Kerala High Court
The State Of Kerala And Ors. vs Thirumeni And Ors. on 18 August, 2007
Equivalent citations: 2008(1)KLJ320
Bench: K.S. Radhakrishnan, Antony Dominic
JUDGMENT Radhakrishnan, J.
1. Claims of over 30,000 police personnel, more than 300 writ appeals (equal number of writ petitions) nearly 500 crores of rupees and a mammoth re-doing exercise are the involved in these and other related cases. Few appeals were filed with delay petitions and considering the larger public interest involved we have condoned the delay in all those cases, after directing the State to take out notice to respondents through paper publication.
2. Petitioners, many of them had retired long back, woke up from their slumber and have approached this Court for treating the period of training under gone by them when they had entered service as duty for the purpose of salary, increments, pension etc. on the strength of a Division Bench Judgment of this Court in Lekshmanan v. State of Kerala, 1995 (1) KLT 115 and also the Government Order G.O. (Rt.) No. 2081/04/Home dt.20-9-2004. Writ Petitions preferred by the petitioners were disposed of granting the reliefs as prayed for relying on Lekshmanan's case. Aggrieved by the same the State Government have come up with these appeals.
3. Learned Advocate General appearing for the State submitted that Lakshmanan's case was wrongly decided since the court had omitted to take note of the effect of the Government Orders G.O.(Rt.) 2047/Public (Services) dated 29-11-1961, G.O.(MS) No. 394/64/Home dt.4-9-1964 as well as Rule 10 of the Kerala Police Subordinate Services (Armed Police Battalions) Special Rules, 1984 therefore has to be considered per incuriam. In support of his contention learned Advocate General placed reliance on the decisions of the Apex Court in Nirmal Jeel Kaur v. State of M.P. and Anr., , Sunita Devi v. State of Bihar and Anr. and several other decisions. Learned Advocate General further submitted that in any view of the matter the ratio of that decision cannot be of general application and every case has to be decided on the facts and circumstances of each case. Learned Advocate General further submitted that the Government Order dated 20-9-2004 was issued to give effect to certain judgments of this Court rendered following Lekshmanan's case. Learned Advocate General submitted that the petitioners have to establish their claim independently furnishing relevant service details like the date of their entry in service, the period of training undergone, details of the stipend received, etc. Further no explanation was offered for the inordinate delay and latches in approaching this Court under Article 226 of the Constitution.
4. Sri. Subhash Chandrabose, Sri. Anil Babu and other Advocates who appeared for some of the respondents submitted that the learned single Judge was justified in extending the benefit of Lekshmanan's case to the petitioners also and that they are also entitled to similar benefits which were extended to few others on the basis of the Govt. Order dated 20-9-2004. Denial of such benefit according to the petitioners is discriminatory and violation of Article 14 of the Constitution of India. Counsel submitted, the special rule as such would not apply to some of the police constables who are governed by Annexures -A1 and A2. Few of them were appointed as Sub Inspectors in the Executive Branch and are not governed by the Special Rules. Counsel submitted that the Special Rules, 1984 referred to herein before relates to Armed Police Battalion and not the Police Constables or the Sub Inspectors in the General Executive Branch. Learned Counsel therefore submitted, there is no reason to interfere with the judgments of the learned single Judge in extending similar benefits to the petitioners also.
5. Division Bench of this Court in Lekshmanan's case was dealing with the claim of a Sub Inspector of Police who was advised for appointment as Sub Inspector of Police by the Public Service Commission vide its memo dated 11-12-1975. Bench noticed that the appointment memo would show that petitioner was selected for recruitment as Sub Inspector of Police, subject to the provisions of Rule 3(c) of the General Rules of the Kerala State and Subordinate Service Rules, 1958. Referring to the appointment order the Bench noticed that the petitioner therein was advised by the PSC for appointment as Sub Inspector of Police in General Executive Branch of the Police Department. Bench noticed that it was mentioned in the appointment order itself that on successful completion of the training in Police Training College and practical training, the candidates would be on probation for a period of two years on duty within a continuous period of three years. Interpreting Rule 2(1) and (6) of the Kerala State and Subordinate Service Rules 1958 the Bench examined the meaning of the word "appointed to a service" and also the meaning of expression "duty". Court also referred to the decision of this Court in Louis v. Kerala Public Service, 1965 KLT 1282, Haridasan v. State of Kerala, 1987 (2) KLT 466 and took the view that the period of training of the petitioner from July 15, 1976 upto June 3, 1978 is to be treated as period on duty for the purpose of pay, increments and all other consequential benefits. Court however, opined that it must depend upon the factual-position as to whether the selection was to a course of training rather to an office or post.
