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2017 DIGILAW 289 (KER)

N. Krishnan v. State of Kerala

2017-02-08

C.T.RAVIKUMAR, K.P.JYOTHINDRANATH

body2017
JUDGMENT : C.T. Ravikumar, J. 1. This original petition is directed against the order dated 9.6.2015 in O.A.No.1010/2015 passed by the Kerala Administrative Tribunal. The petitioner herein was the applicant and the respondents herein were the respondents, therein. The Original Petition is filed with the following prayers: (i) a writ of certiorari or any other appropriate writ order or direction quashing Ext.P3. (ii) declaration that the petitioner is entitled to get promotion to the posts of Deputy Tahsildar with effect from 9.2.1984, Tahsildar with effect from 30.4.1991. Tahsildar (Higher Grade) with effect from 1.12.1995 and Deputy Collector with effect from 21.4.1997, with all consequential monetary benefits including arrears of salary granted to his junior Sasidharan Pillai in TA No.6205/2012 in the light of the directions in OP No.17495/1995 dated 10.01.2003. (iii) a direction to the respondents to grant all consequential statutory benefits including arrears of salary granted to his junior Sasidharan Pillai in TA 6208/2012. (iv) a direction to the 2nd respondent to consider and pass orders on the representation dated 24.7.2014, after affording an opportunity for hearing to the applicant, within a time frame fixed by this Hon'ble Court in the light of the judgment in TA No.6205/2012 in respect of the junior of the petitioner. 2. The petitioner is a retiree from the Revenue Department. He retired on 31.10.2001 from the post of Tahsildar. He entered into the service of the department as Village Assistant in Kannur district on 14.8.1967 and was later promoted as Village Officer on 22.12.1972. Later, he was appointed by transfer as Revenue Inspector/Special Revenue Inspector. Thereafter he was again promoted as Deputy Tahsildar. As stated earlier, he retired from service while working as Tahsildar. The contention of the petitioner is that during the period 20.12.1970 to 9.9.1984 those Village Officers who possessed the test qualification of DOM and Account Test (Lower), were eligible for transfer appointment as Revenue Inspector/Special Revenue Inspector against 35% quota reserved for them. According to him, he had such qualifications at the relevant point of time and therefore, he was to be given transfer appointment as Revenue Inspector on 15.4.1978. It is his further contention that he became eligible for promotion to the post of Deputy Tahsildar in the year 1984. According to him, he had such qualifications at the relevant point of time and therefore, he was to be given transfer appointment as Revenue Inspector on 15.4.1978. It is his further contention that he became eligible for promotion to the post of Deputy Tahsildar in the year 1984. Though vacancies occurred in cadre of Deputy Tahsildar on 10.1.1984 he was given promotion to the said post only as per the proceedings dated 21.12.1993 of the Board of Revenue. His specific case is that owing to the delay occurred in the matter of promotion to the post of Deputy Tahsildar, his promotion to the post of Tahsildar got delayed. In such circumstances, the petitioner along with five others moved this court by filing O.P.No.17498/1995. In fact, during the pendency of the writ petition he was promoted as Tahsildar, on 7.12.1999. The said writ petition was later disposed of as per Ext.P1 judgment dated 10.1.2003 and even prior to its pronouncement he retired from service. Taking note of the said aspect, this court disposed of the said writ petition as per Ext.P1, virtually granting liberty to the petitioners therein, including the petitioner herein, to file representations before the Commissioner of Land Revenue and the said authority was in turn, directed to consider and pass appropriate orders thereon, within the time stipulated therein. It is further ordered that in case their claim is sustained, consequential benefits ensuing from the order shall also be given. Availing the liberty granted by this court under Ext.P1, the petitioner submitted a representation on 1.2.2003. The said representation was rejected by the Government on 24.5.2003. In the Original Application filed before the Tribunal it was specifically stated that in the meanwhile one of his juniors namely R. Sasidharan Pillai filed writ petition No.31721/2008 and pursuant to the disposal of the said case Government had passed an order in favour of the said R. Sasidharan Pillai. It is also stated therein that Sri. Sasidharan Pillai was granted notional promotion. Dissatisfied with the order granting only notional promotion and denial of arrears of salary and other consequential benefits the said Sasidharan Pillai again approached this court by filing W.P.