. Another circular was issued to effect recovery which was
stayed in Writ Petition No.26818/04. The issue was pending before this
court in various writ petitions. Learned counsel for the petitioners relied
upon the decision of a Division Bench of this court in Sucheendran v.
State of Kerala (2005 (3) KLT 499) to contend for the position that while
considering the applicability of Rule 23(c) of Part I K.S.R., there is no
question of change of duties and it is only promotional aspect with a change
of salary alone. Following the said judgment of the Division Bench, a
wpc 27212/2007 3
learned Single Judge of this court in Writ Petition No.11676/2005 arising
from the same department, quashed similar orders and directed the first
respondent to reconsider the matter in the light of the decision of the
Division Bench noted above.
5. Heard learned counsel for the petitioners and the learned Govt.
Pleader.
6. Clearly, the matter is covered by the two decisions cited above in
favour of the petitioners. In the judgment in Writ Petition No.11676/2005,
it was held in para 6 thus:
“Whenever notional promotion is granted, it cannot be an
inexorable rule that the person is entitled to higher pay with
reference to the date on which the notional promotion is ordered. It
will depend upon the facts and circumstances of each case as held
by the Division Bench in the decision referred to above. But Rule
23(c) clearly provides an exception to the general principle that
when there is no work, there cannot be pay. This is apparently for
the reason that as held by the Division Bench, when a person is
promoted to a post,w here there is no change of duty, he must be
deemed to be working from the day on which the vacancy arises in
the higher post. In other words, cases where there are vacancies in
the higher cadre and when there is no change in the duty constitute
an exception to the rule ‘no work, no pay’. It makes it clear that in a
case where there are vacancies and promotion is ordered notionally
wpc 27212/2007 4
and there is no change of duties, the employee will be entitled to the
higher pay attached to the promotional post from the date of the
notional promotion. In the nature of the pleadings, I think that the
matter has to receive reconsideration.”
7. The learned Judge was pleased to hold further that Rule 23(c) has
been interpreted by the Division Bench and there is no dispute also that in a
case where there is identity of duties in the lower post and higher post the
promoted employee is entitled to higher pay from the date of occurrence of
the vacancy in the higher post. I respectfully agree with the said view. The
same principle applies to the facts of this case.
8. In the light of the above, the writ petition is allowed. Ext.P4 is
quashed. There will be a direction to the respondents to reconsider the
matter in the light of the decision in Sucheendran’s case (2005 (3) KLT
499) and that of the judgment in Writ Petition No.11676/2005 concerning
the very same department and in the light of the findings rendered herein.
Appropriate orders will be passed within a period of three months from the
date of receipt of a copy of this judgment after hearing the petitioners also.
wpc 27212/2007 5
The benefit accrued to the petitioners will be disbursed without further
delay.
(T.R. Ramachandran Nair, Judge.)
kav/