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2025 DIGILAW 1200 (KER)

K. v. Kuriakose VS State of Kerala

2025-05-19

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna, J. 1. This writ appeal is filed under Section 5(i) of the Kerala High Court Act, 1958, by the petitioner in W.P. (C) No.36418 of 2017. The writ petition was one filed under Article 226 of the Constitution of India by the appellant-petitioner seeking a writ of certiorari to set aside Ext.P7 order dated 29.08.2011 and Ext.P8 order dated 07.02.2015 issued by the 1 st respondent rejecting the request of the appellant to fix his pay at Rs.14,940/- to declare that the period from 01.04.1969 to 15.06.1969 is liable to treated as qualifying service for fixing higher grades, and to declare that the appellant is entitled for fixation of pay at Rs.14,940/- with all consequential benefits including revised pensionary benefits. By the impugned judgment dated 28.05.2020, the learned Single Judge dismissed the writ petition. Being aggrieved, the appellant is now before this Court with the above writ appeal. 2. The appellant was appointed as Junior Lecturer (Physics) at Catholicate College, Pathanamthitta under the Corporate Management of Malankara Orthodox Church Colleges on 14.10.1968. He retired from service on 31.03.1998 while working as a Selection Grade Lecturer in Physics at Baselius College, Kottayam, under the same management. The initial appointment of the appellant was on a temporary basis for the academic year 1968-69 as per Ext.P1 letter of appointment dated 01.11.1968. Therefore, he was relieved from service at the end of the academic year i.e., on 31.03.1969. He was reappointed at Baselius College on 16.06.1969 by Ext.P2 letter of appointment dated 01.07.1969. He was promoted as Lecturer on 14.10.1969 and the vacation period from 01.04.1969 to 15.06.1969 was reckoned as service for placing him in the post of Lecturer. While continuing in service, he availed leave without allowance for employment abroad from 28.11.1977 to 27.11.1987. Thus the leave period was not counted for any service benefits. After rejoining duty on 28.11.1987, he was promoted as Lecturer (Senior Scale) on 16.12.1987 and as Lecturer (Selection Grade) on 15.12.1992. Though his actual date of superannuation was 30.11.1997, he was allowed to continue till the end of the academic year and hence he retired on 31.03.1998. 2.1. After the retirement of the appellant, the Manager of the College issued Ext.P4 order dated 01.10.2002 condoning the break in service from 01.04.1969 to 15.06.1969, so as to enable him to claim that period also as qualifying service for higher fixation. 2.1. After the retirement of the appellant, the Manager of the College issued Ext.P4 order dated 01.10.2002 condoning the break in service from 01.04.1969 to 15.06.1969, so as to enable him to claim that period also as qualifying service for higher fixation. Ext.P4 order was forwarded to the 1 st respondent by the Manager of the College. Being aggrieved by the denial of fixation in Selection Grade and consequent refixation of pension and non- consideration of his representations, the appellant filed W.P. (C) No.10640 of 2007 before this Court and that writ petition was disposed of by the judgment dated 28.03.2007 directing the 1 st respondent to consider and pass orders on the representation filed by the appellant within a period of two months. However, after hearing the appellant, the 1 st respondent issued an order dated 02.07.2007 declining the request of the appellant for the reason that during the period from 01.04.1969 to 15.06.1969, the appellant was out of service and salary was not paid to him. As the non-payment of salary for the above period was the main reason for the rejection of the appellant’s claim, the Manager of the College issued an order dated 26.06.2007 sanctioning payment of salary to the appellant for the period from 01.04.1969 to 15.06.1969. Ext.P5 certificate dated 04.07.2007 was issued by the Principal of the College to disburse the salary to the appellant. 2.2. Again the appellant filed W.P.(C)No. 274 of 2008 before this Court challenging the order dated 02.07.2007 passed by the 1 st respondent rejecting his claim for higher fixation and other consequential benefits. By Ext.P6 judgment dated 30.03.2011, this Court disposed of that writ petition directing the 1 st respondent to consider and pass orders on the representation filed by the appellant. By Ext.P7 order dated 29.08.2011 the 1 st respondent again declined to accept the contentions of the appellant and rejected his petition. Being aggrieved, the appellant again filed a petition before the 1 st respondent to reconsider Ext.P7 order. The said petition was also rejected by the 1 st respondent by Ext.P8 order dated 07.02.2015. Thereafter the appellant filed the present writ petition which also ended in dismissal as said above. 3. The 2 nd respondent filed a counter affidavit dated 11.06.2018 in the writ petition opposing the averments and the reliefs sought in the writ petition. The said petition was also rejected by the 1 st respondent by Ext.P8 order dated 07.02.2015. Thereafter the appellant filed the present writ petition which also ended in dismissal as said above. 3. The 2 nd respondent filed a counter affidavit dated 11.06.2018 in the writ petition opposing the averments and the reliefs sought in the writ petition. It is contended in the counter affidavit that the fifth UGC pay revision for College Lecturers was implemented through Government Orders, viz., GO(P)171/H.Edn/1999 dated 21.12.1999 and GO(P)110/H.Edn/2000 dated 04.07.2000. One of the provisions in the said package was that those who stand in the grade of Selection Grade Lecturer as on 01.01.1996, will be entitled for the higher pay of Rs.14,940/- as and when they complete 5 years of service in that grade. The appellant was granted Selection Grade with effect from 15.12.1992. He had not raised any dispute regarding the same till superannuation. He had not completed five years of service in Selection Grade before the date of superannuation and therefore not entitled to a higher basic of Rs.14,940/-. As per Rule 60(c) of the Kerala Service Rules, the incumbents are not entitled to the benefit of pay revision with effect from the date after the date of superannuation. In that circumstance the grace period given to the appellant after the date of superannuation cannot be counted for calculating five years of service. Ext.P4 order dated 01.10.2002 issued by the 4 th respondent condoning the