IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 WA.No. 220 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.32918/2007 Dated 24/09/2008 .................... APPELLANT(S): -------------- AJITHKUMAR.A.K., HIGHER SECONDARY SCHOOL TEACHER(BOTANY), GOVERNMENT HIGHER SECONDARY SCHOOL, IRIKKUR. BY ADV. SRI.P.RAVINDRAN, SENIOR ADVOCATE SRI.HARIKRISHNAN RAVINDRAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR , HIGHER SECONDARY EDUCATION THIRUVANANTHAPURAM. 3. PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, IRIKKUR.PO., IRIKKUR, KANNUR. BY GOVT. PLEADER SRI, NOBLE MATHEW THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 220 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of February, 2009 JUDGMENT Balakrishnan Nair, J. The appellant, who was a High School Assistant, was promoted as HSST by order dt.23.7.1997. He was having Post Graduate Degree in Botany from Annamala University and B.Ed. from Mysore University. He was not allowed to join duty or discharge the functions of the HSST (Botany) for the reason that he has not produced equivalency certificates for the above degrees from one of the Universities in Kerala. The petitioner moved the Government. The government also rejected his claim. 2. Challenging the order of the government, the petitioner filed O.P.No. 23027 of 2002. This court quashed the order of the government and directed the government to reconsider the matter in the light of the government order issued in 1965 stating that degrees of all statutory universities stand recognised. The W.A.No. 220 of 2009 2 respondents in that original petition challenged the said direction by filing writ appeal No. 1810 of 2003. This court by Ext. P3 judgment dismissed the appeal and ordered as follows: “In view of the above we find that the Government has been unduly harassing the respondent since the year 1997. For all these years he has been made to run from pillar to post. We direct the appellants to give him the post of Higher Secondary School Teacher with all consequential benefits without any further delay. The appeal is wholly frivolous. It is, consequently, dismissed in limine.” 3. Pursuant to the above direction, the Director of Higher Secondary Education passed Ext.P4 order dt.6.8.2004 appointing him as Higher Secondary School Teacher in Botany in Government Higher Secondary School, Irikkur, Kananur. He joined duty on 12.8.2004. By Ext.P4, it was clarified that he will be eligible to draw pay and all other allowances with effect from that date. The said order was again challenged before this Court. This court by Ext.P6 judgment directed the government to reconsider the claim of the petitioner for all consequential benefits, including arrears of salary. In obedience to W.A.No. 220 of 2009 3 the directions of this Court, Ext.P7 order has been passed by the Government on 19.9.2007. The relevant portion of which reads as follows: “The petitioner filed WP(C)994/06 before the Hon'be High Court against the above decision of Government and the Hon'ble Court pronounced its judgment read as 5th paper above. Accordingly Government have examined the case with reference to the rules, the direction of the High Court in judgment dt.8.1.07 and the arguments of the petitioners and are pleased to order that as the petitioner was appointed as Higher Secondary School Teacher (Botany) as per the proceedings read as 1st paper above his seniority in the cadre of Higher Secondary School Teacher will be assigned notionally with effect from 23.7.97 and monetary benefits will be allowed from 12.8.2004 ie. the actual date of his assumption of charge, in view of the restriction imposed by Rule 23(a) Part I Kerala Service Rules. The judgment of the Hon'ble High Court is complied with accordingly.” By the above order, the petitioner has been granted all consequential benefits, except monetary benefits, in view of the restriction contained W.A.No. 220 of 2009 4 in Rule 23(a) Part I K.S.R.. 4. Challenging Ext.P7 to the extent it declines back wages to him, the present original petition was filed. The learned Judge dismissed the writ petition. The relevant portion of the said judgment reads as follows: “7. True, the learned counsel for the petitioner referring to Ext.P3 judgment contends that, it has been held therein, he is entitled to consequential benefits. In my view, that does not mean that the respondents were required by this court to give back wages also for the period the petitioner did not work, particularly in the face of Rule 23(a) Part I KSR, which governs the petitioner. Writ petition fails and is dismissed.” 5. Feeling aggrieved by the above judgment, this writ appeal is filed. The learned counsel for the appellant heavily relies on Ext.P3 direction of the Division Bench regarding his entitlement for all consequential benefits and submits that the said direction entitles him to get arrears of salary also. In support of this submission, the learned counsel also relied on the observations of the Apex Court in Commissioner, Karnataka Housing Board v. C. Muddaiah W.A.No. 220 of 2009 5 ((2007) 7 SCC 689). The relevant portion of the said judgment reads as follows: “We are conscious and mindful that even in absence of statutory provision, normal rule is “no work no pay”. In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering “as if he had worked”. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected.” 6. The learned counsel also relied on the decision of the Division Bench of this Court in State of Kerala v. V.J. Joseph W.A.No. 220 of 2009 6 Ceasar (1998 (3) ILR Kerala 190). It was a case of an aided school teacher. He was denied employment by reason of a wrong staff fixation order, as per which the post held by him was abolished. The learned Single Judge held that he is entitled for arrears of salary. The same was upheld by the Division Bench also. 7. The Government declined to grant back wages mainly relying on Rule 23(a) Part I K.S.R., which reads as follows: “23(a). Subject to any exceptions specifically made in these rules, an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. If the charge is transferred afternoon, the transfer does not affect pay and allowances until the next day.” 8. We heard the learned Government Pleader appearing for the respondents also. He relied on the decision of the Apex Court in Hemani Malhotra v High Court of Delhi (2008 (7) SCC 11) to support the judgment of the learned Single Judge. W.A.No. 220 of 2009 7 9. We notice that going by the above quoted rule, the petitioner is not entitled to get the arrears of salary. Of course, if there is a specific direction by this Court to pay arrears of salary also, the respondents would have no other option, but to pay the same. But in this case a general order is passed to the effect that he is entitled for all consequential benefits. Normally all consequential benefits permissible as per law alone can be disbursed. It is not a case where the said direction admits only one view, i.e. to pay arrears of salary also. The learned Judge has taken the view that in view of 23(a) Part I K.S.R. he is not entitled to get arrears of salary. We notice that the said rule was never challenged before this Court by the petitioner. Therefore, the view taken by the learned Judge is certainly a plausible view on facts. In an appeal under Section 5, this Court can interfere if only it is shown that the decision appealed against is wrong and not if it is shown that it is not right. This distinction is real, though fine. W.A.No. 220 of 2009 8 10. In the result we uphold the decision of the learned Single Judge and dismiss the appeal. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm