Sivarajan v. State of Kerala — 1993 DIGILAW 319 (KER)

Judgment :- Paripoornan, J. The petitioner in O.P. No. 9800 of 1989 is the appellant herein. The respondents herein are the respondents in the original petition - State of Kerala and the Director of Scheduled Caste's Development Department. The petitioner entered service as Lower Division Clerk in the Harijan Welfare Department on 23-9-1957. He retired from service on superannuation in 1984. His main complaint is that his legitimate promotion was withheld and was not given. For no fault of the petitioner, he was not actually promoted on the due dates and was prevented from working in a post which he was entitled. In other words, the petitioner was unreasonably by illegally denied the legitimate promotions and was prevented from working in higher posts. 2. The original petition was filed to quash Exts. P5 and P6(a) - proceedings of the Government dated 24-6-1987 and proceedings of the Director of Scheduled Caste Development Department dated 22-6-1988. There was also a prayer for a declaration that the petitioner is entitled to all benefits - including monetary benefits - consequent on his notional promotion such as arrears of pay and allowances, refixation of pay, etc. The petitioner also prayed for the issue of a writ of mandamus directing the respondents to give the petitioner the full benefits consequent on his notional promotion such as arrears of pay and allowances, refixation of pay, etc. 3. The litigation initiated by the petitioner had a cheque red career. The short facts arc the following: The appellant-petitioner was appointed as Lower Division Clerk in the Harijan Welfare Department through Public Service Commission on 23-9-1957. He is a graduate. According to the rules in force then, graduates had preference for the post of Upper Division Clerk in the ratio of 3:1 between graduates and non-graduates. This was the rule in force till 31-10-1957. The appellant-petitioner was promoted as Upper Division Clerk on 25-7-1958. According to him, he should have been promoted as Upper Division Clerk even earlier, on 10-10-1957. The seniority list of Upper Division Clerks in the Harijan Welfare Department was published in December 1972. Then only, the appellant-petitioner knew that he was entitled to promotion even earlier than 25-7-1958- on which day he was promoted as Upper Division Clerk. The appellant and others filed O.P. No. 1673 of 1972 before this Court. The seniority list of Upper Division Clerks in the Harijan Welfare Department was published in December 1972. Then only, the appellant-petitioner knew that he was entitled to promotion even earlier than 25-7-1958- on which day he was promoted as Upper Division Clerk. The appellant and others filed O.P. No. 1673 of 1972 before this Court. That original petition was disposed of on condition that the Government will prepare and publish a fresh gradation list applying the ratio of 3:1. between graduates and non-graduates imperiously. A fresh list was published. It was not proper. The petitioner and others filed O,P. No. 67 of 1974. In this Court, an undertaking was given that the grievances of the petitioners will be examined by the Government. On 6-12-1976, the Government published a fresh seniority list of the Upper Division Clerks. That was also incorrect. Two aggrieved persons filed O.P. No. 248 of 1977. This Court directed the respondents to consider the seniority afresh. The second respondent passed an order on 12-11-79. Even then, the grievance of the appellant and others remained unrepressed. Against the decision in O.P. No. 248 of 1977, W.A. No. 194 of 1979 was filed. In the meanwhile, the Government issued Ext. P1 granting benefits to the petitioners in O.P. No. 248 of 1977. The benefit was denied to the appellant-petitioner herein stating that he was not a party to O.P. No. 248 of 1977. The appellant filed Ext.P2 representation dated 18-2-1981 and also filed O.P. No. 1239 of 198.1. That original petition was disposed of by this Court oil 8-1-1987 (Ext. P3). This Court held that the Government will consider whether the appellant is eligible for promotion on the basis of the principles evolved in G.O. (Rt) No. 2459/80/ DD Development (C) Department dated 6-9-1980. Since it turned out that the appellant had retired from service by then, this Court also held that the benefits to which the appellant will be entitled to, if he is found eligible for promotion, must be given notwithstanding his superannuation. The Government was directed to give all benefits to the appellant, if he is found eligible for promotion as per the Government order dated 6-9-1980. Ext. P3 judgment is inter parties and has become final. By Ext. The Government was directed to give all benefits to the appellant, if he is found eligible for promotion as per the Government order dated 6-9-1980. Ext. P3 judgment is inter parties and has become final. By Ext. P5 order dated.24-6-87, the Government held that the appellant will be entitled for promotion on 10-10-1957 and only notional promotion will be given to him on 10-10-1957 on condition that he will be eligible for back arrears - his promotion from 10-10-1957 will be reckoned only in respect of pension. Exts. P5 and P6 were assailed by the appellant before the Government by filing Exts. P7 and P8 representations. Subsequently, O.P. No. 9800 of 1989 was also filed. The learned single judge, by judgment under appeal dated 23-11-1989, dismissed the original petition. The learned single judge took the view that the notional promotions and fixation of pay will be reckoned only for the purpose of pension and that Ext. P5 is valid in law. Since the appellant did not discharge the duties attached to the post to which he was notionally promoted, the learned single judge held that the appellant is not entitled to claim the salary attached to that post. According to the learned single judge, the petitioner will not be entitled to claim the salary attached to that post to which he was notionally promoted. The original petition was dismissed. Aggrieved by the aforesaid judgment of the learned single judge dated 23-11-1-989, the petitioner in the original petition has come up in writ appeal.' 