6. This Court followed the judgment in Lekshmanan's case in few other cases as well. The State took up one of the cases in appeal before the Apex Court and the Court dismissed Civil Appeal No. 2018 of 2000. Apex Court took the view that there is no reason to interfere with the same under Article 136 of the Constitution since High Court took the same view in few other cases. Ultimately, State had to give effect to those judgments and issued G.O. dated 20-9-2004 granting benefits to 60 police personnel. Now more than 30,000 police personnel have woken up and have approached this Court claiming similar benefits after several years and many of them had retired long back. They want this Court to examine whether the training period undergone by them decades back could be treated as duty for service benefits including revision of pension etc. Division Bench in Lekshmanan's case had opined that much depends upon the factual position as to whether the selection was. to a course of training rather than to an office or post. Learned single Judge without examining the facts and the law applicable to the petitioners blindly followed the judgment in Lekshmanan's case and granted the reliefs. Facts would clearly indicate that some of the petitioners claiming benefit of Lekshmanan's case are governed by Special Rules for the Kerala Police Subordinate Service (Armed Police Battalions) Special Rules, 1984 which has nothing to do with the issue covered by the judgment in Lekshmanan's case. Several of the petitioners were appointed as Police Constable, Havildar, Armed Police Assistant Sub Inspector etc. Rule 10 of the Special Rules deals with training of police personnel of Armed Police Battalions. Rule is extracted hereunder for easy reference:
10. Training : Person recruited direct for appointment to the categories of Armed Police Sub Inspector and Police Constable shall undergo training for a period of one year and six months respectively in the Police Training College and such other institutions as may be prescribed by Government or the Director General of Police. The period of training will not count for probation.
During the period of training the trainee shall be paid such stipend as may be prescribed by Government from time to time.
Rule 9 deals with probation which says that every person appointed to any of the categories in the service shall from the date on which he joins duty in that category of post be on probation. Evidently the Division Bench had no occasion to take note of the impact of Special Rules which clearly states that during the period of training the trainee shall be paid such stipend as may be prescribed by the Government from time to time. Rule 10 of the Special Rules also stipulate that the period of training would not count for probation. Further Rule 9 says that the person appointed to any of the categories in the service shall be on probation only when he joins duty, evidently after training and therefore as per Special Rules the period of training cannot be treated as duty and consequently during the said period a trainee would be entitled to only stipend and the period cannot be considered for the purpose of scale of pay, increments and other service benefits including pension.
7. The impact of Special Rules was never the subject matter of Lekshmanan's case and therefore those Police Personnel appointed under the Special Rules are governed by the provisions of Special Rules and not by the provisions of KS & SSR. Counsel for the petitioners submitted that several of the petitioners are governed not by the Special Rules but by the provisions of KS & SSR General Rules as well as G.O. (Rt.) No. 2047 dt. 29- . 11 -1961 as well as R.O. (Rt.) No. 394/64/Home dt. 4-9-1964 and therefore those persons are entitled to the benefit of Lekshmanan's case. We find it difficult to accept that contention as well. Government. Order dated 29-11-1961 though refers to special recruitment of Scheduled Castes and Scheduled Tribes the order reads as follows:
A period of training may be fixed separately from that of probation in respect of each post depending on the duties and responsibilities attached to that post, and trainees may be allowed during the period of training such allowances as Government would deem fit to prescribe in respect of each post. Such period of training need not be treated as part of probation and need not be counted for purpose of increments or service in the post to which they will qualify after the successful completion of training. Thereafter a period of probation may be prescribed during which the officer will be eligible for the minimum pay of the post and the period of probation if satisfactorily completed will count as service for all purposes.
The instructions in para two above will be applicable in future to all direct recruitments to posts where initial training is a condition of appointment and not only to Special Recruitment or Scheduled Castes and Scheduled Tribes.
(emphasis added) G.O. (MS) No. 394/64/Home dated 4th September 1964 deals with Sub Inspectors of General Executive Branch. Referring to the earlier Government Order dated 29-11-1961 it is stated as follows:
In the light of the orders contained in G.O. (Rt.) 2047/Public (Service) dated 29-11-1961 the Government are pleased to direct that the period of training in the Police Training College and the period of Practical training for six months in Police Station will not count for purposes of probation increment and service in the case of Sub Inspectors of Police in the General Ex-Branch and that the period of their probation will commence from the date of successful completion of the prescribed training. The orders contained in G.O. (Rt.) 154/Home dated 24-3-1961 will stand modified to the above extent.
