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2019 Supreme(Ker) 745
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.VINOD CHANDRAN, V.G.ARUN, JJ.
K.A.Mohammed Manikfan - Appellant
Versus
Union of India, Rep. By the Administrator and Ors - Respondent
O.P(CAT).No.2730 of 2012(Z)
Decided On : 29-10-2019
Advocate Appeared:
For the Appellant : Sri.M.P.Krishnan Nair, Sri.V.B.Narayanan, Sri.R.Sudhir
For the Respondent: Sri.S.Prashanth, SC, Sri.Manu.S, CGC, Sri.C.Khalid, Sri.Phijo Pradeesh Philip
IMPORTANT POINTS
No question of delay since the seniority list was first published in the year 2010, just prior to the promotion being considered to the post of Assistant Director. The applicant filed objections and also claimed seniority over the direct recruit. The Administration rejected the claim based on a Clarificatory Office Memorandum, which was found to be in violation and repugnant to the earlier Office Memorandums issued by the Central Government, in N.R.Parmar. Hence, the applicant has to be conceded seniority over the direct recruit, the 3rd respondent.
Headnote:
Annual Confidential Reports –Service Law-The applicant having retired, he shall be entitled to the entire backwages in the higher post of Assistant Director from the date on which the 3rd respondent was promoted and he shall be granted increments in the higher post till his retirement. On retirement, his pension shall be fixed reckoning the pay he would have drawn as Assistant Director. We specifically direct the disbursal of backwages and the arrears of pension as per the revised fixation of pay, on severance; for reason of the 3rd respondent having been promoted provisionally when the O.A. was pending before the Tribunal, by virtue of an interim order for consideration of such provisional promotion.
Statement of facts:
The petitioner, applicant before the Tribunal, impugn the order rejecting his claim for consideration of seniority above the 3rd respondent in the cadre of Junior Scientific Officer for the purpose of further promotion to the post of Assistant Director in the Department of Science and Technology, Union Territory of Lakshadweep at Kavaratti.
Finding of the court:
The applicant has to be given seniority over the 3rd respondent in the cadre of Junior Scientific Officer. The applicant having retired, he shall be entitled to the entire backwages in the higher post of Assistant Director from the date on which the 3rd respondent was promoted and he shall be granted increments in the higher post till his retirement. On retirement, his pension shall be fixed reckoning the pay he would have drawn as Assistant Director. We specifically direct the disbursal of backwages and the arrears of pension as per the revised fixation of pay, on severance; for reason of the 3rd respondent having been promoted provisionally when the O.A. was pending before the Tribunal, by virtue of an interim order for consideration of such provisional promotion. The O.P. being a continuation of the proceedings before the Tribunal, there is no ground for limiting the promotion of the applicant as notional. We also make it clear that there shall be no refund of the amounts drawn by the 3rd respondent in the post of Assistant Director, since he had actually worked in the post for the entire period.
Result: O.P(CAT) is allowed
JUDGMENT :
VINOD CHANDRAN, J.
1. The petitioner, applicant before the Tribunal, impugn the order rejecting his claim for consideration of seniority above the 3rd respondent in the cadre of Junior Scientific Officer for the purpose of further promotion to the post of Assistant Director in the Department of Science and Technology, Union Territory of Lakshadweep at Kavaratti.
2. The claim of the applicant is for seniority with respect to a selection initiated in the year 1999 in which the applicant was appointed in 2001. However, there can be no delay alleged against the applicant, since the seniority list was published only on 17.04.2010 as per Annexure A4, just prior to the consideration for promotion to the post of Assistant Director. The seniority list, produced as Annexure A4 and the Office Memorandum dated 01.01.2011, wherein his claim for seniority above that of the 3rd respondent was rejected, produced as Annexure A7, were impugned before the Tribunal by an Original Application of 2011 itself.
3. On background facts, it has to be noticed that the applicant joined service as a Technical Assistant in the Department of Science & Technology under the Administration of Union Territory of Lakshadweep on 26.02.1990. Two posts of Junior Scientific Officer were created on 01.10.1998; the Recruitment Rules of which was produced as Annexure A3 in the O.A. The Recruitment Rules provided for a quota of 50% for the Promotees and 50% to Direct Recruits. The feeder category for promotions was the post of Technical Assistant and in their absence, Environmental Warden; the former having six years experience and the latter having ten years experience.
4. The 3rd respondent was appointed by direct recruitment on 03.02.1999. Though simultaneously selection for promotions were also initiated, it got delayed allegedly due to Annual Confidential Reports [for brevity “ACRs”] of many candidates having not been filled up in the proper form. It is the case of the Administration that ACRs were called for from the candidates in the feeder category and, hence, there was a delay in promotion. The applicant was promoted and appointed as Junior Scientific Officer on 11.06.2001. No seniority list was published as against the inter se seniority of the applicant and the 3rd respondent, who were both in the cadre of Junior Scientific Officer/Technical Officer.
5. When a promotion post became vacant in the post of Assistant Director, the Administration brought out Annexure A4 seniority list, where the applicant was placed second and the 3rd respondent assigned seniority above him. By virtue of the seniority, the 3rd respondent got promoted to the post of Assistant Director, also on the strength of the order of the Tribunal which directed the provisional promotion of the 3rd respondent to be considered. He has been continuing in the said post when the O.A. was dismissed by the Tribunal. The applicant immediately moved the present Original Petition before this Court and when the same was pending here, the applicant retired.
6. The Tribunal, by the impugned order, found that as per Annexure R1(e) guidelines for preparing a panel dated 09.04.1996, promotions would have only prospective effect even in cases where the vacancies relate to earlier years. The applicant having been promoted in 2001, there is no question of his promotion being ante-dated. It was also found that the claim of the applicant for promotion earlier cannot be countenanced, since the applicant submitted his ACR only on 30.01.1999 with a covering letter, produced as Annexure R1(a). Then a ban of appointments/promotion to vacant posts brought in by the Central Government was noticed, which was removed only on 23.10.2000. Looking at the Recruitment Rules, it was also found that there is nothing which mandates that the promotion should precede direct recruitment. Hence, even if the direct recruitment and promotion had been carried out parallel, if the applicant had been promoted subsequent to the appointme
