IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WA.No. 2328 of 2007() --------------------- AGAINST THE JUDGEMENT IN WPC.16019/2007 Dated 05/09/2007 .................... APPELLANT/PETITIONER: -------------- MARIA PADMA W.MIRANDA,W/O.VICTOR LEO FERNANDEZ,HOUSE NO.32,'AKSHAYA' NAGAR, KADAPPAKKADA, KOLLAM-8. BY ADV. SRI.V.A.MUHAMMED SRI.P.G.GOPINATHA PILLAI RESPONDENT(S)/RESPONDENTS: --------------- 1. STATE OF KERALA,REPRESENTED BY PRINCIPAL SECRETARY,HIGHER EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, 'VIKAS BHAVAN',THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. 4. PRINCIPAL,FATIMA MATA NATIONAL COLLEGE, KOLLAM. 5. THE UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR. THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI.NOBLE MATHEW – R1 TO R3 ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. FOR R5 ADV. SRI.SATHISH NINAN - R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NO. 2328 OF 2007 ----------------------------------------- Dated 26th February, 2009. JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. The respondents herein were the respondents in the writ petition. The appellant, who is a Physical Education Teacher of Fatima Mata College, Kollam, approached this Court, feeling aggrieved by the stand of the Government in Ext.P11 communication dated 23.8.2005 that she is eligible to get U.G.C scale of pay only on completion of eight years' service, that is only with effect from 4.6.1998. 2. The brief facts of the case are the following: The appellant was appointed in the 4th respondent's College as Lecturer in Physical Education on 4.6.1990, by Ext.P1 order. By Ext.P2 order dated 29.10.1992, the said appointment was approved by the University of Kerala with effect from 4.6.1990. By Ext.P3 communication dated 22.10.1993, the Government informed the Director of Collegiate Education that one Physical Education WA 2328/2007 2 Teacher in each college where the number of students under Degree/P.G. Course is 1000 or below, will be brought under the U.G.C scheme. Other Physical Education Teachers who are not eligible to come under the scheme will be granted U.G.C scales on completion of eight years' service. This was followed by Ext.P5 Government order dated 21.3.1998, wherein it is stated that in every college where there are Degree and P.G. Courses, there will be at least one post of Physical Education Teacher under the U.G.C scheme. 3. In the meantime, the University of Kerala amended its Regulations by Ext.P4 resolution notified on 7.4.1997, providing that teachers appointed/re-appointed after 13.3.1990 but before 26.10.1992 are exempted from passing the National Eligibility Test and academic qualifications prescribed by the U.G.C. By virtue of the above resolution, any hurdle that stood in the way of the appellant being paid the U.G.C scale of pay was removed. Thereupon, her Principal addressed Ext.P6 communication on 10.3.1999 to the Director of Collegiate Education, to sanction U.G.C scale of pay for the appellant. It was followed by Ext.P7 communication dated 28.7.2000 addressed by her Principal to the Deputy Director of Collegiate Education. Kollam. The Deputy Director recommended her case to the Director by Ext.P8 communication dated 28.10.2000. The appellant's WA 2328/2007 3 Principal followed up the matter by addressing Ext.P9 representation dated 18.5.2001 to the Deputy Director. Along with Ext.P9, details regarding students' strength for the years 1990-91, 1991-92 and 1992-93 were also furnished. It would show that the students' strength at Degree and P.G. level was above 1800 for all the three years. Later, the appellant filed Ext.P10 representation before the Deputy Director of Collegiate Education, praying to grant her U.G.C scale of pay. In the meantime, the matter was pending before the Government, on the motion made by the Director of Collegiate Education. Finally, the Government, by Ext.P11 communication dated 23.8.2005, informed the Director that the appellant is eligible for U.G.C scale of pay on completion of eight years' service with effect from 4.6.1998. Reliance was placed on Ext.P5, to take the said stand. Aggrieved by Ext.P11, the writ petition was filed. The appellant/writ petitioner submitted that as per the relevant orders, she is entitled to get U.G.C scale of pay from 4.6.1990, the date on which she was appointed. She was appointed in a vacancy created by the retirement of a Physical Education Teacher, who was covered by the U.G.C scheme introduced in 1986. Therefore, there was no justification for not granting the benefit to her, it is submitted. 