State of Kerala v. R. Sadhasivan (Retired Headmaster) and Registrar, Kerala Lok Ayukta

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** ## **W.A. No.1344 of 2017** **AGAINST THE JUDGMENT IN WPC NO.18387/2017 OF THE HIGH COURT OF KERALA DATED 27-01-2017** ## **APPELLANT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,**| ||**THIRUVANANTHAPURAM.**| |**2**|**DEPUTY DIRECTOR OF EDUCATION**| ||**CIVIL STATION, KOLLAM.**| ||**BY ADV. GOVERNMENT PLEADER**| ## **RESPONDENT/S:** |**1**|**R.SADASIVAN (RETIRED HEADMASTER),**| |---|---| ||**GOVERNMENT UP SCHOOL, NEDUMANCAVU, P.O., KOLLAM**| ||**RESIDING AT SADASIVA MANDIRAM, KAREEPRA,**| ||**KUZHIMATTHIKKADU, KOLLAM.**| |**2**|**THE REGISTRAR**| ||**KERALA LOK AYUKTA, THIRUVANANTHAPURAM.**| **BY GOVERNMENT PLEADERSMT. RAJI T. BHASKAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No.1344 of 2017 2 ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The State is in appeal from the judgment dated 27.01.2017 passed by the learned Single Judge in WP(C) No.18387 of 2007 filed by the State itself. The State was before this Court against the order of the Upa Lok Ayukta produced at Ext.P2. The 1[st] respondent had approached the Lok Ayukta against the objection raised on audit by the Office of the Accountant General. The issue was only with respect to fixation of pay in the post to which the 1[st] respondent was promoted and transferred.** **2. The 1[st] respondent was promoted to the post of Headmaster on 20.07.1992 and he continued in the post in the same School till his retirement on 30.01.2003. The 1[st] respondent contended that by virtue of Rule 12(31) of Part-I of the Kerala Service Rules, 1959, the 1[st] respondent is eligible for getting pay fixation reckoning the special pay** W.A. No.1344 of 2017 3 _**in lieu**_ **of higher time scale of pay. The Assistant Educational officer is said to have approved the pay fixation on the basis of Rule 3(IV) of the Pay Fixation Rules appended to Annexure III of 1997 pay revision orders. The Office of the Accountant General raised an objection in their letter dated 17.10.2002. A reply was sent justifying the fixation granted, but the Accountant General did not take any action on the reply sent. A revision to the Deputy Director of Education by the petitioner on 06.01.2003 also did not evoke any response.** **3. A complaint was filed before the Lok Ayukta, which is produced at Ext.P1 for the following reliefs: (a) A direction to clarify the position correctly to the Accountant General quoting Rule 7 in connection with the 1997 pay fixation orders and a general direction to the State ensuring that clarificatory orders conferring benefit to the aggrieved parties, who** W.A. No.1344 of 2017 4 **are eligible for special pay may be issued. The Lok Ayukta allowed the claim of the 1[st] respondent after looking into the rules and provisions; both the individual claim and the general directions.** **4. The learned Single Judge did not look into the jurisdiction of the Lok Ayukta, the absence of which was the ground on which the order was challenged. But the learned Single Judge relied on the decision of the Apex Court in** _**Maharaja Chintamani Saran Nath Sahadeo v. State of Bihar [(1999) 8 SCC 16]**_ **, which held that if setting aside an order on the ground of lack of jurisdiction, results in the revival of an illegal order, the order lacking jurisdiction should not be set aside. The learned Single Judge found that the order of the Lok Ayukta cannot be termed to be illegal or arbitrary and was legally correct, having interpreted the provisions correctly. However finding the general directions to be incompetent, the order in so far as the individual** W.A. No.1344 of 2017 5 **case of the complainant was upheld against which the State is in appeal before us.** **5. The learned Government Pleader referred to the decision in WP(C) No.2150 of 2004 dated 17.12.2009 and the decision which affirmed it in W.A. No.1077 of 2010 dated 09.07.2010. Though in the said proceedings also, the order of Lok Ayukta was challenged, there was no discussion on the jurisdictional aspect. Hence we would not look into those decisions referred to by the learned Single Judge too. However, we find significant, yet another decision relied on by the learned Government Pleader in** _**Commissioner of Police, Tvm and Others v. Abida Beevi and Another [2016 (2) KHC 537 (DB)]**_ **, which found the Lok Ayukta to have no jurisdiction to consider claim of payment of arrears of salary.** **6.