Writ Appeal No. 2317 of 2018 (State of Kerala v. Dr. K.N. Balakrishnan Nair)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 2ND DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944** **WA NO. 2317 OF 2018** **AGAINST THE JUDGMENT DTD. 30/05/2018 IN WP(C) 2228/2017 OF HIGH COURT** **OF KERALA** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695004.** **2 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695004 BY ADV.B.VINITHA, SR.GOVERNMENT PLEADER** ## **RESPONDENTS/PETITIONER:** |**1**|**DR.K.N.BALAKRISHNAN NAIR,**| |---|---| ||**AGED 82 YEARS**| **PROFESSOR (RTD.), ATHURASRAMOM N.S.S., HOMEO MEDICAL COLLEGE, RESIDING AT TAPAS, PERUNNA, CHENGANACHERRY-686 101.** **ADDL.2 SMT.M.UMADEVI, THAPAS,PERUNNA P.O.,CHANGANASSERY, KOTTAYAM,PIN-686 102.** **IS IMPLEADED AS ADDITIONAL 2ND RESPONDENT AS PER ORDER DATED 2/8/21 IN I.A.NO.1/2020 IN W.A.2317/2018. BY ADV P.M.MOHAMMED SHIRAZ** **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 02.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **Writ Appeal No.2317 of 2018** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** **Writ Appeal No.2317 of 2018** **------------------------------------------Dated this the 2[nd] day of September, 2022** ## **J U D G M E N T** ## **C.S.Sudha, J.** Can two wrongs make a right ? Does a wrong/incorrect/illegal decision or order in favour of one party entitle another to claim the benefit of the said order on the ground of equality under Article 14 of the Constitution of India ? If the benefit of the said illegal order is not given to him, would that amount to a discrimination violative of Article 14 ? 2. This is an intra court appeal against the judgment dated 30/05/2018 in W.P.(C)No.2228/2017. The appellants are the respondents and the respondent herein, the petitioner in the writ petition. The parties and the documents will be referred to as described in the writ petition. 3. The petitioner, Professor and Head of Anatomy Department in Athurasramam N.S.S. Homeo Medical College, Changanachery, (the Homeo College), who retired from service on 23/02/1995 filed the writ petition challenging Ext.P9 order, by which the Government denied grant of pension to him. According to the petitioner, in the year 1964 he had joined service as 3 ## **Writ Appeal No.2317 of 2018** tutor in the aforesaid Homeo college. On 30/03/1983, the Homeo College became Homeo Medical College, with affiliation to the Kerala University. The Direct Payment System (DPS) was attempted to be introduced in the college with effect from 01/06/1986, but the said attempt failed due to differences between the Management and the Government. Later on it was implemented with effect from 01/11/1995. The petitioner was denied the benefit of pension as he had retired before the implementation of the DPS. Though the petitioner has put in about three decades of service, the Government sanctioned minimum pension of `1,275/- per month as per Ext.P1 order dated 05/08/2003. The said pension has been paid to him from the date of Ext.P1 and not from the date of his retirement. 3.1. As per Exts.P2 and P3 Government Orders, DPS has been implemented in Vaidyaratnam P.S. Warrier Ayurveda College, Kottakkal, as well as in Ayurveda Medical College, Ollur. In both these Ayurveda Colleges, the Government has counted the period of service from the date on which the University granted affiliation. As per Ext. P4 order, the Government has reckoned the service before the implementation of DPS as qualifying service of staff in Private Arts and Science college, Engineering and Arabic Colleges. 3.2. As far as Homeo Medical Colleges are concerned, the 4 ## **Writ Appeal No.2317 of 2018** Government has decided to count service only from the date of the Government Order and not from the date of granting affiliation by the University or even from the date of retirement. The petitioner and his colleagues had submitted Ext.P5 representation before the second respondent requesting that their service be counted from the date of affiliation of the college. However, the second respondent did not even acknowledge receipt of Ext.P5. Therefore, the petitioner and others filed W.P.(C)No.14966/2009. This Court as per Ext.P6 order directed the first respondent to consider the representation submitted by the petitioner within a period of three months. Pursuant to Ext.P6 order, the first respondent passed Ext.P7 order dated 29/12/2009 rejecting the claim. As the contentions of the petitioner and others were not considered, they filed W.P.(C)No.9699/2010 challenging Ext.P7 order. The said writ petition was disposed of as per Ext.P8 judgment dated 06/08/2014 by which Ext.P7 order was set aside and the first respondent was directed to reconsider the representation submitted by the petitioner. 3.3. Pursuant to Ext.P8, the first respondent as per Ext.P9 order dated 09/03/2015 has rejected the claim of the petitioner and similar persons. No reason(s) has been mentioned as to why the staff of the Homeo college alone 5 ## **Writ Appeal No.2317 of 2018** has been subjected to hostile discrimination while the services of staff of the private Ayurveda Medical Colleges, prior to the introduction of DPS, has been counted as pensionable service. There is no legally justifiable reason for ignoring the service put in by the petitioner. There is gross discrimination against employees like the petitioner, which is violative of Article 14 of the Constitution. Hence the writ petition, seeking quashing of Ext.P9 order and for a declaration that the service put in by the petitioner from 30/03/1983 to 23/02/1995 is to be counted as qualifying service for calculation of pension and to direct the respondents to compute and disburse the terminal benefits of the petitioner. 