IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 WP(C).No. 29788 of 2005(S) -------------------------- OA.38/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY, HOME & VIGILANCE DEPARTMENT, GOVENMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.P.K.RAVIKRISHNAN RESPONDENT(S): --------------- K.J.THOMAS, IPS, AGED 62 YEARS, SUPERINTENDENT OF POLICE(RTD), RESIDING AT KUZHITHOTTU HOUSE, THIDANADU P.O., ERATTU PETTA, KOTTAYAM DISTRICT. ADV. SRI.K.P.DANDAPANI (SR.) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 29788/05 APPENDIX PETITIONERS' EXTS. EXT.P1 - TRUE COPY OF THE ORDER DATED 7.7.05 IN O.A.38/03 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P2 - TRUE COPY OF O.A.NO. 38/03 WITH ANNEXURES. EXT.P3 - TRUE COPY OF REPLY STATEMENT FILED BY THE GOVERNMENT. /TRUE COPY/ K.BALAKRISHNAN NAIR & K.SUENDRA MOHAN, JJ. ----------------------------------------- W.P.(C) NO. 29788 OF 2005-S ----------------------------------------- Dated 8th January, 2009. JUDGMENT Balakrishnan Nair, J. The respondents in O.A.No.38/2003 before the Central Administrative Tribunal, Ernakulam Bench are the writ petitioners. The said O.A was filed by the respondent herein, claiming salary for the period from 11.3.1998 to 26.11.2001. The said claim was allowed by the C.A.T. Hence this Writ Petition. 2. The brief facts of the case are the following. The applicant, while working as Deputy Superintendent of Police, was considered for promotion to Indian Police Service for the year 1997-98. He was not included because of the inclusion of one Sri.K.C.Jacob, who was due to retire on 30.6.1997. If the said person's name was deleted, the applicant being the next person in the seniority list, would have found a place in the select list for the year 1997-98. Against the non-deletion of the name of Sri.K.C.Jacob and for inclusion of the applicant's name in his place, the applicant approached the WPC 29788/05 2 C.A.T., by filing O.A.No.641/1998. The Tribunal dismissed the application by order dated 29.5.1998. Aggrieved by that order, he approached this Court by filing O.P.No.9814/98. In that O.P., an interim order was passed, directing that any appointment made by the I.P.S. Selection Committee will be subject to the outcome of the Original Petition. In the meantime the I.P.S. (Appointment by Promotion) Regulation was amended with effect from 1.1.1998, substituting financial year by calendar year. The above amendment stood in the way of the applicant's inclusion in the select list. So, he approached this Court by filing O.P.No.9427/98, challenging the above amendment to the Regulation and also seeking consequential reliefs. In the meantime, the applicant retired from service on 31.5.1998. This Court ordered that his retirement will be subject to the result of the Original Petition. Finally, both the Original Petitions were disposed of on 25.7.2000, directing the State Government to reconsider the claim of the applicant and place the matter before the Selection Committee. In obedience to the said direction, the matter was placed before the Selection Committee, which held a review meeting and included the name of the applicant as Sl.No.1 for the year 1998, by decision dated 13.12.2000. But, his inclusion in the select list was subject to the furnishing of the integrity certificate by the State Government. The State Government did not issue the integrity certificate, WPC 29788/05 3 on the ground that an enquiry was ordered against him for his failure to take up the investigation of a case involving suspicious death of a married woman. The enquiry ordered was cancelled on the ground that the applicant retired from service on 31.5.1998. Finally, as per the direction of this Court in a contempt proceeding, integrity certificate was issued to him on 20.11.2001 and the President of India appointed him to I.P.S on 21.11.2001 with effect from 11.3.1998 and he joined service on 27.11.2001. 3. Later, the applicant filed a representation before the Government, claiming salary from 11.3.1998 to 26.11.2001. The Government rejected it by Annexure-A10 order dated 4.10.2002, produced along with the aforementioned O.A before the C.A.T. Challenging that order, O.A.No.38/2003 was filed. The said O.A was allowed by Ext.P1 order dated 7.7.2005, directing to pay the salary and allowances due to the applicant from 11.3.1998 to 26.11.2001. The State challenges the above order on the ground that the applicant/respondent has not worked and therefore, he is not entitled to get any arrears of salary. 4. We heard the learned senior counsel Mr.K.P.Dandapani for the respondent, who supported the order of the C.A.T. There are conflicting decisions of this Court as well as the Apex Court concerning payment of emoluments to an incumbent, who was kept out of service and later WPC 29788/05 4 reinstated. We notice that those decisions have been rendered having regard to the facts of each case. There cannot be any hard and fast rule that if the incumbent did not work, he is not entitled to get salary. There also cannot be any invariable rule that in every case there should be an order for payment of salary. In this case, we notice that the State Government cannot be held responsible, in any way, for the delay in the appointment of the applicant/respondent to I.P.S., except for the period between 13.12.2000 and 20.11.2001. The U.P.S.C reviewed the select list and included the respondent in the list for 1998 on 13.12.2000. There was delay in appointing him because the Government failed to issue the integrity certificate. But, we notice that there was an order to hold an enquiry against the applicant/respondent. The same did not fructify because of his retirement. So, it cannot be said that the integrity certificate was withheld without any valid reason or justification. Therefore, it cannot be held that any illegality or mala fide action of the State has resulted in delaying the appointment of the respondent to I.P.S. and thereby denying salary to him. Having regard to the facts of the case, we feel that this is not a fit case where salary should be paid from public funds to an officer, who has not worked. Further, we notice that the C.A.T has acted as an appellate authority over the Government, while reviewing Annexure-A10 order. In WPC 29788/05 5 fact, it is an order passed within jurisdiction and it cannot be said to be ultra vires of the powers of the Government. A plausible view was taken on the facts. Therefore, while taking the decision, the C.A.T should not have interfered with Annexure-A10 order. In the result, Ext.P1 order is quashed and O.A.No.38/2003 filed by the respondent is dismissed. The Writ Petition is allowed as above. K.BALAKRISHNAN NAIR, JUDGE. K.SURENDRA MOHAN, JUDGE. Nm/