Valsala Kumari Devi M. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932** ## **WP(C).No. 9508 of 2009(G)** **-------------------------------------** ## **PETITIONER(S):** **-----------------------** **VALSALA KUMARI DEVI. M., D/O.SRI.P. NARAYANAN NAIR, AGED 48 YEARS, HIGHER SECONDARY SCHOOL TEACHER (HISTORY), B.A.R. HIGHER SECONDARY SCHOOL, BOVIKAN, MULIYAR POST, KASARAGOD DISTRICT, RESIDING AT 'SREEVALSAM', CHATTANCHAL, PO THEKKIL, CHANGALA, KASARAGOD.** **BY SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE, ADV. SMT.REKHA VASUDEVAN, SRI.ANIL PARATHARA.** ## **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM.** **3. REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, REGIONAL OFFICE, KOZHIKODE.** **4. MANAGER, B.A.R. HIGHER SECONDARY SCHOOL, BOVIKAN, P.O.MULIYAR, KASARAGOD.** **5. PRINCIPAL, B.A.R. HIGHER SECONDARY SCHOOL, BOVIKAN, P.O.MULIYAR, KASARAGOD.** **R1 TO R3 BY GOVT. PLEADER MR.V.T.K. MOHANAN. R4 BY ADV. SMT.P.K.PRIYA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2011,THE COURT ON 22/02/2011 DELIVERED THE FOLLOWING:** **rs** **WP(C) NO. 9508/2009-G** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE GO(MS)NO.138/90/G.EDN. DATED 27/06/1990 OF THE 1ST RESPONDENT.** **EXT.P2: COPY OF THE ORDER NO.2/2000 DATED 01/08/2000 OF THE 4TH RESPONDENT.** **EXT.P3: COPY OF THE ORDER NO.ACD.A2/18187/HSE/2000 DATED 11/01/2001 OF THE 2ND RESPONDENT.** **EXT.P4: COPY OF THE LETTER DATED 05/04/2001 OF THE 4TH RESPONDENT.** **EXT.P5: COPY OF THE ORDER NO.ACD.B3/5802/HSE/01 DATED 16/06/2003 OF THE 2ND RESPONDENT.** **EXT.P6: COPY OF THE JUDGEMENT DATED 22/06/2004 IN WP(C) NO. 21069/2003 OF THIS HONOURABLE COURT.** **EXT.P7: COPY OF THE JUDGMENT IN W.A. NO. 1265/2004 DATED 12/07/2004 OF THIS HONOURABLE COURT.** **EXT.P8: COPY OF THE JUDGMENT IN CIVIL APPEAL NO.4980/2007 DATED 25/09/2007 OF THE HONOURABLE SUPREME COURT OF INDIA.** **EXT.P9: COPY OF THE LETTER NO.ACD.B3/19260/HSE/01 DATED 31/10/2007 OF THE 2ND RESPONDENT.** **EXT.P10: COPY OF THE LETTER DATED 20/11/2007 OF THE 4TH RESPONDENT.** **EXT.P11: COPY OF THE LETTER DATED 10/12/2007 OF THE 4TH RESPONDENT.** **EXT.P12: COPY OF THE REPRESENTATION DATED 17/12/2007 OF THE PETITIONER.** **EXT.P13: COPY OF THE ORDER NO.1/2008 DATED NIL OF THE 4TH RESPONDENT.** **EXT.P14: COPY OF THE RELIEVING ORDER DATED 15/02/2008 ISSUED BY THE 4TH RESPONDENT.** **EXT.P15: COPY OF THE APPOINTMENT ORDER DATED 16/02/2008 ISSUED BY THE 4TH RESPONDENT.** **EXT.P16: COPY OF THE JOINING REPORT DATED 16/02/2008 ISSUED BY THE 4TH RESPONDENT.** **EXT.P17: COPY OF THE LETTER DATED 16/02/2008 OF THE 4TH RESPONDENT.** **EXT.P18: COPY OF THE ORDER NO.A3/1896/08/KDIS DATED 25/09/2008 OF THE 3RD RESPONDENT.** **EXT.P19: COPY OF THE REPRESENTATION DATED 16/10/2008 OF THE PETITIONER.** ## **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.S. TO JUDGE** **rs** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 9508 of 2009-G** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 22nd day of February, 2011.** ## **JUDGMENT** The petitioner claims appointment to the post of HSST (History) with effect from 1.8.2000, in implementation of Ext.P8 judgment of the Hon'ble Supreme Court. There is a further prayer to grant all consequential benefits including fixation of pay, arrears of pay and allowances, seniority and other benefits. 2. The necessary facts for the disposal of the writ petition are the following: The petitioner was initially appointed as H.S.A. (Social Studies) with effect from 13.7.1990 which was duly approved by the authorities. Subsequently, she acquired M.A. in History as well as B.Ed. in English and History ( double main). She also passed State Eligibility Test in June, 2000. Accordingly, she acquired all the qualifications for appointment to the post of HSST (History) in Humanities Group - History, Geology, Economics, Hindi/Malayalam. 3. A vacancy in the post of HSST (History) arose in the B.A.R. Higher Secondary School, Bovikan during the academic year 2000-2001. The petitioner filed an application and the other applicant was Shri M.K. wpc 9508/2009 2 Aravindakshan Nambiar who was also an H.S.A. working in the same school. He was selected by the selection committee and accordingly the Manager promoted him as HSST from 1.8.2000 as per Ext.P2 order. The petitioner challenged the same before the second respondent and filed O.P.No.22902/2000 before this Court wherein this Court directed the second respondent to consider and pass orders on her representation. The final order passed thereon is produced as Ext.P3, whereby the Manager was directed to cancel the appointment of Shri M.K. Aravindakshan Nambiar and to make fresh appointment. A fresh interview was conducted thereafter. Again, the petitioner was not selected which was informed to her by Ext.P4 letter. The petitioner approached this Court by filing O.P.No.13710/2001 wherein she was directed to move the second respondent by filing appropriate representation. The appointment of Shri M.K. Aravindakshan Nambiar was upheld by Ext.P5 order issued by the second respondent which was under challenge in W.P.(C) No.21069/2003. The appointment of Shri M.K. Aravindakshan Nambiar was upheld by this court in the judgment which is produced as Ext.P6. The Writ Appeal was also dismissed as per Ext.P7 judgment. The matter was finally considered by the Apex Court in Civil Appeal No.4480/2007 and by Ext.P8 judgment, her claim was upheld and the judgments rendered by this Court were set aside. Thereafter, the wpc 9508/2009 3 petitioner moved the authorities for implementing the judgment and finally by Ext.P13 she was appointed by the Manager. She was relieved from the post of H.S.A. on 15.2.2008 AN. Ext.P15 is the posting order issued to her and she joined as HSST (History) from the forenoon of 16.2.2008 against the post vacated by Shri Aravindakshan Nambiar. The said appointment has been approved as per Ext.P18 order, with effect from 16.2.2008. 4. The present claim of the petitioner, as noted already, is for promotion from 1.8.2000, the date on which Shri M.K. Aravindakshan Nambiar was promoted. Ext.P19 is the representation filed by her in the matter. 5. Prayer No.1(a) in the writ petition is to call for the records leading to Exts.P15 and P18 and to set aside the same to the extent they deny and disallow appointment and approval to the petitioner's promotion to the post of HSST (History) with effect from 1.8.2000. 6. Heard learned Senior Counsel Shri O.V. Radhakrishnan, appearing for the petitoner, Smt. Priya P.K., learned counsel appearing for the Manager and Shri V.T.K. Mohanan, learned Govt. Pleader. 7. Learned Senior Counsel for the petitioner submitted that in the light of the judgment of the Apex Court Ext.P8, it can be seen that the selection and appointment of the other candidate has been declared as wpc 9508/2009 4 illegal. A further direction has been issued to appoint her. Therefore, the petitioner will have to be appointed from the date on which Shri M.K. Aravindakshan Nambiar was appointed. It is therefore submitted that the petitioner will have to be granted all the benefits from 1.8.2000 including monetary benefits by way of restoration. 8. My attention was invited to the judgment of the Apex Court produced as Ext.P8. Therein, the Apex Court in para 10 held as follows: “Government Order dated 27.6.1990 makes it clear that the selection of teachers will be subject to seniority and suitability and G.O. dated 13.5.1998 specifically prescribes that the teachers appointed from General Education Subordinate Service will be treated as appointment by promotion. As stated earlier, the selection will be subject to seniority and suitability and there is no dispute that the appellant is senior to 5th respondent. She is eligible and qualified for appointment by promotion to HSST. It is not the case of the Management that she is unsuitable for promotion.” In para 11, the Apex Court, after finding that the petitioner was senior, was of the view that “the Director has committed an illegality in upholding the selection of the 5[th] respondent for appointment to the post of HSST.” A reading of the said para will show that all the reasons stated for preferring the fifth respondent therein was set aside by the Apex Court as irrelevant. Finally, it was held in para 11 as follows: wpc 9508/2009 5 “As rightly pointed out by