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Case Number

W.A Nos. 421, 463 & 621 of 2011

Attorney(S)

For the Appellant: O.V. Radhakrishnan, Senior Advocate, K. Radhamani Amma, Gens George Elavinamannil, Advocates.
For the Respondent: KRB. Kamal, Senior Advocate, T.B. Ramani, P.K. Priya, K.V. Sree Vinayakan, Advocates.

Judges

C.N Ramachandran Nair
B.P Ray, JJ.

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Smart Summary

Headnote / Structured Summary of the Opinion (C.N. Ramachandran Nair, J.)

Factual and Procedural Background

This set of connected appeals arises from a challenge to the promotion process for a Higher Secondary School Teacher (HSST) post that fell vacant on 1.8.2000. The appellant was the seniormost Social Studies Teacher in the High School Section and was qualified for promotion to HSST (History). A junior teacher was promoted instead on account of his proficiency in Kannada. The appellant challenged that promotion through multiple proceedings: W.P.(C) No. 22902/2000 (which led the Director to declare the selection invalid on 11.1.2001), O.P. No. 13710/2001 (following a reconfirmation by the selection committee on 30.3.2001), and W.P.(C) No. 21069/2003 (after a later Director's order dated 16.6.2003 upholding the junior teacher's promotion). The High Court (Single Judge and Division Bench) rejected the appellant's claim, but the Honourable Supreme Court allowed the appeal in Ext. P8 dated 29.9.2007, holding that proficiency in Kannada was an extraneous consideration for promotion to HSST (History), vacating the lower orders and directing consequential relief.

Following the Supreme Court judgment, the manager appointed the appellant on 16.2.2008 but did not grant retrospective benefits. The appellant challenged the lack of retrospective benefits; the Single Judge then held the appellant entitled to promotion with effect from 1.8.2000 and to arrears of pay in the H.S.S.T. scale after deducting amounts drawn while serving as a High School Teacher, but observed that retrospectivity would not affect seniority among Higher Secondary School Teachers. The State and the management separately appealed the Single Judge's order (Writ Appeals Nos. 621/2011 and 463/2011 respectively). The appellant also appealed the Single Judge's observation denying retrospective seniority.

Legal Issues Presented

What consequential benefits (if any) is the appellant entitled to pursuant to the Supreme Court's Ext. P8 judgment declaring her eligible for promotion to the HSST post that fell vacant on 1.8.2000?
Whether the appellant is entitled to notional (retrospective) promotion and pay and allowances from 1.8.2000, or whether any retrospective benefit is limited to the date on which the junior teacher's appointment received approval (16.7.2001), as contended by the management?
Whether the appellant is entitled to seniority among Higher Secondary School Teachers with effect from 1.8.2000 as a consequence of the retrospective promotion?
Whether the State (and ultimately public funds) can be required to bear payment of salary/allowances to two persons for the same post for the same period, and who should bear the consequence of the illegal appointment (the victim appellant, the beneficiary junior teacher, or the officer/State that approved the appointment)?

Arguments of the Parties

Appellant's Arguments

The appellant relied on several Supreme Court precedents ((1999) 4 SCC 181; (2007) 6 SCC 524; Balwant Singh Narwal v. State of Haryana, (2008) 7 SCC 728) to contend that when a person is declared eligible for retrospective promotion due to an administrative wrong, all consequential benefits—including seniority and financial benefits—should follow.
She asserted entitlement to notional promotion, arrears of pay, and seniority from the date the vacancy arose (1.8.2000), because she was the seniormost eligible teacher and was wrongly overlooked for promotion.

Manager's Arguments

The manager contended that under the Supreme Court judgment the appellant was not granted any retrospective benefit and that, at best, the appellant could claim notional promotion only from 16.7.2001—the date on which the promoted teacher's appointment was given approval.
Regarding seniority, the manager argued that giving the appellant retrospective seniority from 1.8.2000 would place her above several other H.S.S.T. teachers who had served for years, which would be unjust to them.

