M.T. Philip v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932** **OP.No. 32502 of 2002(T)** **------------------------------------** ## **PETITIONER(S):** **--------------------------** **M.T. PHILIP, DEPUTY COMANDANT (RETD.) AGED 60 YEARS, SON OF LATE MR. T.V. THOMAS, MAMPRAKUZHIYIL, RANNI-PERUNAD P.O., PATHANAMTHITTA. (NOW RESIDING AT 'GIFT', MF 4/110, VRINDAVAN GARDEN, PATTOM, THIRUVANANTHAPURAM-4)** **BY ADV. SRI.V.PHILIP MATHEWS** ## **RESPONDENT(S):** - **----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF HOME AFFAIRS, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, KERALA, THIRUVANANTHAPURAM.** **3. ACCOUNTANT GENERAL (A & E) KERALA,** - **M.G. ROAD, THIRUVANANTHAPURAM.** **BY SR. GOVERNMENT PLEADER SRI. A.J.VARGHESE** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Kss** ## **OP.NO.32502/2002 T** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF G.O.(MS) 76/87/HOME DTD. 15/06/87 ISSUED BY THE FIRST RESPONDENT.** - **P2: COPY OF THE JUDGMENT IN O.P.NO.10376/88 DTD. 01/04/91 OF THIS HON'BLE COURT.** - **P3: COPY OF THE G.O.(RT) NO.295/96/HOME DTD. 30/01/96 ISSUED BY THE FIRST RESPONDENT.** - **P4: COPY OF THE JUDGMENT DTD. 30/10/96 IN O.P.NO.14317/96D OF THIS HON'BLE COURT.** - **P5: COPY OF G.O.(RT) 5324/96/HOME DTD. 24/12/96 ISSUED BY THE 1ST RESPONDENT.** - **P6: COPY OF G.O.(RT) 5325/96/HOME DTD. 24/12/96 ISSUED BY THE 1ST RESPONDENT.** - **P7: COPY OF LETTER FROM THE FIRST RESPONDENT DTD. 10/11/97 (LETTER NO.70895/A2/97/HOME DTD. 10/11/97).** - **P8: COPY OF COMMON JUDGMENT DTD. 31/05/77 IN OP.NOS.3694/75 AND 4947/75 OF THIS HON'BLE COURT.** - **P9: COPY OF JUDGMENT IN O.P.NO.7939/84 J DTD. 22/09/88 OF THIS HON'BLE COURT.** - **P10: COPY OF LETTER ISSUED TO THE PETITIONER BEHALF OF 2ND RESPONDENT DTD. 16/10/97 (SERVICE CERTIFICATE NO.A3-88959/97).** - **P11: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA DTD. 10/07/95.** - **P12: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DTD. 01/08/98.** - **P13: COPY OF REMINDER DTD. 15/06/2001 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.** **..2/-** **Kss** **...2.....** ## **O.P.NO.32502/2002 T** - **P14: COPY OF G.O.(RT) 5740/92/HOME DTD. 26/11/92 ISSUED BY THE 1ST RESPONDENT.** - **P15: COPY OF ORDER DTD. 26/08/1987 APPOINTING MR.P.V.THOMAS AND P.N.SURENDRANATHAN AS COMMANDANT.** - **P16: COPY OF THE JUDGMENT IN O.P.NO.29765/01 DTD. 9/10/2001 BEFORE THIS HON'BLE COURT.** - **P17: COPY OF THE COMMUNICATION DTD. 17/05/2002.** - **P18: COPY OF THE COMMUNICATION DTD. 25/06/02 TO THE 3RD RESPONDENT.** - **P19: COPY OF THE ORDER DTD. 08/02/2000 ISSUED BY THE 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS: N I L** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **Kss** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P. No.32502/2002-T ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 18[th] day of May, 2010** ## **J U D G M E N T** The petitioner herein has filed this O.P seeking to grant monetary benefits for the regularised period of service as A.P Inspector from 01/05/1967 to 05/10/1976, Assistant Commandant from 06/10/1976 to 30/06/1977 and as Deputy Commandant from 13/11/1981 to 01/07/1992 less amount already drawn. He has already retired as Deputy Commandant on 30/04/1997. The necessary facts for the disposal of the writ petition are the following:- 2. The petitioner was originally appointed as Armed Police Inspector by direct recruitment through K.P.S.C in M.S.P III Battalion on 10/09/1964. The above battalion was disbanded from 01/05/1967 consequent to which he was relieved from service. He was selected and appointed as a fresh recruit in 1977 through P.S.C, from persons discharged from the M.S.P III[rd] Battalion. Certain proceedings intervened in the meanwhile. He had filed O.P.No.2100/1967 challenging the discharge orders wherein the Government was directed to consider the representation filed by the petitioner. There were Judgments in other writ petitions filed by similarly placed persons wherein this Court had ordered that the petitioners in those O.P's ## O.P. No.32502/2002 ## -:2:- would be entitled to all benefits of service in M.S.P as if they were recruited under the MSP subordinate service. All those persons were recruited and reinstated in service as Supernumerary Armed Police Sub Inspectors in MSP. The petitioner had filed another writ petition as O.P.No.2178/1986 to restore his seniority. Finally, the Government passed Ext.P1 order in his favour wherein the above details are available. Therein, the Government directed the Director General of Police to refix the rank and seniority of the petitioner herein in the cadre of Armed Police Inspector observing all required formalities and forward proposals to the Government for fixation of his seniority in higher grades. It was mentioned therein that he will not be entitled to arrears of pay for the above periods. 