learned counsel appearing for the appellant, once the requirement of the prescribed qualification is satisfied, the selection must be made on the basis of the seniority and suitability and there is no scope for making comparison of qualifications, or comparative assessment of suitability. The expression 'suitability' means that a person to be appointed shall be legally eligible and 'eligible' should be taken to mean 'fit to be chosen'.” The operative portion of the judgment is as follows: “Under these circumstances, we allow the appeal and set aside the order dated 22.6.2004 passed by the learned single Judge of the High Court in W.P.(C) Nos.21069/2003 and 15674 of 2004 as well as the order dated 12.7.2004 passed by the Division Bench of the High Court in W.A. No.1265 of 2004 confirming the selection of the 5[th] respondent as HSST. As a result of the above conclusion, we direct the authorities to issue appropriate order in favour of the appellant within a period of four weeks from the date of receipt of this judgment.” 9. Learned Senior Counsel for the petitioner relied upon various judgments of this Court and that of the Apex Court to contend that when a person is wrongly denied appointment/promotion and the said denial is held as illegal, then such a person is entitled for restoration of all what was due and therefore, herein the petitioner is entitled for appointment from wpc 9508/2009 6 1.8.2000 itself with all consequential benefits. The following are the decisions relied upon by the learned Senior Counsel for the petitioner: **S. Krishnamurthy v. The General Manager, Southern Railway** (AIR 1977 SC 1868), **Narayana Menon v. State of Kerala** (1978 KLT 29), **Nelson Edward v. Kerala State Road Transport corporation and others** (ILR 1991 (3) Ker. 98), **Union of India and others v. K.V. Jankiraman and others** {(1991) 4 SCC 109}, **R.K. Sethi and another v. Oil & Natural Gas Commission and others** {(1997) 10 SCC 616}, **State of A.P. v. K.VL. Narasimha Rao and others** [(1999) 4 SCC 181} and **State of Kerala and others v. E.K. Bhaskaran Pillai** {(2007) 6 SCC 524}. 10. In **S. Krishnamurthy's case** (AIR 1977 SC 1868) promotion was denied to the appellant because of an administrative error. The same was challenged in a writ petition. The Apex Court directed to grant promotion from the date of filing of the writ petition as well as payment of salary. In para 3, it was held thus: “We cannot put the clock back for all purposes and treat him as having been notionally appointed as traffic inspector with effect from January 1, 1959. All that we can do, in conformity with his right and in the justice of the case, is to direct the respondent to appoint him as a traffic inspector from the date on which he came to the High Court with his writ petition, viz. December 20, 1967.” wpc 9508/2009 7 Regarding the consequential benefits, it was directed in para 4 as follows: “It is, therefore, reasonable that the appellant should be fitted into the scale of pay at a point where full notional seniority which he would have been entitled to, had the right thing been done at the right time, is recognised. Plainly put, he will be drawing a salary on 20[th] December 1967 on the basis of a notional appointment as traffic inspector as on 1[st] January, 1959. This will govern the salary part of his service from 20[th] December, 1967.” In **Narayana Menon's case** (1978 KLT 29), this Court considered a similar case and the legal position was laid down thus: “No one can be penalised for no fault of his. Suppose a Government servant was reverted illegally or his services wrongly terminated and such reversion or termination is subsequently held to be wrong by a court of law and he is directed to be promoted or reinstated, could it be contended that such government servant is not entitled to the remuneration for the period during which he was under illegal reversion or illegal termination. The Government cannot take advantage of a mistake committed by them or an order passed by them in illegal exercise of their power. A Government servant cannot be said to have forfeited his claim for arrears of salary when he did not get his due