(C) No.36044/2010 challenging the order passed by the first respondent dated 16.9.2010. After the constitution of the Tribunal, the said writ petition was transferred to the Tribunal and it was renumbered as T.A. 6405/2012. After the constitution of the Tribunal, the said writ petition was transferred to the Tribunal and it was renumbered as T.A. 6405/2012. It is the further contention of the petitioner that the Tribunal as per order dated 7.8.2014 allowed the said Transfer Application and the respondents therein were ordered to release the arrears of salary due to Sri. Sasidharan Pillai within a period of three months from the date of receipt of copy of the order. The specific pleadings in the writ petition would thus reveal that on coming to know about the order passed by the Tribunal at the instance of the aforesaid Sasidharan Pillai, the petitioner filed a representation dated 24.7.2014 before the Public Grievance Redressal Cell of the Chief Minister (Sutharyakeralam). Later, it was forwarded to the second respondent. However the 2nd respondent did not pass any order thereon. It is in the said circumstances that the petitioner filed O.A.1010/2015 with the aforementioned prayers before the Tribunal. On considering the contentions, the Tribunal found that there occurred inordinate delay from the part of the petitioner in asserting his rights and in pursuing the remedies to secure those rights. In short, it was found that he was guilty of delay and laches and the Tribunal would not be justified in issuing any direction as sought for by the petitioner to resurrect a stale claim. On arriving at as such a conclusion, the Original Application was dismissed. It is in the said circumstances that this Original Petition was filed challenging the order of the Tribunal. 3. We have heard the learned counsel for the petitioner and the learned Government Pleader. 4. The facts expatiated hereinbefore would reveal that though the petitioner had approached this court by filing O.P.No.17498/1995 and after its disposal as per Ext.P1, filed a representation availing the liberty granted thereunder on 1.2.2003, pursuant to its rejection on 24.5.2003 the petitioner had not actually pursued with his claim in accordance with law till he moved the Tribunal by filing O.A.1010/2015. In short, for about twelve years the petitioner did nothing in the matter. True that he has stated in the O.A. that against a similar judgment in O.P.3309/1997 the respondents moved an appeal as W.A.No.501/1998. But the order passed by the learned Single Judge was confirmed by the Division Bench. In short, for about twelve years the petitioner did nothing in the matter. True that he has stated in the O.A. that against a similar judgment in O.P.3309/1997 the respondents moved an appeal as W.A.No.501/1998. But the order passed by the learned Single Judge was confirmed by the Division Bench. It is also stated therein that the Government had unsuccessfully moved an SLP against the judgment in W.A. 501/1998. It is also stated therein that on coming to know about such aspects he filed fresh representation on 16.2.2005. Even if it is true, there is absolutely nothing on record to reveal the steps taken by the petitioner for redressal of his grievances till the year 2015 when he filed OA No.1010/2015. On the contrary, the pleadings would reveal that, in the meanwhile, one of his juniors by name R. Sasidharan Pillai diligently pursued with his claim and ultimately got an order in his favour. It is only on coming to know about the said order obtained by the said Sasidharan Pillai in his favour that the petitioner woke up from the slumber and filed fresh representation before the Public Grievance Redressal Cell of the Chief Minister (Sutharyakeralam) on 24.7.2014. No action was taken on the said representation. It was only thereafter that he moved the Tribunal seeking redressal of his grievances in the year 2015 by filing O.A. 1010/2015. 5. The factual narration, as above, would reveal that the petitioner who retired from service as early as on 31.1.2001 filed a representation on 1.2.2003 availing the liberty granted by the Tribunal in Ext.P1 judgment. However, subsequent to the rejection of the same on 24.5.2003 the petitioner had approached the Tribunal only in the year 2015 i.e. about 12 years since the rejection of his claim. According to the petitioner, in the meanwhile he had filed three representations. But there cannot be any doubt with respect to the position that repeated representations would not and could not resurrect a cause of action. The contention of the petitioner is that since the Tribunal had granted relief to a similarly situated person, that too, to his junior the Tribunal is not justified in rejecting his claim merely on the ground of delay. The contention of the petitioner is that since the Tribunal had granted relief to a similarly situated person, that too, to his junior the Tribunal is not justified in rejecting his claim merely on the ground of delay. It is the contention that immediately on coming to know about passing of an order in favour of his junior under similar circumstances, he moved a representation before the Public Grievance Redressal Cell of the Chief Minister as early as on 24.7.2014 and it is on the failure of the authorities to take appropriate steps to redress his grievances that he filed the Original Application in the year 2015 citing the case of his junior. The contention of the petitioner is that since the petitioner is similarly situated to that of Sasidharan Pillai and more importantly taking note of the fact that the said person is junior to him there was absolutely no justification in not extending the benefits flowing from Ext.P1 judgment. To buttress the said contention, the petitioner relies on the decision of the Hon'ble Apex Court in Commissioner, Karnataka Housing Board v. C. Muddaiah [ AIR 2007 SC 3100 ]. 