IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 242 of 2005()

1. ROSAMMA MATHEW,

... Petitioner

2. REMADEVI P.,

Vs

1. STATE OF KERALA,

... Respondent

2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,

3. DIRECTOR OF DIARY DEVELOPMENT,

4. JOINT REGISTRAR OF CO-OPERATIVE

5. REGIONAL CO-OPERATIVE MILK PRODUCERS

6. K.R.AMBIKA DEVI,

7. SIDHARTHAN NAIR,

8. MATHAI,

9. SURESH,

10. THANKAMONY,

11. MOHANAN,

12. SANTHOSH,

For Petitioner :SRI.P.SANKARANKUTTY NAIR For Respondent :GOVERNMENT PLEADER

The Hon'ble MR. Justice J.B.KOSHY

The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :17/11/2008

O R D E R

J.B. KOSHY & THOMAS P.JOSEPH, JJ.

= = = = = = = = = = = = = = = = = = = = = = = = = = W.A. No.242 of 2005

= = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17th day of November, 2008 J U D G M E N T

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Koshy, J.

Appellants were working as Senior Supervisors in the 5th respondent Society. In 1994 the Departmental Promotion Committee considered promotion to the post of AMPO and respondents 6 to 12 were promoted. It is the case of the appellants that respondents 11 and 12 are juniors to the appellants and appellants were illegally overlooked. It is the case of the contesting respondents that in the DPC appellants were not found suitable for promotion. Admittedly as per the service rules, 'seniority-cum-merit' is the criterion fixed for promotion. The files produced by the 5th respondent shows that the DPC constituted for the purpose of selection of employees for promotion as per the guidelines had assessed the merits of all the senior supervisors who were having the requisite service including the appellants and contesting respondents and given marks for knowledge of work, attitude to work, decision making ability, initiative, ability to inspire and motivate, communication skills, team work, relations with public, supervisory ability and ability to execute orders. For the above  W.A. No.242 of 2005

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10 components minimum mark was also fixed. Appellants also got more than the bench mark fixed. So they were also found suitable. But on the basis of the comparative marks obtained by the contesting respondents they were given promotion without taking into account seniority. Once the DPC has found the appellants also suitable, seniority alone can be taken as per the seniority-cum-merit basis. Relying on the principle laid down in R.V.Sivaiah v. Addanki Babu (1998) 6 SCC 720) and Union of India v. Lt.General Rajendra Singh Kadyan (2000)6 SCC 698) the appellants were found entitled to get promotion from 30.12.1994 the date on which their juniors were promoted. The grievance of the appellants is that while granting the benefit learned Single Judge held that appellants will be entitled to get only provisional promotion till the date of judgment and they will not get monetary benefits except for pay fixation and promotion. It is the contention of the appellants that since they were illegally denied promotion, they cannot be denied the benefits.

2. It is argued by the learned counsel for contesting respondents that only because respondents 11 and 12 got higher marks they were promoted in 1994 and that they are not guilty of any  W.A. No.242 of 2005

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malice. True, they are not guilty and therefore they are not liable to pay cost or penal interest on the back wages.

3. The argument that they did not work in promoted post till they were actually promoted and therefore they are not entitled to back wages cannot be accepted. The Apex Court in State of Kerala v. E.K. Bhaskara Pillai (2007) 6 SCC 524) held that the principle of no work no pay cannot be accepted as a rule of thumb. In circumstances when promotions are wrongfully denied, full back wages are to be paid. It is true that if departmental enquiry or criminal proceedings are pending, amount of back wages for that period can be reduced depending upon the circumstances. But if a person is illegally denied promotion, he is entitled to salary in the promoted post from the date he is given promotion. Hence appellants were illegally denied promotion.

4. In this case the first appellant has already retired from service. The appellants are entitled to get all the monetary benefits from the date on which their juniors were promoted as they were illegally denied promotion. Therefore, they are entitled to the difference in salary and other benefits from 30.12.1994 in the post of AMPO.

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Appeal is allowed. The respondent concerned is directed to grant the monetary benefits to the appellants within three months from the date of receipt of a copy of this judgment. J.B. KOSHY, JUDGE.

THOMAS P.JOSEPH, JUDGE.

vsv