Kerala High Court
E.A.Poulose vs The Assistant Education Officer on 2 July, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 28TH DAY OF FEBRUARY 2017/9TH PHALGUNA, 1938
WP(C).No. 10230 of 2009 (W)
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PETITIONER:
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E.A.POULOSE, HEAD MASTER,
M.D.P.S, U.P.S. EZHUR,
TIRUR.PO, MALAPPURAM DISTRICT.
BY SRI.ABRAHAM VAKKANAL (SENIOR ADVCOATE)
ADVS.SRI.BIJIMON C.CHERIAN
SRI.DIJO SEBASTIAN
SRI.PAUL ABRAHAM VAKKANAL
SRI.SABU JOSE
RESPONDENTS:
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1. THE ASSISTANT EDUCATION OFFICER,
TIRUR.PO, MALAPPURAM DISTRICT.
2. THE DISTRICT EDUCATIONAL OFFICER,
TIRUR.PO, MALAPPURAM DISTRICT.
3. STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
GENERAL EDUCATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
BY GOVERNMENT PLEADER SMT.RAJI T.BHASKAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28-02-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
mbr/
WP(C).No. 10230 of 2009 (W)
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APPENDIX
PETITIONERS' EXHIBITS:
EXT. P1 : TRUE COPY OF THE ORDER OF AEO, TIRUR ORDER
NO.C1/2351/2004 DATED 2.7.2004.
EXT. P2 : TRUE COPY OF THE ORDER OF DEO, TIRUR ORDER
NO.B4/6478/04/K.DIS DATED 14.12.04.
EXT. P3 : TRUE COPY OF THE JUDGMENT IN WPC.NO.946/05
DATED 6.11.08.
EXT. P4 : TRUE COPY OF THE LETTER SENT BY PETITIONER TO
1ST RESPONDENT & OTHERS DATED 19.11.2008.
EXT. P5 : TRUE COPY OF THE MEMO OF APPOINTMENT OF PETITIONER
W.E.F. 1.5.04 DATED 4.12.2008.
EXT. P6 : TRUE COPY OF THE ORDER OF AEO, TIRUR ORDER
NO.C1/5014/08 DATED 12.12.2008.
EXT. P7 : TRUE COPY OF THE PETITION FILED BY PETITIONER BEFORE
2ND RESPONDENT DATED 9.1.2009.
EXT. P8 : TRUE COPY OF THE ORDER OF 2ND RESPONDENT DEO, TIRUR
ORDER NO.K.DIS.B4/562/2009 DATED 27.2.2009.
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
mbr/
C.R.
DEVAN RAMACHANDRAN, J.
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W.P.(C)No.10230 of 2009
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Dated this, the 28th day of February, 2017.
J U D G M E N T
At first blush, the assertion of the petitioner in this case that he is entitled to pay and benefits available to the post he is serving, from a date anterior to which he was appointed and that he deserves to be paid for the period during which he had not worked, appeared to be capricious and incongruous. However on closer scrutiny, and on a deeper inspection of his claim, founded on certain peculiar circumstances as I will presently record, I am drawn to veer to conclude in his favour thus allowing a seemingly illogical and extravagant proposition.
2. The factual underpinning of the petitioner's claim is fastened on the action of the Manager of a school, in which he is serving, in denying him promotion to the post of Head Master in preference to another teacher, who the petitioner claims was not deserving. W.P.(C)No.10230 of 2009 : 2 :
3. The petitioner claims that he was the sole qualified Upper Primary School Assistant (UPSA) deserving promotion as Head Master, but that his claim was overlooked by the Manager when he appointed another person who was not so qualified. The petitioner represented against this before the educational authorities who did not take timely action. He, therefore, approached this Court in W.P.(C).No.15963/2004, which was filed on 27.05.2004 and disposed of by judgment of this Court dated 28.05.2004 with direction to the competent authority to consider the rival claims.
