P.C.Sahajan vs State Of Kerala
2021 Latest Caselaw 5837 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

                      WP(C).No.21069 OF 2019(R)

PETITIONERS:

      1        P.C.SAHAJAN, (RETIRED LIBRARY ASSISTANT (SENIOR
               GRADE) HIGH COURT OF KERALA, ERNAKULAM, KOCHI,
               PIN-682031) RESIDING AT PALARI HOUSE,
               KIZHAKKEPRAM, NORTH PARAVUR, ERNAKULAM,
               PIN-683513.

      2        JONHY K.P, LIBRARY ASSISTANT (SENIOR GRADE),
               HIGH COURT OF KERALA, ERNAKULAM, KOCHI,
               PIN-682031.

      3        MOTHILAL K.R, LIBRARY ASSISTANT (SENIOR GRADE),
               HIGH COURT OF KERALA, ERNAKULAM, KOCHI,
               PIN-682031.

      4        XAVI M.J, LIBRARY ASSISTANT (HIGHER GRADE),
               HIGH COURT OF KERALA, ERNAKULAM, KOCHI,
               PIN-682031.

      5        A.C. NANDAKUMAR, LIBRARY ASSISTANT (HIGHER GRADE),
               HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682031.

      6        T.K. ROMIO, LIBRARY ASSISTANT (HIGHER GRADE), HIGH
               COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682031.

               BY ADVS.
               SRI.S.P.ARAVINDAKSHAN PILLAY
               SMT.N.SANTHA
               SRI.V.VARGHESE
               SRI.PETER JOSE CHRISTO
               SRI.S.A.ANAND
               SMT.K.N.REMYA
               SMT.L.ANNAPOORNA
               SHRI.VISHNU V.K.
               KUM.ABHIRAMI K. UDAY

RESPONDENTS:

      1        STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
               GOVERNMENT, HOME DEPARTMENT, SECRETARIAT,
               THIRUVANANTHAPURAM, PIN-695001.
 WP(C).No.21069 OF 2019
                              -2-


       2      HIGH COURT OF KERALA,
              REPRESENTED BY ITS REGISTRAR GENERAL,
              ERNAKULAM, KOCHI, PIN-682031.


              BY ADVS.
              SRI.SANTHOSH MATHEW
              SHRI.B.G.HARINDRANATH
              SRI.SUNIL KUMAR KURIAKOSE-GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C).No.21069 OF 2019
                                -3-

                            JUDGMENT

The 1st petitioner is stated to have retired

from the services of the High Court of Kerala as a

Library Assistant (Senior Grade); while the other

petitioners are stated to be serving as Senior

Grade and Higher Grade Library Assistants. The

petitioners have approached this Court impugning

Ext.P13 order of the Government, which sanctions

Selection Grade to Library Assistants of the High

Court only with effect from 01.04.2016, instead of

01.07.2014; and then further, denies the salary

and other benefits due to them in such Grade until

30.04.2019.

2. According to the petitioners, the Chief

Justice of the High Court of Kerala, under the

mandate of the proviso to Article 229(2) of the

Constitution of India, forwarded the proposed

Rules with respect to the establishment of the

Court, to the Government for approval of the

Governor; but that when it was denied, they were WP(C).No.21069 OF 2019

constrained to approach this Court by filing W.P.

(C)No.17938/2018, which culminated in Ext.P12

judgment, wherein, a learned Judge of this Court

allowed it and issued the following directions:

In the circumstances stated above Exts.P7 and P10 to the extent those relates to the denial of Selection Grade to Library Assistants are set aside. There shall be a direction to the 1st respondent to reconsider Ext.P9, in tune with Ext.P6 rules to the extent it relates to grant of Selection Grade to Library Assistants and to pass orders, taking note of the aforesaid observations, within a period of four months from the date of receipt of a copy of the judgment.

3. The petitioners allege that, in spite of

the specific directions in Ext.P12 judgment, the

Government has now issued Ext.P13 order, granting

the benefit of Selection Grade to the post of

Library Assistants in the High Court in the ratio

of 2:2:1:1, among Library Assistants, Library

Assistants (Higher Grade), Library Assistants

(Senior Grade) and Library Assistants (Selection

Grade) with effect from 01.04.2016 only; and to

make it still worse, has further ordered that WP(C).No.21069 OF 2019

arrears up to 30.04.2019 shall only be notional.

They, therefore, pray that Ext.P13 be set aside.

4. I have heard Sri.V.Varghese - learned

counsel for the petitioners; Sri.B.G.Hareendranath

- learned counsel appearing for the High Court of

Kerala and Sri.Sunil Kumar Kuriakose - learned

Government Pleader appearing for the 1st respondent

- State of Kerala.

