K IBRAHIM Vs. COMMISSIONER AND SECRETARY TO GOVT
LAWS(KER)-2003-1-11
HIGH COURT OF KERALA
Decided on January 07,2003

K.IBRAHIM Appellant
VERSUS
COMMISSIONER AND SECRETARY TO GOVT. Respondents

JUDGEMENT

- (1.) The petitioner challenges Exts. P3, P7 and P9. The petitioner joined Government service as Typist in the year 1956. As per Ext. P1, he is given the effective date of appointment as Assistant Motor Vehicles Inspector with effect from 23.8.1973. True, the actual date of appointment is 15.1.1982..But on granting the notional promotion, the petitioner has been treated as belonging to the cadre of A.M.V.I, with effect from 23.8.1973 as per Ext. P1. On that basis, the petitioner claimed the benefit of ten years higher grade introduced as per the Pay Commission Report. The same was declined as per Ext. P9 on the ground that actual service in a particular post alone will be reckoned for higher grade and periods of service on notional promotions are not counted for the purpose of higher grade. It is further stated in the impugned Ext. P9 order that the petitioner was granted only notional promotion and that he had not exercised any duties attached to the post during the period of notional promotion. As can be seen from Ext. P1, it is a case where the petitioner was denied promotion and pursuant to the directions issued by this Court only, he was restored the benefits, true notionally. But, the fact remains that his pay has been fixed in the cadre of A.M.V.I. with effect from 23.8.1973 pursuant to Ext. P1. Stagnation in a scale for ten years is the basis for granting higher grade. Though the petitioner was granted only notional benefits, it has to be seen that he was in the scale in the said period of ten years. Whether a person who was in actual discharge of duties attached to a post is not a consideration relevant in the matter of granting higher grade. Having been denied promotion and the promotion having been restored pursuant to the directions issued by this Court, it is only in the interests of justice that the petitioner is granted at least the higher grade taking the period of notional service as service for the purpose of granting higher grade. Therefore, I set aside Ext. P9 and direct the first respondent to grant the benefit of higher grade for the period of ten years treating the petitioner to have been in service in the cadre of A.M.V.I, with effect from 23.8.1973.
(2.) Yet another grievance of the petitioner as per impugned Exts. P3 and P7 orders is regarding denial of promotion as Joint R.T.O. Select list of eligible persons for promotion to the post of Joint R.T.O. was published on 17.3.1987 for the years 1985 and 1986. The petitioner's name was not included. He represented the matter before the Government leading to Ext. P3 order. It is stated in Ext. P3 Government Order as follows: "I am to invite your attention to the reference cited. The Transport Commissioner has reported that you were superseded by the Departmental Promotion Committee during 1985 and 1986 due to adverse remarks in the Confidential Reports for the relevant period. In the circumstances, I am to inform you that your request for promotion as Joint Regional Transport Officer cannot be considered now." Apparently, the Transport Commissioner's report did not take note of Ext. P4 order of the Joint Transport Commissioner on two relevant and material aspects; (1), the adverse remarks in the Confidential Report of the petitioner is for the period 7.7.1982 to 30.11.1982 only and in any case, the same should not have been taken note of for inclusion in the select list after three years. The other ground is that in Ext. P4 referring to the petitioner's contention that the adverse remarks were communicated to him only on 17.7.1987, the Joint Transport Commissioner has admitted that the communication was only on 17.7.1987 whereas the select list was published on 17.3.1987. Therefore, it has to be seen that ad verse remarks in the Annual Confidential Report of the petitioner were not communicated to him. R.28(b)(4) of Part II K.S.& S.S.R. clearly mandates that "where remediable adverse remarks recorded in the confidential report of a Government Servant are not communicated to the officer concerned, such remarks shall be ignored by the Departmental Promotion Committee while considering his case for promotion." Though the respondents do not have a case that the remarks were not remediable, I do not propose to go into that issue by examining the remarks, since in any case the petitioner is entitled for inclusion in the select list for the year 1986.
(3.) None of these relevant aspects have been considered by the Government. In view of the fact that the petitioner retired from service as early as on 30.4.1992, I do not think it necessary to send back the matter for fresh consideration. The factual position being what is stated above, it is only just and proper that the petitioner is restored the benefits as follows : (1) The petitioner shall be given the benefit of higher grade for ten years of service in the scale attached to the post of Assistant Motor Vehicles Inspector, with effect from 16.9.1985. (2) The petitioner shall be treated to have been included in the select list for promotion to the post of Joint R.T.O. for the year 1986 and on that basis, he shall be given promotion to the post of Joint R.T.O. (3) I make it clear that the promotion thus granted to the petitioner is only notional and the petitioner will be entitled only to the benefits in pension and pensionary benefits. In order to avoid any confusion, it is made clear that as far as the first relief is concerned, the petitioner will be entitled to get consequential monetary benefits. Appropriate orders in the matter shall be passed by the Government and the benefits disbursed within a period of four months from the date of receipt of a copy of the judgment.;


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