4. The educational authority, namely, the AEO, thereafter issued Ext.P1 order, whereby, the claim of the rival of the petitioner was denied and obviously, therefore, the petitioner ought to have been appointed. However, the Manager of the school preferred an appeal before the second respondent, who issued Ext.P2 order, allowing the appeal and confirming the claim of the rival. This order was challenged by the petitioner by filing W.P. (C).No.946/2005 before this Court which lead to Ext.P3 W.P.(C)No.10230 of 2009 : 3 : judgment. As is perspicuous from the judgment, a very elaborate consideration of the issues were made by the learned Single Judge of this Court and after such consideration, it was directed that the petitioner be appointed in the vacancy to which his rival was earlier appointed, namely, w.e.f. 01.05.2004. The Manager of the school carried this judgment in appeal, which, after a reference to a Full Bench of this Court, was finally dismissed confirming Ext.P3 judgment. The Manager obviously being without any further recourse, issued Ext.P5 order appointing the petitioner as Head Master w.e.f. 01.05.2004.
5. However, when approval was sought for this appointment, the first respondent AEO, though did approve the appointment w.e.f. 01.05.2004, but limited the pecuniary benefits available to such post only from the date on which the petitioner took charge. The petitioner assailed this order of the AEO, to the extent to which it has limited his drawing of financial benefits only from the date on which he took charge, before the second W.P.(C)No.10230 of 2009 : 4 : respondent, District Educational Officer, who however, issued Ext.P8 order confirming the proceedings of the AEO. It is impugning these orders that the petitioner has filed this writ petition.
6. I have heard the learned Senior Counsel appearing for the petitioner Shri.Abraham Vakkanal assisted by Sampath V. Toms and the learned Government Pleader appearing for the respondents 1, 2 and 3.
7. The sole question that is alive in this writ petition now is as to whether the petitioner should be found eligible to draw salary from the date on which he actually took charge or from the date, with effect from which his appointment was approved. Normally, a person who had not worked for a period would not have been found eligible for salary for such. However, this Court had considered this issue in the judgment in State of Kerala Vs. Bhaskaran Pillai reported as [2003 (1) KLT 60] and had declared the law that the rule of no work no pay is not a rigid statement of law and that in exceptional W.P.(C)No.10230 of 2009 : 5 : circumstances, it is possible that a person can obtain claim for pecuniary benefits even for the period he was illegally kept out of service. The relevant observations of the Bench as would be fructiferous in adjudication of the case of the petitioner is extracted as under:
20. The observations in the two decisions of the Supreme Court referred above convey that it may not be possible any longer to assume that the normal rule when retrospective notional promotions are granted is that the claimant is not entitled to monetary benefits. Such a rigid statement of the law does not appear to be possible now. Of course the principle of no work no pay must be borne in mind. But if the officer concerned was willing to work and he was denied opportunity to work in such promoted post for no fault of his, that principle should definitely not operate to his prejudice.
21. The three classes of cases referred to in Philomina are:-
i. When such promotee is kept out of work or denied or deprived of his rightful place by an illegal order which, upon the declaration or admission of its illegality becomes wholly destitute of legal efficacy.
ii. Where the authority has acted malevolently and without bona fides such as where the authority is shown to have deliberately and W.P.(C)No.10230 of 2009 : 6 : wilfully denied the officer his due promotion or other benefits with intent to injure him. iii. Where the authority has in disobedience of a direction of a competent court, denied the officer what has been held to be his due.
If the case on hand falls under any of the above three categories there could be no deprivation and all monetary benefits will have to be restored to such a promotee. Of course if such person is guilty of any contumacious conduct, behaviour, negligence or want of due diligence in the prosecution of his own cause, he cannot be permitted to claim such monetary benefits and encumber the coffers of the State unnecessarily by claiming such monetary benefits.
22. In short the normal rule must be that where there is no fault on the part of the officer concerned, he must be paid the monetary benefits due to him consequent to the retrospective promotion. In appropriate cases it could be denied to him for valid reasons. In the three categories of cases enumerated in Philomina such benefits cannot be denied to him. The dictum in Philomina cannot be held to be valid any more in view of the decisions of the Supreme Court referred above to the extent that it stipulates a rule of general application that no Government servant is entitled to be paid for work which he has not done. This conclusion appears to be inevitable in view of the subsequent declaration of W.P.(C)No.10230 of 2009 : 7 : law by the Supreme Court in the decisions referred above."
8. The declaration of law by this Court is absolutely clear. This Court has held that when a promotee is kept out of work or denied his rightful place by an illegal order or where authorities have acted malevolently to deny an officer his promotion or where the authority has, in disobedience of a direction of a competent court, denied the officer what is due to him, he would be entitled to get pecuniary and financial benefits even for the period when he was kept out of service by such illegality.