(emphasis added) Above mentioned orders would clearly indicate that the period of training in the Police Training College and the period of practical training for six months in Police Station will not count for the purpose of probation, increment and service in the case of Sub Inspectors of Police in the General Executive Branch and that the period of probation will commence from the date of successful completion of prescribed training. Police personnel can discharge duties and responsibilities of the post only when they successfully complete the training. In our view, even according to definition of Rule 2(6) of the Kerala State and Subordinate Service Rules the petitioners pre-service training cannot be treated as duty, especially when it is specifically stated that the trainees are entitled only stipend during the period of training. Petitioner in all these cases had received stipend without any demur.
8. We need not however, further elaborate on this issue since a Co-ordinate Bench of this Court in Lekshmanan's case dealing with the case of a Sub Inspector of Police took the view that the period he had spent for training be treated as duty and he would be entitled to get all service benefits such as revision of pay, increment and all other benefits. Lekshmanan in that case had undergone training from July 15, 1976 to June 3, 1978 and he had approached this Court only in the year 1987, that too after a period of nine years. Judgment in Lekshmanan's case had attained finality and judicial discipline demands that another Co-ordinate Bench should respect that judgment. Reference may be made to the decision of the Supreme Court in State of Bihar v. Kalika Kuer alias Kalika Singh and Ors. . A subsequent Co-ordinate Bench, may find an earlier decision of another Co-ordinate Judge was wrongly decided or may notice that a relevant aspect of the matter was not considered or not raised before the Bench but that would not be a reason or ground to conclude that the decision was rendered per incuriam and liable to be ignored. Later, Bench has only one choice either to follow the Division Bench judgment or refer to a Larger Bench. But that does not mean that the benefit of a judgment of a Co-ordinate Bench be extended to another case automatically Later Co-ordinate Bench can always examine the fact situation of the subsequent case and decide whether the party is still entitled to the discretionary relief under Article 226 of the Constitution of India. Contention of the learned Advocate General that the judgment in Lekshmanan's case was rendered per incuriam is rejected, but we will examine whether we should exercise our discretionary jurisdiction to grant the reliefs to these petitioners.
9. Questions which looms large in all these cases is whether the petitioners are entitled to the benefit of Lekshmanan's case, In Lekshmanan's case it has been specifically stated that much depends on the factual position as to whether the selection was to a course of training rather than to an office or post. Petitioners, who are governed by the Kerala Police Subordinate Service (Armed Police Battalions) Special Rules 1984 are not governed by Lekshmanan's case. Further those petitioners who claim to be governed by Lekshmanan's case have not furnished their service details such as the date of entry in service, period of training undergone, date of retirement etc. It has been stated at the Bar that many of them had retired long back, now they are claiming the training period as duty after many years. Non-furnishing of relevant service details in a writ petition itself is a sufficient ground for rejecting the relief prayed for. Date of entry in service, the period of training undergone, details of stipend received, the nature of the appointment, nature of the advise memo, the date of superannuation are all very relevant materials to decide the question whether the period undergone for training has to be treated as duty or not. In order to decide as to whether the period of training has to be treated as duty much depends upon the terms of the appointment order and also the rules governing their service. None of these details have been furnished in these writ petitions. Petitioners have got only one goal, to get the benefit of Lekshmanan's case, which was a solitary case of a Sub Inspector. Lekshmanan's case, was decided in the facts and circumstances of that case and was never intended to be of general application.
10. We are also of the view, that all these writ petitions should go, at the threshold when we apply the principle laid down by the Apex Court in U.P. Jal Nigam and Anr. v. Jaswant Singh and Anr., due to delay and latches. Facts of that case is almost identical with the facts in these cases. In that case Supreme Court was dealing with the question whether the employees who. did not wake up to challenge their retirement and accepted the same and had collected their post-retirement benefits, could be given relief in the light of the subsequent decision in Harwindra Kumar v. Chief Engineer, Karmik, . In Harwindra Kumar's case the Apex Court held that the employees of the U.P. Jal Nigam are entitled to continue up to 60 years, the same as State Government employees. During the pendency of the appeals and writ petitions which were decided in Harwindra Kumar case and after disposal of the same, a spate of writ petitions followed in the High Court filed on various dates after the judgment in Harwindra Kumar in 2005 and some between 2002 and 2005 by the employees of the Nigam, some of whom had retired long back. Some of these who had not yet reitred were lucky to obtain interim orders allowing them to continue in service. All those writ petitions were disposed of in the light of Harwindra Kumar and relief was given to the petitioners for continue in service up to the age of 60 years. Under such circumstances Nigam approached the Apex Court. It was pointed out by Nigam before the Apex Court that if similar benefit is extended to petitioners in the Nigam they have to bear a financial burden to the tune of Rs. 17,80,43,108/-. Further it was also pointed out that there has been considerable delay and latches on the part of the petitioners in seeking similar benefits.
