IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 WA.No. 1855 of 2010 ----------------------- AGAINST THE JUDGEMENT IN WPC.27735/2010 Dated 07/09/2010 .................... APPELLANT/PETITIONER --------------------------- P.OMANA AMMA, W/O.LATE V.APPU KURUP(PRE- 1986 COMBINED SERVICES PENSIONER) PUTHAN PURAYIL HOUSE,P.O.CHAMPAD,(VIA) THALASSERY,KANNUR DISTRICT, KERALA- 670 694.(REPRESDENTED BY THE POWER OF ATTORNEY HOLDER P.A.SADASIVAN,S/O. LATE V.APPU KURUP, RESIDING AT PUTHAN PURAYIL HOUSE, PO CHAMPAD,(VIA)THALASSERY,KANNUR DISTRICT, KERALA-670 694). BY SRI.P.A.SADASIVAN (PARTY IN PERSON) RESPONDENTS/RESPONDENTS ---------------------------------- 1. CHIEF POST MASTER GENERAL, TAMILNADU POSTAL CIRCLE, CHENNAI- 600 002. 2. DIRECTOR GENERAL (POSTS), DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY, DAK BHAVAN, NEW DELHI-110 001. 3. DIRECTOR OF ACCOUNTS (POSTAL), TAMILNADU POSTAL CIRCLE, CHENNAI-600 008. 4. SENIOR SUPERINTENDENT OF POST OFFICES, CHENNAI CITY CENTRAL DIVISION, CHENNAI-600 017. 5. SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF PENSION AND PENSIONERS WELFARE, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, LOK NAYAK BHAVAN, NEW DELHI-110 003. BY SRI.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR GENERAL OF INDIA THIS WRIT APPEAL HAVING COME UP FOR ORDERS ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No.1855 of 2010 & C.M.Appln.No.899 of 2010 ------------------------------------------ Dated this the 13th day of December, 2010 JUDGMENT Ramachandra Menon, J. C.M.Appl.No.899 of 2010 is filed praying that the delay of 7 days in filing the writ appeal may be condoned. Sri.T.P.M.Ibrahim Khan, learned Assistant Solicitor General, takes notice on behalf of the respondents. The reasons for the delay as put forward in the affidavit in support of the application are found satisfactory. Hence the application is allowed and the delay of 7 days in filing the writ appeal is condoned. 2. The issue projected in this writ appeal is as to the alleged claim of the appellant/petitioner who is represented through the power holder, her son, to obtain arrears of enhanced pay, allowances, gratuity, pension, family pension etc., payable in respect of the service of the deceased husband of the appellant, with interest. The factual matrix is as follows: 3. The deceased husband of the appellant was an ex-service man and after leaving the military service, he was re-employed as Class IV Messenger in the Postal Department with effect from 18.4.1956, who opted for combined services pension under Rule 19 of the Central Civil Services (Pension) Rules, 1972. While serving the Postal Department as a W.A.No.1855 of 2010 - 2 - Postman, he retired from service on 31.1.1984, on attaining the age of superannuation and later, he bid farewell to this world on 20th February, 2001. 4. The case of the appellant/widow of the deceased is that some years after the death of her husband, she came across Ext.P2 O.M. whereby fixation of pension in respect of pensioners like the deceased husband of the appellant was dealt with. According to the appellant, by virtue of the benefits contemplated therein, the deceased husband of the appellant ought to have been appointed as 'Postman' carrying appropriate scale of pay with effect from 18.4.1956 and not as Class IV Messenger in the Postal Department. In view of the wrong placement and fixation, there was substantial reduction with regard to the emoluments and as a consequence in pension and in turn the family pension as well. 5. Met with the circumstances, the appellant approached the Central Administrative Tribunal, Ernakulam Bench by filing O.A.No.836 of 2003, where interference was declined and the O.A. was dismissed as belated. Later, it appears from the pleadings and proceedings that the appellant approached the very same Tribunal by filing O.A.No.834 of 2006 with an application to condone the delay, wherein also interference was declined. The appellant preferred a review application bearing R.P.No.19 of 2007 against the verdict passed W.A.No.1855 of 2010 - 3 - by the Tribunal in O.A.No.834 of 2006 which also took the same turn and the same was dismissed, whereupon the appellant approached this Court by filing W.P.(C) No.28913 of 2007. After considering the pleadings and prayers, this Court dismissed the said writ petition, which was sought to be re-agitated by filing a review petition as R.P.No.1050 of 2007 and this also met with the same fate, resulting in dismissal of the review petition on 13.10.2007. The appellant filed another writ petition as W.P.(C) No.4838 of 2008 challenging the order passed by the Tribunal in O.A.No.836 of 2003 which was dismissed by this Court as per the verdict passed on 11.2.2008. As a matter of course, the appellant filed a review petition as R.P.No.325 of 2008 which was also dismissed on 17.3.2008. It was thereafter, that the appellant pursued the similar exercise by filing another writ petition as W.P.(C) No.7482 of 2010 which was disposed of by this Court as per Ext.P8 judgment, without expressing anything on merits, but directing the respondents to consider and finalize the representations preferred by the appellant for redressal of her grievances. 6. Pursuant to Ext.P8 judgment, the first respondent herein, considered the matter and issued Ext.P11 order negating the claim put forward by the appellant, which in turn was subjected to challenge in W.P.