Reshmi Tilak vs The Kerala State Social Welfare ...
2021 Latest Caselaw 16176 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
                       WP(C) NO. 24492 OF 2020
PETITIONER :-

           RESHMI TILAK,
           STATISTICAL ASSISTANT, KERALA STATE SOCIAL WELFARE
           ADVISORY BOARD, SASTHAMANGALAM,
           THIRUVANANTHAPURAM-695 010

          BY ADVS.
          SRI.P.K.MANOJKUMAR
          SMT.SMITHA S.PILLAI
          SMT.ALICE THOMAS
          SMT.M.C.SINY
          SRI.N.NANDAKUMARA MENON (SR.)


RESPONDENTS :-

    1      THE KERALA STATE SOCIAL WELFARE ADVISORY BOARD
           SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010,
           REPRESENTED BY ITS SECRETARY

    2      THE CHAIRPERSON,
           KERALA STATE SOCIAL WELFARE ADVISORY BOARD,
           SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010

    3      THE CENTRAL SOCIAL WELFARE BOARD,
           REPRESENTED BY THE EXECUTIVE DIRECTOR,
           OFFICE OF THE CENTRAL SOCIAL WELFARE BOARD,
           SAMAG KALYA BHAVAN, B-12, QUTUB INSTITUTIONAL AREA,
           NEW DELHI-16

    4      THE STATE OF KERALA,
           REPRESENTED BY THE SECRETARY TO GOVERNMENT,
           DEPARTMENT OF SOCIAL WELFARE,
           GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

          BY ADVS.
          SRI.P.VIJAYAKUMAR, ASG OF INDIA
          SMT. PARVATHY KOTTOL -G.P.

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 24492 OF 2020

                                   -: 2 :-


                               JUDGMENT

Dated this the 4th day of August, 2021

This writ petition is filed seeking the following reliefs :-

"i) To issue a writ of certiorari or other appropriate writ order or direction to quash Exhibits P16 and P18 orders issued by the Department of Social Welfare, Government of Kerala.

ii) To issue a writ of mandamus or other appropriate writ order or direction directing respondents 1, 2 and 4 to pay to the petitioner the arrears of pay due to the petitioner on the basis of Exhibits P1, P3, P6 and P7 judgments of this Hon'ble Court and Exhibit P10 order dated 25-7-2015 issued by the 2nd respondent K.S.S.W.Board and Exhibit P14 order issued by the 1st respondent.

iii) To issue a writ of mandamus or other appropriate writ order or direction directing respondents 1, 2 and 4 to pay to the Petitioner the arrears of pay as fixed in Exhibit P10 order 25-7-2015 with market rate interest, for the period 1-9-1998 to June 2015."

2. Heard the learned Senior Counsel for the petitioner and

the learned Government Pleader appearing for the 4 th respondent as

well as the learned Assistant Solicitor General of India appearing for

respondents 1 to 3.

3. It is submitted that the petitioner is working as Statistical

Assistant under the 1st respondent. By Ext.P1 judgment of this Court,

it was declared that the petitioner is eligible for annual increments WP(C) NO. 24492 OF 2020

with effect from 1.7.2000 onwards and her pay has to be revised

accordingly within three months from the date of receipt of a copy of

this Court's judgment. It is submitted that though a review petition

had been attempted by the 1st respondent, the same was rejected on

the ground of delay. An appeal was preferred by the State Board and

the Chairperson thereof and Ext.P3 judgment was rendered on

13.1.2014. It was found that since the Government had issued

ratification for the regularisation of the petitioner, the ratification

necessarily relates back to the date of appointment and therefore,

there is nothing wrong in the direction in Ext.P1 judgment that the

petitioner was entitled to the benefit of the ratification from 1.7.2000.

The appeal was, therefore, dismissed. Thereafter, Ext.P4 order was

issued showing the date of commencement of regular service of the

petitioner as 1.7.2000. The contempt of court case moved by the

petitioner was closed recording the passing of Ext.P4 order.

4. The petitioner filed W.P.(C) No.27218/2014 which was

disposed of by Ext.P7 judgment finding that since the judgment

directing the grant of annual increment with effect from 1.7.2000 had

become final, the action of the respondents by Ext.P4 in reckoning

the date of commencement of service of the petitioner as 1.7.2000 WP(C) NO. 24492 OF 2020

and in fixing the first increment date as 1.7.2001 was illegal and

directed that the date of first increment shall be substituted as

1.7.2000 and the fixation of the other increments of the petitioner

shall be revised accordingly. It is submitted that thereafter, steps

had been taken to release the amounts due to the petitioner. Ext.P10

order of approval of fixation statement was issued by the State Board

on 25.7.2015 reckoning the petitioner's first increment from 1.7.2000

and revising further increments accordingly. Exts.P11 and P12

representations were made by the petitioner seeking arrears of the

refixation as carried out in Ext.P10. It is submitted that by Ext.P13

proceedings, the Central Board required the State Board to revise the

petitioner's pay and to pay an amount of Rs.1,24,773/- which is the

arrears due on the refixation of her pay. The State Board was

required to forward the proposal for payment of the said amounts to

the State Government for necessary action. It is submitted that by

Ext.P14, the State Board had forwarded the proposal for payment of

the arrears of Rs.1,24,773/- to the Government on 26.2.2016.

