E.K. Parameswara Namboodiri v. Travancore Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 09TH DAY OF JANUARY 2019 / 19TH POUSHA, 1940** ## **WP(C).No. 35967 of 2018** ## **PETITIONER/S:** **E.K.PARAMESWARA NAMBOODIRI AGED 69 YEARS S/O KRISHNAN NAMBOODIRI, EDAMATHAILLOM, SRA 16/6, VAZHAPPALLY PO, CHANGANASSERY, KOTTAYAM-686103** **BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA KUM.THULASI K. RAJ SMT.K.C.AISHWARYA SMT.MAITREYI SACHIDANANDA HEGDE SMT.RIYA RAYMOL IYPE SRI.VARUN C.VIJAY** ## **RESPONDENT/S:** - **1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM-695003** - **2 THE COMMISSIONER TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM - 695 003.** - **3 OMBUDSMAN FOR TRAVANCORE AND COCHIN DEVASWOM BOARD OLD HIGH COURT PREMISES, KOCHI - 682 031.** - **4 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.** ## **OTHER PRESENT:** **SR.GP.SRI.BIJOY CHANDRAN, SRI.K.SASIKUMAR,SC,TDB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 35967 of 2018** 2 ## **J U D G M E N T** Petitioner, who retired as First Grade Sub Group Officer on 30.06.2004 and received his pensionary benefits, submitted a complaint before the Ombudsman, Travancore Devaswom Board in 2015, complaining that the suspension period from 05.07.1974 to 06.08.1980 was not regularised; there were certain anomalies in the fixation of his pay as well as pension; he was not granted “some increments”, etc; he claimed grade promotion, revision of scale of pay from 01.04.1980, arrears of pay and pension, etc., for the period from 01.11.1967 to 30.06.2004, etc., along with interest. The Ombudsman for Devaswom, as per Ext.P5 order, disposed of the complaint taking note of the reply submitted by the Accounts Officer in which it was stated that the petitioner was being granted pension from 01.07.2004 onwards and he was also paid arrears of pension, D.A., Medical Allowance, Gratuity etc. As petitioner remained absent on the days of posting, the Ombudsman closed the complaint observing the **WP(C).No. 35967 of 2018** 3 contentions of the respondents, but without prejudice to his right to approach the appropriate jurisdictional forum. This writ petition is filed challenging Ext.P5 order of the Ombudsman and for a direction to the respondents to treat the period of suspension as duty; for fixation of his pay with effect from 01.07.1978 and for re-fixing his pay and pension after reckoning the period of suspension as duty, to grant his increments, higher grade etc. 2. Petitioner has not produced any material to show that he was denied any benefit, or that he raised any such claim while he was in service or at any time before 2015. He retired from service as early as on 30.06.2004. His complaint comes for the first time in the year 2015, in respect of his suspension in the year 1974. He did not have any complaint over denial of any benefit during the time when he was in service after his re-instatement in 1980 till his retirement in 2004 and thereafter till 2015. The only material he produced is Ext.P1 order of the Assistant Commissioner issued in **WP(C).No. 35967 of 2018** 4 1980, re-instating him. Ext.P1 order would show that Assistant Commissioner of Devaswom had on 11.08.1980 allowed the petitioner to join duty on the basis of the orders issued by the Commissioner of Devaswom, on finalisation of disciplinary action against him. Petitioner retired from service as Sub Group Officer. He has not stated how he got appointment as Sub Group Officer or how his pay was fixed. He himself does not have a clear picture as to the benefits which are denied to him or those which are admissible to him and how or when it is denied. He is not an illiterate person. At any rate, it is seen that the petitioner has not raised any objection either against the alleged non regularisation of suspension period or against the fixation of pay until he submitted Ext.P4 complaint before the Ombudsman on 01.03.2015. 