Kerala High Court
S. Sasikumar vs The Pathanamthitta District ... on 26 November, 2018
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
MONDAY ,THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940
WA.No. 2285 of 2018
AGAINST THE JUDGMENT IN WP(C) 27440/2018 OF THIS COURT
APPELLANTS/PETITIONERS:
1 S. SASIKUMAR
AGED 68 YEARS
THUNDATHIL VEEDU, ANGADICKAL, PUTHANKAVU P O,
CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689123.
2 SEEDHARAN
AGED 1 YEARS
VADAKKEKKARA VEEDU, PARAKKARA P.O., PANDALAM,
PATHANAMTHITTA DISTRICT, PIN- 691 525.
3 K.CHANDRASEKHARA PILLAI
AGED 1 YEARS
KRISHNAKRIPA, PALLICKAL P.O., KOTARAKKARA, KOLLAM
DISTRICT, PIN - 691 566.
4 T.K.SOMAN
AGED 1 YEARS
SIBI NIVAS, THUMPAMON NORTH P.O., ELAVUMTHITTA,
PATHANAMTHITTA DISTRICT, PIN - 689 526.
5 K.N.SADASIVAN PILLAI
AGED 1 YEARS
KOLELIL HOUSE, MELUKARA, KOZHENCHERY P.O.,
PATHANAMTHITTA DISTRICT, PIN- 689 641.
6 K.MOHANDAS
AGED 1 YEARS
PANCHAJANYAM, MATHILBAGAM P.O., THIRUVALLA,
PATHANAMTHITTA DISTRICT, PIN 689 101.
7 K.A.LALI
AGED 1 YEARS
VIJAYA NIVAS, PRAKKANAM P.O., PATHANAMTHITTA
DISTRICT, PIN - 689 625.
W.A.No.2285/2018
2
8 P.K.SOMAN
AGED 1 YEARS
PICHANATTU, KUMBANAD P.O., PATHANAMTHITTA DISTRICT,
PIN - 689 545.
9 M.C.SIVARAMAN
AGED 1 YEARS
MURUPPUKALAYIL, ULLANNOOR P.O., KULANADA,
PATHANAMTHITTA DISTRICT, PIN - 689 503.
10 K.S.VIMALADEVI
AGED 1 YEARS
NEELAKANTAM, MGRA-30-D LANE, PATTOM P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 004.
11 M.D.VILASINI
AGED 1 YEARS
REVATHY, V.KOTTAYAM P.O., PATHANAMTHITTA DISTRICT,
PIN - 689 656.
12 SHEELABAI.K.H.
AGED 1 YEARS
KODALIPARAMBIL, MANGARAM P.O., PANDALAM,
PATHANAMTHITTA DISTRICT, PIN - 689 503.
13 M.THULASI BAI
AGED 1 YEARS
W/O.S.VIKRAMAN PILLAI (LATE), ABHAYAM, ARUKALICKAL
WEST, VAYALA P.O., ADOOR, PATHANAMTHITTA DISTRICT,
PIN - 691 523.
14 S.USHA
AGED 1 YEARS
W/O.R.HARIKUMAR (LATE), HARIBHAVAN, PONGALADY,
THATTAYIL P.O., PATHANAMTHITTA DISTRICT, PIN - 691
525.
15 ELSAMMA JOSEPH
AGED 1 YEARS
W/O.N.S.JOSEPH (LATE), NALPATHIL SOJI BHAVAN,
KARUVATTA, ADOOR, PATHANAMTHITTA DISTRICT, PIN - 691
523.
16 BEENA SASI
AGED 1 YEARS
W/O.V.T.SASI (LATE), VALUMODIYIL HOUSE, UALANAD P.O.,
KULANADA, PATHANAMTHITTA DISTRICT, PIN - 689 501.
W.A.No.2285/2018
3
17 ADV.RAMA PANICKAR
AGED 1 YEARS
H/O.C.SUDHA (LATE), MELEVEETTIL, NEERVILAKAM,
KIDANGANNUR, PATHANAMTHITTA. (NOW RESIDING AT
KADAMMATTU, MALAKKARA, ARANMULA), PATHANAMTHITTA
DISTRICT, PIN - 689 532.
18 P.K.OMANA
AGED 1 YEARS
W/O.T.K.KOCHURAMAN (LATE), THATTANDAPURAYIDATHIL,
PARANTHAL P.O., PATHANAMTHITTA DISTRICT, PIN - 691
525.
19 JANAMMA SUKUMARAN
AGED 1 YEARS
W/O.C.S.SUKUMARAN (LATE), CHARALIL THADATHIL,
KURIYANNUR P.O., MARAMON, PATHANAMTHITTA DISTRICT,
PIN - 689 550.
20 RADHAMANY O
AGED 1 YEARS
W/O.P.RAVEENDRAN PILLAI (LATE), NAVOLIL KIZHAKKATHIL,
SOORANAD SOUTH, KIDANGAYAM, PATHARAM P.O., KOLLAM
DISTRICT, PIN - 690 522.
21 CHANDRIKA
AGED 1 YEARS
W/O.K.K.KOCHURAMAN (LATE), KANIYANKUNNIL, KODUMON
EAST P.O., PATHANAMTHITTA DISTRICT, PIN - 691 555.
22 ANANDAVALLY AMMA
AGED 1 YEARS
W/O.B.M.GANGADHARAN PILLAI (LATE), CHAITHANYA,
CHATHANNOOPUZHA, CHOORAKKODE P.O., PATHANAMTHITTA
DISTRICT, PIN - 691 551.
BY ADVS.
SRI.T.R.HARIKUMAR
SRI.ADITHYA RAJEEV
SRI.ARJUN RAGHAVAN
SRI.JAIBY PAUL
RESPONDENTS/RESPONDENTS:
1 THE PATHANAMTHITTA DISTRICT CO-OPERATIVE BANK LTD
NO.4365
W.A.No.2285/2018
4
REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE,
PATHANAMTHITTA-689645.
2 THE PART-TIME ADMINISTRATOR
PATHANAMTHITTA DISTRICT CO-OPERATIVE BANK
LTD.NO.4365, HEAD OFFICE, PATHANAMTHITTA - 689 645.
(JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
PATHANAMTHITTA).
3 THE REGISTRAR OF CO-OPERATIVE SOCITIES
THIRUVANANTHAPURAM - 695 001.
4 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-
OPERATION (C) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
SMT.K.R.DEEPA-SR.GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.11.2018, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
W.A.No.2285/2018
5
"CR"
V.CHITAMBARESH
&
R.NARAYANA PISHARADI, JJ.
**************************
W.A.No.2285 of 2018
----------------------------------------------
Dated this the 26th day of November, 2018
JUDGMENT
R.Narayana Pisharadi, J Appellants 1 to 12 were employees of the Pathanamthitta District Co-operative Bank. They had retired from service after 31.05.2005. Appellants 13 to 22 are legal heirs of persons who retired from the bank after the aforesaid date. The appellants filed W.P.(C) No.27440 of 2018 to issue direction to the bank to disburse them arrears of pay for the period from 01.07.2002 to 30.06.2003, based on Ext.P1 government order. The writ petition filed by them is dismissed. They have come up in appeal.
2. We have heard learned counsel for the appellants and also the respondent bank. We have also heard the learned Government Pleader.
3. As per Ext.P1 government order dated 21.06.2005, the pay and allowances of the employees of the Co-Operative W.A.No.2285/2018 6 Banks in the State were revised with effect from 01.07.2002. It was stipulated in Ext.P1 order that the revision of pay will take effect from 01.07.2002 but arrears shall be paid only from 01.07.2003. Subsequently, the government issued Ext.P2 order dated 06.01.2007, stating that arrears of pay from 01.07.2002 to 30.06.2003 shall be paid to all persons who retired from service after the date 30.06.2003. Later, the government issued Ext.P3 order dated 20.03.2007, stating that arrears of pay for the period from 01.07.2002 to 30.06.2003 shall be given to all persons who retired from service during the period from 30.06.2003 to 31.05.2005. In other words, by virtue of Ext.P3 order, the persons who retired from service after the date 31.05.2005 are not entitled to get the arrears of pay for the period from 01.07.2002 to 30.06.2003. The appellants filed the writ petition challenging the legality of Ext.P3 government order and claiming disbursement of arrears of pay for the period from 01.07.2002 to 30.06.2003. Learned Single Judge dismissed the writ petition on the ground that the appellants approached the Court after undue delay and that they failed to explain the delay. W.A.No.2285/2018 7
4. Identical issue was considered by this Court in W.P.(C) No.34683/2009. In that case, a learned Single Judge of this Court held that monetary benefits granted as per Ext.P1 government order have got nexus with the service of the employees and there cannot be any discrimination among the employees who formed to a class based on the service for the period from 01.07.2002 to 30.06.2003 and that denial of pay revision benefits to persons who retired from service after the date 31.05.2005 would violate the principle of equal pay for equal work.
