Kerala High Court
Chelamma.V vs State Of Kerala on 19 March, 2012
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
MONDAY, THE 19TH DAY OF MARCH 2012/29TH PHALGUNA 1933
WP(C).No. 25470 of 2010 (G)
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PETITIONER:
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CHELAMMA.V., PANACHIKUNNATH HOUSE,
KAVALAPARA.P.O., SHORNUR, PALAKKAD DISTRICT.
BY ADVS.SMT.S.KARTHIKA
SRI.M.S.UNNIKRISHNAN
SRI.M.R.ANISON
SMT.K.P.GEETHA MANI
SMT.P.A.RINUSA
RESPONDENT:
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1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT,
AGRICULTURAL (FARMS) DEPARTMENT
SECRETARIAT, TRIVANDRUM.
2. KERALA AGRICULTURAL UNIVERSITY, REP.
BY ITS REGISTRAR, MANNUTHI, TRICHUR-680 651.
ADDL.R3 IMPLEADED:
ADDL.R3: THE VIGILANCE CELL OF KIRTADS,
REPRESENTED BY ITS VIGILANCE OFFICER,
DIRECTORATE OF KIRTADS, KOZHIKODE-17.
(IS IMPLEADED AS ADDL.3RD RESPONDENT AS PER ORDER DT.18.1.11 IN
IA.599/11)
BY ADV. SRI.K.P.MUJEEB, SC, KERALA AGRICULTURAL UNIVERSITY.
SPL.GOVT.PLADER SMT.P.K.SANTHAMMA FOR ADDL. R3
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN WPC.25470/10
PETITIONER'S EXTS:
EXT.P1: COPY OF JUDGMENT DT.1.4.08 IN WPC.34432/07.
EXT.P2: COPY OF JUDGMENT IN W.A.NO.1121/08.
EXT.P3: COPY OF OR PROCEEDINGS DT.7.6.08 ISSUED BY THE 2ND
RESPONDENT.
EXT.P4: COPY OF ORDER DT.26.7.08 ISSUED BY THE 2ND RESPONDENT.
EXT.P5: COPY OF ORDER DT.7.11.08 ISSUED BY THE 2ND RESPONDENT.
EXT.P6: COPY OF NOTICE DT.27.5.08 ISSUED BY THE KIRTADS.
EXT.P7: COPY OF REPLY DT.13.6.08 SUBMITTED BY THE PETITIONER.
EXT.P8: COPY OF LETTER DT.9.7.10 ISSUED BY THE 2ND RESPONDENT.
EXT.P9: COPY OF LETTER DT.8.4.10 ISSUED BY THE 1ST RESPONDENT.
EXT.P10: COPY OF REPORT OF THE 3RD RESPONDENT EXCLUDING THE
DOCUMENTS ATTACHED DT.27.1.11.
EXT.P11: COPY OF ORDER BEARING NO.26851/G2/2009 /SCSTDD DT.7.12.11
ISSUED BY THE SCRUTINY COMMITTEE.
RESPONDENTS EXTS: NIL
TRUE COPY
P.A.TO JUDGE
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T.R.RAMACHANDRAN NAIR, J.
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W.P.(C)No.25470 of 2010
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DATED THIS THE 19th DAY OF MARCH, 2012
JUDGMENT
The petitioner herein retired from service on 31.3.2010 from the University as Administrative Assistant.
2. In the Writ Petition, it was stated that the petitioner entered service as Assistant Grade II under the service of the Kerala Agricultural University on 11.12.1981 in the Scheduled Caste quota. She was promoted to the post of Section Officer and then as Administrative Assistant. But the above promotions were not under the Scheduled Caste quota and the petitioner obtained Scheduled Caste's benefits only till the period she worked as Assistant Grade II.
3. The petitioner's claim is that she belong to Thandan community, which is a Scheduled Caste in Kerala. Various documents have been produced in support of the above plea.
4. The dispute herein started when the University issued a notice dated 2.8.2000 directing the petitioner to produce her original SSLC Book and community certificate. After these W.P.(C)No.25470/10 -2- documents were produced, the University issued an order of suspension dated 16.11.2007, which was based on a letter issued by the District Collector, Palakkad stating that the petitioner did not belong to Thandan community. This led to later litigations between the petitioner and the University. The first of the Writ Petitions filed is W.P.(C)No.34432/2007, which was disposed of by Exhibit P1 judgment. The suspension order was quashed and a direction was issued to conduct an enquiry regarding the petitioner's caste status. The Division Bench dismissed the Writ Appeal filed by the respondents as per Exhibit P2 judgment. The petitioner was thereafter reinstated in service as per Exhibit P3. The period of suspension was regularised as per Exhibit P4.
5. Again the petitioner filed Contempt of Court Case No.1474/2008 claiming the benefit of salary and allowances during the period of suspension. By Exhibit P5, the University passed an order treating her period of suspension as duty for all purposes including pay and allowances.
6. Thereafter it appears that the KIRTADS started enquiry against the petitioner, in regard to her caste status. The KIRTADS issued a notice dated 21.4.2008 and the petitioner W.P.(C)No.25470/10 -3- responded to the notice and it is averred in paragraph No.9 of the Writ Petition that an enquiry was conducted by the KIRTADS on 13.6.2008. In the meanwhile the petitioner retired from service and seeking for disbursement of the retirement benefits, this Writ Petition has been filed.
7. In the counter affidavit filed by the 1st respondent various details have been pointed out and in paragraph No.8, it is stated that the Director of KIRTADS was directed to complete the investigation. Reference is made to section 16(1) to (5) of Act 11 of 1996 also. It is averred in paragraph No.9 that the petitioner's pensionary benefits were withheld by the University in consonance with the direction of the Government.
8. The petitioner has produced along with I.A.No.4014/2012 Exhibit P12, a proceedings of the Government dated 24.2.2012.
9. In fact this Court after hearing the parties has passed an order in I.A.No.1598/12 on 1.3.2012 after noticing the submission of the learned Special Government Pleader that the Government is yet to pass an order based on the report of the Scrutiny Committee. Reference was made to Exhibit P9 W.P.(C)No.25470/10 -4- communication addressed to the University. This Court directed the Government to take a decision on Exhibit P11 in the light of the judgment of this Court in Madhavan P. v. State of Kerala (2010(2) KHC 739) and Writ Appeal No.284/2012. Accordingly Exhibit P12 order has been passed.
10. A reading of Exhibit P12 order will show that the Government was of the view that none of the members of the family of the petitioner will be eligible for any of the benefits exclusively intended for members of the Scheduled Castes after 29.8.2007, ie., the date of the Constitutional (Scheduled Castes) order (Amendment) Act, 2007. With regard to the actions to be taken, the following directions have been issued in the matter.
"III. If the caste name in respect of any of the family members of Smt.v.Chellamma, Pananchikunnath House, Kavalappara P.O., Shornur, Palakkad (Rtd. Administrative Officer Gr.II, Kerala Agricultural University, Vellanikkara, Thrissur) is recorded in their academic records as Scheduled Caste (Thandan) it shall be got corrected as Thiyya (OBC) community.
IV. Scheduled Caste Certificates shall not be issued to any of the members of her family W.P.(C)No.25470/10 -5- hereinafter. All the Scheduled Caste certificates secured by them after 29.8.2007 shall be treated as cancelled.
V. If Smt.V.Chellamma, Rtd. Administrative Officer Gr.II, Kerala Agricultural University, Vellanikkara, Thrissur had enjoyed any benefits/concessions exclusively meant for Scheduled Castes after 29.8.2007, the Registrar, Kerala Agricultural University at Vellanikkara, Thrissur will take steps to recovery all such benefits."
11. With regard to the same, the learned Standing Counsel for the University submitted that in the light of direction No.5, the University is entitled to recover the salary and allowances from the petitioner.