break in service after four years from the date of retirement of the appellant. The College Management has no authority to condone any period of break in service. The appellant was abroad for better opportunities by availing Leave Without Allowance for 10 years and therefore his actions resulted in a shortage of stipulated period of service for granting placement to Selection Grade with effect from an early date. 4. The learned Single Judge after a detailed analysis of the rival contentions raised by the parties found that the rights of an employee arising out of his service get crystallised at the time of his retirement and claims which ought to have been raised while in service cannot be agitated later. The appellant never claimed regularisation of service for the period from 01.04.1969 to 15.06.1969 while in service. The appellant never claimed regularisation of service for the period from 01.04.1969 to 15.06.1969 while in service. Noting the belated claim raised by the appellant after retirement, that also on coming to know about the fifth UGC pay revision implementation as per the orders dated 21.12.1999 and 04.07.2000, the learned Single Judge dismissed the writ petition. 5. Heard the learned counsel for the appellant, the learned Senior Government Pleader and the learned counsel for the College. 6. The learned counsel for the appellant pointed out that by Ext.P9 order dated 08.05.1997, the Government has condoned the break in service of a similar Lecturer for the period from 01.04.1971 to 21.11.1971 and the appellant is also entitled to a similar treatment. 7. On the other hand, the learned Senior Government Pleader argued that illegality committed by the Government by Ext.P9 order cannot be claimed as a right by the appellant. The appellant had shortage of 15 days in completing five-year period in the Selection Grade and hence he is not entitled to the benefit of a higher grade as rightly found by the learned Single Judge. 8. As far as the period of service of the appellant is concerned there is no dispute between the parties. The only short question to be decided is the entitlement of the appellant to condone the break in service from 01.04.1969 to 15.06.1969 so as to add that period in the service period of the appellant as Selection Grade Lecturer. The appellant was originally appointed as a Junior Lecturer in a College under the Management of the Malankara Orthodox Church Colleges on 14.10.1968. It was a temporary appointment. He relieved from that College on 31.03.1969. He was reappointed in another college under the same management on 16.06.1969. He was promoted as Selection Grade Lecturer on 15.12.1992. His date of superannuation was on 30.11.1997. The fifth UGC pay revision for College Lecturers, which was implemented through Government Orders, viz., GO(P)171/H.Edn/1999 dated 21.12.1999 and GO(P) 110/H.Edn/2000 dated 04.07.2000 stipulate that in order to claim higher grade, the incumbent shall work in the Selection Grade for five years. The appellant had a shortage of 15 days in completing five years as a Selection Grade Lecturer. After the implementation of this UGC Pay revision order, the Management of the College issued Ext.P4 order dated 01.10.2002 regularising the service of the appellant from 01.04.1969 to 15.06.1969. The appellant had a shortage of 15 days in completing five years as a Selection Grade Lecturer. After the implementation of this UGC Pay revision order, the Management of the College issued Ext.P4 order dated 01.10.2002 regularising the service of the appellant from 01.04.1969 to 15.06.1969. The claim of the appellant based on that regularisation order was rejected. Again the College issued Ext.P5 certificate to the effect that salary was also paid to the appellant during this period. All these documents are created and the claim was raised by the appellant much after his retirement, on coming to know about the order of the UGC. During his service tenure, he never raised such a claim. It is true that in Ext.P9, the Government granted an order exempting the break in service period for calculating the grade in favour of another Lecturer. But merely for the said reason, the appellant also cannot claim the benefit since the order of the Government in Ext.P9 is a subjective one considering the facts and circumstances of that particular employee. In this regard, it is apposite to refer the judgment of the Apex Court in Basawaraj and another v. Special Land Acquisition Officer, (2013) 14 SCC 81 wherein the Apex Court held thus: “It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. [Vide: Chandigarh Administration & Anr. v. Jagjit Singh & Anr., AIR 1995 SC 705 , M/s. Anand Button Ltd. v. State of Haryana & Ors., AIR 2005 SC 565 ; K.K. Bhalla v. State of M.P. & Ors., AIR 2006 SC 898 ; and Fuljit Kaur v. State of Punjab, AIR 2010 SC 1937 ].” (Emphasis Supplied) 9. Ext.P9 order is not issued based on any statutory backing, but it is by invoking the special power of the Government. The said order is applicable to that particular case alone. In that circumstance, the appellant cannot claim it as a precedent to claim that his break in service period also ought to have been condoned. Moreover, as found by the learned Single Judge, the claim of the appellant is highly belated. It is evident that during the period of break in service, the appellant was actually relieved from service since his first appointment was only on a temporary basis. 10. Though the appellant was allowed to continue till 31.03.1998, being the end of that academic year, he cannot claim that benefit also in view of Rule 60(c) of Kerala Service Rules, 1959 Part I (KSR-Part I) which reads that the teaching staff of all educational institutions (including principals of colleges) who complete the age of 56 years during the course of an academic year, shall continue in service till the last day of the month in which the academic year ends; but the extended period of service shall not be reckoned for any service benefits, such as increment, higher grade, accrual of leave, promotion and pay revision effective from the date after the date of superannuation under sub-rule (a) of rule 60. The period shall not be counted as qualifying service for pension and the pay received during the period shall not be reckoned for computing average emoluments or pensionary benefits or commuted value of pension. 11. In such circumstances, we find no ground to interfere with the impugned judgment of the learned Single Judge. 12. In the result, the writ appeal stands dismissed.