5. Equality is antithetic to arbitrariness. Article 14 of the Constitution forbids class legislation. It does not forbid reasonable classification for the purpose of legislation. What Article 14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely; (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group: and (ii) that differentia must have a rational W.A.No.2285/2018 8 relation to the objects sought to be achieved by the statute in question (See D.S.Nakara v.Union of India : AIR 1983 SC
130).
6. The decision in W.P.(C) No.34683/2009 was rendered by placing heavy reliance upon D.S.Nakara (supra). This decision was affirmed by a Division Bench of this Court in appeal as per Ext.P5 judgment. The Division Bench has held that the prohibition regarding payment of arrears of salary and allowances for the period from 01.07.2002 to 30.06.2003, which is uniformly applicable to all employees in service as on 01.07.2002, to a group of employees who retired from service after the date 31.05.2005, amounted to discrimination which has no nexus with the object sought to be achieved and that the classification of employees is not based on any intelligible differentia. However, the Division Bench held that delay and laches would disentitle the persons to claim interest on the arrears of pay and allowances.
7. In State of U.P v. Arvind Kumar Srivastava :
(2015) 1 SCC 347, the principles with regard to parity in service matters have been summed up as follows:
"(1) Normal rule is that when a particular set of employees is given relief by the Court, all other W.A.No.2285/2018 9 identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly.
Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
(3) However, this exception may not apply in W.A.No.2285/2018 10 those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma and Others v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence".
8. In Union of India v. Tarsem Singh :(2008) 8 SCC 648, it has been held as follows:
"The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. A 'continuing wrong' refers to a single wrongful act which W.A.No.2285/2018 11 causes a continuing injury. 'Recurring/ successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. ........ To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, W.A.No.2285/2018 12 delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years years prior to the date of filing of the writ petition".
9. The principles enunciated by the Supreme Court in Arvind Kumar Srivastava (supra) and Tarsem Singh (supra) have been taken into consideration and followed by the Division Bench of this Court in Ext.P5 judgment. Later, another Division Bench of this Court has held that the object behind periodic revision of pay is to ensure a decent standard of living which emanates from Article 43 of the Constitution of India (See Viswanathan v. Haripad Service Co-operative Bank Ltd :
2018(3) KLT 815).
10. Learned Single Judge has dismissed the writ petition solely on the ground that the appellants herein approached the court belatedly and that they did not offer any explanation for the delay. We need not repeat here the reasons stated by the Division Bench in Ext.P5 judgment for granting the benefit of W.A.No.2285/2018 13 arrears of pay to persons who retired after the date 31.05.2005. We are of the considered view that denial of arrears of pay for the period from 01.07.2002 to 30.06.2003 to the appellants amounts to a continuing wrong and solely on the ground of delay in approaching the court, they cannot be treated differently. We also take note of the fact that there is nothing in Ext.P5 judgment which indicates that the benefits granted to the persons concerned in that case shall not be given to similarly situated persons. The appellants herein had approached the Court within three months from the date of rendering of Ext.P5 judgment. In these circumstances, they are entitled to get the monetary benefits on account of Ext.P1 government order, but without any interest.
Consequently, we allow the writ appeal and set aside the impugned judgment. W.P.(C) No.27440 of 2018 is allowed in part. The appellants are entitled for the arrears of pay and allowances for the period from 01.07.2002 to 30.06.2003 based on Ext.P1 government order. But, they are not entitled to get any interest on the amount of arrears. The first respondent bank shall disburse the arrears of pay and allowances, without interest, W.A.No.2285/2018 14 to the appellants within a period of three months from today. No costs in the appeal.
(sd/-) V.CHITAMBARESH, JUDGE (sd/-) R.NARAYANA PISHARADI, JUDGE jsr/28/11/18 True Copy PS to Judge