State of Kerala Chief Secretary, Government Secretariat v. M.V. Somasundaram, Union of India, Accountant General (A&E), Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 1938 ## **WP(C).No. 24497 of 2009 (S)** ---------------------------- (AGAINST THE JUDGMENT IN OA 484/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 05-06-2009) PETITIONER/2[nd] RESPONDENT: ------------- STATE OF KERALA CHIEF SECRETARY, GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM. BY ADV. GOVERNMENT PLEADER SHRI V.K.RAFEEQUE RESPONDENTS/APPLICANT AND RESPONDENTS 1 & 3:: ------------------------------------------- 1. M.V.SOMASUNDARAM SUPERINTENDENT OF POLICE, VIGILANCE & ANTI CORRUPTION BUREAU,, SPECIAL CELL, KOZHIKODE. (RETIRED.) 2. UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, NEW DELHI. 3. THE ACCOUNTANT GENERAL (A & E), KERALA P.B.NO.5607, M.G.ROAD,, THIRUVANANTHAPURAM-695 039. BY ADV. SRI.P.V.MOHANAN BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY ADV. SRI.P.MURALEEDHARAN, CGC BY SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **WP(C).No. 24497 of 2009 (S** ## **APPENDIX** ## PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE ORIGINAL APPLICATION WITHin ANNEXURES EXT.P2 : TRUE COPY OF THE REPLY STATEMENT. EXT.P3 : TRUE CERTIFIED COPY OF ORDER IN O.A.484/2007 dated 05.06.2009 EXT.P4 : TRUE COPY OF THE JUDGMENT IN THE WRIT PETITION No.29788/05. /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. **W.P.(C)No.24497 OF 2009** ......................................................................... **Dated this the 5[th] August, 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** State is the petitioner , who was the first respondent in O.A. 484 of 2007.Challenge is against Ext.P3 order, whereby the Central Administrative Tribunal, Ernakulam has allowed the O.A., directing the State to effect payment of arrears of salary and such other benefits to the first respondent for the period from 30.04.2002, the normal date of retirement on attaining the age of 55 years from the State Service till 21.04.2004, the date on which the first respondent assumed charge after getting inducted into the 'IPS' pursuant to Annexure A2 appointment order dated 17.04.2004. The thrust of the contention is that there was absolutely no fault on the part of the Government to have mulcted with the liability and non-consideration of the case of the first respondent for conferring IPS prior to the date of retirement was for want of selection to be conducted by the UPSC **2** ## **W.P.(C)No.24497 OF 2009** for the concerned years, which by itself was due to various litigations pending before this Court between rival groups, for which the State was in no way liable or responsible. It is also contended that a chain of cases came to be decided, wrongly granting benefits to some other person simply placing reliance on the verdict passed by the Supreme Court in _**UPSC vs. A.K.Salim**_ ( **2008) 11 SCC 495** and the order dated 03.01.2011 passed in I.A.No.2 of 2010 in Civil Appeal No.3648 of 2008, by way of clarification, which stands on a different footing and that there was lapse on the part of the State in forwarding the proposal in the instant case. 2. The factual matrix revealed from the proceedings is that the first respondent herein joined the service of the State Police Department as S.I. of Police in the year 1971. After obtaining promotion as C.I. Of Police, he came to be promoted as Dy.S.P. in the year 1989 and as Superintendent of Police on 23.01.1999. The petitioner attained the age of superannuation in April 2002, i.e. on crossing the age of 55 years and accordingly, came out of the service on 30.04.2002. But by virtue of having satisfied **W.P.(C)No.24497 OF 2009** **3** more than 8 years in the post of S.P., he had already accrued a right to be considered for conferring IPS in tune with the relevant rules. As a matter of fact, as on 01.01.2001 there were '4' vacancies, in 2002 there were '10' vacancies and in 2003 , there were '4' vacancies . As a matter of fact, by virtue of the relevant rules, the selection Committee had to be constituted by the UPSC every year. But because of various litigations , which were stated as pending, the Selection Committee was not convened on time. Since the Selection Committee was not convened on time, the first respondent had approached the Tribunal by filing O.A. 325 of 2004 seeking for a declaration to the effect that retirement of the applicants from the service in the meantime would not be a bar for their name being considered for conferring IPS for the concerned year. An interim order was passed by the Tribunal on 11.04.2003 to the effect that retirement of the applicants in the meanwhile would not be a bar for their name being considered for conferring IPS. Finally, the O.A. was disposed of as per Annexure A5 order along with other connected cases, virtually making the interim order absolute and **4** ## **W.P.