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2003 DIGILAW 42 (KER)

C. S. Ramakrishnan v. State of Kerala

2003-01-21

KURIAN JOSEPH

body2003
Judgment :- All the petitioners joined service in the Central Government as National Discipline Scheme Instructors Grade II. Later they were absorbed to State Government service as per G.O.(MS)210/76/G.Edn. dated 30.10.1976 (Ext.P1 in O.P.No.8787/1993). Since the employees covered by Ext.P1 claimed continuance upto the age of 58 years, on a writ petition O.P.No.2503/1987 this court by judgment dated 20.3.1987 (Ext.P2) directed the Government to pass final orders in the representation within one month form the date of receipt of the judgment. It is seen from Ext.P3 letter from the Government of India dated 24.2.1992 that as per the decision taken by the State Government as reflected in the communication dated 20.6.1990 referred to in Ext.P3 the Government of India had accepted the proposal for re-employment of Ex. NDS Instructors absorbed in the service of Government of Kerala upto the age of 58 years, as a special case. It was made clear that the agreement would apply only to those Ex. NDS Instructors who had not attained the age of 58 years on the date of Ext.P2 judgment, that is 20.3.1987. It was further made clear by the Government of India that “the resultant additional financial liability in this respect would be borne by the Government of India.” It is seen from Ext.P3 letter that this position had already been communicated to the State Government as per telegram dated 14.2.1992. It appears, inspite of Ext.P2 the State Government did not pass any consequential orders and therefore, the Association of Ex.NDS Instructors submitted Ext.P4 representation and the petitioner in that original petition filed Ext.P5 representation wherein he contended that he would have continued upto 31.3.1994. Thereafter Ext.P6 judgment was passed by this court directing consideration of re-employment sympathetically. That original petition was filed by the Association along with some of the affected parties. It was made clear in the judgment that the salary and other allowances will be paid as and when financial assistance is received from the Central Government. 2. The Central Government, who is the 4th respondent in this original petition, cannot go back on their promise in Ext.P3 letter dated 24.2.1992 wherein it was agreed that Ex. NDS instructors absorbed in the State service as per Ext.P1 will be entitled to continue upto the age of 58 years, on the only condition that such people should not have attained the age of 58 years as on 20.3.1987. NDS instructors absorbed in the State service as per Ext.P1 will be entitled to continue upto the age of 58 years, on the only condition that such people should not have attained the age of 58 years as on 20.3.1987. Consequently the Government passed Ext.P8 order, G.O.(MS)154/93/G.Edn. dated 27.9.1993. The conditions insisted by the Government of India in Ext.P3 have been incorporated in Ext.P8. 3. In the above circumstances in case the Sate does not dispute that the petitioners herein are covered by Ext.P1 Government Order, the Ex. NDS Instructors absorbed in Government service and who had not completed the age of 58 years as on 20.3.1987, are entitled to have the re-employment benefit after their age of 55 and continue upto the age of 58 years, particularly after the assurance having been given by the Government of India as per Ext.P3 dated 24.2.1992 confirming their stand communicated to the State Government in the telegram date 14.2.1992. Therefore, there is no justification in denying the benefit. As of now all the petitioners have completed the age of 58 years. Therefore, the question of their re-induction does not arise. It will also be not practical and reasonable to direct re-employment for a further term of three years. Therefore, what remains to be considered is only the question regarding the monetary benefits for the period they were denied service. 4. In B.Prabhakar Rao v. State of A.P., AIR 1986 SC 210 the Supreme Court considered and identical situation. It has been held by the Supreme Court in paragraph 21 of the said judgment that re-induction being not practical, the employees in such circumstances would be compensated monetarily. The apex court in the said decision dealing with the principle, observed as follows:- “In Industrial Law we do award back and future wages on quite a large scale and there is no reason why we cannot adopt the same principle here. The apex court in the said decision dealing with the principle, observed as follows:- “In Industrial Law we do award back and future wages on quite a large scale and there is no reason why we cannot adopt the same principle here. If as a rule private employers in such situations are asked to pay back wages, we see no impediment in doing so in the case of those that are expected to be model employers, i.e. the Government, public corporations and local authorities.” On the aforesaid principle, the relief was moulded by the Supreme Court in paragraph 24 of the judgment holding that such persons shall be entitled to be paid compensation equal to the total emoluments which they would have received had they been in service until they attained the age of 58 years, less any amount they might have received ex gratia or by way of pension etc. 5. The principle laid down by the Supreme Court applies in all aspects to the facts of the instant case. This court by Ext.P2 judgment dated 20.3.1987 directed the State Government to take a decision. True the petitioners are not parties. But the fact remains that it is a case where similarly situated Ex. NDS Instructors approached this court. It is now settled law that the State cannot differentiate similarly situated employees for the only reason that only some of them were parties to a writ petition. After all what this court directed in Ext.P2 judgment is to take a decision on a policy matter. What the Government of India agreed is also on the principle regarding continuance upto 58 years and not in the individual case of the petitioners in Ext.P2 judgment. The Government of India also promised reimbursement of the entire expenses pursuant to such re-employment upto 58 years after 55 years. What the State needed to do is only to promptly act on the promise of the Central Government (Ext.P3). There was Ext.P2 judgment in 1987, Ext.P3 Government of India assurance in 1992 and yet the State did not act still Ext.P8 in 1998. 6. What the State needed to do is only to promptly act on the promise of the Central Government (Ext.P3). There was Ext.P2 judgment in 1987, Ext.P3 Government of India assurance in 1992 and yet the State did not act still Ext.P8 in 1998. 6. In the above circumstances it is declared that the petitioners in these cases will be entitled to be paid compensation equal to the total emoluments which they would have received had they been in service on re-employment after 55 years until they attained the age of 58 years, less any amount they might have received by way of pensionary benefits. There will be a direction to the first respondent to work out the reliefs on the basis of the declaration above made and disburse the benefits within a period of three months from the date of production of a copy of the judgment by the petitioners. In case there is delay by more than three months it is made clear that the petitioners will be entitled to interest at the rate of 15% from the date they attained 58 years and the officers responsible for the delay will be personally liable for the interest portion. The original petitions are disposed of as above.