4. We heard counsel for the appellant M/s.A.R. Prakasam and B.K. Purushothaman. We also heard Mr. N. Sankara Menon, Senior Government Pleader and Mr.K. Thankappan, Government Pleader. 5. We are of the view that this writ appeal can be disposed of without going into the larger question raised before us, in view of the orders passed by this Court in earlier proceedings. The latest of the proceedings initiated by the petitioner, O.P. No. 1239 of 1981, was disposed of holding that the Government will consider whether the petitioner is eligible for promotion on the basis of the principles evolved in the Government order dated 6-9-1980 (G.O. Rt) No. 2459/80/DD). It was also made clear that the Government should give all benefits to the petitioner, if he is found eligible for promotion on the basis of the principles contained in the above-said Government order. It was also made clear that the Government should give all benefits to the petitioner, if he is found eligible for promotion on the basis of the principles contained in the above-said Government order. It is in pursuance thereto, Ext. P5 was passed by the Government dated 24-6-1987. The Government found that the appellant is eligible for the benefits contemplated in G.O. (Rt.No. 2459/80/DD dated 6-9-80 and will be eligible for promotion against the vacancy which arose on 10-10-1957. On this basis, it was further held that the appellant will be given notional promotion to the post of Upper Division Clerk with effect from 10-10-1957 and consequential promotions and fixation of pay subject to the condition that he will only be eligible for back arrears of pension. The short question that arises herein is, having held that the petitioner is entitled to the benefits contemplated by the Government order dated-6-9-1980 and the consequential promotions and fixation of pay will be given to him, can it be limited for the purpose of back arrears of pension only? 6. While disposing of O.P. No.1239 of 1981(Ext.P3),this Court, in the judgment F dated 8-1-1987, concluded thus: "Therefore, the Government is directed to give all the benefits to the petitioner if he is found eligible for promotion on the basis of the principles incorporated in the order mentioned above (order dated 6-9-1980" Having found that the petitioner is entitled to the benefits contemplated in the Government order dated 6-9-1980, we are of the view that the Government should have given all consequential promotions and fixation of pay due on that basis to the petitioner. The imposition of a condition that the consequential promotions and fixation of pay will be reckoned only for back arrears of pension was not justified in the light of the clear direction in Ext. P3 judgment of this Court. In this view, Et. P5 order of the Government as also Ext. P6(a), to the extent they denied the petitioner arrears of pay and allowances consequent on the notional promotion, are bad in law.' Such benefits could not be limited, in the manner it was done in Ext. P5, viz. that the consequential promotions and fixation of pay will be reckoned only for back arrears of pension. Such a limitation imposed on the benefits which the petitioner was found entitled to, is unauthorised and illegal.. Ext. P5, viz. that the consequential promotions and fixation of pay will be reckoned only for back arrears of pension. Such a limitation imposed on the benefits which the petitioner was found entitled to, is unauthorised and illegal.. Ext. P3 judgment should have been given effect to without any condition. We hold so. We are of the view that the learned single judge-was in error in holding that since the appellant had not discharged the duties attached to the post to which he was notionally promoted he is not entitled to claim the salary attached to those posts. With respect, we hold that the learned single judge was wrong in limiting the relief, which the petitioner was entitled to. He was entitled to 'all the benefits' as per Ext. P3. Limitation placed on such entitlement to benefits, is a clear legal error. The respondents are bound to afford all benefits to the petitioner on the basis of the Government order dated 6-9-1980. as mandated in Ext. P3, without any condition whatsoever. We hereby grant such a declaration and set aside the judgment of the learned single judge to the contrary. 7. The larger question mooted be fore-us was that when a Government servant failed to get his due promotion for no fault of his and subsequently it is held that he is entitled to such promotion, can arrears of salary be denied to him on the ground that the promotion due to him will only be notional without any monetary benefits? We find that this matter has received due consideration in a fcy decisions of this Court. In Ntimyana Menon v. State of Kerala (1978 KLT 29), Khalid, J. stated the law thus: "when a' person entitled to a particular post on promotion has been reverted or whose service has been wrongly terminated for no fault of his just on account of the wrong committed by his employer, then he is entitled to the pecuniary benefit that he would have got had he continued in the post or promoted at the due time". The learned judge further stated: "The foregoing discussion with reference to the pronouncements of