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2021 Supreme(Online)(KER) 10239
HIGH COURT OF KERALA
ALEXANDER THOMAS, VIJU ABRAHAM, JJ
STATE OF KERALA – Appellant
Versus
G.M.KOCHUKANJIRAM – Respondent
OP(KAT)/372/2021
Rule 23(d) allows for back pay during notional promotions in the absence of a change in duties, limiting claims to one year prior to the promotion order.
Headnote:
Promotion - Administrative Law - Rule 23 KSR - Summary of Applicability
Fact of the Case:
The applicant sought to challenge the denial of back salaries during notional promotions and claimed entitlements under Rule 23 of the KSR after a delay of three years against the Kerala Administrative Tribunal's order.
Finding of the Court:
The court upheld the Tribunal's decision that Rule 23(d) applied to the applicant since there was no change in duties during the notional promotions, hence he was entitled to arrears for a limited period before the actual promotion.
Issues: Whether the delay in filing the Original Petition affects the applicant's rights to claim arrears of pay and allowances when promoted notionally under Rule 23 of KSR.
Ratio Decidendi: The court ruled that despite the delay, the principle in Rule 23(d) permitting arrears for notional promotions was decisive; there was no change of duties, thus the applicant was rightfully eligible for payment for one year prior to the promotion order.
Final Decision: The Original Petition was dismissed, affirming the Tribunal's order to grant back salary due to the applicant.
J U D G M E N T
The sole respondent herein has filed the instant Ext.P1 Original Application OA No.1544/2014 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench with the following prayers.
“i. Call for the records leading to the Issuance of Annexure A6 and Annexure A7 by the respondents and may be set-
aside.
ii. Call for the records leading to the issuance of Annexure A4 GO (Rt) No. 361/2013/F & WLD dated 24.09.2013 granting notional promotion to the applicant as senior Grade Assistant Conservator of Forests which is also known as Deputy Conservator of Forests (non cadre) and the condition in the order that the applicant and others named in the order are "not eligible for back arrears during the period of notional promotion", so far as the applicant is concerned may be set aside.
iii. To Direct the respondents to fix the scale of pay of the applicant in the scale of pay of the senior Grade Assistant Conservator of Forests also known as Deputy Conservator of Forests (non-cadre) with effect from 01.04.2010 and to grant back arrears pay and other allowances from 01.04.2010 to 24.09.2013.
iv. Call for the records leading to the issuance of Annexure A3 GO(RT) No.160/2013 F&WLD dated 19.04.2013 of the 1st respondent granting notional promotion to the applicant as Assistant Conservator of Forests w.e.f. 12.12.2000 and the condition in the order are not eligible for back arrears during the period of notional promotion as Assistant Conservator of Forests w.e.f. 12.12.2000 so far as the applicant concerned may be set aisde.
v. To direct the respondents that the pay of the applicant may be fixed in the scale of pay of the Assistant Conservator of Forests w.e.f. 12.12.2000 and grant all consequential increments and subsequent pay fixations in the light of the pay revision orders and also direct the respondents to give him the arrears of pay and allowances due to him consequent to the above fixation.
vi To Declare that the applicant is eligible and entitled to get the back arrears of pay and allowances during the period of notional promotion as Senior Grade Assistant Conservator forests viz. 01.042010 to 24.09.2013 and also to declare that the applicant is from eligible and entitled to get the back arrears of pay and allowances, during the period of notional promotion as Assistant Conservator of Forests viz. From 12.12.2000.
vii. Such other reliefs which are just and equitable may also be granted in favor of the applicant.”
2. The Tribunal after hearing both sides has rendered the impugned Ext.P3 final order dated 13.11.2018 in the instant OA No.1544/2014 finding that the main matter in issue is covered in favour of the Original Applicant as per the orders and directions passed by the Tribunal in terms of the final order dated 08.07.2016 rendered in OA No.2998/2013 and that there is no change of duties to be discharged in the post of Deputy Conservator of Forest compared to the post of Asst. Conservator of Forest and hence Rule 23(d) of Part I KSR would squarely apply and that the applicant is entitled to a salary during the period of their notional promotion upto a maximum period of one year and that arrears of salary due to the applicant for the period of 1 year from 24.09.2012 till his actual promotion on 24.09.2013 shall be sanctioned and released by the State Government within the time limit mentioned therein. It is this final verdict of the Tribunal at Ext.P3 rendered on 13.11.2018 in the instant OA No.1544/2014 that is under challenge in the instant Original Petition filed at the behest of the State of Kerala and the Forest Department under Article 226 and 227 of the Constitution of India.
3. The prayes in the instant Original Petition filed on 18.11.2021 are as follows:
“1. To set aside Ext.P3 order dated 13.11.2018 in OA No.1544/2014 of the Hon'ble Kerala Administrative Tribunal.
2. Such other reliefs this Hon'ble Court deems fit to grant in the interest of justice, equity and good conscience.”
4. Heard Sri.Antony Mukkath, lea
