Kerala HC: Judicial process cannot be abused to perpetuate illegalities


A division bench of the Kerala High Court has recently observed that when any authority is shown to have committed any illegality or irregularity in favour of any individual or a group, others cannot claim the same illegality or irregularity on ground of denial thereof to them.

The bench of PB Suresh Kumar and CS Sudha made the observations, while considering a petition related to denial of pension to a retired professor of an affiliated college. The petitioner had staked claim for post-retirement benefits after pointing out that the same benefits, which were denied to him, were paid to staff of other similar affiliated colleges.

Earlier, a single bench of the high court in 2018 had allowed the contention of Dr KN Balakrishnan Nair, who retired from NSS Homoeo Medical College, Kottayam, that denial of pension to him and a few others in his college was illegal and discriminatory. Directing the government to consider Nair for pension, the single bench had then said that there was no justification for not extending the petitioner the benefits of pension, which were given to retired staff of other two affiliated colleges.

Quashing the single bench directive, the division bench on September 2 said that “judicial process cannot be abused to perpetuate illegalities.” The division bench acted upon an appeal moved by the state government.

Nair had retired in 1995. He had joined NSS Homoeo College in 1964, but the institute was made a medical college with affiliation to Kerala University only in 1983. However, a direct payment system (a government scheme to pay staff of private affiliated colleges) was introduced in the college only eight months after Nair retired. Hence, others who had been in service as on 1 November, 1995, when direct payment was introduced, got pension benefits. The petitioner and 13 others were denied pension as the direct payment system was introduced only after they retired. The petitioner wanted that pension be paid to him for the service from 1983, the year his college was affiliated to the university. Nair pointed out that employees of two other colleges – Vaidyaratnam Ayurveda College, Ollur and Ayurveda College, Kottakkal – were paid pension reckoning their service from 1972, the year these colleges were affiliated with the university. Nair had felt the denial of pension as illegal and discriminatory.

The government told the high court that pension was granted to the staff of the other two Ayurveda Colleges on account of a wrong notion and a one-time measure, with the approval of the Cabinet.

Referring to the perusal of the issue in detail, the division bench said, “Can two wrongs make a right? Does a wrong/illegal decision or order in favour of one party entitle another to claim the benefit of the said order on the ground of equality under Article 14 of the Constitution of India? If the benefit of the said illegal order is not given to him, would that amount to a discrimination violative of Article 14?”

The court said if some person derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead that benefit from the breach of law. One illegality cannot be compounded by permitting similar illegal or illegitimate acts.

The division bench said, “When the order in favour of some persons is found to be contrary to law, such illegal or unwarranted orders cannot be made the basis of issuing a writ compelling the Government to repeat the illegality and issue another illegal or unwarranted order. Judicial process cannot be abused to perpetuate illegalities. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner.”

The division bench noted that it appears that a pick and choose policy is being followed. In some cases, the State does not take any action to set aside blatantly wrong orders, and allow some people to continue enjoying the benefit of the said wrong orders. “But when it comes to the case of certain others, steps are taken quite promptly to ensure that they do not enjoy the said benefit, apparently on extraneous considerations. It needs to be noted that in all these cases, public money is involved and the brunt of all the wrong or illegal orders has to be borne by the taxpayers,” the high court observed.





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