IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 WA.No. 580 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.24942/2005 Dated 09/08/2007 .................... APPELLANT/PETITIONER IN WP(C). ---------------------------------- B.RAMAKRISHNAN, S/O. LATE E.BHASKARAN NAIR, I-GRADE DRAFTSMAN, O/O. ASST.EXECUTIVE ENGINEER, KIP (RB) SUB DIV. NO.26, KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.M.V.THAMBAN RESPONDENTS/RESPONDENTS IN WP(C). ------------------------------------ 1. THE CHIEF ENGINEER, IRRIGATION ADMINISTRATION, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF IRRIGATION, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 3. T.S. VINOD, IST GRADE DRAFTSMAN, HYDRAGRAPHY SECTION, DEPARTMENT OF IRRIGATION THIRUVANANTHAPURAM. PRESENTLY WORKING AS ASST. ENGINEER, IN THE OFFICE OF THE MINOR IRRIGATION SECTION, P.M.G.JN., THIRUVANANTHAPURAM. GOVERNMENT PLEADER , SMITHA SUKUMARAN FOR R1 & R2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A. No. 580 OF 2008 ------------------------------ Dated this, the 28th day of January, 2010 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant was the writ petitioner. The respondents herein were the respondents in the Writ Petition. 2. The brief facts of the case are the following: The appellant was appointed as Overseer Grade-III on 28.3.1989, by Government Order dated 20.3.1989 under the scheme for appointment on compassionate ground, for dependents of Government Servants dying-in-harness. Later, the Government issued an order dated 30.3.1995, permitting appointment of such appointees to higher grades commensurate with their qualifications. In the light of that Government Order, the appellant submitted an application on 18.4.1995, claiming appointment as Overseer Grade-I. The said application was allowed by the Government, by order dated 17.9.1997. W.A. No.580/2008 - 2 - 3. The 3rd respondent was a person similarly placed, who was appointed as Overseer Grade-III on 28.3.1990. In the light of the Government Order dated 30.3.1995, he moved the Government and obtained appointment as Overseer Grade-I by order dated 10.10.1995. Later, the Government by Order dated 5.11.1998 gave change of category to the 3rd respondent with retrospective effect from 29.11.1994, so that seniority with reference to a junior of him is restored. 4. On coming to know of the above developments, the appellant submitted Ext.P3 representation dated 4.8.2003 claiming that he may be given category change to Overseer Grade I with retrospective effect, so that, his seniority in that cadre with reference to the 3rd respondent is maintained. The said application was rejected by the Government by Ext.P6 order dated 10.6.2004, on the ground of delay in making the motion. Though he attempted a review before the Government, that was rejected by Ext.P9 communication. Challenging Exts.P6 and P9, the Writ Petition was filed. The W.A. No.580/2008 - 3 - learned Single Judge noticed that though the appellant was given grade change as early as on 17.9.1997, he moved for granting retrospectivity to that change only on 4.8.2003, that is, after the lapse of six years. The learned Judge took note of the possibility that in between 1997 and 2003 several persons might have been appointed to the post of Overseer Grade-I and their seniority will be affected, if the relief sought for by the appellant is granted. In that view of the matter the Writ Petition was dismissed. Feeling aggrieved by the said judgment, the appellant has preferred this Writ Appeal. 5. The learned counsel for the appellant took us through Ext.P7 communication issued by the Chief Engineer and submitted that the claim of the appellant is genuine and the same is supported by his Chief Engineer. The learned counsel also relied on a decision of the Apex Court in Surya Kant Kadam v. State of Karnataka and others [2002(9) SCC 445] in support of his submission. W.A. No.580/2008 - 4 - 6. If the appellant is to succeed, he should base all his claims on his legal rights. If somebody is given some benefit illegally or unauthorisedly, the same cannot be founded as the basis for grant of relief to the appellant. It is a well settled position in law that this Court under Article 226 of the Constitution of India cannot ask the Government to repeat an illegality or irregularity for the satisfying requirement of Article 14. In this case, the appellant has claimed that he has got a legal right to get retrospective effect to his appointment to the post as Overseer Grade-I. Even assuming, he is entitled to get the same with retrospective effect, we notice that the motion for the same has been made after the lapse of six years. So, the learned Single Judge has rightly declined jurisdiction in this case. The decision relied on by the learned counsel for the appellant does not in anyway help the appellant. We think that the said decision is against him. In that decision, the colleagues of the appellant therein were considered for appointment to a higher post. But, the claim of the appellant therein was rejected on the ground of delay in making the motion. The W.A. No.580/2008 - 5 - Apex Court held that his claim should also be considered. But, added that the benefit, if any, granted will be given only prospectively. So, we think that the decision will not in anyway help the appellant. In the result, we find no merit in the appeal and it is accordingly dismissed. (K. BALAKRISHNAN NAIR, JUDGE) (P.N.RAVINDRAN, JUDGE) ps