However, by Ext.P16 communication, the Special Secretary found

that the date of entry of the petitioner in service was only 20.3.2001

and therefore, the reckoning of the date of increment and calculating WP(C) NO. 24492 OF 2020

the arrears thereof was improper. By Ext.P17 proceedings, the

Secretary of the Board clarified that the date of increment was

reckoned as 1.7.2000 pursuant to specific directions of this Court and

that in view of the categoric directions of the court, the further steps

for payment of the arrears have to be taken by the respondents.

However, it appears that by Ext.P18 proceedings dated 30.1.2020, an

Under Secretary of the Government has again addressed the Board

stating that the direction in the judgment is only to allow the first

increment and therefore, the grant of the further increments have to

be reconsidered.

5. The learned Senior Counsel appearing for the petitioner

submits that Ext.P1 judgment had become final by Ext.P3 judgment in

appeal. It is apparent that the State Government was also a party to

Ext.P1 judgment. No steps had been taken by the State Government

to prefer any appeal as against Ext.P1. The appeal preferred by the

State Board stood dismissed by Ext.P3. In the above view of the

matter, it is clear that the respondents, including the State

Government, who was a party to the writ petition, were bound by the

directions contained in Ext.P1 judgment and thereafter, in Ext.P7. As

a matter of fact, this Court had, by Ext.P9 order dated 6.7.2015 WP(C) NO. 24492 OF 2020

directed the respondents to show cause why suo motu contempt shall

not be initiated against the respondents. In any view of the matter,

the learned Senior Counsel for the petitioner submits that in view of

the concluded judgment with regard to the date of increment of the

petitioner and the further directions in Ext.P7 to fix the first

increment of the petitioner with effect from 1.7.2000 and the further

increments in accordance with such date, the observations contained

in Exts.P16 and P18 are completely untenable and beyond the

competence of the officers who had authored the same or even of the

Government in view of the fact that Ext.P1 judgment stands

concluded against them and since they have not raised even a little

finger to challenge the same by any means known to law.

6. A counter affidavit has been placed on record by the 1 st

respondent, wherein it is contended that the annual increment of the

petitioner was sanctioned with effect from 1.7.2000 and an amount of

Rs.55,000/- had been released to the petitioner. It is stated that with

regard to the arrears, the State Board had initiated correspondence

with the State Government for sanction of funds for implementation

of the judgments and it was only due to the delay in release of the

funds that the arrears had not been paid. It is further contended that WP(C) NO. 24492 OF 2020

the issue has been considered by the State Board and Ext.R1(a)

minutes are produced to contend that the directions in the judgment

are complied with by the Board. The learned Senior Counsel

appearing for the petitioner submits that even in Ext.R1(a) minutes,

the judgment of this Court in Ext.P7 is not fully complied with.

7. I have considered the contentions advanced on all sides. It

is clear that Ext.P1 judgment specifically directs the grant of annual

increment to the petitioner with effect from 1.7.2000 onwards and

further directs revision of her pay accordingly. The said direction

was subjected to an appeal and the appeal was dismissed by Ext.P3

judgment upholding the directions of the learned Single Judge.

8. In the above view of the matter, I am of the clear opinion

that the State Government, which was a party to both Exts.P1 and P3

cannot be heard to contend anything against Ext.P1 judgment. This

Court in Exts.P6 and P9 orders has also alerted the Board as well as

the Government that the judgments of this Court are not open to

interpretation at the hands of its officers and that they must be

complied with in full, in letter and spirit. In Ext.P7 judgment also,

this Court set aside the order passed by the State Board to the extent

it fixed the first increment of the petitioner on 1.7.2001. The date of WP(C) NO. 24492 OF 2020

first increment was substituted as 1.7.2000 and fixation of other

increments was ordered to be revised accordingly. It appears that it

is on the said basis that Ext.P10 fixation statement has been arrived

at and Exts.P13 and P14 communications seeking funds for the

payment of Rs.1,24,773/- as arrears to the petitioner on account of

such refixation was sought for from the State Government. It is at

that juncture that Exts.P16 and P18 orders appear to have been

issued by the State Government. I can only say that in view of the

concluded findings in Exts.P1 and P3, Exts.P16 and P18 were

completely unwarranted, beyond the powers of the authors of the

same and bordered on contempt of the orders and authority of the

same. There was no finding in Ext.P1 which could be construed as a

precedent and that as such, the issue could have been resolved by

paying the amount to the petitioner without any further

consequences.

