learned Single Judge. The 1st respondent was the petitioner in the
2. The Writ Petition was filed by the 1st respondent, who was,
Thiruvananthapuram. He had filed the W.P. (C) seeking the
iv) grant such other reliefs as this Hon'ble Court deems fit and
proper in the circumstances of the case, including the costs of
this Writ Petition (Civil)"
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3. The W.P.(C) was disposed of by the learned Single
Judge vide impugned judgment, due to the retirement of the 1 st
respondent during the interregnum, the only issue that was live for
consideration relates to the non-sanctioning of the telephone facility
with retrospective effect from 01.11.1999. Other issues in the W.P.
(C) concerning the disbursement of a loan for the purchase of a
motor car had become redundant. The learned Single Judge thus
proceeded to consider the sole issue concerning the telephone
facility and found the same in favour of the 1 st respondent and
quashed Ext.P13 whereby the request of the 1st respondent in the
relevant respect had been rejected. It was further directed that
consequential orders shall be passed and eligible amounts
disbursed to the 1st respondent as expeditiously as possible, at any
rate, within three months from the date of receipt of a copy of the
judgment. Aggrieved by the said Judgment, the State has filed this
Writ Appeal.
4. Heard Sri.Sunil Kumar Kuriakose, learned Government
Pleader for the appellant and Smt.Priya Shanavas, Advocate, for the
1st respondent.
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5. The learned Government Pleader contended that the
impugned judgment, to the extent it directs the Government to
disburse the amount spent by way of telephone charges between
01.11.1999 and 30.01.2006 to the 1st respondent, is erroneous and
legally unsustainable. The finding of the learned Single Judge that
the Hon'ble Supreme Court had in the All India Judges Association
case directed the State to grant telephone facility with retrospective
effect from 01.11.1999 is incorrect. It is contended that the direction
of the Hon'ble Supreme Court in the Judges Association case and
the recommendation of the Shetty Commission were that the State
should provide telephone facilities with STD to all eligible courts. It is
further contended that the sanctioning of the telephone facility has
no retrospective effect as per the recommendations in the report
submitted by Justice Padmanabhan Commission. The learned
Government Pleader submitted that the 1st National Judicial Pay
Commission had not recommended sanctioning telephone
allowance with retrospective effect. It is the prerogative of the
Government to decide whether to sanction telephone allowance with
retrospective effect or not. On matters relating to fiscal policy, the 1st
respondent does not have a vested legal right to seek issuance of a
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direction to the Government to act in a particular way and to
sanction emoluments and allowances, which are not otherwise
available to other Departments of the Government. It is thus
contended that the judgment of the learned Single Judge is legally
unsustainable and the same is fit to be set aside.
6. Per contra, the learned counsel appearing for the 1 st
respondent contended that the judgment of the learned Single
Judge does not require any interference as the same has been
rendered validly and in accordance with the law. It is contended that
the request for sanctioning of telephone facility with retrospective
effect from 01.11.1999 had been rejected in Ext.P13 without stating
any reasons whatsoever. There had been total non-application of
mind to the relevant materials before taking the decision, as seen
reflected in Ext.P13. The recommendation in the report of the First
National Judicial Pay Commission (Shetty Commission), that every
Judicial Officer must be provided with a telephone at his residence
with STD facility, ought to have been given effect to from
01.11.1999. However, in Ext.P8 order, the Government had granted
that benefit only with prospective effect. Judicial officers like
respondent No.1, who had their own telephone, were thus denied
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reimbursement of the eligible telephone charges for the intervening
period. The 1st respondent was having his residence at Kollam,
Chengannur, and at Ernakulam during the relevant period and had
telephone numbers in his official residences at the said three
stations. The denial per Ext.P13 is, without stating any reason, and
is highly arbitrary. The learned Single Judge had correctly
appreciated the legal position and had set aside that part of Ext.P13,
taking full note of the arbitrariness in issuing the same. Reliance is
placed by the learned counsel on the dictum laid down in Aditya
Mass Communications (P) Ltd. v. APSRTC [(2003) 11 SCC 17]
and State of Kerala v. Padmanabhan Nair [1985 KHC 23] and it is
contended that the Writ Appeal has been preferred to intentionally
deny the eligible legal entitlements with effect from 01.11.1999 and
this calls for imposition of exemplary costs. Reliance is also placed
by the learned counsel on the additional documents produced as
Annexures R1(a) to R1(d) and it is contended that Ext.P8 G.O.
