Ananthakumari v. State of Kerala and others

**C.R.** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY, THE 28TH DAY OF FEBRUARY 2017/9TH PHALGUNA, 1938 WP(C).No. 27778 of 2010 (V) ---------------------------- PETITIONERS: ----------- V.ANANTHAKUMARI H.S.A.(HINDI, VISWABHARATHI MODE HIGH SCHOOL, KRISHNAPURAM, KAYAMKULAM. BY ADVS.SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENTS: -----------1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM 3. THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA. 4. THE MANAGER, VISWABHARATHI MODEL HIGH SCHOOL, KRISHNAPURAM, KAYAMKULAM. R4 BY ADV. SMT.MINI.V.A. R4 BY ADV. SRI.R.RAJASEKHARAN PILLAI R4 BY ADV. SMT.SABINA JAYAN R4 BY ADV. SRI.R.SREEDHARAN NAIR R1 to R3 BY GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC No.27778/2010 ## APPENDIX ## PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DTD.7.12.2000 ISSUED BY THE 2ND RESPONDENT. EXT.P2 TRUE COPY OF THE JUDGMENT DTD.10.1.2002 IN W.A.No.413/2001 OF THIS COURT. EXT.P3 TRUE COPY OF THE JDUGMENT DTD.22.2.2007 IN CIVIL APPEAL NO.4459/2010 OF THE SUPREME COURT. EXT.P4 TRUE COPY OF THE ORDER DTD.1.6.2007 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT. EXT.P5 TRUE COPY OF THE ORDER DTD.28.3.2008 ISSUED BY THE 3RD RESPONDENT. EXT.P6 TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXT.P7 TRUE COPY OF THE ORDER DTD.24.5.2010 ISSUED BY THE IST RESPONDENT. EXT.P8 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER. TRUE COPY P.S.TO JUDGE css/ **C.R.** ## **Dama Seshadri Naidu, J.** ------------------------------------------- WPC No.27778 of 2010 -------------------------------------------- Dated this the 28[th] day of February, 2017 ## **JUDGMENT** Ananthakumari, the petitioner, now retired, initially joined the fourth respondent's school on 19.6.1984 as a Peon. By then, she possessed all the qualifications to be appointed as High School Assistant (HSA), Hindi. Later, on 31.3.2000, HSA, Hindi working in the school retired. 2. Since no claimant was available either under Rule 51A or Rule 43 of Chapter XIVA of Kerala Education Rules (KER), Ananthakumari staked her claim to the post : HSA (Hindi). 3. The Manager, the fourth respondent, instead appointed one Mr.Rajeev on 1.8.2000, thus rejecting Ananthakumari's claim to the post. Later, on 23.9.2007, the District Educational Officer (DEO) approved Rajeev's appointment with effect from 1.8.2000. Aggrieved, Ananthakumari applied before the same authority complaining that her claim ought to have been considered under WPC No.27778 of 2016 2 Note 1 (2) Rule I (1) of Chapter XIVA of KER. In other words, Rajeev's appointment was assailed. Simultaneously, Ananthakumari also filed O.P.No.1951 of 2000 before this Court seeking a direction to the DEO to dispose of her application expeditiously. On 14.9.2000, the DEO rejected her application; later, Ananthakumari filed a revision before the Director of Public Instructions (DPI), the second respondent, besides filing WP(C) No.28864 of 2000, as usual, for a direction to the DPI to consider her application at the earliest. 4. As seen from the record, on 7.12.2006, the DPI issued Ext.P1 order upholding Ananthakumari's claim and consequently directing the Manager to appoint her to the vacancy. Instead of complying with Ext.P1, the Manager filed O.P.No.36445 of 2000, which this Court allowed by judgment dated 11.01.2001. This time it was Ananthakumari's turn to file an intra court appeal—W.A.No.413 of 2001. A learned Division Bench through Ext.P2 judgment dated 10.1.2002, allowed the writ appeal. Though the Manager, undaunted, filed Civil Appeal No.4459 of 2004 before the Hon'ble Supreme Court, he could not succeed in his effort. The Apex Court WPC No.27778 of 2016 3 dismissed the appeal. The result is that the DPI's Ext.P1 order was restored to file. That means the Manager had to appoint Ananthakumari in the vacancy, and Mr.Rajeev should go out. Eventually, the Manager issued Ext.P4, appointing Ananthakumari as HAS Hindi, with effect from 5.6.2000. The DEO approved the appointment through Ext.P4: It was with effect from 7.12.2000, but the monetary benefits to be extended only from 1.6.2007, when Ananthakumari had actually been appointed. As seen from the record, acting on Ananthakumari's later application, the DEO through Ext.P5 modified Ext.P4 order. The appointment was given effect from 5.6.2000, but the date for monetary benefits remained unchanged. 5. Further aggrieved, Ananthakumari represented (Ext.P6) to the Government, which through Ext.P7 refused to entertain her claim for retroactive benefits. The reason assigned was that KER had no provision to give retroactive monetary benefit to an employee for a period the employee had not worked. Assailing Ext.P7, Ananthakumari filed this writ petition. 6. In the counter affidavit filed by the first respondent, the WPC No.27778 of 2016 4 Government re-iterated its stand as contained in Ext.P7 order. 7. Sri Elvin Peter P.J., the learned counsel for the petitioner, has submitted that while Ananthakumari was working as a Peon, she has the requisite qualification. By the time, the post of HAS-Hindi fell vacant, she alone was in the school qualified to be promoted as an inservice candidate. According to the learned counsel, Note I of Rule I(1) of Chapter XIVA KER is unambiguous. 8. In elaboration, the learned counsel has submitted that Ananthakumari could not be appointed on time only because of the Manager’s devious or illegal methods. In other words, Ananthakumari could not be made to suffer for the Manager’s illegality. 9. To support his submissions, the learned counsel has relied on Ramesh Kumar v Union of India and others[1] and also on E.Rajan v Kerala State Electricity Board **[2]** (an unreported judgment of this Court, dated 15[th] October 2014, in WPC No.26714 of 2014.) 10. The learned Government Pleader, on his part, has submitted that there is no provision in KER to pay monetary benefits > 1 AIR 2015 SC 2904 > 2 Unreported judgment dtd.15[th] October 2014 in WPC No.26714/2014 WPC No.27778 of 2016 5 to Ananthakumari retroactively. Though her service could notionally be considered retroactively for, say, continuity of service. According to him, even if the manager was at fault, eventually, the Government could not be made to suffer on that count. 