(C)No.24497 OF 2009** validating the selection exercise which was done by the UPSC, rejecting the contention taken by the concerned respondent to the effect that selection itself was wrong as the applicants were not continuing as members of the service when the Selection Committee considered the matter. On finalisation of the proceedings, the Selection Committee was constituted on 24.12.2003, when different vacancies for different years were considered by way of separate lists. It was accordingly that yearwise select list was prepared. 3. The list prepared by the Selection Committee was approved by the UPSC on 19.02.2004 leading to Annexure A1 select list dated 08.04.2004 in respect of the year 2001, where the first respondent was placed at rank No.4 i.e. against the 4[th] vacancy. Pursuant to inclusion at Annexure-A1, the first respondent was offered appointment as per Annexure-A2 dated 17.04.2004 and he assumed charge on 21.04.2004. In the course of further proceedings, Annexure-A3 was passed on 28.07.2005 granting the year of allotment with respect to IPS as 1997. Later, as per Annexure A4 dated 25.01.2006, the first **5** ## **W.P.(C)No.24497 OF 2009** respondent was given the Jr. Administrative grade with effect from 01.01.2006. On attaining the age of 60 years, the petitioner retired from the Indian Police Service on 30.04.2007. 4. The heartburn started after retirement from the IPS, in so far as the period from 30.04.2002 ( the date of retirement from the State service) to 21.04.2004 (date of assumption of charge pursuant to Annexure-A2 appointment to IPS) was not regularised. Since the claim putforth in this regard was not considered, the first respondent approached the Tribunal by filing ## O.A.484/2007, with following prayers: _“i) To call for the records leading to Annexure A9 and set aside the same._ _ii) to direct the respondents to regularise the period from 01.05.2002 to 20.04.2004 as on duty for all purposes including pay and allowances and disburse the arrears of pay to the applicant forthwith._ _iii) Any other appropriate order or direction as this Hon'ble Tribunal deem fit in the interest of justice.”_ 5. The reliefs sought for were resisted by the respondents, who are the petitioners herein on various grounds. It was asserted that there was no lapse on the part of the Government. ## **W.P.(C)No.24497 OF 2009** **6** However, placing reliance on the verdict passed by the Tribunal under similar circumstances in O.A.No.827 of 2002 and the outcome in W.P(C)No.39392/2003 and also placing reliance on the verdict passed by the Tribunal in O.A.Nos.441/08, 442/08, 589/06 and 595/06, which was decided placing reliance on the verdict passed by the Supreme Court in **(2008) 11 SCC 495** (cited supra), it was held that the issue was squarely covered. It was accordingly, that the O.A. was allowed directing the respondents to regularise the period from 01.05.2002 to 20.04.2004 as duty for all purposes, including for pay and allowances and to disburse the arrears of pay and allowances to the applicant at the earliest, at any rate within three months from the date of receipt of a copy of the order. This, according to the State is, per se wrong and unsustainable in all respects, being contrary to the actual facts and the relevant provisions of law and hence the challenge in this writ petition. 6. Heard learned Sr. Government Pleader appearing on behalf of the State and Mr.P.V. Mohanan, who entered appearance on behalf of the first respondent The learned **7** ## **W.P.(C)No.24497 OF 2009** Sr.Government Pleader submits that the verdict passed by the Supreme Court in **(2008)11 SCC 495** (cited supra) is having no application to the case in hand and that the issue of exactly similar nature was considered by another Division Bench of this Court in W.P.(C)No.29788 of 2005, (which was also filed by the State challenging a similar order passed by the Tribunal in O.A.No.38 of 2003 granting benefits to the respondent IPS officer ordering regularisation of the period as involved in the instant case and to grant the consequential benefits). After hearing both the sides, particularly with regard to the factual sequence, which is almost the same as involved in the present case as well, involving the same selection exercise, it was held that there was absolutely no fault or lapse on the part of the State Government in not conducting the selection proceedings on time every year. It was accordingly, that the verdict passed by the Tribunal was set aside and the O.P. was allowed; virtually dismissing the O.A. 38 of 2003. 7. The learned Counsel appearing for the first respondent submits that the verdict passed by the Supreme Court was **8** ## **W.P.