issued by the appellant had been superseded vide subsequent
Government Orders and hence, there was no need to challenge
Ext.P8 G.O. To buttress her contentions further the learned counsel
also pointed to the statement that was filed in the W.P.(C) by the 2 nd
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respondent wherein it had been stated that the provision for
reimbursement of telephone charge is also one recommended by
the Shetty Commission and while most of the benefits have been
granted with effect from 01.11.1999 and since the Government has
not cited any reason for not giving retrospective effect to the benefit
of telephone charges, it is only in the fitness of things that this
benefit also be given retrospective effect from 01.11.1999 in tune
with other benefits. The learned counsel for the 1 st respondent thus
strenuously contended that the impugned judgment does not call for
any interference, and the Writ Appeal is only to be dismissed.
7. We have heard both sides in detail. The relevant prayer
sought by the 1st respondent in the WP (C) was to command the
State of Kerala to "...sanction telephone facility to the petitioner at
his residence with retrospective effect from 01.11.1999 and disburse
the amount spent by way of telephone charges between 01.11.1999
and 30.01.2006 within a time limit to be fixed....". The legal
correctness of allowing the said prayer by the learned Single Judge
is to be examined in this Writ Appeal.
8. At the very outset, we note that the facility of a telephone
provided to an incumbent officer at his official residence with a bill
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reimbursement facility, is a 'perquisite' or a 'perk' and not per se an
'allowance'. A 'perquisite' is a benefit or privilege that is provided in
addition to the salary, and it would include an official car, free
accommodation, or, as in this case, a telephone provided at the
judicial officer's residence. While allowances are monetary
reimbursements for specific expenses or additional financial support
and could be claimed retrospectively, 'perks' or 'perquisites' are
benefits and privileges retrospective claimability of which depends
on the nature of the perk as well as on the policy drawn up by the
employer for its entitlement. This essential difference we note has to
be borne in mind before proceeding to consider the contentions put
forth regarding his entitlement to retrospective telephone charges.
9. We note that in Ext.P8 G.O. dated 30.01.2006, it has been
stipulated to provide telephone facility to all the courts and the
eligible judicial officers as recommended by the Commission. It had
also been specified therein that said benefit will have a prospective
effect only. Thereafter Ext.P9 order dated 24.03.2007 implementing
recommendations of the First National Judicial Pay Commission
regarding telephone facility to judicial officials, was issued
specifically referring to the Ext.P8 G.O., but without varying the
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stipulation that the benefits would only be prospective. This was
followed by G.O. dated 05.08.2010 (Ext.P1), referring to Justice
Padmanabhan Commission recommendations, which again
mentioned Ext.P8 G.O. dated 30.01.2006 without any changes in
prospectivity. It is thereafter that Exhibit P10 representation dated
01.10.2011 was preferred by Kerala Judicial Officers Association,
inter alia, referring to the telephone facility and stating the following
as a shortcoming which required rectification:
"The Government have pleased to sanction the
telephone facility as per GO(MS) No. 18/2006/Home dated
30.01.2006. But unfortunately, the said benefit ought to have
been given with effect from 01.11.1999. Therefore, the officers
who were having personal telephone during the said period
from 01.11.1999 till availing new connection as per the said
notification, must be permitted to get reimbursement of the
previous telephone charges, subject to the limits prescribed by
the Shetty Commission."
