SUBRAMONIAM Vs. KERALA AGRICULTURAL UNIVERSITY

JUDGEMENT

(1.) Petitioners are employees of the Kerala Agricultural University. They were directly recruited as Lower Division Clerks. Promotion tests were prescribed by the first Ordinance prescribing the test in Manual of Office Procedure as necessary for probation in the post of L.D. Clerk and Account test for promotion to higher posts. In respect of other matters, the University made the provisions of the Kerala State and Subordinate Services Rules applicable to the petitioners. The petitioners claim, promotion during the period of exemption available under R.13A of the Kerala State and Subordinate Services Rules. But disregarding such claims, test qualified juniors were promoted earlier. The first petitioner filed OP No. 1533 of 1977 claiming exemption from acquiring the test qualification for two years from the date of promulgation of the University Ordinance prescribing the probation and promotion tests, and a review of promotions to the posts of UD Clerk effected after 1-2- 1972. That Original Petition was allowed. Since the directions contained in the judgment were not given effect to, petitioners 2 and 3 filed OP 2079/79. That Original Petition was allowed by judgment dated 21-12-1979. Pursuant to the directions in the above judgment, the University rejected the claims of the petitioners for exemption in its order dated 19-12-1980. The petitioners along with some others filed OP 1373/80 against that order. Part of the relief was granted by a single Judge of this Court who disposed of that Original Petition. In Writ Appeal Nos. 172/82 & 207/82, a Division Bench of this Court in its judgment dated 28-3-1983 held that:

(2.) Counsel for the petitioner submits that the effect of Ext. P1 order is to uphold the claim of the petitioners for earlier promotion. Admittedly such promotions were withheld and their juniors were promoted earlier. Had the petitioners been promoted in their turn, they would have obtained monetary benefits as well. If it is conceded that they were entitled to earlier promotion, the respondents are bound to give them arrears of salary which they would have been entitled to, had they been given due promotions at the appropriate time. It was so done in the case of teaching staff as is evident from Ext. P6. Counsel submits that there is no particular reason why it shall not be so done in the case of the petitioners. Reliance is placed on the decisions of this Court in Narayana Menon v. State of Kerala ( 1978 KLT 29 ) and Rajappan Nair v. State of Kerala ( 1984 KLT 141 ). Reference is also made to the decision reported in Philomina v. State of Kerala ( 1984 KLT 59 ). In all the three decisions this Court had held that normally, and except in exceptional circumstances, a Government servant is emitted to be paid salary which he would have been entitled to but for the wrong denial of promotions or delay in ordering such promotions. Khalid, J. (as he then was) in Narayana Menon's case held that the Government servant is naturally entitled to all benefits of promotion which is his due and which was delayed or denied not on account of his conduct or laches. Poti, C. J. speaking for the Bench in Rajappan Nair's case held that denial of monetary benefits consequent on delayed promotion was only partial restoration and the restoration which he is entitled to would be effective only if the whole of the monetary benefits consequent on the retrospective promotion was awarded to him. A slightly different note was struck in Philomina's case by another Division Bench of this Court. My learned brother Kochu Thommen, J. speaking for the Bench held that no Government servant is entitled to be paid for work which he has not done except in exceptional cases. He, however, held that the case of a person kept cut of work or denied or deprived of his rightful place by an illegal order which, upon declaration or admission of its illegality becomes wholly destitute of legal efficacy, is one of the exceptions. Cases where an innocent mistake made by the administration resulted in a Government employee being kept out of work, did not, according to that decision, entitle the concerned Government servant to claim salary for the period when he did not work, albeit for no fault of his.

(3.) Counsel for the respondents submit that the entitlement of the petitioners for promotion according to seniority during the period of exemption was declared by this Court only on 28-3-1983. According to him, the University could not pass consequential orders immediately thereafter due to the pendency of appeals before a Full Bench in which the question of availability of exemption was itself an issue. Ext. P1 order was issued immediately after the Full Bench rendered its decision. Counsel for the respondents submits that the University has already paid the higher salary to the juniors who had actually worked in the promotion post and therefore, it is not obliged to pay the difference of salary to the petitioners since that will be payment twice over first to the persons who actually worked in the higher post, and then to those who are nationally deemed to have been entitled to work in such posts. According to him, the retrospective promotion and consequential refixation of pay with entitlement for arrears with effect from the date of actual promotion to the higher category is adequate restoration in the case of the petitioners. He therefore submits that the claim for difference in the salary which the petitioners had actually drawn and that which they would have drawn is not entertainable. It is also submitted that the denial of promotion was due to an honest mistake or an innocent error about the effect of the statutory rules which had to be clarified by this Court.