Abdul Salam J. Head Of Section … vs The State Of Kerala on 18 January, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 2339 of 2008()


1. ABDUL SALAM J. HEAD OF SECTION (RETIRED)
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. THE DIRECTOR OF TECHNICAL EDUCATION,

3. THE PRINCIPAL, GOVERNMENT ENGINEERING

                For Petitioner  :SRI.S.P.ARAVINDAKSHAN PILLAY

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR

 Dated :18/01/2010

 O R D E R
     K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.

                  ------------------------------
                      W.A.No.2339/2008
                  ------------------------------

              Dated this, the 18th day of January, 2010


                           JUDGMENT

Balakrishnan Nair, J.

The appellant was the writ petitioner. He was working as

Head of Section in a Polytechnic. His next promotion post is

that of Principal. He was included in the Departmental

Promotion Committee (for short “DPC”) list published by the

Government as per Ext.P1 notification dated 14.6.1999, for

appointment to the post of Principal during the year 1999-2000.

Altogether 28 persons were included in the said select list and

the appellant was rank No.10 therein. Soon after the

publication of the rank-list, this Court stayed the appointments

from it. Finally, the stay was vacated on 9.2.2000.

Immediately thereafter, by Ext.P2 order dated 22.2.2000, 21

persons were promoted to the post of Principal. But, in the

meantime, the appellant attained the age of superannuation on

31.10.1999. Therefore, he became ineligible for promotion on

WA No.2339/2008

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the date on which promotions were ordered as per Ext.P2. The

appellant submitted that the vacancies arose earlier and

therefore, he should have been promoted with retrospective

effect. At least for the purpose of computing the pensionary

benefits, he may be given the said benefit of promotion, it was

claimed. His representation in this regard was rejected by the

Government by Ext.P5 communication dated 9.5.2007.

Challenging Ext.P5 and seeking consequential reliefs the Writ

Petition was filed. The learned Single Judge, after hearing both

sides, dismissed the Writ Petition. The learned Judge took the

view that by Ext.P2, promotions were ordered with prospective

effect. Since on the date of promotion the appellant/writ

petitioner was not eligible for promotion, there is nothing wrong

in denying him the benefit of promotion, which he claimed on

the strength of Ext.P1. Feeling aggrieved by the said decision,

this Writ Appeal is preferred by the appellant.

2. We heard the learned counsel on both sides. It is one

of the fundamental principles of service jurisprudence that the

claim of the incumbent for promotion should be considered with

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reference to the date of occurrence of the vacancy. For various

reasons, there will be delay in actually ordering the promotions.

If that date is to decide the fate of the incumbents, the same

will work out serious prejudice. That is why this Court as well

as the Apex Court has repeatedly held that while considering the

title for promotion, the date of occurrence of the vacancy is

relevant. In this case, it is true, promotions could have been

ordered only after 9.2.2000, the date on which this Court

vacated the interim order of stay. But, the appellant’s claim

should have been considered, if there was a vacancy available

before 31.10.1999, for promoting him according to his position

in the rank-list. Having regard to his position in Ext.P1 and the

number of promotions ordered under Ext.P2, we think, the turn

of the appellant must have arisen before 31.10.1999, the date

of his superannuation. So, this is a matter to be examined by

the Government, which is the appointing authority.

In the result, the Writ Appeal is allowed. Ext.P5 is

quashed. The 1st respondent is directed to consider the claim of

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the appellant for promotion to one of the vacancies available

before 31.10.1999, having regard to his position in Ext.P1 DPC

list. This, the 1st respondent shall do within three months from

the date of production/receipt of a copy of this judgment. If the

appellant is found to be eligible for promotion before

31.10.1999, he shall be promoted notionally. Having regard to

the said notional promotion, his terminal benefits shall be re-

computed and released to him within two months thereafter.

K. Balakrishnan Nair,
Judge.

C.T.Ravikumar,
Judge.

nm.