(C)No.24497 OF 2009** subsequently clarified as per order dated 03.01.2011 in I.A..No.2 of 2010 in Civil Appeal No.3648 of 2008, whereby the liability to satisfy the arrears of salary and such other benefits was fixed on the State Government. The learned Counsel submits that the verdict passed by the Tribunal in O.A.Nos, 441/2008, 442/2008, 589/2006 and 595/2006 were subjected to challenge by way of different proceedings before this Court and all those cases came to be dismissed as per the common judgment dated 18.03.2014 (W.P.(C)Nos.31299 of 2009 and connected cases), which was rendered by placing reliance on the verdict passed by the Supreme Court in [ **(2008) 11 SCC 495] (cited supra)** and the subsequent order passed by the Apex Court by way of Review/clarification therein. Those cases, though pertained to conferring of IFS (Indian Forest Service), the rules to be applied are similar and as such, the State is liable to pay arrears for the period, after the retirement from the State Service, till the parties were inducted into the 'IPS'. 8. As a matter of fact, the claim preferred before the Government for granting the benefit was initially not acted upon. **9** ## **W.P.(C)No.24497 OF 2009** The first respondent approached the CAT, Ernakulam Bench by filing O.A.No.104 of 2007, which was disposed of directing the Government to have the matter considered. It was accordingly, that the matter was considered by the Government and Annexure-A9 order dated 28.04.2007 came to be issued. The relevant portion of the order is extracted below: _“7. The Applicant is not entitled to the benefit requested for, as he was out of service during the period in question and did not officiate in any post under the Government of Kerala, so as to enable him to confer upon him the right to enjoy the pay and allowance for the period and for the consequential benefits. In the circumstances the prayers of Shri M.V. Somasundaram, IPS in Annexure A6, A8 and A9 in O.A.No.104/2007 are rejected.”_ The above order was challenged in O.A. 484 of 2007, leading to Ext.P3 order. 9. It is brought to the notice of this Court by the learned Counsel for the first respondent that, when the O.As were pending, there were ongoing dispute with regard to equalisation between two rival groups and the issue came to be finalised only ## **W.P.(C)No.24497 OF 2009** ## **10** as per judgment dated 04.04.2003 passed by a Division Bench of this Court in _**T.Chandran vs. Union of India**_ **[ILR 2003 (3) Kerala 354** ]. The parties who lost the battle approached the Apex Court by way of SLP 9141/2003, which came to be dismissed on **12.05.2003** . It was because of the ongoing litigation that the Selection Committee meeting could not be held for the years 2001, 2002 and 2003, which ultimately came to be convened on 24.12.2003. It is also pointed out that there was no interim order of stay in any of the proceedings and as such, there was no bar to have convened meeting of the Committee. Had it been convened on time, in view of the mandate of the relevant rules to have it convened every year, the petitioner would have been considered for the year 2001 itself, i.e., prior to his retirement and no loss would have been resulted to him. Since the delay in this regard cannot be attributed to the first respondent, he is stated as entitled to get all consequential benefits including arrears of salary as ordered by the Tribunal in similar circumstances vide order 25.05.2009 in O.A.No.441 of 2008 and as affirmed by this Court in W.P.(C)No.31299 OF 2009 **11** ## **W.P.(C)No.24497 OF 2009** and connected cases. The learned Counsel also makes a reference to the counter affidavit filed by the first respondent, wherein a copy of the judgment in W.P.(C)No.35090 OF 2005 has been produced as Annexue A14. Reliance is sought to be placed on the said verdict as well. 10. O.A.No.940 of 2003 was filed by the concerned applicant, who unfortunately was excluded from the panel of candidates to be considered, which was the subject matter of challenge all throughout. As per Annexure A14 verdict, the Bench made it clear that the applicant was illegally excluded and that the State being responsible for such illegal exclusion, is liable to compensate. It was accordingly, that a direction was given to pay salary and such other benefits for the relevant period; which cannot support the case of the first respondent, unless it is established before this Court that there was lapse on the part of the State Government in conducting the selection for the year 2001. 11. As mentioned already, all the cases which were sought to be relied on, were decided by placing reliance on the verdict ## **W.P.