12. Heard the learned Special Government Pleader appearing for the Government also.
13. The learned counsel for the petitioner submitted that in the light of the Government Order also, the recovery, if any, can be only in respect of "benefits/concessions" exclusively meant for Scheduled Castes after 29.8.2007, if any received by the petitioner and according to the learned counsel for the W.P.(C)No.25470/10 -6- petitioner no such specified benefits have been granted to the petitioner. The payment of salary and allowances will not come within the purview of the same. The learned counsel for the petitioner therefore prayed that a direction may be issued to the University to sanction and disburse the pensionary benefits of the petitioner.
14. In fact, the learned counsel for the petitioner relied upon the directions issued by this Court in Madhavan P. v. State of Kerala (2010(2) KHC 739) in a similar matter. Therein the Division Bench in paragraph No.4 has held as follows:
"...... ...... Second and third appellants got employment as Scheduled Castes before amendment of the Schedule and their employment also cannot be terminated as initial appointment was correct and they are entitled to get salary and pension till their date of superannuation and their employment was not obtained by fraud. ........ ......"
15. A reading of the Government order will show that the interpretation sought to be placed by the learned Standing Counsel for the University that it enables recovery of monthly W.P.(C)No.25470/10 -7- salary and allowances paid to the petitioner after 29.8.2007 is not correct. In the Government Order it is specifically stated that if the petitioner had enjoyed "the benefits/concessions"
exclusively meant for Scheduled Castes after 29.8.2007, the Registrar can take steps to recover. That means that if the petitioner has obtained any monetary concession as a "Scheduled Caste" the same alone is liable to be recovered. That aspect can be considered by the Registrar and appropriate decision can be taken. But, it does not mean that the salary and allowances paid to the petitioner after 29.8.2007 is liable to be recovered and the interpretation raised by the learned Standing Counsel for the University to that extent is not correct. The payment of normal monthly salary is only a part of the conditions of service and it is not a concession given as a Scheduled Caste.
In that view of the matter, the Writ Petition is disposed of directing the University to take appropriate steps by implementing Exhibit P12 Government Order and sanction and disburse the retirement benefits to the petitioner within a period of four months from the date of receipt of a copy of this judgment. It is made clear that the petitioner will not be entitled W.P.(C)No.25470/10 -8- to retain other benefits/concessions, if any, obtained as a Scheduled Caste during the period from 29.8.1987. No costs.
Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn "The date "29.08.1987" occurring in the last line of the judgment dated 19.03.2012 in W.P.(C)No.25470/2010 is corrected and substituted as "29.08.2007" vide order dated 13.4.2012 in I.A.5524/2012.
Sd/-
REGISTRAR(JUDICIAL) W.P.(C)No.25470/10 -9- T.R.RAMACHANDRAN NAIR, J.
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I.A.No.1598 OF 2012 in W.P.(C)No.25470 of 2010
-------------------------------------------------- DATED THIS THE 1st DAY OF MARCH, 2012 O R D E R Heard the learned counsel for the petitioner, the learned Special Government Pleader and the learned Standing Counsel for the University.
2. The petitioner prays for a direction to the respondents to sanction pension and other benefits in the light of the report of the Scrutiny Committee, produced as Exhibit P11. My attention was invited to the last paragraph of the report which only states that the petitioner and her family members shall not be eligible to any benefits meant for the SC after 29.8.2007. Therefore the payment of salary and pension is protected as far as the petitioner is concerned, by the Government Order also.
3. The learned Special Government Pleader submitted that the Government is yet to pass an order on the basis of the report of the Scrutiny Committee and my attention was invited to Exhibit P9 communication addressed to the University also. W.P.(C)No.25470/10 -10- Therein the Registrar of the University was requested to consult the Government before sanctioning pensionary benefits to the petitioner. The stand of the University is also that the Government will have to take a decision in the matter. Therefore there will be a direction to the Government to take a decision on Exhibit P11 in the light of the judgment of this Court in Madhavan P. v. State of Kerala (2010(2) KHC 739) and Writ Appeal No.284/2012. The petitioner will forward a copy of this order along with the copies of the judgments in Madhavan P. v. State of Kerala (2010(2) KHC 739) and Writ Appeal No.284/2012 to the Government for compliance.
Post after a month.
Hand over to both sides.
T.R.RAMACHANDRAN NAIR, JUDGE.
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