promotion for no fault of his.” The above judgment was approved by a Division Bench of this Court in **Rajappan Nair v. State of Kerala and others** (1984 KLT 141). The Division Bench also held that the Government servant will be entitled for wpc 9508/2009 8 restoration of all that is lost by way of salary or other emoluments. It was held thus: “If for no fault of his, promotion to a Government servant is delayed and it is given to him later with retrospective effect from the date on which it was due, the Government servant is naturally entitled to restoration of the benefits which he has lost not on account of his conduct or laches. It is only proper that the Government should restore to him all that is lost by way of salary or other emoluments.” The judgment in **Rajappan Nair's case** (1984 KLT 141) was followed in **Nelson Edward's case** (ILR 1991 (3) Ker. 98) and the legal position was laid down thus: “Once an employee establishes his claim for an appointment on a particular day or for promotion with effect from a particular date and for no fault of his, the same was denied, he is entitled to all the benefits, as if he has been appointed on the day on which he has to be appointed.” 11. In **K.V. Jankiraman's case** {(1991) 4 SCC 109}, the legal position was examined at length. Considering the effect of the concept “no work no pay” it was held in paragraphs 25 and 26 thus: “When an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the wpc 9508/2009 9 penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. This cannot be denied on principle of “no work no pay”. The normal rule of “no work no pay” is not applicable in cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. Hence, F.R.17(1) will also not apply to such cases.” Therefore, the principle laid down that if the employee was willing to work and is kept away from work by the authorities for no fault of his, he cannot be denied the benefits. In **K.VL. Narasimha Rao's case** [(1999) 4 SCC 181}, their Lordships analysed various facts and laid down the principle in para 5 thus: “In normal circumstances when retrospective promotions are effected, all benefits flowing therefrom, including monetary benefits, must be extended to an officer who has been denied promotion earlier.” 12. The decision of the Apex Court in **R.K. Sethi's case** {(1997) 10 SCC 616} was relied upon by the learned Senior Counsel for the petitioner to contend that when the senior is overlooked with regard to the claim for wpc 9508/2009 10 promotion, he is entitled to be restored all the benefits with effect from the date on which the junior was promoted. The following observations in para 12 was relied upon: “Once it is held that Telex Operators have been rightly placed en block below regular employees in AG-II cadre as a result of the merger of the said cadre in the cadre of AG-II on 25.4.1980, regular employees in AG-II cadre who were senior to the Telex Operators could rightly feel aggrieved if they were denied promotion while their juniors were promoted as AG-I. The “next below rule” in service jurisprudence seeks to ensure that if a junior employee is given promotion without considering his senior then the senior employee can claim the right to be considered for such promotion with effect from the date on which the junior was so promoted.” 13. In **E.K. Bhaskaran Pillai's case** {(2007) 6 SCC 524}, their Lordships held that the principle of “no work no pay” cannot be accepted as a rule of thumb and the matter will have to be considered on a case to case basis. In para 4 the principle was delineated in the following words: “So far the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facts which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in wpc 9508/2009 11 criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed. In that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefits subject to there being any change in law or some other supervening factors. However, it is very difficult to set down hard -and fast rule. The principle “no work no pay” cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.” 