In the above view of the matter, I am of the opinion that

the directions contained in Exts.P1 and P7 judgments are liable to be

complied with in full, without any interpretation by any of the officers

of the State Government. There will, accordingly, be a direction to

the State Government to immediately make available the fund WP(C) NO. 24492 OF 2020

necessary for paying the arrears due to the petitioner as computed in

Exts.P13 and P14. The amount shall be paid within a period of one

month from the date of receipt of a copy of this judgment. The

amounts so computed shall carry simple interest at the rate of 6% per

annum from 8.2.2016 to the date of payment. It is made clear that

the interest due to the petitioner shall also be paid by the 4 th

respondent in view of the fact that the officers of the 4 th respondent

were responsible for the delay in effecting payment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/5.8.2021 WP(C) NO. 24492 OF 2020

APPENDIX OF WP(C) 24492/2020

PETITIONER EXHIBITS

EXHIBIT P1 THE PHOTOSTAT COPY OF THE JUDGMENT DATED 13.6.2013 IN WPC NO.20259/2006 PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM

EXHIBIT P2 THE PHOTOSTAT COPY OF THE JUDGMENT DATED 30.10.2013 IN RP NO.7320/2013 IN WPC NO.20259/2006 PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM

EXHIBIT P3 THE PHOTOSTAT COPY OF THE JUDGMENT DATED 13.1.2014 IN WA NO.49/2014 PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM

EXHIBIT P4 THE PHOTOSTAT COPY OF THE ORDER NO.KSWBI/ESTT/2012/8 DATED 24.2.2014 PASSED BY THE CHAIRPERSON 2ND RESPONDENT BOARD

EXHIBIT P5 THE PHOTOSTAT COPY OF THE JUDGMENT DATED 20.8.2014 IN CONTEMPT CASE (C) NO. 7 OF 2014 (S) PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM

EXHIBIT P6 THE PHOTOSTAT COPY OF THE ORDER DATED 19.1.2015 IN WPC NO.27218/2014(B) PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM

EXHIBIT P7 THE PHOTOSTAT COPY OF THE JUDGMENT DATED 25.2.2015 IN WPC NO.27218/2014 (B)/2006 PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM

EXHIBIT P8 THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 9.2.3.20-15 SUBMITTED BY THE PETITIONER TO THE SECRETARY OF THE 1ST RESPONDENT BOARD

EXHIBIT P9 THE PHOTOSTAT COPY OF THE ORDER DATED 6.7.2015 IN IA NO.9206/2015 IN WPC NO.27218/2014 PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM WP(C) NO. 24492 OF 2020

EXHIBIT P10 THE PHOTOSTAT COPY OF THE ORDER DATED 25.7.2015 NO.KSWB1/ESTT/RT/2915/3 PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM

EXHIBIT P11 THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 28.12.2015 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT BOARD

EXHIBIT P12 THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 27.1.2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT BOARD

EXHIBIT P13 THE PHOTOSTAT COPY OF THE COMMUNICATION DATED 8.2.2016 NO.F.9-9/KER/96-97/SBA PASSED BY THE DEPUTY DIRECTOR (SBA) TO THE 1ST RESPONDENT BOARD

EXHIBIT P14 THE PHOTOSTAT COPY OF THE COMMUNICATION NO.KSWB/CC/RT/2016/785 DATED 26.2.2016 ISSUED BY THE 1ST RESPONDENT TO THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT

EXHIBIT P15 THE PHOTOSTAT COPY OF THE COMMUNICATION NO.F.9-

9/KER/96-97/SBA DATED 20.5.2016 ISSUED BY THE DEPUTY DIRECTOR (SBA) TO THE 1ST RESPONDENT

EXHIBIT P16 THE PHOTOSTAT COPY OF THE COMMUNICATION NO.C2/99/2016/SBA DATED 13.6.2019 ISSUED BY THE SPECIAL SECRETARY, TO THE SPECIAL SECRETARY OF THE 1ST RESPONDENT BOARD

EXHIBIT P17 THE PHOTOSTAT COPY OF THE COMMUNICATION NO.KSSWB/ESTT/2019/135 DATED 6.7.2019 ISSUED BY THE SECRETARY , 1ST RESPONDENT TO THE SPECIAL SECRETARY,SOCIAL WELFARE DEPARTMENT, GOVERNMENT OF KERALA TVM

EXHIBIT P18 THE PHOTOSTAT COPY OF THE COMMUNICATION NO.

C2/99/2016/SBA DATED 30.1.2020 DIRECTING THE SECRETARY OF THE FIRST RESPONDENT BOARD BY THE 4TH RESPONDENT WP(C) NO. 24492 OF 2020

RESPONDENT EXHIBITS

EXHIBIT R1(a) TRUE COPY OF THE MINUTES OF THE FINANCE COMMITTEE HELD ON 5.11.2020