the Supreme Court and the Gujarat, Allahabad and Mysore High Courts clearly establish that 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 learned judge further stated: "The foregoing discussion with reference to the pronouncements of the Supreme Court and the Gujarat, Allahabad and Mysore High Courts clearly establish that 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 Government's plea that the petitioner was given only a notional promotion is not. sustainable in law. What the petitioner got was not a notional promotion and it is wrong to call this promotion as "notional' in the context of the peculiar facts and circumstances of this case. The concept of notional cannot enter the realm of discussion in this case. Notional promotion is one which a Government servant gets under particular exigencies of situation, which he cannot claim as of right. Here the petitioner is entitled as of right to get his promotion from 1-4-1955 and therefore his claim for arrears of salary and Other material benefit cannot be denied to him on the plea that what was given to him was only a notional promotion and the policy of the Government is not to give the arrears of salary in such cases " The above statement of the law was approved by a Bench of this Court in Rajappan Nair v. Suite of Kerala and others (1984 KLT 141). Delivering the judgment of the Bench, Subramonian Poti, Ag. C.J. staled thus: "It quite often happens that a Government servant does not get his due promotion on the date he ought to have got it, but later it is given to him with retrospective effect from an earlier date. 3 f for no fault of his promotion to a Government servant is delayed and it is given to him later with retrospective effect from the dale 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. This is a principle stated by our learned brother Khalid, J. in Narayana Menon v. State of Kerala (1978 KLT 29), a principle concerning which we could not sec how any exception could be taken. Since the question has been elaborately considered by our learned brother with. This is a principle stated by our learned brother Khalid, J. in Narayana Menon v. State of Kerala (1978 KLT 29), a principle concerning which we could not sec how any exception could be taken. Since the question has been elaborately considered by our learned brother with. which we are in respectful agreement we do not think we should go into this any further. 2 We have found the State quite often taking a stand that even if a person is retrospectively promoted in recognition of his rights since the person so promoted had not actually worked in that post he is not entitled to the emoluments of that post. We have not been shown the support of any rule or logic to deny the benefit of the salary to the person so promoted The above decisions were followed subsequently by this Court nNelsonEth-urd v. K.S.R.T.C. (I.L.R.1991 (2)9S}andSoimui v.Sune of Kerala (1992 (1) KLT 83). In Ground(B) of the onginaJ petition, the petitioner has taken a pica to the following effect: " Exts. F5 and P6 orders even though the Government has slated that the petitioner is entitled for promotion to the post of Upper Division Clerk with effect from 10-10-1957, no reasons have been stated in the as foresaid orders to impose a condition that the petitioner will only be eligible for back arrears of pension. It was for no fault of the petitioner that he was not actually promoted on the due date and work in the higher category with effect from that date. He was wilfully denied promotion from the due dale and was prevented from working. It is illegal and unjust to penalise the petitioner for no fault of his. Once it is found that the petitioner is entitled to promotion with effect from a particular date and his promotion is given with retrospective effect from that date, he is entitled to al the benefits of such promotion especially in a case when it was for no fault of the petitioner that he was prevented from actually working in the promoted category with effect from the due date". This has not been denied or explained in any manner by the respondents by filing a counter. For the purpose of this case, the above averment contained in the original petition should normally be taken to be proved. This has not been denied or explained in any manner by the respondents by filing a counter. For the purpose of this case, the above averment contained in the original petition should normally be taken to be proved. The respondents have no case that the petitioner was not given his due promotion due to a bona fide mistake or error that happened due to the exigencies in administration and that the authorities acted honestly and fairly at all limes. We are highlighting the above aspect since, in our view, the principles laid down' by a later Bench decision of this Court in Philoinina v. State of Kerala (1984 KLT 59) is clearly distinguishable and cannot apply to a situation as the one in issue herein, on which great reliance was placed by the Government Pleader. We, therefore, hold that even on the large requisition mooted before us is entitled to succeed. We hold so. 8. The judgment of the learned single judge is set aside. The writ appeal is allowed with costs. The appellant had to fight for his rights for nearly 21 years in courts. He would have experienced much mental agony and would have also incurred heavy costs. We arc, therefore, of the view that the appellant should get his costs throughout, which we fix, including counsel's fee, at Rs. 5,000/-. The respondents shall work out the reliefs, which the appellant is entitled to, within a period of three months from the dale of receipt of a copy of this judgment and afford the appellant the reliefs due.