(C)No.24497 OF 2009** ## **12** passed by the Supreme Court in **(2008)11 SCC 495** (cited supra) and the subsequent order on clarification. In **OP(CAT) 4419/2012,** preferred by one Mr. A.T.Jose, who was also a similarly situated person like the first respondent herein (arising from O.A.No.209 of 2011), relief was granted by a Division Bench of this Court on the basis of the submission made across the Bar that the issue was covered as per the judgment in **(2008) 11 SCC 495** (cited supra), **2010 1 SCC 129 (Union of India vs. T.M. Somarajan** ) and **(1996) 6 SCC 721** _**(Union of India vs. Vipinchandra Hiralal Shah**_ ). Since there is no discussion as to the points involved in the said cases or as to the dictum, this Court finds it fit and proper to have the said verdict as well to be subjected to scrutiny; to find whether the inference could be applied to the case in hand. 12. The verdict passed by the Supreme Court in **(2010)1 SCC 129 (cited supra)** is with regard to fixation of pay on induction to IPS, which also stipulates that the last pay drawn by the incumbents in the State cadre has to be protected. This is not the issue involved in the present case where it is with regard ## **W.P.(C)No.24497 OF 2009** ## **13** to eligibility for getting salary and such other benefits during the period of interrugnum. Coming to ( **1996) 6 SCC 721,** the dictum is that, by virtue of Regulation 5 of the Indian Administrative Service (Appointment by Promotion) Regulations, it is mandatory for the Selection Committee to convene the meeting every year to consider the process of selection and finalise the same in respect of the vacancies available every year. There is no dispute with regard to the said question. Why the selection could not be conducted during 2001 and 2002 has been explained by the first respondent himself with reference to the on-going litigation between two rival groups as to equalisation; which came to be finalised only on 04.04.2003 as per the decision reported in **ILR 2003 (3) Kerala 354** (cited supra). This being the position, the non-convening of meeting of the Selection Committee in the year 2001 and 2002 cannot be attributed to the shoulders of the State Government. Even otherwise, if at all there was any delay in convening the meeting of the Selection Committee, it was the job of the UPSC to have it convened and as such, the lapse, if any on the part of the UPSC **14** ## **W.P.(C)No.24497 OF 2009** (with regard to which we do not express anything), the liability cannot be shifted to the State Government. This is more so, since nowhere in the Original Application has the applicant/first respondent pleaded that there was any lapse on the part of the State Government in causing the Selection Committee to be convened by the competent authority; nor is there any plea that the duty cast upon the State Government was not discharged in terms of the relevant provisions of law by forwarding the proposal on time. Similarly, no such case is projected either against the Central Government or the UPSC. The UPSC, who was to convene the Selection Committee meeting was never made a party to the Original Application. As it stands so, the first respondent cannot seek for any benefit with reference to the delay, if at all any on the part of the UPSC in convening the Selection Committee meeting, prior to his retirement. A view has been expressed by another Division Bench of this Court as per Ext.P4 Judgment in W.P(C)No.29788 of 2005 (which arose from the very same process of selection exercise), that the State cannot be found liable, unless delay or lapse is established on the ## **W.P.(C)No.24497 OF 2009** ## **15** part of the State. We concur with the finding and reasoning made by the Bench in the said case. 13. Now, the next question is whether the verdict passed by the Apex Court in **(2008) 11 SCC 495** (cited supra) and the order passed in the Review/Clarification petition as relied on by the Tribunal in Ext.P3 order and also followed by another Bench of this Court without any discussion in O.P.(CAT ) 4419 of 2012 ( in relation to IPS ) actually lay down any dictum to be followed by this Court, having the sanctity under Article 141 of the Constitution of India. In **(2008) 11 SCC 495** (cited supra), it was noted by the Apex Court in paragraph 5 of the said verdict , that the Selection Committee could not finalise the proceedings and fill up the vacancy because of the lapse on the part of the State Government in sending the proposal, which was the subject matter of challenge in the O.A.26 of 2007, before the CAT, Ernakulam. After taking note of the facts and circumstances, the CAT had passed an order directing the State of Kerala to submit a consolidated proposal. The directions was not complied with, which led to Contempt of Court proceedings. **16** ## **W.P.