Point of Law: Rule 28(b)(i)(14) of KS & SSR Part II stipulated that Government may by order effect promotions/appointments by transfer notionally without monetary benefit of pay and allowances but with consequential pensionary benefits, to a pensioner.

JUDGMENT :

Alexander Thomas, J.

The afore-captioned two Original Petitions instituted under Article 226 and 227 of the Constitution of India are directed against the impugned final verdict rendered by the Kerala Administrative Tribunal, Ernakulam Bench in O.A(Ekm).Nos.905/2018 and 1222/2018. Petitioners in both the O.Ps are the respondents in the respective O.A's. The sole respondent in the former O.P. is the sole applicant in O.A.(Ekm).No.905/2018. The 4 respondents in the latter O.P are the original applicants in O.A(Ekm).No.1222/2018. It is common ground that the applicants 2 to 4 in the latter O.A(Ekm).No.1222/2018 were already promoted before the verdict was rendered and therefore, their claims had become infructuous. So the claim only in respect of the first applicant in O.A.(Ekm).No.1222/2018 had survived for consideration.

2. The Tribunal after hearing both sides has rendered the impugned common final verdict on 26.06.2019 in the instant O.A(Ekm).Nos.905/2018 and 1222/2018 whereby those O.A's were disposed of with the clear finding that the act of the respondents in the O.A. in not promoting the above respective applicants in these O.As to the post of Principal of Government Higher Secondary School, from the date on which the select list was published on 25.05.2018 and well before the retirement from service on 30.06.2018 is illegal and ultravires and that, their exclusion from the actual promotion merely on the ground that the actual promotion was done by the respondents in the O.A in pursuance of the select list dated 25.05.2018 only on 30.07.2018. is also illegal. Consequently, the Tribunal has found that the aforesaid two respective applicants in these two O.As are entitled for notional promotion to the post of Principal, Government Higher Secondary School with effect from 25.05.2018 and to grant them consequential benefits thereon. A copy of the said common final verdict has been produced as Ext.P6 in the former O.P. and as Ext.P4 in the latter O.P.

3. Heard Sri.Ashok M. Cherian, learned Additional Advocate General, instructed by Smt.Sabeena P. Ismail, learned Government Pleader appearing for the petitioners in these two O.Ps and Sri.Murali Pallath, learned counsel appearing for the sole respondent in the former O.P/sole applicant therein. As already mentioned hereinabove, the Tribunal has found that the respondents 2 to 4 in the latter O.P has already been promoted before the retirement and before the rendering of the verdict and therefore, they are unnecessary parties. Since we have decided not to admit this case, notice to the first respondent in O.P(KAT).No.166/2023 (first applicant in O.A.(Ekm).No.1222/2018) will stand dispensed with.

4. We will be giving reasons for arriving at a conclusion for the dismissal of these O.P.s hereinafter. Before that, it will be pertinent to refer to the facts of the case in these two matters.

5. The sole applicant in the former O.A was in the feeder source of Higher Secondary School Teacher (Senior) in Government Higher Secondary School and was eligible for consideration of promotion to the next higher category post of Principal, Government Higher Secondary School through the DPC process. Whereas the first respondent in the latter O.P. was in the feeder source of Headmaster of Government Higher Secondary School and was entitled to be considered for by-transfer appointment to the post of Principal, Government Higher Secondary School. Both the above said appointments to the category of Principal is through the DPC (higher) process.

6. In the case of the former applicant, he was included in Annexure-A1 dated 26.05.2014 seniority list of Higher Secondary School teachers for eligibility to the promoted to the cadre of Principal and the serial number assigned to him in the said afore Annexure-A1 is serial number 518.

7. It is the common ground that the incumbents upto serial no.470 were already promoted to the next category of Principal and at the relevant time, there were about 139 vacanci