State's Arguments

The State argued that it was not feasible to pay the appellant H.S.S.T. pay for the retrospective period because the person whose promotion was cancelled had served until the appellant joined pursuant to the Supreme Court judgment and had already been paid; those payments could not be withdrawn. The State contended that two people could not be paid for one post for the same period.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
(1999) 4 SCC 181	The opinion records that the appellant relied on this Supreme Court decision (among others) for the principle that when a person is declared eligible for retrospective promotion due to administrative wrong, consequential benefits including seniority and financial benefits should follow.	The court cited these authorities collectively to support the view that the appellant's claim for notional promotion, pay and seniority was well-founded and that such consequential relief should be granted.
(2007) 6 SCC 524	Relied on, as above, for the general principle that retrospective promotion granted because of administrative injustice carries with it attendant benefits such as seniority and financial relief.	The court accepted the appellant's reliance on this line of authority in concluding that notional promotion and attendant benefits were appropriate relief.
Balwant Singh Narwal v. State of Haryana, (2008) 7 SCC 728	Relied on by the appellant as part of the jurisprudence establishing that retrospective promotion for administrative wrongs should carry full consequential benefits.	The court referred to these authorities collectively and concluded that the Single Judge correctly granted notional promotion, pay and allowances, and that seniority should follow as a necessary consequence.

Court's Reasoning and Analysis

The court framed the core inquiry as what constitutes the "appropriate order" in terms of the Supreme Court's direction after declaring the appellant's eligibility for promotion (Ext. P8). The analysis proceeded in the following steps:

The court began from the Supreme Court's unqualified declaration that the appellant was the seniormost eligible teacher and that the promotion of the junior teacher was illegal because proficiency in Kannada was an extraneous factor for promotion to HSST (History).
It interpreted the phrase "appropriate order" in the Supreme Court judgment to mean the consequential relief to which the appellant was entitled by virtue of that declaration. In other words, the court read the Apex Court's direction as authorising remedial measures that restore the appellant to the position she would have occupied but for the illegal appointment.
The court emphasized that the illegality and denial of promotion were the result of administrative wrong by the Manager with approval of the Director of Higher Secondary Education; it was not the appellant's fault that she was overlooked. Given that context and the line of Supreme Court authority relied upon by the appellant, the court concluded that notional promotion and attendant financial benefits were appropriate.
On the State's objection about double payment (two people being paid for one post), the court considered who should bear the consequence of the illegal action. It reasoned that the appellant (victim) should not be penalised and that the beneficiary (the junior teacher) also could not reasonably be held liable for amounts legitimately paid to him while he served. The court held that the officer responsible for issuing the illegal order (the Director of Higher Secondary Education) and, by extension, the State as employer, should bear the consequence—subject to the State's internal right to take action against the officer.
Regarding seniority, the court reasoned that if the appellant would have been promoted on 1.8.2000 but for the illegal appointment, then notional promotion from that date necessarily carries with it seniority from that date. The court noted the appellant was not a fresh recruit but a promotee whose seniority as a High School teacher is recognized and carried forward; retrospective seniority as HSST is thus a recognition of that prior seniority.

Holding and Implications

Core Ruling: Writ Appeal No. 421/2011 is allowed; Writ Appeal No. 621/2011 (State) and Writ Appeal No. 463/2011 (management) are dismissed.

Direct consequences for the parties:

The appellant is entitled to notional (retrospective) promotion to the Higher Secondary School Teacher post with effect from 1.8.2000—the date the vacancy arose—and is entitled to pay and allowances and arrears corresponding to that notional promotion (subject to the deduction of amounts she drew while serving as a High School Teacher, consistent with the Single Judge's approach).
The appellant is entitled to be reckoned in seniority among Higher Secondary School Teachers with effect from 1.8.2000; the court directed respondents to treat her seniority accordingly.
The State's and management's appeals challenging these consequences were dismissed; the court held the State must bear the consequence of the illegal approval of appointment, subject to its internal remedies against the officer responsible.

Broader implications:

The judgment applies the settled principle—illustrated by the cited Supreme Court authorities—that a successful claimant for retrospective promotion on account of administrative wrong is entitled to consequential relief, including seniority and financial benefits, insofar as the present case demonstrates. The opinion does not purport to lay down a novel generalized rule beyond applying the cited authorities to the facts at hand; it focuses on the direct effect of the Supreme Court's Ext. P8 judgment and the resulting consequential relief in this dispute.

Judge: C.N. Ramachandran Nair, J. (as recorded in the provided opinion)

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Valsala Kumari Devi v. State Of Kerala

C.N Ramachandran Nair, J.:— The question raised in the connected appeals, one filed by the aggrieved Higher Secondary School Teacher, other by the management and the third by the State, relate to one issue i.e, the consequential benefits eligible to the appellant in W.A No. 421/2011 pursuant to Ext. P8 judgment of the Honourable Supreme Court in the appeal filed by her*. We have heard Senior counsel Sri. O.V Radhakrishnan appearing for the appellant-teacher concerned, Senior counsel Sri. K.R.B Kaimal appearing for the Manager and the Government Pleader for the State. The parties referred to in the judgment are as arrayed in W.A No. 421/2011 filed by the aggrieved teacher in whose favour the Honourable Supreme Court issued Ext. P8 judgment.

2. A vacancy of Higher Secondary School Teacher in History arose in the 4th respondent school on 1.8.2000 when the appellant was the seniormost Social Studies Teacher in the High School Section of the very same school with qualification to be promoted as HSST in History. However, considering the proficiency in Kannada of the teacher junior to the appellant, he was appointed as the Higher Secondary School Teacher overlooking the appellant's claim. When the appellant challenged the promotion of the teacher junior to her by filing W.P(C) No. 22902/2000, this court directed the Director of Higher Secondary School Education to consider the grievance of the appellant. The Director passed order on 11.1.2001 declaring the selection invalid with direction to the selection committee to reconsider the matter. Again, the selection committee reconfirmed the appointment of the teacher junior to the appellant on 30.3.2001, which was questioned by the appellant by filing O.P No. 13710/2001. This Court remanded the matter a second round to the Director of Higher Secondary School Education, who by order dated 16.6.2003 upheld the promotion of the teacher junior to the appellant as Higher Secondary School Teacher in preference to the appellant. The appellant came to this Court with the third Writ Petition, W.P(C) No. 21069/2003 challenging the Director's order confirming the promotion of the teacher junior to her. Even though the learned Single Judge rejected the appellant's preferential claim based on seniority and Division Bench confirmed the same, the Honourable Supreme Court vide Ext. P8 judgment dated 29.9.2007 allowed the appeal declaring that the proficiency in Kannada for the teacher junior to the appellant was an extraneous consideration irrelevant for the purpose of promotion. The Honourable Supreme Court vacated the judgment of this court and the impugned order issued by the authorities below with direction to grant consequential relief. Pursuant to judgment of the Supreme Court declaring appellant's entitlement for appointment as a Higher Secondary School Teacher in the post that fell due on 1.8.2000, the manager appointed the appellant vide order dated 16.2.2008 However, since the appellant is not given retrospective benefit for the promotion pursuant to judgment of the Supreme Court, she challenged the same in the Writ Petition which led to the impugned judgment. The learned Single Judge held that appellant is entitled to promotion with effect from 1.8.2000 i.e the date on which teacher junior to her was first appointed. However, so far as pay and allowances are concerned, the learned Single Judge allowed her claim to get arrears of pay in the scale of H.S.S.T after deducting the withdrawals made by her while serving as High School Teacher. Further, the learned Single Judge made an observation that retrospectivity granted under the judgment will not have the effect of changing the seniority of Higher Secondary School Teachers. The State has filed the Writ Appeal against this judgment for the reason that it is not possible to pay Higher Secondary School Teacher's pay to the appellant for the period during which she got notional promotion because the person whose promotion was cancelled as irregular served until the appellant joined based on judgment of the Supreme Court and the pay and allowances paid to him cannot be withdrawn. The Manger has filed the Writ Appeal challenging the entitlement of the appellant for notional promotion declared by the learned Single Judge because according to him, at the maximum appellant can claim retrospective promotion with effect from 16.7.2001 i.e, the date on which the promoted teacher was given approval of appointment based on his selection, though ultimately cancelled by virtue of judgment of the Honourable Supreme Court. The appellant-teacher has come up in appeal against the observation made by the learned Single Judge about her disentitlement for seniority with effect from 1.8.2000 i.e, the date on which she is declared to be eligible for notional promotion retrospectively in the same judgment.

3. Senior counsel appearing for the appellant relied on judgments of the Honourable Supreme Court reported in (1999) 4 SCC 181, (2007) 6 SCC 524' and in Balwant Singh Narwal v. State of Haryana, (2008) 7 SCC 728) and contended that when a person is declared to be eligible for retrospective promotion which is essentially on account of the administrative wrong done to such person, all benefits including seniority and financial benefits should go to the claimant. Senior counsel Sri. K.R-B. Kaimal appearing for the Manager submitted that under the judgment of the Honourable Supreme Court appellant is not granted any retrospective benefit. His further contention is that the teacher whose promotion was cancelled was given approval of appointment as HSST only with effect from 16.7.2001 and, therefore, at the maximum the appellant will be able to get notional promotion from 16.7.2001 So far as appellant's claim for seniority among Higher Secondary School Teachers is concerned, counsel submitted that there are ever so many teachers who served for several years as H.S.S Teachers who would go junior to the appellant for no fault of theirs.

