Judgment:
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 11.1.2011 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 and ORS. VS. STATE OF HARYANA and ORS. (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 HSST, 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.