4. The first respondent has filed counter affidavit in which it is contended that, as per Clauses 18 and 20 of the agreement dated 10/11/1995 executed between the Management of the college and the Government before the introduction of the DPS, the Government has no liability to bear any monetary or non monetary commitment of the employees of the college on account of the service rendered by them prior to the introduction of the DPS. As per directions of this Court in O.P.Nos.8334/97 and 2666/98, the Government had sanctioned pensionary benefits to the employees of Athurasramam NSS Homeopathic Medical College, Kurichy Kottayam, who 6 ## **Writ Appeal No.2317 of 2018** had retired from service on completion of 55 years of age as on 01/11/1995 reckoning their service rendered prior to the introduction of the DPS vide Government order (Rt)959/2001/H&FWD dated 31/03/2001. However, the said Government Order is not applicable to the petitioner as he retired from the college before 01/11/1995 on completion of 60 years of age. As per the said Government Order, the beneficiaries had a right to continue in service upto the age of 60 years. On the introduction of DPS, some were forced to leave the service before attaining the age of 60 years. The benefit of the Government Order goes to such employees. The petitioner continued in service till the age of 60 years and retired even before the introduction of the DPS. Therefore the case of the petitioner is not similarly situated as that of those employees who were granted pensionary benefits. 4.1. The DPS was introduced in the Vaidyaratnam Ayurveda College, Ollur, with the approval of the Cabinet as a one time measure. As per GO(Ms) No. 36/94/H&FWD dated 21/02/1994, Government has issued orders extending pension Rules in Part III KSR to the teaching and non teaching staff of Vaidyaratnam P.S.Varier Ayurveda College and Kerala Ayurvedic Studies and Research Society, Kottakkal from 01/07/1982 onwards on condition that the service of the staff from 01/04/1972 alone 7 ## **Writ Appeal No.2317 of 2018** would be reckoned as qualifying service for calculation of pension. However, in the case of the DPS agreement executed between the Government and the Management of the Homeo college, it is specifically stated that the Government shall not be liable for any claims of the teaching and non teaching staff of the institution towards the pay and allowance, provident fund, gratuity or any other amount in respect of any period prior to 01/11/1996 except to the extent provided therein. The said agreement is still in force. The service of the employees prior to the introduction of the DPS was reckoned in the case of the aforesaid Ayurveda colleges by virtue of the DPS agreement executed between the management of the said colleges and the Government or by virtue of the aforesaid Government Order. However, in the case of the college of the petitioner, there is no clause in the DPS agreement for reckoning the prior service and the Government has also not issued any order reckoning the service prior to the execution of the DPS agreement. In such circumstances, it is contended that the petitioner is not entitled to the reliefs prayed for. 5. The learned Single Judge accepted the case of the petitioner and observed that the benefit claimed by the petitioner has been granted to two other colleges as per Exts.P2 and P3 Government Orders, though the same is 8 ## **Writ Appeal No.2317 of 2018** stated to be under a wrong notion. It has also been held that in the light of the direction of this Court in Ext.P8 judgment, the case of the petitioner was liable to be considered on par with those covered by Exts.P2 and P3 orders. Hence Ext.P9 order was set aside and the petitioner has been granted pensionary benefits as in the case of those who had retired from service w.e.f. 01/11/1995. Aggrieved, the respondents have come up in appeal. 6. Heard Adv.B.Vinitha, the learned Senior Government Pleader for the appellant and Adv.P.M.Mohammed Shiraz the learned counsel for the respondents. 7. The only point to be considered in this appeal is, whether the petitioner is entitled to the pension as claimed by him. Ext.P8 judgment referred to in the impugned judgment has not conclusively decided the right of the petitioner. It is true that this Court has observed that _prima facie_ there appears no justification for not granting the benefit to the staff of the Homeo College. But the State was only directed to reconsider the representation of the petitioner and to pass appropriate orders. Therefore there is no impediment in considering whether the petitioner is entitled to the benefit claimed. The DPS was implemented in the Homeo college of the petitioner w.e.f. 01/12/1995. Admittedly, the petitioner had retired about eight months' 9 ## **Writ Appeal No.2317 of 2018** prior to that. Clauses 18, 19 and 20 of the DPS agreement, a copy of which has been handed over to us during the course of arguments, read - _“18. The Government shall not be liable for any claims of the teaching and non-teaching staff of the institution towards the pay and allowances or Provident Fund or gratuity or any other account whatsoever in respect of any period prior to November 1995 except and to the extent herein provided._ _19. The scales of pay and allowances of the teaching and non-teaching staff of the Government Homeopathic Medical Degree Colleges will be adopted as the pay and allowances of the similar categories of the staff of the Institution. Any arrears due to the staff on account of fixation of pay, increments etc. for the period from November 1995 will be paid by the Government after those claims are worked out by the Principal, Government Homeopathic Medical College, Thiruvananthapuram and approved by the Government._ _20. The Educational Agency shall discharge all liabilities relating to the period till 31-10-1995 in respect of the arrears of salaries, allowances, Provident Fund and other claims of teaching and non-teaching staff of the Institution and also in respect of all the dues to the Government and the Universities even if such liabilities are detected later.”