4. The only question to be considered is “what is the appropriate order” to be issued in terms of the direction issued by the Honourable Supreme Court after declaring appellant's eligibility for promotion to the post she claimed vide Ext. P8 judgment. There is no dispute that the appellant's eligibility by virtue of her seniority and educational qualification for promotion as Higher Secondary School Teacher was approved by the Honourable Supreme Court unconditionally and if the appellant, the eligible person, was given appointment by the Manager on the date on which vacancy arose, she would have been Higher Secondary School Teacher from 1.8.2000 onwards. “Appropriate Order” referred to in the judgment of the Honourable Supreme Court can only be consequential relief that appellant is entitled to by virtue of the judgment of the Supreme Court. There is no dispute that the Supreme Court declared that when appellant was the seniormost teacher eligible to be promoted as H.S.S.T, the promotion given to the other teacher was illegal and unsustainable. It is no fault of the appellant that a wrong was done by the Manager with the approval of the State authority namely, the Director of Higher Secondary Education. From the three-tier litigation i.e, before this court, appeal before the Division Bench of this court and further appeal to the Supreme Court, appellant has been persistently pursuing to establish her right for appointment and redress her grievance. Unfortunately she got relief only from the Apex Court which does not mean that she should suffer the wrong done to her by the Director of Higher Secondary Education which is confirmed by this court. The appellant's claim is well-founded based on several judgments of the Honourable Supreme Court, particularly those referred above. We, therefore, feel the learned Single Judge rightly granted notional promotion and pay and allowances to the appellant with effect from the date on which she would have got the promotion had an illegal appointment not being done by the management with the approval of the Director of Higher Secondary Education.

5. So far as the grievance of the State i.e, liability for payment of salary and allowances to two Higher Secondary School Teachers is concerned, one by virtue of the retrospective notional promotion given to the appellant and the other by virtue of the appointment of another teacher, though his appointment was cancelled, the question to be considered is who should suffer the consequence of an illegal act, the victim, the beneficiary or the person who issued the illegal orders. In our view, the appellant cannot be denied the benefits which she would have got had the injustice not been done to her. In other words, if a fair and reasonable decision was taken, there was no justification to overlook promotion to the appellant who was the seniormost teacher with the required educational qualification on the ground that the teacher junior to her had proficiency in Kannada, which has no relevance for teaching history in the Higher Secondary School. Therefore, in our view, a patent illegality has resulted in denial of promotion to the appellant. The appellant certainly cannot be fastened with liability for illegal action leading to denial of benefits to her. The beneficiary of an illegal act also cannot be probably held liable because for no fault of his he was allowed to teach and serve as a Higher Secondary School Teacher for a duration of time for which he should get his pay and allowances. In our view, the person who should suffer the consequence of illegal act is the officer responsible i.e, the Director of Higher Secondary Education, who issued illegal orders approving the appointment of another person overlooking the legitimate claim of the appellant. Being a Government servant, it is for the State to suffer consequence subject of course to it's right to take action against officers who issue indifferent and illegal orders. We, therefore, do not find any merit in the Writ Appeal filed by the State contending that two people cannot be given salary for one post for the same period. In view of the above findings, we dismiss Writ Appeal No. 621/2011 filed by the State and Writ Appeal No. 463/2011 filed by the management.

6. So far as appellant's claim for seniority is concerned, we feel going by the notional promotion granted to her, which we find she is eligible with effect from the date the vacancy arose to which she should have been appointed had a right decision been taken, she is entitled to seniority as well. The management's contention that she will go above several other Higher Secondary School Teachers in the school has no significance because in the first place, she would have been senior to them had she been appointed on 1.8.2000 Secondly, appellant is not a fresh recruit to the post of Higher Secondary School Teacher, but is only a promotee who was serving as a High School Teacher under the same management. So much so, the retrospective seniority she gets as a Higher Secondary School Teacher is nothing but a recognition of seniority which she has acquired as a High School Teacher. In our view, her entitlement to seniority is a necessary consequence of granting her retrospective promotion which she is eligible for the reasons stated above. Consequently Writ Appeal No. 421/2011 is allowed directing the respondents to reckon appellant's seniority with effect from 1.8.2000 along with notional promotion and other benefits granted with effect from that date.

Valsala Kumari Devi v. State Of Kerala

Headnote / Structured Summary of the Opinion (C.N. Ramachandran Nair, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Manager's Arguments

State's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Valsala Kumari Devi v. State Of Kerala

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