9. The learned Government Pleader brings to my notice that this judgment was tested by the State in an appeal before the Hon'ble Supreme Court which had been pleased to consider it in the judgment reported in State of State of Kerala and Others Vs. E.K.Bhaskaran Pillai [(2007) 6 SCC 524]. The opinion and observations of the Hon'ble Supreme Court is best summarized in paragraph 4 of the judgment which makes very valuable W.P.(C)No.10230 of 2009 : 8 : reading. I deem it apposite to extract it as under:
"4. Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15-6-1972. In support thereof, the learned counsel invited our attention to the decision of this Court in Paluru Ramkrishnaiah v. Union of India, Virender Kumar v. Avinash Chandra Chadha, State of Haryana v. O.P. Gupta, A.K. Soumini v. State Bank of Travancore and Union of India v. Tarsem Lal. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India v. K.V.Jankiraman, State of A.P. v. K.V.L. Narasimha Rao, Vasant Rao Roman v.Union of India and State of U.P. v. Vinod Kumar Srivatsava. We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has W.P.(C)No.10230 of 2009 : 9 : challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.
5. However, so far as present case is concerned, as per directions given by the Court, the petitioner's case was considered and it was found that persons junior to him were appointed and he was wrongly denied. Therefore, the petitioner was promoted from retrospective effect i.e.15-9-1961 but he was not paid the benefit of promotion in terms of arrears of salary. Therefore, he approached the Court and learned Single Judge did not give him the monetary benefit of the promotional post from retrospective effect in terms of arrears of salary. In the review application, the benefit was given from the date he filed OP No.585 of 1975 i.e.15-6-1972. This appears to be reasonable. The petitioner did not approach the Court for the back wages from 15-9-1961 but he filed a petition dated 15-6-1972 and the Court granted the benefit from the date of filing of the W.P.(C)No.10230 of 2009 : 10 : petition before the Court i.e.15-6-1972. The incumbent in the meanwhile has retired on 31-7- 1980. Therefore, looking to the facts and circumstances of the case, the view taken by the High Court appears to be justified and there is no ground to interfere in it."
10. On a conspectus of the judgments referred to above, I have no doubt in my mind that in the peculiar facts and circumstances of this case, the petitioner would be entitled to seek pecuniary benefits from a date anterior to the date on which he actually joined duty. This is because, he was denied his promotion illegality and kept out of service as a Head Master by orders which were found to be vitiated illegalities and irregularities in judicial scrutiny over it. This Court had unequivocally directed, in Ext.P3 judgment, to appoint the petitioner w.e.f. 01.05.2004, being the date on which the vacancy arose. However, all along the Manager of the school and the Authorities had contested the claim of the petitioner and had attempted to keep him out of service and to deny him promotion without any legally justified reason. In such view of the matter, it is obvious that the W.P.(C)No.10230 of 2009 : 11 : petitioner cannot be denied pecuniary benefits for the period when he was illegally denied promotion going by the judgments referred to above.
11. The final question now before me is what should be the date from which the petitioner can be deemed to be entitled to his pecuniary benefits. I see that the Hon'ble Supreme Court has found the date on which the petitioner had raised a claim by approaching this Court would be a reasonably good standard to fix the date from which he would be entitled to such salary. In this case, I see that the petitioner had first approached this Court as early as on 27.05.2004, which lead to Ext.P3 judgment. In respectful confirmation to the directions contained in the judgment of the Hon'ble Supreme Court in E.K.Bhaskaran Pillai (supra), I think that it will be a reasonable yardstick to take that date to be the date from which the petitioner would be entitled to salary and benefits consequent to his promotion.
12. In such circumstances, I order this writ petition directing the respondents to grant to the petitioner all the W.P.(C)No.10230 of 2009 : 12 : benefits including salary in the post of Head Master w.e.f. 27.05.2004 and to pass consequential orders granting such benefits within a period of one month from the date of receipt of a copy of this judgment. Needless to say, on such orders being issued, the petitioner shall be disbursed all eligible benefits without any further delay, but, not later than 2 months from the date of such order.
This writ petition is ordered as above. In the particular facts and circumstances of this case, I make no order as to costs and direct the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN, JUDGE.
Bb/04/03/2017 [True copy] P.A to Judge