14. Learned Govt. Pleader relied upon the decisions of the Apex Court in **Principal, Ayurvedic College and others v. Sushil chandra Misra and another** {(2006) 12 SCC 703} and **Union of India v. B.M. Jha** {(2007) 11 SCC 632} while opposing the claim for retrospective promotion and consequential benefits. 15. In **Principal, Ayurvedic College's case** {(2006) 12 SCC 703}, the matter in issue was the legality of termination of appointment. A claim petition was filed before the Tribunal and the matter ultimately reached the Apex Court. Therein, in para 10 after considering various facts including wpc 9508/2009 12 the delay occurred due to the pendency of various proceedings, the Apex Court applied the principle of “no work no pay” and ordered that 50% of the salary will be paid to respondent No.1. The said direction was issued in the peculiar facts of the said case. 16. In **B.M. Jha's case** {(2007) 11 SCC 632}, the legality of the direction issued by the Central Administrative Tribunal in granting arrears of pay and allowances for the higher post from the date of grant of retrospective promotion, was considered. The Apex Court took the view that arrears of salary cannot be granted in view of the principle of “no work no pay” in case of retrospective promotion. There, the Apex Court relied upon the judgments in **State of Haryana v. O.P. Gupta** {(19960 7 SCC 533) and **A.K. Soumini v. State Bank of Travancore** {(2003) 7 SCC 238}. 17. It is evident from the facts of the case that it was not a case where the facts are similar to the one here. Herein, the petitioner has been fighting for establishment of her claim for promotion for the reason that according to her, the selection and appointment of Shri M.K. Aravindakshan Nambiar is illegal, and she succeeded ultimately. Therefore, the said decision is distinguishable on the facts of this case. wpc 9508/2009 13 Learned counsel appearing for the Manager submitted that the petitioner is not entitled for any retrospective appointment or any consequential monetary benefits. It is submitted that the Apex Court has not issued any such direction in the matter as evident from the judgment. 18. The entitlement of the petitioner for appointment instead of the person selected, has been found in her favour. Accordingly, the Apex Court directed the respondents to issue appointment orders. It is evident that the petitioner-appointee has started working as HSST, pursuant to Ext.P13 order of appointment. The petitioner was working as H.S.A. in the meanwhile. In the light of the legal principles evident form the decisions relied upon by the learned Senior Counsel for the petitioner, it can be seen that when the rightful claim of the petitioner was denied for no fault of her, she cannot be denied the consequential benefits. Herein, if her claim was accepted by the selection committee and by the Management, she would have got appointment in the year 2000 itself. The said aspect has not been considered by the Manager while issuing appointment order or by the Director while approving the appointment. 19. In that view of the matter, the petitioner will be entitled for a notional appointment from the date on which Shri M.K. Aravindakshan Nambiar was promoted and appointed. The salary of the petitioner from the wpc 9508/2009 14 date of her appointment as HSST, viz. 16.2.2008 will thus be refixed by considering the notional appointment. Since the petitioner was working as H.S.A., she will be entitled only for the difference in the salary payable to the post of HSST. It is made clear that it will not affect the seniority of Higher Secondary School Teachers appointed earlier than the date of Ext.P13. Hence, the writ petition is allowed. There will be a direction to the respondents to pass appropriate orders appointing the petitioner as H.S.S.T. (History) with retrospective effect from 1.8.2000 notionally and to grant fixation in the scale of pay of HSST accordingly. Arrears consequent on the same less the amount received as salary as H.S.A. will also be disbursed accordingly. Appropriate orders will be issued within a period of two months from the date of receipt of a copy of this judgment. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**