4. The 1st respondent did not file any counter affidavit. But, WA 2328/2007 4 respondents 2 and 3 filed separate counter affidavits, practically supporting the claim of the appellant. But, the learned Single Judge was not inclined to grant the reliefs sought by the appellant. It was found that she was guilty of delay and laches. She was sleeping over her rights. The relevant portion of the said judgment reads as follows: “3. I am not inclined to consider the claim of the petitioner since the petitioner has been sleeping over her rights. Admittedly Ext.P3 came into force on 22.10.1993 and Ext.P5 came into force on 21.3.1998. The first representation produced before me in respect of the petitioner's claim is Ext.P6 which is dated 10.6.1999. From 1993 to 1999 the petitioner did not do anything to claim benefits allegedly legally due to her. The petitioner has not also furnished any plausible explanation for the long delay in claiming the benefits. That being so, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner, who has been sleeping over her rights. In the above circumstances, this writ petition is dismissed.” The learned counsel for the appellant submitted that the appellant's claim has been taken up before the authorities by her Principal. Ext.P6 would show that her Principal had moved the Director of College Education as early as on 18.10.1991. Further, the eligibility of Physical Education Teachers was stated beyond the pale of any doubt only by Ext.P3 dated 22.10.1993 and Ext.P5 dated 21.3.1998. The appellant was exempted from the qualifications under the U.G.C norms only by Ext.P4 dated 7.4.1997. The appellant's Principal moved Ext.P6 representation on 10.3.1999. It was WA 2328/2007 5 followed by other representations also. So, it cannot be held that the appellant has waived her rights, as she was pursuing her claim through her Principal. Further, by the delay, if any, from the part of the appellant, no one is prejudiced. No third party rights are involved also. Therefore, if at all any one was affected, it was the appellant. So, the general principle governing delay and laches cannot be applied in this case, it is submitted. She had a recurring cause of action every month. She was being paid salary at a lower rate every month. Further, the Government, by the impugned communication, upheld her claim for U.G.C scale of pay with effect from 4.6.1998. So, the cause of action for claiming the benefit with retrospective effect arose only with the issuance of Ext.P11 on 23.8.2005, it is submitted. 5. We heard the learned Government Pleader for the official respondents and the learned counsel for the 4th respondent. The entitlement of the appellant to get salary in the U.G.C scale of pay, at least from 22.10.1993, is not seriously disputed by any one. But, the relief has been declined for the reason that the appellant did not assert her right in time. So, the learned Single Judge declined relief, stating that the discretionary jurisdiction cannot be exercised in favour of the appellant, who has been sleeping over her rights. Regarding the above finding of the learned Single Judge, we find considerable force in the submission of the learned counsel WA 2328/2007 6 for the appellant. The appellant's claim has been supported by the Deputy Director and Director of Collegiate Education. The Government have also upheld her claim to get U.G.C scale of pay from 4.6.1998. The dispute is only regarding the arrears payable to her up to that date. We feel that this is not a case where the relief should have been declined by refusing to exercise the discretionary jurisdiction. By the delay, no one is affected. No third party rights are involved. Only the appellant was affected by the delay in asserting her claim. When the right of the appellant is clearly established, normally, she is entitled to get relief as of right. There are grave objections in declining relief, even when the right to relief is established. Dealing with the powers of the court to decline reliefs in its discretion, Lord Shaw in Scott v. Scott [(1913) AC 417] stated as follows: “To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from rock to sand.” Quoting the above words of Lord Shaw, Prof. Wade in his Administrative Law said: “There are grave objections to giving the courts discretion to decide whether governmental action is lawful or unlawful: the citizen is entitled to resist unlawful action as a matter of right, and to live under the rule of law, not the rule of discretion.” WA 2328/2007 7 The above statement of Prof. Wade has been quoted with approval in Bugg v. Director of Public Prosecutions [1993 QB 473] and R. v. Wicks [(1998) AC 92]. 6. We are in respectful agreement with the above proposition of law enunciated by Prof. Wade. Discretion to decline relief, even when it is shown that the petitioner has got a right to relief, should be exercised sparingly and that too, on weighty grounds. In this case, since the appellant's Principal was representing, she cannot be found fault with for not representing in time. Even assuming she has represented personally, the fate would not have been different, as evident from the materials on record. If a Physical Education Teacher awaits for the decision of the authorities on the representation of her Principal, it cannot be taken that she has waived or relinquished her rights. Further, the Director of Collegiate Education addressed the Government, pointing out the eligibility of the appellant to get U.G.C scale of pay from the date of Ext.P3. Therefore, we are of the view that the learned Judge declined jurisdiction wrongly in this case. Accordingly, the judgment under appeal is reversed. The respondents 1 to 3 are directed to pay salary to the appellant in the U.G.C scale of pay from 22.10.1993. The arrears of salary shall be worked out and paid to her WA 2328/2007 8 within three months from the date of production of a copy of this judgment. The Writ Appeal is allowed as above. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/