DY DIRECTOR OF EDUCATION Vs. KUTTYKRISHNA PODUVAL

JUDGEMENT

(1.) The grievance of the State in this appeal is only in regard to the direction of the learned Single Judge for monetary benefits being given to the respondent for the period during which he was denied promotion. The learned High Court Government Pleader pointed out to us that the case of the respondent has actually been examined and he has been given retrospective promotion to the post of Headmaster with effect from 20-5-1985, the dale on when his junior came to be promoted to that cadre. The respondent retired without being promoted to the post of Headmaster, on attaining the age of superannuation on 13-9-1987. It is only after his retirement from service that he made a representation dated 16-9-1987 claiming the benefit of retrospective promotion. He has specifically prayed only for retirement benefits being given to him on the basis of deemed retrospective promotion. Thus it becomes clear that the respondent did not claim any arrears of salary for the period during which he was actually denied promotion. His relief is confined, according to him, to the benefit of notional promotion and the retirement benefits such as pension and other benefits. The learned High Court Government Pleader submitted that such benefits would undoubtedly be given to the respondent. His grievance is only in regard to the payment of the difference in salary between that of a teacher and the post of a Headmaster during the period he was denied such promotion till he attained the age of superannuation. Sri Anil Sivaraman, learned counsel for the respondent, however contended that in a catena of decisions this court has taken the view that when notional promotion is directed to be given to a Government servant oncoming to the conclusion that promotion was unjustly denied to him, the State cannot deny the monetary benefits for the period during which he was unjustly or wrongly denied promotion. He relied upon the decisions of this court reported in 1978 KLT 29 between Narayana Menon and State of Kerala, 1984 KLT 141 between Rajappan Nair and State of Kerala & Others and 1985 KLT 695 between State of Kerala and Narayanan. He also rightly and fairly invited our attention to another Division Bench ruling of this court reported in 1984 KLT 59 between Philomina and State of Kerala. The first three judgments relied upon by Sri. Anil Sivaraman specifically state that the monetary benefits should be given when notional promotion is directed to be given on coming to the conclusion that denial of promotion was not justified. It is held that the Government servant concerned who has been denied promotion should not be deprived of monetary benefits for no fault of his. It is also pointed out that the State should not enrich itself at the cost of a Government servant when the mistake is not attributable in any manner to the Government and is attributable to the State or its authorities. In the decision reported in 1984 KLT 59, however, the Division Bench has pointed out that when innocent errors are committed in the matter of administration and the authority makes an honest attempt to do justice to the concerned officer by proper readjustment of promotions and ranks, a person so rewarded cannot justifiably claim salary for the period when he actually did not work in the higher post albeit for no fault of his. The real principle deducible from all these decisions bears on the question of exercise of discretion by this court under Art.226 of the Constitution. On an examination of all the relevant aspects, if the court comes to the conclusion that denial of promotion from an anterior date was an error committed by the authorities and was therefore not justified, a question would arise as to the reliefs to be granted to the aggrieved party. The normal rule to be followed is of putting the Government servant in the same position which he would have occupied but for the mistake committed by the State or other authorities. Though that is the normal rule to be followed, if the circumstances and the conduct of the parties justify a different course that has to be considered at the time of exercising the discretion of this court under Art.226 of the Constitution. In the matter of exercising its discretionary jurisdiction this court is entitled to take into account all relevant factors including the conduct of the parties and the justness of their claims. Though several decisions on the question have been reported, the principle discernible from these cases is that the facts and circumstances of each case should be examined in regard to the appropriate relief that should be granted in a given case. It is not possible to understand the said decisions as laying down that in every case where a mistake has been committed in denying promotion, that a direction must follow for granting all monetary benefits for the period during which promotion has been denied. It depends upon all the relevant circumstances and the conduct of the parties.

(2.) It cannot be disputed that the denial of promotion to the respondent in this case with effect from 20-5-85 was not justified. His case should have been considered, as he became qualified for promotion, he having earned exemption on attaining the age of 50 years. It is clear that an obvious mistake was committed in not noticing the fact that the respondent, who was otherwise not qualified, became qualified under the relevant rules on his attaining the age of 50 years. This court was therefore justified in directing this mistake being corrected by granting notional promotion to the respondent with effect from the date on which he was entitled to such promotion. The State concedes that the respondent is entitled to be granted all retirement benefits including pension etc. as if he was promoted as a Headmaster on 20-5-85 and continued in that capacity till he attained the age of superannuation. It is on that basis that the retirement benefits have to be worked out. So far as the actual difference in emoluments between the post of teacher and that of the Headmaster from 20-5-85 till he attained the age of superannuation on 13-9-87 is concerned, the respondent would have been entitled to be paid the same, had there not been any circumstance justifying denial of the same. The circumstance pressed into service is the fact that when promotion was denied to him with effect from 20-5-85, he did not make any complaint about it to any of the authorities. He continued to work as a teacher and retired on 13-9-87. It is only after retirement as a teacher that he made a representation on 16-9-87. If the respondent had made any representation to the authorities immediately after he was denied promotion on 20-5-85, there would have been scope for the authorities to examine the question and correct the mistake, if any made. That right of privilege has been denied to the Government for no fault of its. This has resulted in another person being promoted as Headmaster and he being paid salary for the same period. If we now direct that the difference in salary " should be paid to the respondent also, it would result in salary being paid of the post of Headmaster to two persons when there is actually one post. It cannot be said that this is attributable to the mistake on the part of the authorities only in not promoting the respondent. It is obvious that the respondent has contributed to this situation by keeping quiet and allowing the situation to continue till he attained the age of superannuation. Had he been diligent, this mistake would have possibly been avoided. Hence this conduct of the respondent has to be taken into account with a view to prevent unnecessary disbursement of salary to two persons in respect of one post. We have therefore no hesitation in taking the view that such conduct of the respondent can undoubtedly be taken into consideration for the limited purpose of denying the benefit of difference in emoluments for the period during which he did not actually work as a Headmaster.