6. The learned Government Pleader resisted the contentions mainly on the ground that the petitioner is guilty of inordinate delay and laches and therefore he is not at all justified in seeking to resurrect a stale claim. It is further contented that merely because a junior namely Sasidharan Pillai, having similar grievances, had obtained an order in his favour it cannot be highlighted and assigned as a reason to claim the benefits flowing from the said judgment on the ground that he is similarly situated to that person. 7. The nub of the contention is that he was invidiously discriminated and it is made relying on Muddaiah's case (supra) and citing the case of Sri. Sasidharan Pillai. A careful scanning of the decision of the Hon'ble Apex Court in Muddaiah's case would reveal that on facts, the said decision is totally inapplicable in the case of the petitioner. That was a case, where the employee concerned, aggrieved by the determination of seniority, approached the High Court of Karnataka. Sasidharan Pillai. A careful scanning of the decision of the Hon'ble Apex Court in Muddaiah's case would reveal that on facts, the said decision is totally inapplicable in the case of the petitioner. That was a case, where the employee concerned, aggrieved by the determination of seniority, approached the High Court of Karnataka. The writ petition moved by the said person was disposed of by a Single Bench with a direction to the Board concerned to reassign his seniority and to place him above respondents 2 to 34 therein and to grant other consequential benefits. The said judgment granted in favour of the petitioner therein on the aforesaid lines, was virtually confirmed by a Division Bench in a writ appeal filed by the State. In fact, the Writ Appeal moved against the said judgment was dismissed. Against the dismissal of the writ appeal, the State unsuccessfully moved a Special Leave Petition before the Hon'ble Apex Court. Thus, it is evident that the order passed by the learned Single Judge of the Karnataka High Court in W.P. No.1848/1992 became final. Subsequently, in purported compliance with the directions of the learned Single Judge, the seniority of the petitioner was reassigned and he was placed above respondents 2 to 34 in the said writ petition. However, he was not granted consequential benefits in terms of the directions in the judgment passed by the learned Single Judge. Thereupon, the petitioner therein moved a Contempt Petition alleging non-compliance with the directions of the judgment of the learned Single Judge in W.P.1848/1992. The Contempt Petition moved by the petitioner therein was dismissed. Thereafter, another writ petition was filed by the petitioner therein, virtually seeking disbursement of the consequential benefits and arrears of salary in tune with the directions issued by the learned Single Judge. The learned Single Judge of the Karnataka High Court before whom the said writ petition came up for consideration, dismissed the petition taking note of the dismissal of the Contempt Petition by the Division Bench observing that the Board had complied with the directions issued by the learned Single Judge in W.P.No.1848/1992. The decision of the learned Single Judge in the writ petition was again taken in appeal as W.A.No.6722/2003. A Division Bench of the Karnataka High Court set aside the order of the learned Single Judge and allowed the writ petition. The decision of the learned Single Judge in the writ petition was again taken in appeal as W.A.No.6722/2003. A Division Bench of the Karnataka High Court set aside the order of the learned Single Judge and allowed the writ petition. The matter was taken up before the Hon'ble Apex Court by the Commissioner, Karnataka Housing Board, in the said circumstances. It is taking note of all such facts and factors that the Hon'ble Apex Court observed that a binding judicial pronouncement between the parties could not be made ineffective with the aid of any legislative power by enacting a provision which in substance overrules such judgment. The Hon'ble Apex Court found that the Single Bench of Karnataka High Court as per order in writ petition No.1848/1992 not only issued a direction to reassign the seniority of the petitioner above respondents 2 to 34 therein but also issued a specific direction to grant consequential benefits. After complying with the directions with respect to reassignment of seniority, consequential benefits were not granted to the petitioner therein. It was taking into account all those aspects that the Hon'ble Apex Court held that once a direction is issued by a competent court it has to be obeyed and implemented without any reservation. A scanning of the decision would reveal that the Apex Court observed that though 'no work' 'no pay' is the normal rule when a court of law passes a specific order to issue consequential benefits, the respondents who are bound to comply with such a direction could not take shelter under the normal rule 'no work no pay' to deny such benefit to the person in whose favour a specific court direction was issued. As noticed hereinbefore in the case before the Apex Court in Muddaiah's case (supra) a specific direction was issued and that was not fully complied with. In this case, the petitioner attempted to canvass the position that there was a specific direction in Ext.P1 judgment to grant consequential benefits. However, a perusal of Ext.P1 judgment would reveal that what was directed by this court was only to grant consequential benefits, in case his claim was ultimately sustained by the Government on consideration of the representation, if filed, availing the liberty granted as per the said judgment. 