The said representation was directed to be considered expeditiously
by this Court vide Ext.P11 judgment, and in compliance thereof,
Ext.P13 order was issued inter alia stating that judicial officers are
already enjoying the telephone facility as per Ext.P8 order and the
request to give the same retrospective effect from 01.11.1999
cannot be considered.
10. We note that in the W.P.(C), Ext. P13 order alone had
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been challenged and that neither Ext.P8, which had originally
stipulated a prospective effect for the telephone facility, from
30.01.2006, nor the subsequent orders viz., Exts.P1 & P9, which
followed and referred to Ext.P8 were challenged. This deficiency is
attempted to be explained out by the 1 st respondent, stating that
subsequent G.Os issued, viz., Exts.R1 (a) to (d) had the effect of
superseding Ext.P8 G.O. thus rendering its challenge unnecessary.
This contention cannot be countenanced insofar as Exts.R1(a) to (d)
are essentially related to allowances, and whenever they mentioned
amenities or perks, they did not stipulate retrospectivity, overriding
the specific stipulation to the said respect in Ext.P8. Further, as
revealed from Ext.P1 G.O., this Court had in its order dated
04.05.2010 in I.A.No.244 in W.P.(C) No.1022 of 1989 directed
implementation of the recommendations in the report of the Justice
Padmanabhan Commission, with effect from 01.01.2006 only. Thus,
the contention put forth by the 1st respondent for sanctioning the
telephone facility to his residence with retrospective effect from
01.11.1999 and to disburse the amount spent by way of telephone
charges between 01.11.1999 and 30.01.2006 has no legal backing
at all, except may be pious hope or wish that since other allowances
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had been extended from 01.11.1999, the perk on telephone may
also be retrospectively granted.
11. Over and above the same, sanctioning of telephone
allowance with retrospective effect is a matter that squarely falls
within the policy realm and has fiscal implications. It is trite and
settled that Courts seldom interfere directly with policy decisions
which have monetary overtones. They are generally considered to
be the domain of the executive and legislative branches. The
learned Judge has reasoned the decision to quash Ext.P13 and the
direction to disburse the telephone charges from 1999 onwards till
2006 to the 1st respondent on the premise that he had been agitating
this issue for so long. It is also reasoned that Kerala had been one
of the first States to implement the recommendations of the First
National Judicial Pay Commission in toto. The same, we are afraid,
are not reasons legally sufficient to justify the quashing of Ext.P13
and for substantiating the direction to effect disbursement. We find
merit in the contention put forth by the Government Pleader that
enforcing the said direction at this belated point in time, especially
when nothing had been presented by the 1 st respondent regarding
the telephone bills and charges paid, except for the random
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mentioning of three telephone numbers of the three residences
situated at Kollam, Chengannur and Ernakulam, is impractical and
could also lead to similar unverifiable claims from other quarters. It is
also relevant to note that the 1st respondent has preferred the W.P.
(C) only in 2012 inter alia, raising claims with respect to the
disbursement of the telephone charges for the period 1999-2006.
The cause of action had arisen as early as 2006 when Ext.P8 was
issued specifying the prospectivity of the telephone facilities. We are
of the opinion that the claim put forth regarding extending telephone
facility, in addition to the above-mentioned inadequacies, suffers
from the vice of inordinate delay and laches too. There was thus no
scope or legal reason to entertain the relevant prayers made in the
Writ Petition, as seen allowed in the impugned judgment.
In the light of the above, we set aside the judgment of the
learned Single Judge. The Writ Appeal is allowed.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
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RESPONDENT ANNEXURES
Annexure R1(a) TRUE COPY OF G.O.(MS) NO.70/2007/ HOME,
DATED 03.04.2007.
Annexure R1(b) TRUE COPY OF G.O.(MS) NO.09/2008/HOME
DATED 11.01.2008.
Annexure R1(c) TRUE COPY OF G.O.(MS) NO.106/2010/HOME,
DATED 07.05.2010.
Annexure R1(d) TRUE COPY OF G.O.(MS) NO.286/20212/
HOME, DATED 14.11.2012.
