Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Ker) 930

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M. SHAFFIQUE, T.V. ANILKUMAR, JJ.
The State of Kerala, Rep. by its Secretary to Government, Higher Education Department, Government Secretariat & Ors. - Appellants
Versus
Babu S. Nanadanam & Ors. - Respondents
W.A. No.1999 of 2018, WA. No.1267 of 2019, WA. No.1656 of 2019, WA. No.1692 of 2019, WA. No.177 of 2019, WA. No.1909 of 2019, WA. No.255 of 2019, WA. No.301 of 2019, WA. No.31 of 2019, WA. No.486 of 2019, WA. No.725 of 2019, WA. No.75 of 2019, WA. No.841 of 2019, WA. No.932 of 2019
Decided On : 16-12-2019

Advocates Appeared:
For the Appellant : Sri. A.J. Varghese-SR.G.P.
For the Respondent: M.S. Radhakrishnan Nair, P.C. Sasidharan(B/O), Sri. Babu Karukapadath, Sri. P.U. Vinod Kumar, Smt. M.A. Vaheeda Babu, Sri. K.M. Faisal (Kalamassery), Smt. V.R. Lakshmi, Sri. Avinash P. Raveendran, Amrin Fathima.

IMPORTANT POINTS
If the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply-As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.

Headnote:
Government Order dated 21/12/1999, as per GO(P) No.171/1999/H.Edn –UGC Scale of pay-A belated service related claim will be rejected on the ground of delay and laches or limitation -One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury.
Statement of facts:
Challenging the judgment of the learned Single Judge in a batch of writ petitions by which direction had been issued to pass orders fixing the pay and allowances of the petitioners in the UGC scale of pay with effect from the date of their appointment as approved by the University- The writ petitioners contended that they were appointed as Lecturers against substantive vacancies in Aided Colleges. Their scale of pay was fixed only in the State scale of pay- Therefore, they sought for fixation of scale of pay at the UGC rate.
Finding of the court:
The petitioners' claim was for fixation of pay from the date of appointment until the date till they were all given UGC Scale of pay. The claims were hopelessly barred by limitation. No valid reason had been stated in the writ petitions to condone the delay. Even otherwise, the claim was not at all a continuing wrong. Merely for the reason that they were in service does not indicate that they could approach this Court for pay fixation after two decades.
Result: Appeals are allowed.

JUDGMENT :

Shaffique, J.

These appeals are filed by State of Kerala and its authorities challenging the judgment of the learned Single Judge in a batch of writ petitions by which direction had been issued to pass orders fixing the pay and allowances of the petitioners in the UGC scale of pay with effect from the date of their appointment as approved by the University.

2. The writ petitioners contended that they were appointed as Lecturers against substantive vacancies in Aided Colleges. Their scale of pay was fixed only in the State scale of pay. Therefore, they sought for fixation of scale of pay at the UGC rate.

3. They also relied upon judgment of this Court in WP(C) No. 13371/2007 (S. Anil Kumar and Another v. State of Kerala and Others) wherein a learned Single Judge having considered a similar matter held at paragraph 5 as under:-

“5. When, in 1991, the UGC scheme was implemented in the State of Kerala, the existing teachers were divided into two, viz. 52% in the UGC scale of pay and the balance in the State scale of pay. The 48% would be integrated into the UGC scale of pay after putting in the required number of years of service. Thereafter, all appointments made in aided colleges under the various Universities in Kerala could only have been in UGC scale. Admittedly, the petitioners were appointed on 8-3-1997 and 5-3-1997 after the UGC scheme was implemented in the State of Kerala. Therefore, the petitioners could have been appointed only in the UGC scale of pay. In fact, in Ext. P8, it is admitted that the petitioners, after completing the required period of service, were given placement in the senior scale of pay of Rs. 10000-15200. If they were to be given senior scale of pay after putting in the required number of years, necessarily, they should have been appointed in the UGC scale of pay, who only are entitled to placement in the senior scale of pay. That being so, I have no doubt in my mind that the petitioners are entitled to UGC scale of pay from the date of their appointment and revision of scale of pay as and when the UGC scale of pay was revised.”

The said judgment had been upheld by this Court in WA No. 2621/2009 decided on 6/2/2014, wherein the Division Bench held at paragraphs 2 and 3 as under:-

“2. The writ petitioners were appointed on 05.03.1997 as against substantive vacancies (retirement vacancies) in S.N.College under the Sree Narayana Trust. They were placed in a scale of pay of Rs.2060-3200 + DA and other admissible allowances on a pay of Rs.2,060/-per month. They claimed benefit at par with Sri.Santhoshlal P.S who obtained Ext. P5 judgment of this Court. Santhoshlal was appointed in the same college as lecturer on 01.08.1997, ie., a few days short of 5 months after the appointment of the petitioners in this case. The Division Bench withdrawing the original petition filed by Santhoshlal decided it along with a writ appeal filed challenging the interim order in that original petition. The Bench dilated on the effect of Clause 5 of the Pre-Degree Course (Abolition) Act and held that there was no total ban of appointment and even according to the Empower Committee, the proposal for ban would not take in posts which related to period prior to 03.06.1997, the date on which the ordinance prohibiting creation or filling up of posts in the wake of PDC de-linking came into effect. Santhoshlal’s case was thus decided by the Division Bench holding that in that case, vacancy arose before 03.06.1997 and Santhoshlal having been appointed as against that vacancy under UGC Scheme, his appointment was approved and he was, therefore, eligible to be paid.

3. In the case in hand, the petitioners were appointed on 05.03.1997, even before Santhoshlal. That appointment was against a substantive vacancy. The substantive vacancy had arisen, obviously, before the above noted cut off date. There is no reason to identify those posts in the Department of Mathematics or Department of Botany in the S.N.College, Kollam, as posts which w

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2019 Supreme(Ker) 930

Cases Referred (4)