8. However, a perusal of Ext.P1 judgment would reveal that what was directed by this court was only to grant consequential benefits, in case his claim was ultimately sustained by the Government on consideration of the representation, if filed, availing the liberty granted as per the said judgment. 8. It is to be noted that in this case pursuant to Ext.P1 judgment the petitioner moved a representation in tune with the directions thereunder. Admittedly, the said representation was rejected as far back on 24.5.2003. Though the petitioner claimed that he filed three repeated representations before the authorities since then, the fact is that he moved the Tribunal by filing O.A.1010/2015 only after about 12 years after the rejection of his representation filed by availing the liberty granted by this Court. Unlike the case in Muddaiah's case (supra), here the respondents have complied with the direction and considered the representation. Though its outcome was against the petitioner he had not chosen to challenge the same and to pursue with his grievance for about twelve years. He got no satisfactory explanation for the said inordinate delay. The question is whether merely because in a similar situation a junior to the petitioner who diligently pursued with the grievances was granted benefits can be assigned as a reason by the petitioner to explain such an inordinate delay. 9. As noticed hereinbefore the Tribunal has virtually dismissed the Original Application on the ground that there occurred inordinate delay on the part of the petitioner in moving the Tribunal. In that contextual situation, it is relevant to refer to a decision of the Hon'ble Apex Court in State of Karnataka v. S.M. Kotrayya [ 1996 (6) SCC 267 ]. The Apex Court held that the fact that applicant concerned filed belated application immediately after coming to know that in similar claims relief had been granted by the Tribunal to another, could not be accepted as a proper explanation to justify condonation of delay. In other words, it was found that an explanation for failure to avail legal remedy within the limitation period could not be get over by assigning a reason that in respect of a similarly situated person benefit was granted and that the application was moved immediately on coming to know about such an order. In other words, it was found that an explanation for failure to avail legal remedy within the limitation period could not be get over by assigning a reason that in respect of a similarly situated person benefit was granted and that the application was moved immediately on coming to know about such an order. As noticed hereinbefore, in this case also, the representation filed by the petitioner on 1.2.2003 availing the liberty granted by this court in Ext.P1 judgment and it was rejected as far back on 24.5.2003. The petitioner moved the Original Application from which this original petition arose, only after a period of about 12 years. It indeed is an inordinate delay. He sought to explain the delay by taking up a contention that in the case of a similarly situated person viz., Sri. R. Sasidharan Pillai the Tribunal had granted an order in his favour and the above mentioned O.A was filed by him immediately on coming to know about the said fact. In the light of Kotrayya's decision (supra), we have no hesitation to hold that such an explanation cannot be accepted as satisfactory for the purpose of condonation of delay. In short, what was done by the Tribunal is perfectly in conformity with the said dictum laid down by the Hon'ble Apex Court. 10. In this case it is evident that the petitioner was virtually sitting on the fence. Evidently, he accepted the order of rejection of his representation without any demur for a period of about 12 years and then, had chosen to move the Tribunal only on finding that a similarly situated person who diligently pursued his grievance had obtained an order in his favour. The petitioner cannot be heard to contend that in such circumstances that he was meted out with invidious discrimination. May be, the petitioner is having a similar grievance that of Sasidharan Pillai. But, at the same time, a person who had diligently pursued his right and ultimately obtained a relief and a person who is having a similar grievance, but failed to pursue his remedy for an inordinate long period and woke up from his slumber on coming to know about the passing of a favourable order in the case of a similarly situated person, cannot be said to be standing on similar footing. In such circumstances, in the light of the decision in Kotrayya's case it cannot be said that there occurred hostile discrimination. In the wake of the factual and legal position obtained as above, we find no illegality or perversity in the order passed by the Tribunal in rejecting the claim of the petitioner on the ground of inordinate delay and laches on the part of the petitioner. The decision of the Tribunal is perfectly in conformity with the enunciation of law by the Hon'ble Apex Court on the subject. Hence, the original petition is liable to fail and accordingly it is dismissed. There will be no order as to costs.