3. This was challenged by his rivals by filing O.P.Nos.10376/1988 and 680/1989 which were dismissed by a common Judgment, Ext.P2. It is submitted by the learned counsel for the petitioner that the Writ Appeal filed against the said Judgment was also dismissed. 4. The petitioner was promoted as Assistant Commandant and Deputy Commandant respectively by order dated 18/06/1992 and 05/05/1993. Ext.P3 is the later order passed by the Government whereby it was ordered that the ## O.P. No.32502/2002 ## -:3:- promotions of the petitioner on the cadre of Assistant Commandant and Deputy Commandant will be regularised with effect from 06/10/1976 and 13/11/1981 respectively. Later, disputes arose when he was not considered for appointment to the I.P.S Cadre which culminated in Ext.P4 Judgment. It was held that he was entitled to get the benefit of his promotion as Assistant Commandant and Deputy Commandant with effect from 06/10/1976 and 13/11/1981 respectively for the purpose of consideration of his eligibility for appointment to the Indian Police Service. Ext.P5 is the order by which his probation in the posts of Assistant Commandant and Deputy Commandant was declared from 06/10/1977 F.N and 13/11/1982 A.N. He was confirmed in the post of Assistant Commandant as per Ext.P6 order with effect from 06/10/1977 F.N. It appears that objections were raised regarding consideration of the petitioner for I.P.S by others and, Ext.P7 is the reply given by the Government to one of his objectors. It was stated that notional service will have to be treated as continuous service for purposes of seniority, fixation of pay and promotion as otherwise it will result in serious injustice to the officer. 5. In fact, persons who were similarly placed were agitating for the benefit of pay and allowances for the ## O.P. No.32502/2002 ## -:4:- period they were kept out of service and, by Exts.P8 and P9 Judgments, this Court considered their claims where the Government was directed to pay monetary benefits for those periods also during which periods they were out of service on discharge from the M.S.P III[rd] Battalion. 6. The petitioner did not get the I.P.S cadre inspite of Ext.P4 Judgment and even though he filed O.A.No.580/1997 before the Central Administrative Tribunal, Ernakulam that was dismissed. Ultimately, he retired from service on 30/04/1997 A.N as Liason Officer, Kerala Police Housing Construction Corporation Ltd. in the scale of pay of Superintendent of Police. Later, the petitioner had been agitating before the Government for the grant of various benefits from the date on which he was promoted as Assistant Commandant and Deputy Commandant etc. and the pay and allowances from 01/05/1967 to 05/10/1976. Various representations like Ext.P11, P12 and P13 were filed by him. Exts.P14 and P15 are orders passed by the Government whereby similarly placed persons were given notional promotion as Deputy Commandants and Commandants, after the petitioner was posted. Finally, the petitioner filed O.P.No.29765/2001, wherein by Ext.P16 Judgment this Court directed the Government to pass orders on the ## O.P. No.32502/2002 ## -:5:- representations. It was directed that the petitioner will also be heard in the matter. 7. Thereafter, by Ext.P17, the Government informed the petitioner that the representation has been considered and they have taken up the matter with the Accountant General (A&E) to initiate necessary action for refixation etc., as per G.O.(Rt)No.295/96/Home dated 30/01/1996 (Ext.P3). Later, the Accountant General's Officer by Ext.P18 sought certain clarifications from the Government in the matter. It is at that stage this writ petition has been filed by the petitioner seeking for grant of monetary benefits contending that in the light of Ext.P17 no separate orders are liable to be passed by the Government. 8. In fact, the petitioner submits that the Government is also of the view, as evident from Ext.P19, that the petitioner was allowed all service benefits reckoning his initial appointment in the MSP III Battalion. Ext.P19 is an order whereby, after narrating the above, the Government ordered that the rank and seniority of another person, namely, Shri K.Shambudevan, Driver, should be refixed reckoning his initial appointment in MSP III Battalion. 