of Kerala & Ors. Vs. E.K. Bhaskaran Pillai  Insc 417 (17 April 2007)
A.K.MATHUR & LOKESHWAR SINGH PANTA
A.K. Mathur, J.
Heard learned counsel for the parties.
This appeal has been filed against the order dated 28.11.2002 passed by the
Division Bench of Kerala High Court whereby the Division Bench of the High
Court has granted limited relief to the writ-petitioner (respondent herein) by
which he was given the benefit of arrears of salary on the date of his filing
the application, i.e., 15.6.1972 and not with effect from 15.9.1961 as prayed
The facts necessary for disposal of this appeal are that the writ-
petitioner joined the service on 25.2.1957 and while working as First Grade
Draftsman his juniors were promoted and the petitioner was not He filed a
representation dated 15.6.1972 calling upon the Government to give him all the
benefits of promotion which were given to his juniors. His representation was
not considered. Therefore, he filed O.P. No. 585 of 1975 and the High Court by order
dated 12.8.1977 directed the Government to consider the representation of the
petitioner with reference to any policy decision and on the merits of the
representation made by the petitioner. The Government considered the
representation of the petitioner sympathetically and directed that the
petitioner be granted promotion with effect from 15.9.1961. By order dated
4.1.1979 the petitioner was actually promoted and he joined the promotional
post on 11.5.1979 and retired from service on 31.7.1980. Thereafter, he made an
application that he may be given all benefits of promotional post with effect
from 15.9.1961. The monetary benefits were not given to the petitioner. Lots of
correspondence transpired in between and ultimately Government by order, Ext.P5
directed that the petitioner would be entitled to monetary benefits only for
the period i.e., 11.5.1979 till 31.7.1980 during which period he actually
worked on the promotional post. It was also clarified that he would be entitled
to all benefits from 15.9.1961 except the monetary benefits. The petitioner
made further representation but without any result. Therefore, he again filed a
writ petition and the learned Single Judge held that the petitioner was not
entitled to get any monetary benefits from 15.9.1961 to 10.5.1979. But it was
directed that pensionary benefits would be paid to the petitioner as if he had
worked as Assistant Engineer from 15.9.1961 i.e., from the date he was
promoted. Thereafter, a review petition was filed. The learned Single Judge by
his order dated 3.12.1997 in R.P. No.331 of 1997 held that the petitioner was
entitled to his salary for the period from 15.6.1972 till 11.5.1979.
However, it was made clear that no interest would be paid. Then again, the
petitioner filed a Writ Appeal which came to be registered as W.A. 1560 of 1998
for the monetary benefits from 15.9.1961. The State also preferred a Writ
Appeal which came to be registered as W.A. 1451 of 1998. The State claimed that
the review was not justified. Both the appeals were taken together. However,
question of review order passed by the Court was not interfered with and the
Writ Appeal filed by the State challenging the review order passed by the
learned Single Judge was dismissed. However, the Division Bench examined the
question of grant of monetary benefits to the petitioner on his retrospective
promotion from 15.9.1961. The Division Bench referred to various decisions of
this Court as well as the judgment of the Kerala High Court. After going
through all case laws on the subject, the High Court directed that the
petitioner would be entitled to higher pay on account of retrospective
promotion with effect from 15.6.1972 when he filed O.P. 585 of 1975 but
declined to grant any benefit from 15.9.1961.
Ultimately the Court passed the order that the petitioner should be paid all
the monetary benefits with effect from 15.6.1972 within 90 days failing which
the petitioner was entitled to interest @ 9 per cent on the date on which such
amount was due. Aggrieved against this order dated 28.11.2002, the State of Kerala
preferred this Special Leave Petition.
Learned counsel for the State has submitted that grant of retrospective
benefit on promotional post cannot be given to the incumbent when he has not
worked on the said post. Therefore, he is not entitled to any benefit on the
promotional post from 15.6.1972. In support thereof, the learned counsel
invited our attention to the decisions of this Court in Paluru Ramkrishnaiah
145]. As against this, the learned counsel for the respondent has invited our
Vinod Kumar Srivastava [(2006) 9 SCC 621]. We have considered the decisions
cited on behalf of both the sides. So far as the situation with regard to
monetary benefits with retrospective promotion is concerned, that depends upon
case to case. There are various facets which have to be considered. Sometimes
in a case of departmental enquiry or in criminal case it depends on the
authorities to grant full back wages or 50 per cent of back wages looking to
the nature of delinquency involved in the matter or in criminal cases where the
incumbent has been acquitted by giving benefit of doubt or full acquittal.
Sometimes in the matter when the person is superseded and he has challenged the
same before Court or Tribunal and he succeeds in that and direction is given
for reconsideration of his case from the date persons junior to him were
appointed, in that case the Court may grant sometime full benefits with
retrospective effect and sometimes it may not. Particularly when the
administration has wrongly denied his due then in that case he should be given
full benefits including monetary benefit subject to there being any change in
law or some other supervening factors.
However, it is very difficult to set down any hard and fast rule. The
principle 'no work no pay' cannot be accepted as a rule of thumb. There are
exceptions where courts have granted monetary benefits also.
However, so far as present case is concerned, as per directions given by the
Court, petitioner's case was considered and it was found that persons junior to
him were appointed and he was wrongly denied. Therefore, the petitioner was
promoted from retrospective effect i.e. 15.9.1961 but he was not paid the
benefit of promotion in terms of arrears of salary. Therefore, he approached
the Court and learned Single Judge did not give him the monetary benefit of the
promotional post from retrospective effect in terms of arrears of salary. In
the review application, the benefit was given from the date he filed O.P. No.
585 of 1975 i.e. 15.6.1972. This appears to be reasonable. The petitioner did
not approach the Court for the back wages from 15.9.1961 but he filed a
petition dated 15.6.1972 and the Court granted the benefit from the date of
filing of the petition before the Court i.e.
15.6.1972. The incumbent in the meanwhile has retired on 31.7.1980.
Therefore, looking to the facts and circumstances of the case, the view
taken by the High Court appears to be justified and there is no ground to
interfere in it.
The appeal is accordingly dismissed with no order as to costs.
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