** _**Abida Beevi,**_ **the widow of a deceased policeman, was before the Lok Ayukta claiming arrears of salary on the basis of certain orders** W.A. No.1344 of 2017 6 **passed by the Government. The deceased policeman, along with eight others, were dismissed by the Government in 1974. Later after about 16 years in 1990, the Government took a lenient view and reinstated those Policemen treating the period when they were kept out of employment as break in service reckoning it as qualifying service for pension, but without any claim for back wages. The policemen, who were alive then, were reinstated. The husband of the complainant before the Lok Ayukta had died in the meanwhile.** **7. The widow approached the Lok Ayukta in the year 2004 claiming arrears of salary, which was allowed by the Lok Ayukta. A writ petition filed before this Court was rejected finding that the even if the widow had approached this Court, the same relief would have been granted. The learned Single Judge relied on** _**Muhammed Swalleh v. Third Addl. District Judge, Meerut [1998 KHC 852].**_ **The Division Bench while following the principle** W.A. No.1344 of 2017 7 **of** _**Muhammed Swalleh**_ **found that even when an order was passed without jurisdiction, if it renders justice insofar as the issue agitated, the High Court could refuse to exercise the jurisdiction under Article 226 of the Constitution of India. However, examining the case before the Lok Ayukta, the Division Bench found that even if the widow had approached this Court, her claim would not have been allowed. The reinstatement ordered by the Government was only a lenient measure adopted in mitigation of the hardship visited on the policemen, who were terminated and it was on the specific condition that there would be no arrears of salary in the period in which they were kept out of employment. It was also found that the orders of reinstatement, based on which the widow claimed arrears of salary, were in the years 19901992 and the claim raised was long thereafter in the year 2004. It was hence considering the merits of the matter as also the lack of jurisdiction that the Division Bench reversed the order of the** W.A. No.1344 of 2017 8 **learned Single Judge and set aside the order of the Lok Ayukta.** **8. The Division Bench also looked into the aspect of lack of jurisdiction and found that the Second Schedule of the Lok Ayukta Act provided for matters in which the Lok Ayukta had no jurisdiction and action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants were clearly matters, wherein the Lok Ayukta had no jurisdiction. In** _**Abida Beevi**_ **the complaint was regarding arrears of salary and in the instant case the complaint is regarding fixation of pay by the AEO, which was objected to by the Accountant General. The Division Bench found that the Lok Ayukta lacks jurisdiction to consider the above matters. We respectfully agree with the said finding and follow it in the above case also. The Lok Ayukta has to be found to have no jurisdiction** W.A. No.1344 of 2017 9 **to entertain the complaint regarding pay fixation.** **9. The learned Single Judge directed the State to treat the order of the Lok Ayukta as a recommendation and implement it.But we are of the opinion that when the Lok Ayukta lacks jurisdiction to consider the issue itself, there is no question of treating the order as a recommendation. The learned Single Judge interfered with the general instructions issued by the Lok Ayukta but upheld the directions for refixation of pay in accordance with that granted by the AEO, which we find is without jurisdiction.** **10. However, we have to notice that the 1[st] respondent is now retired from service. If the appellant had been granted pay fixation reckoning pay in the post of Headmaster and the same had been disbursed till retirement, despite the objection raised by the Accountant General, there shall be no refund effected from it. Despite our allowing the appeal, setting aside the order of** W.A. No.1344 of 2017 10 **the Lok Ayukta, we are of the opinion that the pay fixation granted to the complainant/ respondent shall not be interfered with, merely on the objection raised by the A.G.; if not reversed before retirement. We also make it clear that in that event, the pensionary benefits already sanctioned also cannot be interfered with.** **With the above observation, the writ appeal stands allowed, setting aside the judgment of the learned Single Judge. There is no order as to costs.** ## **Sd/-** **K.VINOD CHANDRAN JUDGE** ## **Sd/-** sp/09/07/19 **V.G. ARUN JUDGE** /True Copy// P.A. To Judge