9. Heard the learned counsel for the petitioner and the learned Government Pleader. ## O.P. No.32502/2002 -:6:- 10. The learned counsel for the petitioner submitted that in the light of the view taken by the Government in Ext.P17 what is required is refixation of his pay and allowances in the various posts and to grant the monetary benefits due to him. It is pointed out that a learned Single Judge of this Court in O.P.No.20428/1995 filed by Shri K.P.Ravindran Nair and others, in similar circumstances, has allowed their claims referring to the orders passed in favour of the petitioner herein. It is therefore, submitted that even though orders have been granted in his favour, the benefits flowing there from have not been disbursed so far. 11. Reliance is also placed on the Division Bench Judgment of this Court in **State of Kerala v. Bhaskaran** **Pillai [2003 (1) KLT 60]** to contend that when a person is illegally denied promotion etc., he must be paid monetary benefits due to him consequent to the retrospective promotion. 12. The learned Government Pleader produced for perusal a copy of the counter affidavit stated to have been filed on 09/04/2008. 13. The narration of the facts evidently show that the petitioner was granted the benefit of reinstatement in the ## O.P. No.32502/2002 ## -:7:- light of the benefits granted to similarly placed persons. In fact, a reading of the Judgment, Ext.P2, shows that this Court had clearly found that the great injustice was done to the petitioner herein. There all the details regarding the petitions filed by the petitioner have been mentioned. Paragraph (13) of the Judgment, wherein relevant findings have been rendered is extracted below:- “13. From the facts narrated earlier in this Judgment, it is crystal clear that injustice has been done to the fourth respondent in denying him the service benefits on account of the illegal termination of his service in 1967. As Khalid, J. has stated in Ext.P22 Judgment in O.P.No.3095/1979, the fourth respondent's case is a hard one. If he had moved this Court earlier, he would also have obtained the same relief that others like him got by the Judgments of this Court. That benefit has been extended to him by Ext.P8 order. An injustice which was done to him has been rectified by that order. This Court is not to exercise its discretionary jurisdiction under Article 226 of the Constitution for interfering with such an order. Even if there has been a technical preach in the impugned order ## O.P. No.32502/2002 -:8:- since it has gone to undo wrong or injustice done to fourth respondent, I decline to interfere with the order.” 14. The challenge against Ext.P1 order was repelled by the said Judgment which was confirmed in Writ Appeal. Evidently, therefore, the fact that similarly placed persons have been granted all these benefits including monetary benefits for the period during which they were kept out of service is clear from Exts.P8 and P9 Judgments also. The facts narrated therein show that the petitioners therein were also discharged similarly and finally, this Court directed the Government to draw and disburse the salary and allowances due to the petitioners therein during the period they were out of service consequent upon the discharge order which was subsequently held invalid by this Court. In Ext.P9 Judgment also an Assistant Commandant, namely, Shri S.Sadanandan, was directed to be granted various benefits by the Government. 15. The petitioner, by Ext.P11, sought for regularisation of his rank and seniority with due promotion and all monetary benefits with arrears of pay etc. Finally, this Court by Ext.P16 directed the Government to pass orders on the representation filed by the petitioner within a time frame after affording him an opportunity of ## O.P. No.32502/2002 ## -:9:- being heard. A reading of Ext.P17 shows that the Government after referring to his contention that he is entitled for consequential benefits from notional fixation and monetary benefits from 06/10/1976 and 13/11/1981 respectively informed him that they have taken up the matter with the Accountant General (A&E) “to initiate immediate necessary action, as per G.O.