Suneesh K.M. and others v Guruvayoor Devaswom Managing Committee represented by its Administrator, Guruvayoor, and The Administrator, Guruvayoor Devaswom, Guruvayoor

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 18TH DAY OF FEBRUARY 2013/29TH MAGHA 1934 WP(C).No. 1394 of 2013 (Y) -------------------------- PETITIONER(S): - ------------- 1. SUNEESH K.M. KAKKASSERY HOUSE, CHITTANCHOOR P.O, THRISSUR DISTRICT. 2. RAJAN P KANJIRATHINKAL HOUSE, ELAMPULASSERY P.O PALAKKAD DISTRICT. 3. SUNDARAN K.K KAIPANCHERIKUNDIL HOUSE, PARASSERI P.O, KONGAT VIA PALAKKAD. 4. UNNIKRISHNAN U UNNITHIRI HOUSE, KOTTAPADI P.O, THRISSUR DISTRICT. 5. PREJITH C.B, EDAKUDIYIL HOUSE, DEVASWOM QUARTERS, THAMARAYOOR GURUVAYOOR. 6. K.HARINARAYANAN KANDIYIL HOUSE, VELLINEZHI P.O, CHERPULASSERI PALAKKAD DISTRICT. 7. JAYARAMAN P.V VARIKKARA HOUSE, PADINJATTTAM OZHUVAL, NEELESWAR KASARAGOD DISTRICT. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): - ---------------------------- 1. GURUVAYOOR DEVASWOM MANAGING COMMITTEE REPRESENTED BY ITS ADMINSTRATOR, GURUVAYOOR DEVASWOM GURUVAYOOR. 2. THE ADMINISTRATOR GURUVAYOOR DEVASWOM, GURUVAYOOR. BY ADV. SRI.P.GOPAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN WPC.1394/13** ## **PETITIONERS' EXTS:** EXHIBIT P1. COPY OF THE ORDER NO.B1-95406 DATED 27.1.2006 OF THE 2ND RESPONDENT. EXHIBIT P2. COPY OF THE TERMINATON ORDER NO. B-5398/2006 DATED 23.6.2007 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P3. COPY OF THE JUDGMENT DATED 3.4.09 IN WPC NO.34129/08 OF THIS COURT. - EXHIBIT P4. COPY OF THE ORDER NO.B1-5398/06 DATED 13.8.2010 OF THE 2ND RESPONDENT. EXHIBIT P5. COPY OF THE ORDER NO.B-5398/06 DATED 3.12.2010 ISSUED BY THE 2ND RESPONDENT. ## **RESPONDENTS' EXHIBITS** EXT.R1(A): COPY OF LETTER DT.24.5.11 OF THE SENIOR DEPUTY DIRECTOR, OFFICE OF THE LOCAL FUND AUDIT DEPARTMENT, GURUVAYUR. EXT.R1(B): COPY OF LETTER DT.14.9.12 OF THE SENIOR DEPUTY DIRECTOR, OFFICE OF THE LOCAL FUND AUDIT DEPARTMENT, GURUVAYUR. ## TRUE COPY P.A.TO JUDGE dsn **K.SURENDRA MOHAN** , **J. -------------------------------------------------W.P.(C.)No.1394 Of 2013 -------------------------------------------------DATED THIS THE 18[th] DAY OF FEBRUARY, 2013** ## **JUDGMENT** The petitioners have filed this Writ Petition challenging Exhibit P4 proceedings of the 2[nd] respondent by which, they have been held entitled to be reinstated in service, with all benefits, except salary for the period from 23.6.2007 to 7.5.2009. The petitioners are persons, who were appointed as 'Mahouts' pursuant to a selection process conducted by the respondents. On the basis of their ranking in the list, they were initially appointed as per Exhibit P1. However, since there were allegations against the appointments made, an Enquiry Commission was appointed and the Commission found that the selection and appointments were illegal. Therefore, the rank list was cancelled and the petitioners were terminated from service as per Exhibit P2 dated 23.6.2007. Aggrieved by the termination, the petitioners and another person approached this Court by filing W.P.(C)No.34129/08. The said Writ Petition was allowed by Exhibit P3 judgment. The termination of the WPC.No.1394/13 -2- petitioners was set aside and they were directed to be reinstated in service within a period of one month from the date of receipt of the said judgment. Accordingly, the petitioners were reinstated in service originally from 7.5.2009. Upon their reinstatement, a question arose as to whether the period from 23.6.2007 to 7.5.2009 should be treated as continuity in service. The issue was considered by the 2[nd] respondent and as per Exhibit P4, it has been held that the period of absence would be treated as service for all purposes with a rider that the petitioners would not be entitled to salary for the said period during which they were out of service. The petitioners have filed this Writ Petition aggrieved by the said proceedings, Exhibit P4. 2. The learned counsel for the petitioners submits that the petitioners have been kept out of service, for no fault on their part and therefore they are entitled to be paid salary for the period from 23.6.2007 to 7.5.2009 also. It is submitted that as per Exhibit P3, the termination of the petitioners has been set aside with a consequential direction to reinstate them and therefore it is submitted that the petitioners are entitled to all consequential benefits upon such reinstatement, including salary. In view of the WPC.No.1394/13 -3- fact that Exhibit P3 has not disentitled the petitioners from claiming any such amounts, it is contended that they cannot be denied their salary for the period that they were kept out of service. The learned counsel for the petitioners places reliance on Rule 56A(2) of Part I of the Kerala Service Rules. It is contended that since the termination of the petitioners have been set aside, they are entitled to all the benefits for the period during which they were kept out of service, treating the same as duty. They are accordingly entitled to get salary also for the said period, it is contended. 