11. Heard Sri Elvin Peter, the learned counsel for Ananthakumari and Sri E.S.Ashraf the learned Government Pleader appearing for respondents 1 to 3 besides perusing the records. 12. Indeed, the controversy lies in a narrow compass. Most facts are indisputable, save the fact whether Ananthakumari is entitled to retroactive service benefits, including the past-salary. 13. As has been rightly contended by the learned counsel for Ananthakumari, the note referred to above clarifies that absent any qualified claimant under Rule 51A and Rule 43 of Chapter XIVA of KER, in service candidates with qualification are to be considered. The manager, instead, appointed an outsider. After a long-drawn legal battle, which has already been elaborated above, Ananthakumari could succeed in 2007. Then the manager appointed her. WPC No.27778 of 2016 6 14. The Government's contention that absent any provision in the KER to provide monetary benefits retroactively to an employee appeared attractive in the first blush. But, on deeper scrutiny, I am afraid, the submission suffers severe legal shortcomings. 15. The Courts have often held, as a matter of equity, that an employee to be denied a benefit, he or she ought to have contributed to the resulting situation. If an employee, wily-nily, was dragged through avoidable litigation and eventually was appointed under a judicial compulsion, it cannot be said that the employee is guilty of any latches of whatever nature. Though the rule is clear, the manager has with impunity chosen to disobey the letter of law. It resulted in a long-drawn litigation up to the Apex Court, the employee pitted against the might of the manager’s financial muscle. 16. The poor employee initially working as a Peon had to fight litigation which does not come cheap. Denying her the monetary benefits retrospectively on the premise that the statute does not provide for it deals a double blow to the hapless woman-employee. It is trite to observe that if a provision does not interdict the WPC No.27778 of 2016 7 Government from extending a benefit, it is a matter of equity and discretion for the Government to consider each case in the backdrop of its facts to decide whether a benefit is to be extended retroactively or the principle of 'no work no pay' needs to be applied. This Court in E.Rajan has observed: “It is too well established to be re-agitated that once an employee has a particular legal right to be asserted and a legal remedy to be taken recourse to, he shall not be denied the said benefit on the premise that it would entail hardship to his employer. In other words, the right of a person has to be recognised and upheld notwithstanding the consequences that flow therefrom. It is a very well established principle of law that once a clear vacancy is in existence and a particular employee is entitled to be promoted, the denial of promotion on administrative laxity could not work to the prejudice of the employee, and at the end, if the promotion is to be effected, n the facts and circumstances, the benefit could be extended retroactively. That is what this Court has precisely done in the judgment rendered in W.P.(C) No.5493/2004 and connected cases.” 17. As for the monetary benefits with retrospective promotion, the relief varies from case to case: There are various facets 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% of back-wages. It depends on the nature of delinquency in the matter: for example, in criminal cases where the incumbent has WPC No.27778 of 2016 8 been acquitted under benefit of doubt or honourably. In a matter where a superseded employee challenges before a court or tribunal and succeeds, a direction may be given to the employer to reconsider his case from the date his juniors stole a march over him; the court may sometimes grant full benefits with retrospective effect, and sometimes it may not. Particularly when the administration has wrongly denied his due, then, in that case, the employee should be given full benefits, including monetary benefits, subject to 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—retrospectively, at that. (see State of Kerala & Ors. V E.K.Bhaskaran Pillai (2007) 6 SCC 524: (AIR 2007 SC 2645) 18. The Hon'ble Supreme Court in Ramesh Kumar, referring to Bhaskaran Pillai, emphatically held that in normal circumstances, when retrospective promotions are effected, all benefits flowing therefrom, including monetary benefits, must be extended to an WPC No.27778 of 2016 9 employee denied promotion earlier. 19. Indisputably, the situation faced by Ananthakumari has been brought about by the manager, who refused to obey the letter of law. Had he honoured the statutory stipulation, Ananthakumari would have been working from 5.6.2000. But that was not to be. I may hasten to add that in these circumstances, the Government is not remediless. It can as well proceed against the erring manager. For this purpose, there are remedial regulations. Granted that the Government has to pay from public exchequer, it can recover every paise from the Manager, on whose account this contingency has arisen. 20. In the facts and circumstances, this Court declares that Ananthakumari's appointment shall be reckoned from 5.6.2000, and the Government should extend to her the monetary benefits from that date. It may initiate appropriate disciplinary proceedings against the manager and recover the amounts it thus pays to Ananthakumari. No order on costs. Needless to observe that because Ananthakumari retired in WPC No.27778 of 2016 10 31.3.2012, and because the writ petition has been pending since 2000, the Government will reckon Ananthakumari's retrospective monetary benefits and pay them expeditiously, at any rate, within three months from receipt of a copy of this judgment. ## **Sd/-Dama Seshadri Naidu, Judge** css/ true copy P.S.TO JUDGE