IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 WP(C).No. 11410 of 2008(R) -------------------------------- PETITIONER: --------------- A.BALAGANGADHARAN, ASSISTANT REGISTRAR (HIGHER GRADE) (RETIRED), HIGH COURT OF KERALA, RESIDING AT POTTAYIL HOUSE, PERANDOOR, ELAMAKKARA P.O., ERNAKULAM DISTRICT. BY ADV. SRI.K.JAJU BABU SRI.BRIJESH MOHAN RESPONDENTS: ----------------- 1. THE HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31, REP. BY ITS REGISTRAR GENERAL. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT. HOME DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM. R1 BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE ADV.SRI.B.UNNIKRISHNA KAIMAL R2 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.11410 OF 2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF ORDR NO.A1-83450/2004 DATED 24.10.07 ISSUED BY THE 1ST RESPONDENT EXT.P2 TRUE COPY OF ORDER NO.A5-76398/2007 DATED 30.10.07 ISSUED BY THE 1ST RESPONDENT EXT.P3 TRUE COPY OF NOTICE NO.A5-8603/2007 DATED 13.2.2007 ISSUED BY THE 1ST RESPONDENT EXT.P4 TRUE COPY OF ORDER NO.A5-1223/2006 DATED 11.6.2007 ISSUED BY THE 1ST RESPONDENT EXT.P5 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF JUSTICE OF KERALA ON 9.1.2008 EXT.P6 TRUE COPY OF ORDER NO.A5-3298/2008 DATED 8.2.2008 ISSUED BY THE 1ST RESPONDENT EXT.P7 TRUE COPY OF APPEAL SUBMITTED BY THE PETITIONER BEFORE HON'BLE CHIEF JUSTICE OF KERALA ON 25.2.2008 EXT.P8 TRUE COPY OF ORDER NO.A5-3298/2008 DATED 13..2008 ISSUED BY THE 1ST RESPONDENT EXT.P9 TRUE COPY OF ORDER NO.A5-1794/2007(2) DATED 25.1.2007 ISSUED BY THE 1ST RESPONDENT / TRUE COPY / S.SIRI JAGAN, J. ---------------------------------------------- W.P(C).No.11410 of 2008 ---------------------------------------------- Dated this the 11th day of February, 2011 JUDGMENT Petitioner was a member of the Kerala High Court Service. His original date of retirement on attaining the age of 55 years as per the original rule was 31.7.2007. But the Chief Justice of the Kerala High Court, invoking his powers vested in him, framed revised rules as per which the retirement age was enhanced to 58 years. Validity of that rule was upheld in the decision reported in Valsakumari v State of Kerala (2007(3) KLT 805). Subsequently, the Government of Kerala issued Ordinance No.61/07, by which retirement age was retrospectively reduced as 55 years. Subsequently, all persons who had crossed the age of 55 years including the petitioner, who was also continuing by virtue of the rules fixing the retirement age as 58 years, were retired on 22.10.2007. The petitioner now contends that in view of the retrospective amendment of the rules, two Deputy Registrars in service would have notionally retired on 31.5.2007 and 30.6.2007, as a result of which there would have been two vacancies of Deputy Registrars arising on 1.6.2007 and 1.7.2007. But, because of the intervening amendment of the rules, those WP(C) No.11410/08 - 2 - vacancies did not physically arise and the petitioner had to retire without getting the promotion as Deputy Registrar which was notionally due to the petitioner on account of the retrospective Ordinance. Therefore, the petitioner is entitled to have his retirement benefits calculated in the scale of pay applicable to Deputy Registrar, is the contention raised by the petitioner in this Writ Petition. 2. Learned counsel for the first respondent would contend that without actually a vacancy arising on 1.6.2007 and 1.7.2007 and without a declaration that the rule framed by the Chief Justice was unsustainable, it cannot be stated that the petitioner is entitled to promotion to any vacancy which did not physically arise. Therefore, the petitioner is not entitled to any notional retrospective promotion, is the contention raised. 3. I have considered the rival contentions in detail. I am of opinion that insofar as no vacancy legally arose on 1.6.2007 and 1.7.2007, the petitioner cannot aspire for promotion to the post of Deputy Registrar with effect from any date whatsoever. Till the date of retirement of the petitioner there was no vacancy of Deputy Registrar, to which the petitioner could have aspired for promotion. The raising of the retirement age to 58 years and lowering of the same subsequently by the State by a legislative declaration all were made legally. Of course, if the raising of retirement age was not WP(C) No.11410/08 - 3 - there, perhaps the petitioner would have been eligible for promotion, but that is not a reason to say that there was actually a vacancy on 1.6.2007 or 1.6.2007 even notionally so as to enable the petitioner to claim promotion to one of those vacancies. Such lowering of the retirement age will have effect only on the retirement benefits of those who continued beyond the age of 55 years till the Ordinance came into force and not for any other purpose. In this connection I note that even when the retirement age was 55 years, the Chief Justice had powers to extend the period of service of particular employees after complying with the procedure prescribed. As such, I am not inclined to countenance the claim of the petitioner and accordingly, the Writ Petition is dismissed. S.SIRI JAGAN, JUDGE vgs