(C)No.24497 OF 2009** It was much later, that the directions were complied with, when the Bench observed that there was failure on the part of the State in sending the proposal on time. That apart, during the course of hearing, some suggestions were put forth and a counter affidavit was also filed by the applicant/first respondent therein on 11.01.2008 stating that he had no objection, if the Selection proceedings were confined to the three vacancies of the year 2006, in the manner as specified therein. It was accordingly, that the matter was disposed of in view of the **consensus** arrived at between the parties, as observed in 'paragraph 14', directing to provide the benefits as ordered therein. But because of the alleged obscurity in giving effect to the direction, I.A.No.2 of 2010 in Civil Appeal No.3648 of 2008 came to be filed by the State of Kerala to get the position clarified as to whether the respondent/applicant could claim the monetary benefit(salary) after his retirement from the State service on 31.05.2007 to January 2, 2009, i.e. the date on which he joined the Indian Forest Service. After referring to the way in which the case was finalised, based on the **consensus** arrived at ## **W.P.(C)No.24497 OF 2009** ## **17** between the parties , the Apex Court clarified that the State of Kerala would be liable to make the monetary benefit mentioned in paragraph 11 of the judgment delivered in Civil Appeal.3648 of 2008. This obviously was based on the **consensus** arrived at between the parties and the lapse on the part of the Government, discussed hereinbefore. In other words, it was an “agreed judgment” which does not declare any legal position to be followed by this Court, as a binding precedent. 14. When the matters came up for consideration before the Tribunal and also before this Court, particularly O.P.(CAT)4419 of 2012 and W.P.(C)31299 of 2009 **,** it was simply stated that the issue was covered by the verdict passed by the Supreme Court in **(2008) 11 SCC 495** (cited supra) and the subsequent order passed in the Review Petition. The distinctive aspect, as to the circumstances under which the said verdict was passed involving 'lapse on the part of the State' in sending the proposal and the fact that the said verdict was an “agreed judgment” were never brought to the notice of the learned Judges. To say the least, even the verdict passed by the Division Bench of this Court, by ## **W.P.(C)No.24497 OF 2009** ## **18** way of Ext.P4 on 8.1.2009 in W.P.(C)No.29788 of 2005 was also not brought to the notice of the subsequent Division Bench, who passed the verdict in **O.P(CAT)4419/2012 on 31.03.2014 and W.P.(C) 31299 of 2009** and connected cases on 18.03.2014. Had the said verdict been brought to the notice of the Bench, also bringing the distinctive feature that the decision in ( **2008) 11 SCC 495** and the order in I.A. 2 of 2010 in Civil Appeal 3648 of 2008 by way of clarification did not actually cover the case, we are sure that the position would have been different . We do not intend to make any further comments in this regard and only find that the verdict of the Supreme Court and the order passed in the Clarification Petition do not come to the rescue of the first respondent in any manner. 15. As mentioned above, we find that there is absolutely no pleading as to any malafides on the part of the State, nor is there any pleading as to any 'lapse', on the part of the State in getting the Selection Committee meeting convened on time. This being the position, it cannot be said that the State was liable or responsible in any manner, to be saddled with the liability to **19** ## **W.P.(C)No.24497 OF 2009** satisfy arrears for the period from **30.04.2002 to 21.04.2004.** Accordingly, the verdict passed by the Tribunal in Ext.P3 directing the State Government to meet the liability stands set aside. 16. The learned counsel for the first respondent submits that the State Government has not challenged the verdicts passed in OP.(CAT ) 4419 of 2012 and W.P(C)31299 of 2009 before the Apex Court and further that, all other similarly situated persons are enjoying the benefit. It is suggested and submitted that the salary of the first respondent might be fixed on a notional basis with effect from 01.01.2001 in the IPS cadre, though the arrears of salary and arrears of pension need not be paid to him. We find that no prejudice, whatsoever, will be caused to anybody including the State, if such an exercise is pursued ; more so when eligibility of the first respondent to be considered in respect of the vacancies of the year 2001, is never under dispute. Had the Selection Committee meeting been convened on time, there was every possibility for the first respondent to have had obtained the benefit with proper fixation from **01.01.2001** . In the said circumstance, we make it clear **20** ## **W.P.(C)No.24497 OF 2009** that re-fixation of the salary shall be notionally effected in the IPS cadre with effect from 01.01.2001 and the revised pension shall be fixed as on the relevant date, taking note of the fixation as aforesaid. It is further made clear that the first respondent/applicant will not be entitled to get any arrears of pay or pension under any circumstance. The O.P. stands allowed to the above extent. No cost. **P.R. RAMACHANDRA MENON, JUDGE** **ANIL K. NARENDRAN, JUDGE** lk