The government has an obligation to pay the legitimate amount due to its employees and cannot take advantage of a mistake committed by them or an order passed by them in illegal exercise of their power.

1. We do not think that a case for admitting the writ appeal to the file has been made out. The short facts are these: Between the respondent-petitioner and one Rajappan Nair there was a dispute relating to their inter se seniority. Originally. it was settled in favour of the said Rajappan Nair That was challenged in OP. No. 2966 of 1975. Pursuant to the direction given in the judgment in that writ petition. the Director of Public Instructions declared that the petitioner was senior to Rajappan Nair; and accordingly assigned rank to him above Rajappan Nair. Rajappan Nair had filed OP. No. 1261 of 1974 for a declaration that he was entitled to be treated and promoted as senior Malayalam Pandit. with effect from 17-1-1959. By Ext. P-2 judgment. this Court recognised the said plea. and accordingly directed that Rajappan Nair should be treated as having been promoted as senior Malayalam Pandit with effect from 17-1-1959. By Ext. P5 order the petitioner's request for similar declaration was allowed. He was. however. denied the attendant benefits. to which he was entitled. on the basis of the said order. The petitioner filed OP. No. 1974 of 1977 for the issuance of a direction to the authorities concerned to pay salary for the period of his notional promotion. By Ext. P-6 judgment this Court directed the respondents to consider the claim of the petitioner for arrears of salary on the basis of the principles stated by this Court in Narayana Menon v State of Kerala (1978 KLT 29). O P. No. 4125 of 1977 was filed in the meanwhile by the said Rajappan Nair for monetary benefits on the notional promotion granted to him with effect from 17-1-1959. This Court by Ext. P10 judgment directed the Director of Public Instructions that Rajappan Nair's pay should be fixed in the grade of High School Assistant in accordance with Ext. P5 judgment. Ext. P16 order was subsequently passed by the Director of Public Instructions. which reads as follows:

"The DPI. Trivandrum has ordered to draw and disburse the arrears of pay and allowances due to Sri K. G. Rajappan Nair. H.S.A. (Mal.) of Government H. S. Mangayil. Maradi on or before 24-9-1982.

Hence kindly send to this office the bill particulars in favour of Sri K. G. Rajappan Nair. H.S.A. for the period noted against your school without delay. Your co-operation in the matter is expected."

The petitioner was not however. granted similar pay. as was granted in Ext. P8. In the counter-affidavit. the stand taken by the Deputy Director is as follows:

"The petitioner has been informed that the question of back arrears based on the final seniority list will be decided upon and orders will be communicated vide: letter No. A-5/6488/82 dated 7-7-1982 of the Director of Public Instructions. Trivandrum."

2. The Government Pleader appearing on behalf of the appellant submitted that in the case of Rajappan Nair. the decision reported in Narayana Menon v. State of Kerala (1978 KLT. 29) was applied. By the time a decision was to be taken in the case of the respondent herein. the decision reported in Philomina v. State of Kerala (1984 KLT. 59) was holding the field; and it was on the dictum laid down in that decision the monetary benefit for the period during which he obtained notional promotion was denied to him.

3. The decision reported in Philomina v. State of Kerala (1984 KLT. 59) has been distinguished in the decision reported in Gracy v. State of Kerala (1985 KLT. 269). This also. in our view. is a case in which the Government could not put forward a plea of its helplessness to pay salary at the rate at which the appellant would have been entitled had he been given the seniority and consequential benefits at the appropriate stage. In other words. as Khalid. J. has very aptly put it in Narayana Menon's case (1978 KLT. 29). "The Government cannot take advantage of a mistake committed by them or an order passed by them in illegal exercise of their power". It should not be the aim of the Government to enrich it