5. Sri.V.Varghese - learned counsel appearing

for the petitioners, argued that Ext.P13 is

egregiously improper because it goes blatantly

against the directions in Ext.P12 judgment and

also since it cites no cogent reason as to why the

benefits of Selection Grade until 30.04.2019 have

been ordered to be only notional. He, therefore,

reiteratingly prayed that Ext.P13 be set aside and

the Government be directed to implement Ext.P6

Rules implicitly.

6. In response, Sri.Sunil Kumar Kuriakose -

learned Government Pleader, submitted that the WP(C).No.21069 OF 2019

prayer of the petitioners for grant of Selection

Grade with effect from 01.07.2014 cannot be

permitted since, even going by the statement filed

on record by the High Court of Kerala, this

benefit is eligible to them only with effect from

01.04.2016. He submitted that this having been

acceded to by the Government in Ext.P13, the

petitioners cannot have any further grievance and

therefore, prayed that the said order be approved.

He then added that the arrears up to 30.04.2019

have been ordered to be only notional, solely on

account of the financial constraints faced by the

Government consequent to the 2018 and 2019 floods

faced by the State of Kerala and that they,

therefore, thought it fit to treat the benefits up

to that date as being notional and to let the

petitioners and other similarly placed persons

avail of it thereafter. He added that the

mentation of the Government is that since the

floods had caused ravage to all sections of the WP(C).No.21069 OF 2019

society, the employees of the High Court also

should share a part of the said burden. He,

therefore, prayed that this Writ Petition be

dismissed.

7. Sri.B.G.Hareendranath - learned counsel

appearing for the High Court of Kerala, submitted

that a statement has been filed on record,

wherein, it has been explained as to how the Rules

were framed by the Chief Justice of Kerala; but he

conceded that the claim of the petitioners for the

benefit of Selection Grade with effect from

01.07.2014 may not have legs to stand on since,

even the High Court is of the opinion that such

benefits should be granted with effect from

01.04.2016 only.

8. I must record at this juncture that

Sri.V.Varghese - learned counsel for the

petitioners, interjected to say that even though

his clients have made a request for sanction of

the benefits with effect from 01.07.2014, they are WP(C).No.21069 OF 2019

not pressing the same and that they are satisfied

with Ext.P13 order of the Government to the extent

to which it has sanctioned them the Selection

Grade with effect from 01.04.2016. He submitted

that, therefore, all which is now been pressed, is

the plea against the Government ordering that the

benefits until 30.04.2019 will be treated only as

notional.

9. On hearing Sri.V.Varghese as afore,

Sri.B.G.Hareendranath submitted that since the

petitioners and similarly placed employees are

entitled to the benefits of Selection Grade with

effect from 01.04.2016, there is absolutely no

reason as to why Government should have ordered

them to be treated until 30.04.2019 as being

notional. He submitted that it is the normative

Rule that when Selection Grade is granted from a

particular date, the benefits under it should also

flow from that date. He thus prayed that this writ

petition be allowed to this extent. WP(C).No.21069 OF 2019

10. The afore record of the submissions

of the rival parties make it clear that all which

this Court is now required to consider is whether

Ext.P13 - to the extent to which it treats the

benefits of Selection Grade granted to the

petitioners and similarly placed persons until

30.04.2019 to be notional - is valid or otherwise,

because the claim of the petitioners' for such

benefit from 01.04.2014 has been given up and

since they say that they are satisfied with the

grant of such benefits with effect from

01.04.2016.

11. Since this is all that I am now

required to consider, I will, therefore, confine

my views to this and nothing else.

12. A reading of Ext.P13 makes it

indubitable that the Government have examined all

the factors - including that similarly placed

employees in their services were given the

benefits of Selection Grade from 01.04.2016 - to WP(C).No.21069 OF 2019

find in favour of the petitioners and to grant

them the same with effect from that date.

However, there is absolutely nothing on record to

show that the employees of the Government have

been denied monetary benefits of Selection Grade

until 30.04.2019, though the counter affidavit

filed on behalf of the first respondent asserts

that the petitioners cannot seek such benefits

from a particular date as a matter of right.

Incredulously, they further say that, in Ext.P12

judgment, this Court had not directed that the

monetary benefits to the petitioners must be

granted from any particular date and therefore,

that it is up to them to decide the date on which

such benefits become payable.

13. I must say that I am quite startled

by the submissions made on behalf of the State as

afore, because once Selection Grade is sanctioned

to a particular service from a particular date, it

normally goes without saying that the benefits WP(C).No.21069 OF 2019

under it should also start flowing from that date.