3. Respondents have stated that the admissible pension was already paid to him. All the claims raised by the petitioner relates to the year from 1974 to 1980 and for benefits consequential to that. Petitioner who **WP(C).No. 35967 of 2018** 5 did not have any complaint while he was in service till 2004 and remained without any objection even thereafter for another period of 11 years, cannot be heard to raise any contention with respect to the regularisation of suspension period or arrears of pay at this stage. It is settled law that a person who was sleeping over his right, even assuming that what the petitioner says is correct, does not deserve any relief from this Court under Article 226 of the Constitution of India. Even the petitioner is not clear in the claims he is raising, as evident from his statement that “he did not receive some increments.” 4. Learned counsel for the petitioner relied on the judgments in **Rajan C v. Secretary, Ministry of Defence and Other** [2009 (1) KHC 151] and in **Ahalya A. Samtaney v. State of Maharastra and Others** [2018 (9) SCC 92] in support of her contention that the claim relating to pay can be raised even if there is delay in the matter. The judgment in **Ahalya A. Samtaney v. State of Maharastra and Others** [2018 (9) SCC 92], was in a **WP(C).No. 35967 of 2018** 6 case where a Lecturer had been raising her claim for protection of pay and consequential fixation of pay, reckoning her service as a tutor, in the light of a resolution of Government in 1991, while continuing in service. No comparison can be made to the factual circumstances of that case with that of petitioner. Apex Court itself found that the petitioner therein was agitating the matter before various authorities. The judgment in **Rajan C v. Secretary, Ministry of Defence and Other** [2009 (1) KHC 151], was a matter relating to disability pension, which was already granted but not paid. That judgment rendered in the case of an Exserviceman for the payment of what was granted cannot have any applicability to the facts of the present case. The Judgment in **Kamalam V. v. Secretary, Cochin Devaswom Board, Thrissur and Another** [2014 (4) KHC 446], was relied on in respect of the powers of the Ombudsman. In which it was held that Ombudsman cannot seek to resolve personal grievances of the employees of the Boards and Temples pertaining to regularisation of **WP(C).No. 35967 of 2018** 7 service, disbursement of salary, etc. It is the petitioner himself who approached the Ombudsman. Ombudsman has disposed of the matter, considering the pleadings before it without foreclosing any of the remedies available to petitioner. 5. Petitioner has challenged the order passed by the Ombudsman on various grounds after approaching the Ombudsman. At any rate, I have considered the claim of the petitioner on merits. It is settled law that a person who was sleeping over his rights is not entitled to relief from this Court under Article 226 of the Constitution of India. Petitioner does not have a case that his pension is not fixed on the basis of any rules in force; he does not have any claim with respect to any incident which occurred at least immediately after his retirement in the year 2004. He is also not claiming any of his established rights. Therefore in the light of the judgments of the Apex Court in **Bhoop Singh v. Union of India,** [(1992) 3 SCC 136], **Union of India v. Chaman Rana,** [(2018) 5 SCC 798], etc., **WP(C).No. 35967 of 2018** 8 inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner and those who are not vigilant in agitating their rights at the earliest point of time are not entitled to any relief under Article 226 of the Constitution. The Apex Court found that such interference on belated claims would have administrative implications apart from the financial burden on the Government. Petitioner does not have any explanation for not taking up the matter for the last several years. I do not find any circumstances which warrants exercise of discretion of this Court in favour of petitioner, who filed this writ petition merely on speculations. Accordingly, I find the petitioner does not deserve any relief. The writ petition is dismissed. Sd/- **P.V.ASHA, JUDGE.** AS **WP(C).No. 35967 of 2018** 9 ## **APPENDIX** |**PETITIONER'S/S**|**EXHIBITS:**| |---|---| |**EXHIBIT P1**|**COPY OF THE COMMUNICATION NO. 2989**| ||**DATED 11.08.80 ISSUED BY THE ASSISTANT**| ||**COMMISSIONER.**| |**EXHIBIT P2**|**COPY OF THE NOTICE DATED 22.10.2007**| ||**ISSUED TO THE PETITIONER.**| |**EXHIBIT P3**|**COPY OF THE LETTER DATED 03.09.2011.**| |**EXHIBIT P4**|**COPY OF THE COMPLAINT DATED 01.03.2017.**| |**EXHIBIT P5**|**COPY OF THE PROCEEDINGS PASSED BY 3RD**| ||**RESPONDENT HEREIN.**|