_ 8. The fact that the DPS agreement was executed only after the petitioner had retired, is not disputed. The clauses in the agreement are also not disputed. The only case is that since the employees of two other colleges have been given the benefit as per Exts.P2 and P3 Government orders, the petitioner is also entitled to the same. A reading of the counter of the first 10 ## **Writ Appeal No.2317 of 2018** respondent shows that the benefit has been granted to the aforesaid Ayurveda colleges on a wrong notion, which means that Exts.P2 and P3 are wrong orders. Let us examine whether the petitioner can also claim the benefit of an admittedly wrong order of the Government. 9. In **State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321** the Apex Court dealt with a case in which the respondent therein, while working in a Government Department in the State of Haryana, tendered his resignation to contest the election as a Member of the State Legislative Assembly. His resignation was accepted. He contested the election but was defeated. Thereafter, he filed an application for withdrawing his resignation. That was dismissed. Consequently, the respondent filed a writ petition before the High Court contending that he had been discriminated and denied equality as some similarly situated persons had been given the same relief. The High Court observed that since three similarly situated persons had been allowed to withdraw their resignations and were appointed in the respective posts held by them, the failure to extend similar benefit to the respondent would be violative of Art.14. Therefore, it directed the appellant to reinstate him into service with consequential benefits. 9.1. The State moved the Apex Court. It was noted that the respondent 11 ## **Writ Appeal No.2317 of 2018** had voluntarily resigned from service and the resignation had also been accepted by the Government. It has been held that from that date on which the resignation was accepted, the employer-employee relationship between the respondent and the State had ceased and thereafter he had no right, whatsoever, either to claim the post or a right to withdraw his resignation which had already become effective by acceptance. It has been further observed that, the Government for reasons of their own, may have given permission in a similar situation to some of its employees to withdraw their resignations and might have appointed them. However, the doctrine of discrimination is founded on the existence of an enforceable right. Art.14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. It has been held that the respondent therein had no right, whatsoever and hence cannot be given the relief wrongly given to others. The High Court was held to be wholly wrong in reaching the conclusion that there was invidious discrimination. A wrong cannot be allowed to perpetrate. Further the Apex court posed itself the following question - if an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into service - Can a 12 ## **Writ Appeal No.2317 of 2018** similarly circumstanced person claim equality under S.14 for reinstatement? The question was answered in the negative. It has been held that the right claimed must be founded on an enforceable right to entitle a person to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. Under the said circumstances, it has been held that the High Court went wrong in directing reinstatement of the respondent by a mandamus with all consequential benefits. 10. In **Union of India (UoI) v. International Trading Co., (2003)5 SCC 437** - The respondents applied for and were granted permits under the provisions of the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981 and the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Rules, 1982, which authorized the applicants’ respondents to obtain on lease and operate foreign deep sea fishing vessels. The permit was, however, not renewed after its period of initial currency. Though applications for renewal were filed with requisite fees, no express order was passed in any of the cases declining to grant permit. Grievance was made that no reason had been indicated and, there was also no reference to 13 ## **Writ Appeal No.2317 of 2018** any policy decision for not effecting the renewal. The applicants filed writ applications before the High Court, which directed the authorities to reconsider the application for renewal. 10.1. The UoI took up the matter before the Apex court. The respondents highlighted that in respect of 32 vessels a departure had been made from the so-called policy of the Government and they had been permitted to fish in the zone concerned. The factual aspects brought on record established that illegally and without any justifiable reasons, the said 32 vessels had been permitted to operate, while the same benefit was not extended to the respondents. This according to the respondents established discrimination, which was impermissible in law. 10.2. The Apex Court held that, even if it is accepted that 32 vessels were given improper permission, which may render such permission vulnerable, but the same cannot come to the aid of the respondents. The Apex court held that, two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case; direction should be given for doing another wrong. That would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of 14 ## **Writ Appeal No.2317 of 2018** Art.14 cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs at par. Even if hypothetically, it is accepted that wrong has been committed in some other cases, by introducing a concept of negative equality, respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality. 11. In **Ekta Shakti Foundation v. Government of NCT of Delhi** , **2006 (3) KLT 601 (SC)** it has been held that, Art.14 has no application or justification to legitimize an illegal and illegitimate action. Art.14 proceeds on the premise that a citizen has a legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to deny the similar benefit. The rational relationship and legal back up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some person derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead nor court can countenance that benefit had from infraction of law, must be allowed to be retained. One illegality cannot be compounded by permitting similar illegal or illegitimate 15 ## **Writ Appeal No.2317 of 2018** or _ultra vires_ acts. (See also **Coromandel Fertilizers Ltd. v. Union of India, (1984) Supp. SCC 4570** ). 12. If the order in favour of a person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality to cause another unwarranted order. The extraordinary and discretionary power of the High Court under Article 226 cannot be exercised for such a purpose. The judicial process cannot be abused to perpetuate illegalities. ( **Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jajn, (1997) 1 SCC 35** ). 13. In **Gursharan Singh v** _**.**_ **NDMC** _**,**_ **(1996) 2 SCC 459** , it has been held that citizens have assumed wrong notions regarding the scope of Art.14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Art.14 of the Constitution by way of writ petition filed in the High Court. It has been observed that, neither Art.14 conceives within the equality clause this concept nor Art.226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to 16 ## **Writ Appeal No.2317 of 2018** continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process, there has been a discrimination. 14. Coming to the case on hand - the petitioner was an 82 year old man when the writ petition was moved. Now he is no more and his legal representative has been impleaded as the additional second respondent. Our order rejecting the claim of the petitioner may appear quite harsh, nevertheless we cannot allow an illegality to be perpetuated. It is true that persons similarly placed like the petitioner, though not entitled to the benefit of pension, are wrongly being given the benefit claimed by the petitioner. As held in the aforesaid decisions, when the order in favour of some persons is found to be contrary to law or not warranted, such illegal or unwarranted orders cannot be made the basis of issuing a writ compelling the respondents/Government to repeat the illegality and issue another illegal or unwarranted order. Judicial process cannot be abused to perpetuate illegalities. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative 17 ## **Writ Appeal No.2317 of 2018** manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on ground of denial thereof to them. 15. In the case on hand it is conceeded by the learned Senior Government Pleader that Exts. P2 and P3 are wrong orders. It was also strenuously argued that the petitioner herein cannot be granted the benefit claimed on the basis of such wrong orders. It appears that a pick and choose policy is being followed. In some cases, as is made out in the case on hand, no steps are taken by the State to set aside blatantly wrong order(s), though the same comes to their notice and allow some people to continue enjoying the benefit of the said wrong orders. But when it comes to the case of certain others, steps are seen taken quite promptly to ensure that they do not enjoy the said benefit, apparently on extraneous considerations. It needs to be noted that in all these cases, public money is involved and the brunt of all the wrong or illegal orders has to be borne by the tax payers. As it is conceded by the State itself that on the basis of Exts. P2 and P3 wrong orders, certain employees are enjoying the benefit claimed by the petitioner, we direct the respondents to reconsider those cases after hearing all the affected parties and pass necessary orders. We make it clear that the Government shall not effect 18 ## **Writ Appeal No.2317 of 2018** recovery of any payments already made. But it will certainly take steps to see that the benefit like, as given in Exts. P2 and P3 are not given to those employees who are not entitled to the same, because when we reject the claim of the petitioner, we cannot allow others similarly placed to enjoy the benefits based on admittedly wrong orders. Not only that, if the benefits as per Exts. P2 and P3 are continued to be given, tomorrow others similarly placed as the petitioner would also come with such claims, which apparently cannot be entertained or allowed. In the light of the above discussion, the writ appeal is allowed. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/