In the most exceptional circumstances when this is

not so granted, the Government is obligated to

justify it by cogent and acceptable reasons; but

cannot maintain, in an abstract manner, that no

employee can seek the benefits of a Selection

Grade from a particular date and that they are

entitled to fix any date, for such purpose, of

their choice. This certainly cannot be

countenanced because, when the Selection Grade is

sanctioned with effect from 01.04.2016, it is the

normative Rule that its benefits should flow from

that date and since the Government records no

reason, much less a valid one, for denying this in

Ext.P13 order, I cannot find favour with it to

such extent.

14. That said, even though Ext.P13 is

silent as to why monetary benefits have been

denied until 30.04.2019, the Government, in their

counter affidavit, has attempted to justify it on WP(C).No.21069 OF 2019

the ground of financial constraints due to the

floods faced by our State during the years 2018

and 2019. I am afraid that this reason, per se,

cannot appeal to me because, even if it is

accepted that the State had faced any such

financial crisis during the afore two years, the

benefits of Selection Grade could not have been

withheld permanently till 30.04.2019, which would

then have the certain effect of snatching what has

been granted with one hand by the other.

15. I am persuaded to my opinion as afore

also because, though the Government cites

financial constraints to deny the monetary

benefits to Library Assistants of the High Court

until 30.04.2019, it has not even whisperingly

averred that such benefits have been denied to

employees under its services. I, therefore, fail

to see why the employees of the High Court alone

should shoulder the burden of the financial

fallout, if any, on account of the floods. WP(C).No.21069 OF 2019

In the afore circumstances, I order this

writ petition and set aside Ext.P13 to the extent

to which it orders that the monetary benefits of

Selection Grade - granted to the petitioners and

other Library Assistants in the services of the

High Court of Kerala with effect from 01.04.2016 -

will not be granted until 30.04.2019; with a

consequential direction to the first respondent to

ensure that all such benefits are paid and

disbursed to them as expeditiously as is possible

but not later than three months from the date of

receipt of a copy of this judgment.

This writ petition is thus disposed of.

Sd/-

DEVAN RAMACHANDRAN JUDGE RR/akv WP(C).No.21069 OF 2019

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LETTER NO.A2-16777/ 2005 DATED 25.04.2005 OF THE 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE GOVERNMENT LETTER NO.22542/C2/2005/HOME DATED 05.09.2005.

EXHIBIT P3 TRUE COPY OF THE RELEVANT EXTRACT OF GO(MS) NO.230/2006/HOME DATED 26.12.2006.

EXHIBIT P4 TRUE COPY OF THE REPRESENTATION WITHOUT ITS ENCLOSURE SUBMITTED BY THE PETITIONERS AND OTHER LIBRARY ASSISTANTS OF THE HIGH COURT BEFORE THE CHAIRMAN OF THE 10TH PAY REVISION COMMISSION.

EXHIBIT P5 TRUE COPY OF THE RELEVANT EXTRACT OF 10TH PAY REVISION COMMISSION REPORT.

EXHIBIT P6 TRUE COPY OF D.O. LETTER NO, F2/J3-

49631/2014 DATED 06.11.2015.

EXHIBIT P7 TRUE COPY OF RELEVANT EXTRACT OF G.O(P) NO.180/2016/HOME DATED 20.06.2016.

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 25.07.2016 SUBMITTED BY THE PETITIONERS AND OTHER LIBRARY ASSISTANTS BEFORE THE 2ND RESPONDENT WITHOUT ITS ENCLOSURES.

EXHIBIT P9 TRUE COPY OF THE RELEVANT EXTRACT OF LETTER NO.F2/J3-49631-2014 DATED 07.10.2016 OF THE 2ND RESPONDENT.

EXHIBIT P10 TRUE COPY OF G.O(P) NO.19/2018/HOME DATED 28.04.201814.

EXHIBIT P11 TRUE COPY OF THE G.O(MS) NO.315/16/ HOME DATED 14.12.201615.

WP(C).No.21069 OF 2019

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 05.12.2018 IN WP(C)NO.17938/2018 OF THIS HON'BLE COURT.

EXHIBIT P13 TRUE COPY OF THE G.O(MS) NO.,103/2019/HOME DATED 19.07.2019.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R2(1) TRUE COPY OF THE LETTER NO.FW3-

49631/2014 DATED 17.7.2018 ISSUED BY THE HIGH COURT OF KERALA.

EXHIBIT R2(2) TRUE COPY OF THE G.O.(MS) NO.40/2017/HOME DATED 04.03.2017.

EXHIBIT R1A TRUE COPY OF THE RELEVANT PAGES OF THE ORDER G.O 7/16/FIN DATED 20.01.2016