(C) No.27735 of 2010. Taking note of the sequence of events, interference was declined and the writ petition was dismissed W.A.No.1855 of 2010 - 4 - by a learned Single Judge of this Court as per the judgment dated 7th September, 2010, which forms the subject matter of this appeal. 7. Heard the appellant, represented though her power of attorney holder, at length. The power holder submits that the reasoning given by the learned Single Judge declining interference is not correct or sustainable, more so in view of the law laid down by the Apex Court in National Institute of technology and others v. Niraj Kumar Singh [(2007) 2 SCC 481] holding that the principle of res judicata will not be attracted when there is violation of the constitutional schemes. 8. With regard to the scope and applicability of the said decision, it is to be noted that it was a matter which came up before the Apex Court arising from a Contempt of Court proceeding before the High Court of Jharkhand at Ranchi. The petitioner institution before the Apex Court, considering the request for compassionate appointment had given such appointment to a person who actually did not come within the zone of consideration under the scheme formulated and notified in this regard and that too, after nearly 15 years. Some other persons approached the very same High Court seeking for similar benefits, wherein some observations were made by the High Court deprecating the manner in which the compassionate appointment was given and to have it reconsidered after issuing notice to the parties concerned, if the same was contrary to the stipulations of the scheme. W.A.No.1855 of 2010 - 5 - This was followed by a Contempt of Court Case alleging wilful disobedience; pursuant to which, the matter was considered and after issuing notice to the parties concerned, the appointment given was cancelled, which was subjected to challenge before the High Court by the aggrieved party. Taking note of the facts and events, particularly that the issue with regard to the compassionate appointment had become final, on dismissal of the case filed by the widow of the deceased, which was upheld by the Division Bench; a Contempt of Court proceeding was taken, that too, suo motu, by the High Court, which was subjected to challenge before the Supreme Court, leading to the verdict in (2007) 2 SCC 481. The Apex Court held that the benefit of the scheme can be extended only to persons who actually come within the purview of the scheme and that it can never be given after a long lapse of time; simultaneously observing that the benefit to be extended shall be in tune with the provisions of the scheme, which in turn have to be in conformity with the stipulations under Articles 14 and 16 of the Constitution. It was made clear by the Apex Court that all public appointments must be in consonance with Articles 14 and 16 and any deviation in this regard will be against the constitutional mandate. In the said circumstances, the Apex Court held that the subsequent cancellation of the illegal appointment (obtained on fraud and misrepresentation); that too in furtherance to the direction given by the W.A.No.1855 of 2010 - 6 - High Court to have the matter reconsidered, was within the four walls of the law and hence it was not at all proper for the High Court to have initiated 'suo motu' contempt proceedings against the said institution. Accordingly, the impugned order passed by the High Court was set aside. The facts and events and also the law declared by the Apex Court in the above case are not at all attracted to the case in hand, more so, in view of the futile successive litigations being pursued by the appellant, as mentioned hereinbefore. 9. We also find that the claim now projected by the appellant is one which was never even thought of by her deceased husband during his life time. The alleged cause of action is mainly based on the claim to have the deceased husband placed as a Postman when the deceased husband was appointed way back in the year 1956. Obviously, the deceased husband did not have any such case when he was serving the Postal Department right from the date of induction, till he retired on superannuation in the year 1984. After retirement, the deceased was receiving the pension in accordance with the relevant provisions of law and this was continued till his death on 20.2.2001; followed by the family pension being disbursed to the appellant/widow to the permissible extent, as per rules. The concerned respondent has stated in Ext.P11 that the service rendered by the deceased husband of the appellant in the military has also been reckoned as part of the W.A.No.1855 of 2010 - 7 - service and pension has been fixed accordingly. 'Settled position cannot be unsettled' is the settled position of law, as made clear by the Apex Court in a catena of decisions including in Bhoop Singh v. Union of India and others (AIR 1992 SC 1414) 10. In the above facts and circumstances, we find that the appeal is devoid of any merit or bona fides. The claim is stale and unfounded and it does not call for any interference. Though this Court finds that this is a fit case to be mulcted with heavy costs, with much reluctance, we refrain from doing so. Appeal is dismissed accordingly. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns