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Judgment
Sanjay Kumar, J.—An untiring and relentless struggle by the Petitioner party-in-person against an implacable administration for nearly two decades secured him the common order dated 18.11.1998 in W.P. Nos. 8688 and 18764 of 1988.
By the said order, a learned Judge of this Court directed the authorities to fix the seniority of the Petitioner in the cadre of Junior Medical Officer (Homeo) on notional basis with effect from 30.03.1979 extending to him all consequential benefits that flow from such fixation but limiting the monetary benefits from 14.08.1989, the date on which the Andhra Pradesh Administrative Tribunal adjudicated the dispute and held in favour of the Petitioner. The authorities were also directed to revise and re-fix the salary of the Petitioner from time to time by releasing annual increments due to him and also pay him the revisions, if any, during the interregnum period. The learned Judge further directed that this notional service shall be taken into consideration for the purpose of seniority, confirmation, promotion and other consequential benefits that accrued to the Petitioner.
Thereafter, by order dated 15.07.1999, the learned Judge closed W.P. No. 2884 of 1990 filed by the Petitioner observing that the subject matter thereof was the same as in W.P. Nos. 8688 and 18764 of 1988, but by mistake W.P. No. 2884 of 1990 was not included in the disposal effected by the common order dated 18.11.1998. The learned Judge therefore disposed of W.P. No. 2884 of 1990 in the light of the common order dated 18.11.1998 passed in the other two writ petitions and directed the Respondents to implement the directions given in the said common order forthwith. In effect, the common order dated 18.11.1998 has to be treated as the order in W.P. No. 2884 of 1990 also.
While so, the Petitioner filed Rev. WPMP No. 15720 of 2009 seeking review of the order dated 15.07.1999 passed in W.P. No. 2884 of 1990 on the ground that he had secured fresh evidence which was not within his knowledge earlier. He stated that he had obtained on 21.12.2008 the roster register pertaining to the subject selection of Junior Medical Officers in the year 1979 under the provisions of the Right to Information Act, 2005. According to him, this register was suppressed all through leading to denial of certain reliefs by the learned Judge under the order dated 18.11.1998, which was made applicable to W.P. No. 2884 of 1990 by order dated 15.07.1999. He also filed WPMP No. 7359 of 2010 in the said review petition seeking leave to amend the prayer in W.P. No. 2884 of 1990 and thereby claim pay and allowances along with consequential benefits, including earned leave, surrender of leave, promotion as per his seniority, on par with Respondents 4 to 7 from 30.03.1979 to 13.08.1989. He also sought payment of interest and compensatory costs of Rupees Five Lakhs.
The painstaking and meticulous common order dated 18.11.1998 passed by the learned Judge recounts in exhaustive detail the factual substratum of the case. Nut shelled, the relevant history is as under:
The Director of Indian Medicine and Homeopathy, Andhra Pradesh, Hyderabad, requisitioned a list of eligible candidates from the Regional Employment Exchange, Hyderabad, on 12.01.1979 for filling up 17 posts of Junior Homeopathic Physicians (Junior Medical Officers) in various Zones. The Petitioner, belonging to BC-B Category, was also sponsored by the employment exchange for Zone-VII. Pursuant to the selections held on 16.03.1979 and 17.03.1979, a merit list was prepared. The Petitioner admittedly secured 102 marks. Appointments, category-wise, were finalized on 30.03.1979 and appointment orders were issued to four candidates in so far as Zone VII is concerned. The Petitioner was not amongst them.
Aggrieved thereby, he filed W.P. No. 3711 of 1979 before this Court which was disposed of by order dated 19.03.1987 holding that this Court had no jurisdiction to adjudicate such service matters and permitting the Petitioner to approach the Administrative Tribunal. Thereupon, the Petitioner filed R.P. No. 2026 of 1987 before the erstwhile Administrative Tribunal seeking a direction to the authorities to appoint him as a Junior Medical Officer in Homeopathy with effect from 30.03.1979 with pay, allowances and other consequential benefits. By way of interim relief he sought a direction to appoint him to the said post pending disposal of the R.P. By interim order dated 16.04.1987, the erstwhile Tribunal directed the Director, Indian Medicine and Homeopathy, Andhra Pradesh, to consider the Petitioner''s case if there were vacancies available in the said post. This direction was again reiterated by the Tribunal on 24.04.1987 in a separate Miscellaneous Petition.
Continued inaction on the part of the authorities constrained the Petitioner to file W.P. No. 8688 of 1988 before this Court seeking a direction to the authorities to implement the orders of the Andhra Pradesh Administrative Tribunal, Hyderabad, and to appoint him as a Junior Medical Officer, Homeo, with retrospective effect along with consequential benefits. By way of an interim order, this Court directed the authorities to consider the Petitioner''s case as per the Tribunal''s order dated 24.04.1987. Non-compliance of this interim order led to the filing of another Miscellaneous Petition in WPMP No. 4660 of 1989 in the said writ petition. Vexed with the attitude of the authorities in not implementing the orders of the Administrative Tribunal, the Petitioner by way of W.P. No. 18764 of 1988 challenged the A.P. Administrative Tribunal Order, 1975. While so, by interim order dated 20.04.1989, this Court again directed the authorities to implement the orders of the Tribunal and posted the main writ petitions, W.P. Nos. 8688 and 18764 of 1988, for final hearing.
As matters stood thus, R.P. No. 2026 of 1987 was disposed of by the Tribunal on 14.08.1989 setting aside the appointment of one of the four appointees in Zone-VII, viz., Dr. A. Ram. Mohan Rao, who was appointed against an OC vacancy, on the ground that he did not possess the requisite experience. He had secured 105 marks. The Tribunal directed that if there were no other candidates who had secured in between 105 and 102 marks, the Petitioner, with 102 marks, would be entitled to be selected and appointed, if otherwise eligible. The Tribunal opined that in case of such contingency, the Petitioner should be appointed notionally with effect from the date on which the others were appointed without monetary benefits but with monetary benefit from the date he is appointed.
Responding to this direction, the authorities issued Memo dated 16.02.1990 informing the Petitioner that one Dr. Gangaiah who also secured 105 marks on par with Dr. A. Ram Mohan Rao could not be appointed for want of vacancy and therefore the question of appointing the Petitioner did not arise.
The learned Judge, during the course of the hearing, perused the records and found that no appointment order had been issued to Dr. Gangaiah who, in fact, did not even lay a claim to the post after the appointment of Dr. A. Ram Mohan Rao was set aside by the Tribunal. The Memo dated 16.02.1990 was therefore only a ruse to avoid implementation of the Tribunal''s order.
In the interregnum, the erstwhile Tribunal created under Article 371-D of the Constitution was abolished and a new Tribunal came into existence with effect from 01.11.1989 under the Administrative Tribunals Act, 1985.
The Petitioner therefore approached the new Tribunal by way of O.A. No. 2609 of 1990. Being of the opinion that it had no jurisdiction, the Tribunal advised the Petitioner to withdraw the said O.A. and pursue appropriate remedies. Accordingly, he filed W.P. No. 2884 of 1990. Therein, he sought various reliefs, including a direction to the authorities to comply with the mandatory provisions for reservation for Backward Classes under Rule 22 of the Andhra Pradesh State and Subordinate Service Rules and to consequently appoint him as a Junior Medical Officer with retrospective effect from 30.03.1979 by creating a supernumerary post with pay and allowances and other consequential benefits. He also laid a challenge to the appointment of the unofficial Respondents arrayed in the said writ petition. By way of an interim order dated 17.04.1990 passed in this writ petition, this Court directed the authorities to appoint the Petitioner as a Junior Medical Officer in Zone-VII pending further orders.
Piqued by the non-implementation of this order, the Petitioner moved a contempt case in C.C. No. 365 of 1990. Meanwhile, the authorities sought vacating of the interim order dated 17.04.1990 and aggrieved by the order passed by the learned Judge on the said application, they filed W.A. No. 1020 of 1990. In the first instance, this appeal was allowed by a Division Bench by order dated 05.09.1990, being under the impression that the jurisdiction of this Court to entertain the matter was required to be gone into. However, upon the review application filed by the Petitioner, the Bench opined by its order dated 12.07.1991 that its earlier judgment had to be reviewed as no point of jurisdiction had been raised before the single Judge and on the other hand, the order was passed on consent. In that view of the matter, the Bench dismissed the appeal.
Aggrieved thereby, the authorities approached the Supreme Court by way of SLP No. 17522 of 1991. However, they met with failure when the said SLP was dismissed on 09.12.1991. Thus, left with no option, they finally provided appointment to the Petitioner as a Junior Medical Officer by orders dated 01.02.1992. However, the said appointment was stated to be purely temporary and liable for termination without prior notice and assignment of reasons. It was also made subject to the final orders in the pending writ petition. Thereafter, it was only by proceedings dated 21.11.1997 that the Petitioner''s services were regularized in the said post with effect from 13.10.1992.
Faced with this factual scenario, the learned Judge, as stated supra, called for and perused the records pertaining to the subject selections made in the year 1979. Upon a thorough but compendious analysis of the same, the learned Judge found that the rule of reservation was followed more in breach. Reservation category candidates who ought to have been appointed on merit in OC vacancies were accommodated against the reservation category posts while OC candidates with lesser merit were shown against OC vacancies.
In so far as Zone-VII pertaining to the Petitioner is concerned, the learned Judge found that four posts of Junior Medical Officer had been filled, the details thereof being:
Name of the Candidate
Category towhich he/shebelonged
Marks obtained
Dr. M. Gopalakrishna Rao
ST
163
L.V. Ram Mohan
OC
130
ST Vacancy carried forward
Dr. A. Ram Mohan Rao
OC
105
Dr. Ch. SriramaLakshmi
BC-D
115
As regards the appointment of Dr. A. Ram Mohan Rao, which was nullified by the Tribunal on the ground of ineligibility, the learned Judge found that with lesser marks of 105 the said candidate had been appointed against the OC vacancy while Dr. Ch. Srirama Lakshmi, a Backward Class candidate, with far higher marks of 115 instead of being appointed against the said vacancy was accommodated against the reservation vacancy. Taking note of these facts, the learned Judge reacted strongly to the manner in which the authorities were implementing the rule of reservation. So much so, that the learned Judge observed that if even after 50 years of independence the authorities did not know how to implement the rule of reservation, it would be better to scrap the same rather than keeping it on the statute book!
However, pertinently, the learned Judge was not apprised of the roster point reservation applicable to the posts filled up in Zone-VII. The common order reflects that being under the impression that one of the vacancies was ear-marked for a BC-A candidate as per Rule-22 of the Andhra Pradesh State and Subordinate Service Rules, the learned Judge opined that if such candidate was not available it should have been given to the next group amongst the Backward Classes, i.e., BC-B. As the Petitioner belonged to the said group and as Dr. Ch. Srirama Lakshmi, who ought to have been appointed on merit against the OC category vacancy, was given this reservation post, the learned Judge found force in the Petitioner''s challenge that he was unlawfully denied appointment. The order further reflects that the learned Judge, upon being informed of the fact that the Petitioner had been appointed under Order dated 01.02.1992, was inclined initially to grant compensation for the wrongful denial of employment to him, but after perusing the records and the earlier orders passed by this Court and the Tribunal, the learned Judge granted the Petitioner monetary benefits from 14.08.1989, the date of disposal of R.P. No. 2026 of 1987. It may be noted that by the said order, the Tribunal directed the authorities to notionally appoint the Petitioner with effect from the date on which the others had been appointed but restricted his entitlement to monetary benefits from the date of his actual appointment. The learned Judge therefore opined that the authorities had no reason whatsoever to deny or delay the reliefs due to the Petitioner under the said order. Placing reliance on case law, the learned Judge, adverted to the negative and defiant attitude of the authorities throughout and directed that the Petitioner should be allowed back wages at least from 14.08.1989, the date of the order in R.P. No. 2026 of 1987. He was also given the benefit of service notionally from 30.03.1979 with all consequential benefits that flow there from. The authorities were also specifically directed to give effect to this notional service for the purpose of seniority, confirmation, promotion and other consequential benefits.
Review of the above order is now sought on the ground that the Petitioner, taking recourse to the Right to Information Act, 2005, sought details as to the reservation roster points applied by the authorities during the selections of 1979. The said application evoked response from the Additional Director (Homeopathy), Andhra Pradesh, Hyderabad, on 21.12.2008 and the roster points applied by the authorities were made available to the Petitioner. Pertinent to note, this information could not have been obtained by the Petitioner earlier as there was no enabling law for him to seek data from the records. In so far as Zone-VII is concerned, the roster points applied during the 1979 selections were from Serial Nos. 6 to 10. The details are as follows:
Name of the Candidate
Categoryto whichhe/shebelonged
Roster pointagainst whichappointed
Dr. M. Gopalakrishna Rao
ST
No. 6 - OC
L.V. Ram Mohan
OC
No. 7 - OC
ST Vacancy carried forward
No. 8 - ST
Dr. A. Ram Mohan Rao
OC
No. 9 - OC
Dr. Ch. SriramaLakshmi
BC-D
No. 10-BC-B
Relevant to note, Serial No. 10 pertained to BC-B Category and not BC-A as was notified by the authorities. As the Petitioner belonged to the said category he would have automatically had a priority right to be considered. Due to this lapse, which was not disclosed throughout, the Petitioner was denied his lawful right for appointment against the post. The Petitioner was not and could not have been privy to this information earlier. He therefore sought review of the common order, seeking salary and consequential benefits from 30.03.1979 up to 13.08.1989 with compensation and costs. He also sought amendment of his prayer in the writ petition in WPMP No. 7539 of 2010 by including a claim for pay, allowances and consequential benefits such as earned leave, surrender of leave, promotions as per his seniority from 30.03.1979 on par with others, along with interest and compensation.
Opposing the review petition, the learned Government Pleader for Industries and Commerce appearing for the authorities contended that it was not open to the Petitioner to seek review of an order passed over a decade ago on the ground that he had come across fresh material at this stage. Learned Government Pleader submitted that substantial justice had been done to the Petitioner under the common order passed by the learned Judge and it was not open to him to seek further relief at this late stage.
He placed reliance upon the counter filed by the Deputy Director (Admn.), Department of AYUSH (Ayurvedha Yoga & Naturopathy, Unani, Sidha & Homoeopathy), Andhra Pradesh, Hyderabad, formerly the Department of Indian Medicine and Homoeopathy, Hyderabad. Therein, except for a feeble assertion that while selecting the candidates in the year 1979 the recruitment rules, merit/rule of reservation etc. had been followed strictly, the Deputy Director, AYUSH, Hyderabad, admitted the facts narrated supra. As regards the application of roster points, which is now raised by the Petitioner, the Deputy Director, while conceding that the 10th roster point ought to have been reserved for BC-B category and not BC-A as indicated in the Notification, sought to rely on Rule-22(f)(i) of the Andhra Pradesh State and Subordinate Service Rules to justify the selection of Dr. Ch. Srirama Lakshmi against the said post. As per the said rule, if a qualified and suitable candidate belonging to a particular group of Backward Classes was not available for appointment in the turn allotted to them in the cycle, the turn shall accrue to the next group of the B. Cs. in the rotation. The Deputy Director stated that the roster point BC-B was therefore filled by a candidate belonging to BC-D category, Dr. Ch. Srirama Lakshmi. This argument, sophistic as it is, has to fail. There is no dispute that the Petitioner was the only BC-B candidate within the zone of consideration. Had his case been considered against the 10th roster point correctly, there would be no question of applying the a fore stated rule and going to the next group. Further, as pointed out earlier, Dr. Ch. Srirama Lakshmi having secured higher marks than Dr. A. Ram Mohan Rao ought to have been appointed against an OC category post and not against a reservation post. Thus, the face-saving lame averments made in the counter are of no avail to the authorities at this late stage.
In his reply to the above counter, the Petitioner reiterated his entitlement to claim appointment against the 10th roster point post which was to be allotted to a BC-B candidate. He pointed out that the authorities failed to submit the roster register before this Court and the Tribunal in the earlier rounds of litigation and contended that had the same been produced, he could have straightaway claimed appointment against the said post. As he was deprived of his legitimate right to claim such appointment all these years by the suppression of the said document, which only came to light recently owing to his application under the Right to Information Act, 2005, he pressed for the reliefs now claimed.
The facts a fore stated demonstrate that right from the year 1979 the Petitioner has been agitating his case running from pillar to post complaining that injustice was done to him in the matter of appointment to the post of Junior Medical Officer (Homeo). Favorable orders notwithstanding, the authorities continued to deny him such appointment till the year 1992. Even thereafter till the year 1997 he was kept on tenterhooks by treating him as a temporary appointee. The sequence of the cases that the Petitioner had to institute before various fore and the response of the authorities throughout clearly demonstrates that they tried to deny his right to claim the appointment raising all possible objections that were available to them. In none of the pleadings put forth by them did the authorities admit to their lapse in notifying the vacancies as per the proper and applicable roster points. The learned Judge, while passing the common order dated 18.11.1998, was also lulled into believing that the reserved post was meant for BC-A category and not BC-B, as is now revealed by the information gleaned by the Petitioner under the Right to Information Act, 2005.
It is indeed surprising that this aspect did not come to light when the records were produced for perusal by the learned Judge. The minute detail with which the records were analyzed by the learned Judge is apparent from the order. This Court is therefore inclined to suspect that the roster which is now placed before this Court was withheld from the learned Judge. The failure on the part of the authorities in disclosing this document all through, be it by willful suppression or careless disregard, clearly speaks against them and reflects the scant respect that they had towards the constitutional obligation placed on them in so far as implementation of the reservation policy is concerned.
In this regard, reference may be made to S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, wherein the Supreme Court observed that Courts of law are meant for imparting justice between the parties and one who comes to the Court must come with clean hands. Withholding of a vital document in order to gain advantage on the other side was held to be playing fraud on the Court as well as on the opposite party.
That being so, this Court is not inclined to accept the submission of the learned Government Pleader that the settled position obtaining under the order dated 18.11.1998 ought not to be unsettled at this stage. Notwithstanding the passage of time, the error committed by the authorities which has now come to light clearly manifests the irreparable injustice done to the Petitioner. This Court cannot therefore remain a mute spectator or turn a blind eye to such arbitrary and illegal acts on the part of the authorities in discharge of their constitutional and statutory duties. Time does not heal illegality.
The question then is as to the relief to be granted to the Petitioner at this stage. Guidance perhaps lies in judicial dicta emanating from similar fact situations.
In P.S. Seetha Lakshmi Vs. The Chairman, Visakhapatnam Port Trust, Visakhapatnam and Others, which finds mention in the learned Judge''s common order, this Court was dealing with a case where employment was denied unlawfully to the Petitioner therein in the year 1986. The Court directed the authorities in the year 1992 to appoint the Petitioner with effect from 1986, if need be by creating a supernumerary post, and to pay her all monetary benefits consequent upon such antedated appointment including re-fixation of pay, increments and arrears of pay.
In Rakesh Warikoo v. State of Jammu and Kashmir SWP No. 1871 OF 2004, DT. 18.08.2010, a learned Judge of the Jammu and Kashmir High Court, faced with a prayer for retrospective appointment, took note of the fact that the State Government had committed an error in considering the Petitioner''s appointment from a later date contrary to the legal position and directed consideration of his case for retrospective appointment from the date others similarly situated were so appointed along with consequential service benefits as were permissible under the rules.
In Shaikh Mehaboob v. Railway Board 1982(1) SLR 455, a learned Judge of the Karnataka High Court was dealing with a case where promotion was denied unlawfully. The contention raised therein was that even if an employee was denied promotion at the proper time, he would not be entitled to arrears of salary as he did not shoulder the duties and responsibilities of the higher post. However, the learned Judge was of the opinion that the denial of arrears of salary could not be supported as the Petitioner therein had a right to be considered for promotion on the date that it was due and the said valuable right could not be denied and used thereafter as justification for further denying arrears of salary. The learned Judge therefore directed payment of the difference of the salary with effect from the date of retrospective promotion.
In N. Nagendra Rao and Co. Vs. State of Andhra Pradesh, the Supreme Court observed that the ever increasing abuse of power by public authorities and interference with life and liberty of the citizens arbitrarily, coupled with transformation in social outlook with increasing emphasis on human liberty resulted in a more pragmatic approach to the individual''s dignity, his life and liberty and carving out of an exception by the court where the abuse of public power was violative of the constitutional guarantee. Such infringements were held to be wrong in public law which do not brook any barrier and the State was held liable to compensate the victims.
The Supreme Court further observed that sovereign immunity as a defiance is not available to the State where its officers are guilty of interfering with life and liberty of the citizen not warranted by law. In such cases of infringement the State was also vicariously liable and bound, constitutionally, legally and morally, to compensate and indemnify the wronged person. The observations of the Court in this context are relevant:
... No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in nineteenth century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as "sovereign and non-sovereign" or "governmental and non-governmental" is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligent. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a Welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the "financial instability of the infant American States rather than to the stability of the doctrine''s theoretical foundation", or because of "logical and practical ground", or that "there could be no legal right as against the State which made the law" gradually gave way to the movement from, "State irresponsibility to State responsibility". In Welfare State, functions of the State are not only defiance of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. The determination of vicarious liability of the State being linked with negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable the State cannot be sued. The liability of the officer personally was not doubted even in Viscount Canterbury. But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State.
Reference in this regard may also be made to the observations of the Supreme Court in Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others,
It may be mentioned straightaway that award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defiance in private law in an action based on tort.
The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilise public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting ''compensation'' in proceedings under Articles 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ''monetary amends'' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of ''exemplary damages'' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.
In Common Cause, A Registered Society Vs. Union of India and Others, the Supreme Court observed that where public functionaries were involved and the matter related to violation of fundamental rights or the enforcement of public duties, a remedy would lie under public law notwithstanding that damages are also claimed in such proceedings. Public law remedies would be available in such cases and the Court can award damages against public authorities to compensate for the loss or injury caused to the Petitioner, provided the case involves the violation of fundamental rights by the Government or other public authorities or that their action was wholly arbitrary or oppressive in violation of Article 14 or in breach of statutory duty and is not a purely private matter directed against a private individual. Again in The Chairman, Railway Board and Others Vs. Mrs. Chandrima Das and Others, the Supreme Court observed that where public functionaries were involved in the matter relating to violation of fundamental rights or enforcement of public duties, the remedy would still be available under public law notwithstanding the fact that a suit could be filed for damages under private law.
The fundamental right of the Petitioner under Article 16(4) having been trampled underfoot by the callous and casual attitude of the authorities in discharge of their statutory obligation in applying the roster point correctly lays foundation for exercise of jurisdiction by this Court under Article 226 of the Constitution for awarding compensatory damages to the Petitioner. The Petitioner was denied employment for a period of ten years owing to the wrong done to him by the authorities. As this injustice cannot be addressed in terms of restitution, the only relief that can be granted to the Petitioner would be to compensate him monetarily for the loss suffered by him.
It is pertinent to note that even after the passing of the common order dated 18.11.1998, the authorities sought to deny the Petitioner monetary benefits in accordance therewith under G.O. Ms. No. 1500 dated 17.09.1999 by applying Fundament Rule 26(aa) and limiting his monetary benefits only from the date of his joining duty i.e. 13.02.1992. It was only thereafter that revised orders were issued on 28.07.2000 extending monetary benefits to the Petitioner with effect from 14.08.1989 as per the common order. It appears that he was given notional seniority by placing him above Dr. M. Gopalakrishna Rao who was appointed as Junior Medical Officer on 31.03.1979.
Earlier, the Petitioner filed WPMP (SR) No. 85151 of 2006 in W.P. No. 2884 of 1990 seeking a direction to the authorities to recast his earned leaves and half pay leaves from 30.03.1979 and his surrender of earned leaves from 14.08.1989 as per the common order. As the office raised an objection to the maintainability of this application, the matter was posted before the Court and by order dated 02.12.2008, a learned Judge of this Court upheld the objection on the ground that the prayer was beyond the scope of the writ petition. In view of the same, the Petitioner sought amendment of the prayer in the writ petition by way of WPMP No. 7359 of 2010 so as to lay a claim for pay and allowances and consequential benefits, including earned leave, surrender of leave etc. on par with Respondents 4 to 7 from 30.03.1979 to 13.08.1989.
Relevant to note, the reliefs granted by the learned Judge under the common order dated 18.11.1998 include release of increments and revisions to the Petitioner on the basis of his notional service from 30.03.1979, which was also to be taken into account for the purposes of seniority, confirmation, promotion and the other consequential benefits that accrued to him. Therefore, except for the restriction placed on his entitlement to actual monetary benefits, which were allowed only from 14.08.1989, this Court directed the authorities to treat the Petitioner as in service from 30.03.1979 for all other purposes. Ergo, he would be entitled to claim leave and also promotion as per his seniority on par with Respondents 4 to 7, duly taking into account the notional service extended to him from 30.03.1979. WPMP No. 7359 of 2010 is accordingly ordered permitting the amendment of the prayer in the writ petition as the said reliefs, in fact, flowed from the common order dated 18.11.1998.
On the basis of the details furnished by the Commissioner, Indian Medicine and Homoeopathy Department, Andhra Pradesh, in his Proceedings No. 7711/H.2/90 dated 25.09.1999, which is placed on record by the learned Government Pleader, the actual monetary loss caused to the Petitioner owing to denial of his employment from 30.03.1979 up to 14.08.1989 would come to about Rs. 1,43,890/-.
Rs. Ps.
30.03.1979 to 30.03.1980
Rs. 750 x 12
9,000=00
30.03.1980 to 30.03.1981
Rs. 780 x 12
9,360=00
30.03.1981 to 30.03.1982
Rs. 810 x 12
9,720=00
30.03.1982 to 30.03.1983
Rs. 840 x 12
10,080=00
30.03.1983 to 30.03.1984
Rs. 870 x 12
10,440=00
30.03.1984 to 30.03.1985
Rs. 900 x 12
10,800=00
30.03.1985 to 30.03.1986
Rs. 930 x 12
11,160=00
30.03.1986 to 30.06.1986
Rs. 960 x 3
2,880=00
01.07.1986 to 30.03.1987
Rs. 1760 x 9
15,840=00
30.03.1987 to 30.03.1988
Rs. 1830 x 12
21,960=00
30.03.1988 to 30.03.1989
Rs. 1900 x 12
22,800=00
30.03.1989 to 14.08.1989
Rs. 1970 x 5
9,850=00
1,43,890=00
Needless to state, a rupee went a far longer distance in the eighties as compared to the present day. Applying a modest rate of 6% interest per annum to the loss of each year''s salary from 1979 onwards would entitle the Petitioner to a further sum of Rs. 2,09,835/-:
Interest calculated at 6% per annum
Period
Amount Rs. Ps.
Interest on Rs. 9,000/-
For 30 years
16,200=00
Interest on Rs. 9,360/-
For 29 years
16,286=40
Interest on Rs. 9,720/-
For 28 years
16,329=60
Interest on Rs. 10,080/-
For 27 years
16,329=60
Interest on Rs. 10,440/-
For 26 years
16,286=40
Interest on Rs. 10,800/-
For 25 years
16,200=00
Interest on Rs. 11,160/-
For 24 years
16,070=40
Interest on Rs. 2,880/-
For 24 years
4,147=20
Interest on Rs. 15,840/-
For 23 years
21,859=20
Interest on Rs. 21,960/-
For 22 years
28,987=20
Interest on Rs. 22,800/-
For 21 years
28,728=00
Interest on Rs. 9,850/-
For 21 years
12,411=00
2,09,835=00
Thus, just in terms of the actual loss suffered by him along with modest interest, the amount due to the Petitioner would be in the range of Rs. 3,53,725/-.
As posited by the Supreme in Nilabati Behera, this Court must attempt to make monetary amends for the manifest injustice done to the Petitioner due to the breach of public duties by the Respondents at the relevant point of time. He would therefore be entitled to exemplary damages also in addition to the actuals. There is no gainsaying the fact that the Petitioner spent the better part of his adult life seeking redresses of his grievance with regard to this injustice, which could have been immediately addressed had the roster register been produced by the authorities in the first instance. Keeping in mind the facts and circumstances of the case, this Court is of the considered opinion that a total compensation of Rs. 5,00,000/- (Rupees Five Lakhs only) would be befitting and justified.
The amendment petition and the review petition are accordingly allowed holding that the Petitioner is entitled to the compensation of Rs. 5,00,000/- (Rupees Five Lakhs only) and reaffirming that he is entitled to be placed on par with Respondents 4 to 7 in all respects including pay, allowances, earned leave, surrender of leave, promotion etc. from 30.03.1979 onwards. This order shall be implemented within three (3) months from the date of receipt. As this Court has directed payment of actual and exemplary damages, there shall be no order as to costs.