State of Kerala vs Rose Mary. S.

Thottathil B. Radhakrishnan

This original petition under Article 227 of the Constitution of India by the State Government challenging a final order of the Kerala Administrative Tribunal.

We have heard the learned Government Pleader and the learned counsel for the respondent-employee quite in extenso.

It appears that during the course of the original application from which this original petition arises, the Tribunal issued a sequence of interlocutory orders, essentially because the Government Officers concerned were slow in placing the relevant facts and factors before that Tribunal. We make this observation because, the checkered career-graph of the employee concerned and the litigation-graph touching that employee, have not apparently been brought to the focused attention of the Tribunal.

We may say that we are only giving a skeletal sketch of the facts, the details of which will have to be looked into by the establishment and the employee while placing further submissions before the learned Tribunal, since we proceed to make an order of remit of the case.

The employee joined service as a Lower Division Clerk in the Education Department. Later, she was promoted as Upper Division Clerk with effect from 28.02.1986. That was revised by the Department since it was found to be erroneous. Initially, the employee filed W.P. (C) No. 22137 of 2004 before this Court. An interlocutory order was issued by this Court on 28.11.2008 in that writ petition, requiring the establishment to verify the different materials, files and records and to place a report. This was because the employee had even then taken the stand that she was unaware of the reversion from UDC to LDC on 01.11.1989. This is clearly reflected by that interlocutory order dated 28.11.2008. Ultimately, by judgment dated 10.06.2009, this Court dismissed that writ petition. A writ appeal was filed by the employee before this Court as W.A. No. 1895 of 2009. That writ appeal was decided by the Division Bench on 24.08.2009, dismissing the same holding that the Division Bench was not impressed by the technical contention of violation of principles of natural justice and the employee concerned could not have aspired for a promotion while she was still a probationer at the relevant time. The Bench had also refused to grant her exemption from recovery of excess salary paid, relying on Santhakumari Vs. State of Kerala, . Later, a review petition was filed seeking review of that judgment in the writ appeal. That was decided as per judgment dated 24.06.2011 in R.P. No. 1159 of 2009 whereby the direction in the writ appeal judgment for recovery of the excess drawn salary was vacated. However, adverting to paragraph 2 of that judgment on the review petition, it can be seen that insofar as the findings relating to the correctness of the reversion on rectification in 1989 are concerned, it was noted that there was no ground for interference either in the appeal or in the review petition. We have reached at the aforesaid facts after looking into the files in W.P. (C) No. 22137 of 2004, W.A. No. 1895 of 2009 and R.P. No. 1159 of 2009, as well.

With the aforesaid, we note that the executive decision relied on by the employee has been revised by the Government on a review. The facts situation pointed out by the Director of Public Instruction needs deeper consideration at the hands of the learned Tribunal while answering the claim of the employee before it in O.A. No. 1693 of 2012. We are sure that the Government should place the entire facts, including the sequence of events which are relevant for the learned Tribunal to come to the just and proper conclusion. We say so more particularly because, according to the employee, by now, there are different orders by the Government or its officers either in her favour or against her. Though it is mentioned before us, we do not have to look into any of those, since this matter will end in a remit of the issues to the learned Tribunal for consideration. By this judgment, we do not intend to interfere with any situation obtained by those orders. The requirement now is that O.A. No. 1693 of 2012 needs to be considered de novo by the Tribunal after giving the State of Kerala and other respondents in that O.A. opportunity to place the pleadings and materials appropriately.

In the result, this original petition is allowed setting aside Ext. P4 order. As a consequence, the learned Tribunal is requested to take back O.A. No. 1693 of 2012 to file and decide on it de novo after affording opportunity to the Government to file pleadings and materials. It is clarified that the employee, if so advised, may place further pleadings and materials as may be permitted by the learned Tribunal. We also leave open the right, if any, of the employee to seek interlocutory orders as the Tribunal may grant even as regards her grievance that the emoluments due to her have not been released during the pendency of the case. The parties are directed to mark appearance before the learned Tribunal on 19.5.2014.