Apex Court held as follows:
The question of delay and latches has been examined by this Court in a series of decisions and latches and delay has been considered to be an import factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years.... The respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases the court should be very slow in granting the reliefs to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability, but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitioner claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam.
Holding so, Apex Court allowed the appeals filed by the Nigam. Later, the Apex Court followed the above decision in A.P. Steel Re-Rolling Mills Ltd. v. State of Kerala and Ors., and held as follows:
The benefit of judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this Court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief.
Principle laid down by the Apex Court in the above mentioned cases would squarely apply to the facts of these cases. Benefit of Lekshmanan's case cannot be extended to these cases automatically, which in our view, was never intended for general application.
11. Petitioner in all these cases were satisfied with the stipend they had received during the period of their training, which they had undergone three or four decades back. Petitioners had no case that the period of training should have been treated as "duty" and for scale of pay, increment and other service benefits including revision of pension all these years. Promotions, seniority, higher scale of pay, increment etc. were given to all the petitioners, for several years and they enjoyed the same without counting the period of training as duty, and they had acquiesced with that and now they have woken up from their slumber due to the judgment in Lekshmanan's case. Few of them had entered service even before the year 1960 and are leading a retired life. Judgment in Lekshmanan's case was their inspiration, but the court has to draw a Lakshmana Rekha, beyond that, they cannot go. Petitioners, in our view, were not vigilant and were contented with the receipt of stipend during the period of training. If the petitioners had a claim that the period of training should have been treated as duty they should have agitated the same as and when that period was not treated as duty in their service. Petitioners continued in service several years with acquiescence to that situation and later got several promotions, increments etc., in the promoted posts and many of them have retired also. Petitioners are now re-agitating their claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence even when Lekshmanan woke up.
12. We have scanned through the writ petitions and there has not been any explanation for the delay or latches for not raising the claim or for approaching this Court. In our view, there has been gross delay and latches on the part of the petitioners in filing their writ petitions. As held by the apex Court in Jagdish Lal v. State of Haryana, that if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. The court held that the delay disentitled a party to discretionary relief under Article 226 of the Constitution. Appellants in that case slept over their rights for long and woke up when they had the impetus from Virpal Singh Chauhan case The Apex Court held that appellants' desperate attempt to redo the seniority is not amenable to judicial review at a belated stage.
13. We are of the view, the facts in these cases depict a classical example for delay, latches and waiver. To examine the claims of more than 30,000 police personnel at this belated stage would be a herculian task for the administration. For granting relief even to one person the department has to consider his arrear payment of DA/Allowances for the training period, advancement in the date of increment from the beginning, advancement of the time bound grades, arrear payment on salary re-fixation through out the service, change in duration of qualifying service for pension, revision in pensionary benefits and monthly pension etc. the State has to undertake a mammoth task of re-doing exercise and the administration would have to take up a laborious and time consuming revisional process so as to process the claims of more than 30000 personnel if the impugned judgments are given effect to. Further facts would indicate that the State would have to bear a financial burden to the tune of more than 500 crores if the claims of these 30,000 personnel are to be given effect to as directed by the judgments under appeal. If interest is claimed, the situation would be further precarious. On law as well as on facts, in our view, petitioners are not entitled to the discretionary jurisdiction of this Court on the strength of Lekshmanan's case. The fact that few persons were granted benefit on the strength of Lekshmanan's case would not advance the case of the petitioners. They have to independently establish their cases and offer explanation for the delay and latches, which they have not done.
14. We are of the view all these writ petitions therefore should go not only on the ground of non-furnishing of the relevant service details in the writ petitions but also on the ground of delay and latches and on other legal grounds which have already discussed. Counsel appearing for the respondent brought to our knowledge a Division Bench judgment of this Court in WA No. 343 of 2007 and connected matters and stated that another Division Bench of this Court upheld a few of the judgments granting relief of the parties following Lekshmanan's case. We have perused the judgment of the Division Bench dated 20th February 2007 and we notice that those appeals essentially were dismissed on the ground of delay. So far as these cases are concerned cogent reasons have been stated by the State for condoning the delay and we have condoned the delay taking into consideration the larger public interest. For the above mentioned reasons, we allow all these appeals and set aside the judgments of the learned single Judge.