(Rt)No.295/96/Home dated 30/01/1996” (Ext.P3). We may come back to Ext.P3 which is the order relied on in Ext.P17, based on which refixation was granted. In Ext.P3, the Government ordered that the promotions of the petitioner to the cadre of Assistant Commandant and Deputy Commandant will be regularised with effect from 06/10/1976 and 13/11/1981 respectively. Therefore, when the Government directed refixation from Ext.P3 it is evident that such refixation has to relate to the post of Assistant Commandant from 06/10/1976 and that of Deputy Commandant from 30/11/1981. The word mentioned in Ext.P17 is 'refixation' which indicates that the original fixation granted to him has to be refixed. This idea is clear from paragraph (9) of the counter affidavit placed for perusal by the learned Government Pleader. It is mentioned in paragraph (9) thus:- ## O.P. No.32502/2002 ## -:10:- “Based on the directions issued by this Hon'ble Court dated 09/10/2001, in O.P.No.29765/2001, the petitioner was personally heard by the then Principal Secretary (Home) on 29/04/2002 when the petitioner's request was to refix his pay and allowances in the rank of Assistant Commandant and Deputy Commandant from 06/10/1976 and 13/11/1981 respectively and grant him monetary benefits from the date of assumption of charge in those posts. As such, Government have as per their letter No.63675/A1/01/Home dated 17/05/2007 requested the Accountant General (A&E) Kerala to take immediate necessary action for refixation etc. as per the Ext.P3 order. The petitioner was also informed of the position.” 16. Even though in the counter affidavit it is mentioned that going by Ext.P1 he was not entitled for arrears of pay etc., in the light of Ext.P17 there cannot be any dispute that the Government has directed refixation based on the dates on which the promotions were ordered as per Ext.P3. Therefore, the Government cannot go back on the same at this distance of time. 17. It is clear from Ext.P17 that the intention of the Government is to grant monetary benefits to the petitioner ## O.P. No.32502/2002 ## -:11:- from the date of regularisation as Assistant Commandant and Deputy Commandant from 06/10/1976 and 13/11/1981 respectively. It is pertinent to note that all others were granted arrears of pay during the period when they were out of service. Even though the learned counsel for the petitioner submitted that he is also entitled for a similar treatment, at this distance of time it may not be proper to grant monetary benefits from the date of discharge, namely, 1967. But, he will be entitled for the refixation from the respective dates of promotion granted as per Ext.P3, especially, in the light of Ext.P17 communication issued by the Government in answer to his representation. 18. The learned Government Pleader argued that since the petitioner had actually been promoted in 1992 and 1993 in the respective posts, the notional promotion may not result in grant of monetary benefits. Normally, when promotions are granted, promotee may be entitled to draw higher pay from the date on which he discharges his duties. But the facts of the present case are quite different. Herein, actually, even the discharge from the previous service was held illegal by this Court by different writ petitions, in respect of various persons and it is clearly held in Ext.P2 Judgment, in paragraph (13), that great injustice was meted out to the petitioner, which Judgment ## O.P. No.32502/2002 ## -:12:- stands confirmed in W.A.No.756/1991. There are certain principles with regard to the payment of monetary benefits in like cases which are dealt with by the Division Bench of this Court in **State of Kerala v. Bhaskaran Pillai [2003 (1) KLT 60].** It is submitted that the said Judgment has been confirmed by the Apex Court also. Therein it is held thus:- “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.” The circumstances pointed out above shows that the Government has also considered his representation favourably by directing refixation. A refixation automatically results in grant of monetary benefits and the contention by the learned Government Pleader that he is only entitled for a notional fixation cannot therefore hold good. Therefore, the said argument is rejected. 19. The writ petition is allowed. There will be a direction to the respondents to refix the pay and allowances to the petitioner in the posts of Assistant Commandant and Deputy Commandant with effect from 06/10/1976 and 13/11/1981 respectively and grant the consequential monetary benefits to him including revision O.P. No.32502/2002 -:13:- of pensionery benefits. Appropriate orders shall be passed and the benefits shall be disbursed to the petitioner within a period of four months from the date of receipt of a copy of this Judgment. No costs. **(T.R. Ramachandran Nair, Judge.)** ms