3. A counter affidavit has been filed on behalf of the respondents. According to the respondents, as per Exhibit P2, what was done was to cancel the rank list on the basis of which the petitioners were appointed. Their termination was only as a consequence to the cancellation of the rank list. It is also contended that the present claim of the petitioners for salary and other allowances for the period that they were kept out of service is barred by the principles of res judicata, since such a contention was not raised in the earlier Writ Petition, which culminated in Exhibit P3 judgment. 4. The learned counsel for the respondents places reliance WPC.No.1394/13 -4- on the decision of the Apex Court in **M.Nagabhushana** v. **State of Karnataka (2011(3) SCC 408).** 5. Adv.Shri P.Gopal who appears for the respondents points out that Exhibit P4 proceedings of the 2[nd] respondent which are under challenge is dated 13.8.2010. Exhibit P4 was followed up by Exhibit P5 addendum dated 3.12.2010 for correction of the date. But, the present Writ Petition filed only on 14.1.2013, according to the learned counsel, is highly belated and vitiated by delay, for which no explanation is found in the Writ Petition. It is contended that since the Writ Petition is filed after a lapse of three years, the petitioners shall not be permitted to challenge Exhibit P4 at this point of time. It is also pointed out that the respondents have acted fairly in issuing Exhibit P4, by which the petitioners have been granted all benefits except salary for the period from 23.6.2007 to 7.5.2009. The learned counsel also points out that as per Exhibit R1(a) and R1(b) the Audit Department has objected to even the proceedings Exhibits P4 and P5. For the above reasons, it is contended that the Writ Petition is liable to be dismissed. 6. Heard. The essential facts are not in dispute. It is not in dispute that the petitioners were given appointment after a WPC.No.1394/13 -5- selection that was conducted by the respondents and that they were appointed from the rank list being the persons ranked 1 to 7. It is also not in dispute that as per Exhibit P2 they were terminated pursuant to a report submitted by the Enquiry Commission. This Court has in Exhibit P3 judgment found that the termination of the petitioners was not correct and therefore they were directed to be reinstated in service. The present dispute relates to the claim of the petitioners for payment of salary for the period from 23.6.2007 to 7.5.2009 during which period, they were kept out of service. According to the petitioners, they are entitled to be paid salary, for the reason that they were kept out of service for no fault on their part. However, Shri P.Gopal appearing for the respondents points out that the petitioners have been granted all benefits. It is also pointed out that Exhibit P3 judgment has not directed payment of all consequential benefits on their reinstatement. No such claim was put forward in the said Writ Petition also, it is contended. However, even in the absence of such a claim, the matter was considered and as per Exhibit P4, the petitioners have been granted all their service benefits, except salary for the period during which they were kept out of service. The said proceedings WPC.No.1394/13 -6- having been issued on 13.8.2010, it is not liable to be challenged at this length of time, it is contended. 7. A perusal of Exhibit P4 shows that the petitioners have been granted continuity in service, with all consequential benefits, consequent on their reinstatement, except salary for the period during which they were kept out of service. The learned counsel for the petitioners submits that the petitioners are entitled to the relief claimed. It is open to the petitioners to claim such benefits from the respondents, since their entitlement to such benefits have been found in Exhibit P4, it is contended. The petitioners claim salary for the period from 23.6.2007 to 7.5.2009. As rightly contended by the learned counsel for the respondents, the claim of the petitioners is barred by delay, for which there is no explanation at all. The learned counsel for the petitioners tries to place reliance on Exhibits R1(a) and R1(b) to contend that the said proceedings were issued only on 14.9.2012. However it is pertinent to note that the petitioners have nothing to do with the issue of the said proceedings. The said proceedings were issued to the 2[nd] respondent objecting to the orders issued by him. The said proceedings cannot explain the delay in challenging Exhibit P4. WPC.No.1394/13 -7- 8. For the above reasons, the challenge against Exhibit P4 fails. However, as far as the benefits that have actually been ordered to be paid by Exhibit P4, the petitioners are entitled to receive them, if not already paid. Therefore, it is held that the petitioners shall be entitled to the benefits ordered to be paid as per Exhibit P4. With above direction, this Writ Petition is dismissed. The petitioners shall be at liberty to put forward their claims along with a representation, for grant of the benefits ordered by Exhibit P4. **Sd/- (K.SURENDRA MOHAN) JUDGE.** ## **dsn**