IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 WA.No. 1544 of 2007() --------------------- AGAINST THE JUDGMENT IN OP.4643/2003 Dated 04/04/2007 .................... APPELLANT(S): PETITIONERS: -------------------------------------- 1. S. MUTHUKRISHNAN, SENIOR GRADE ASSISTANT, KERALA UNIVERSITY, RESIDING AT ANIZHAM, TC-28/2763(1), KUTHIRAVATTOM ROAD, KUNNUMPURAM, TRIVANDRUM. 2. P.K. VIJAYAKUMARAN NAIR, SENIOR GRADE ASSISTANT, KERALA UNIVERSITY, RESIDING AT KAVADIKKATTAKKEL, PEYAD P.O., TRIVANDRUM. 3. S. VIKRAMAN, SENIOR GRADE ASSISTANT, KERALA UNIVERSITY, RESIDING AT PADMAVILASOM, NEDUMPA, PANAYAMUTTOM P.O., NEDUMANGAD. 4. NARASIMHA RAO V.L., SENIOR GRADE ASSISTANT, KERALA UNIVERSITY, RESIDING AT 14 B, SREE NAGAR, MANACAUD P.O., TRIVANDRUM. 5. P.S. MOHAMMED SHEREEF, SENIOR GRADE ASSISTANT, KERALA UNIVERSITY, RESIDING AT C/O. SALAAM STORES, AMBALAMUKKU, TRIVANDRUM. 6. MORRIN C., SENIOR GRADE ASSISTANT, KERALA UNIVERSITY, RESIDING AT TC-76/1770, MULLOOR NAGAR, KADAKKAMPALLY, ANAYARA, TRIVANDRUM. 7. C. SUDHAKARAN, SENIOR GRADE ASSISTANT, KERALA UNIVERSITY, RESIDING AT KARTHIKA, VELLAPALLI,NARUVAMOODU P.O., TRIVANDRUM. 8. ABDUL NASSER A., SENIOR GRADE ASSISTANT, KERALA UNIVERSITY, RESIDING AT AMAL BHAVAN, ROADUVILA, CHERIYAVELINALLOOR P.O., KOLLAM-16. 9. A. VIJAYAN, SENIOR GRADE ASSISTANT, KERALA UNIVERSITY, RESIDING AT THEERTHAM, NETTAYAM. BY ADV. SRI.S.RADHAKRISHNAN SRI.SHAFIK M.ABDULKHADIR RESPONDENT(S): RESPONDENTS: --------------------------------------- 1. UNIVERSITY OF KERALA, REPRESENTED BY THE REGISTRAR, UNIVERSITY OFFICE, TRIVANDRUM. 2. VICE CHANCELLOR, KERALA UNIVERSITY, TRIVANDRUM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT HIGHER EDUCATION DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM. 4. JACOB PHILIP, SELECTION GRADE ASSISTANT, KERALA UNIVERSITY, TRIVANDRUM. 5. A.S. MUKUNDAN, SELECTION GRADE ASSISTANT, KERALA UNIVERSITY, TRIVANDRUM. ADV. SRI.D.AJITHKUMAR FOR R4 & 5 SRI.M.RAJAGOPALAN NAIR, SC, KERALA UNIVERSIT- R1,2 GOVT.PLEADER SMT.R.BINDU-R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1544 OF 2007 --------------------------------------------- Dated this the 6th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The appellants are the petitioners. They filed the Original Petition challenging Exts.P3, P13 and P14. Exts.P3 and P13 are the orders as per which the juniors of the appellants have been promoted as Assistant Grade I with retrospective effect. By Ext.P14, the representation submitted by the appellants/petitioners against such promotion was rejected. The brief facts of the case are the following: 2. The appellants joined the service of the first respondent/ University as Assistant Grade II between 1.1.1987 to 3.3.1989. They cleared the Account Test (Lower) and became eligible for promotion as Assistant Grade I between 15.12.1992 to 9.6.1994. They were promoted to the post of Assistant Grade I between 30.4.1993 to 31.1.1995. While so, the University, by Ext.P1 order dated 12.7.1996 created 101 additional W.A. NO. 1544/2007 2 posts of Assistant Grade I with retrospective effect from 1.3.1992. Those additional vacancies were filled with effect from 1.3.1992 by promoting persons in the post of Assistant Grade II who were qualified on the said date. Some of them were junior to the appellants. As a result of this exercise, the dates of promotion of the appellants were also preponed correspondingly. But, none of the appellants were qualified as on 1.3.1992 and the juniors of the appellants, who were qualified on the said date, became seniors to the appellant in the cadre of Assistant Grade I. According to the appellants, it should be taken that the vacancies arose only on 12.7.1996, the date on which Ext.P1 order was passed. If that be so, their seniority position will not be disturbed. But, the University rejected the said claim by Ext.P14. So, the Writ Petition was filed, challenging the orders promoting the juniors of the petitioners with retrospective effect and also Ext.P14 by which their claim was rejected. The learned Single Judge took the view that the vacancies arose on 1.3.1992 and, therefore, the University has rightly promoted those persons who were qualified as on the said date. As a result, the Writ Petition was dismissed and hence, this appeal. 3. Sri. S. Radhakrishnan, learned counsel who appeared for the appellants contended that the additional posts created as per Ext.P1 should W.A. NO. 1544/2007 3 be treated as having come into effect only with effect from 12.7.1996, the date of Ext.P1. The retrospective creation of posts is not permissible, it is submitted. Learned counsel pointed out that the Apex Court has held that statute cannot be framed retrospectively unless the parent Act, namely, the University Act, authorises such retrospective framing of statutes. The said principle will apply in this case also, it is submitted. Learned counsel, therefore, prayed that the appeal may by allowed by quashing the impugned orders. 4. We heard the learned counsel for the respondents also. Creation of posts is an executive function. The University can create posts prospectively or retrospectively. In this case, the University has decided to create posts retrospectively, but further provided that arrears of salary will be given only from 1.4.1995. So, the intention of the University is clear. The analogy sought to be canvassed with reference to the framing of statutes with retrospective effect has no application in this case. The posts of Assistant Grade I is already existing in the University. The qualification and method of appointment to that post are already prescribed. As a result of change in the ratio between various grades in the cadre of Assistants, additional vacancies arose in the post of Assistant Grade I. Since the University intended to give effect to creation of additional posts with W.A. NO. 1544/2007 4 retrospective effect, the persons who were qualified as on the date of such notional creation of posts are entitled to get promotion, even if they are juniors. Therefore, we find nothing wrong with the impugned orders and also the judgment of the learned Single Judge. The Writ Appeal fails and it is accordingly dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 1544/2007 5 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A.NO.1544/2007 JUDGMENT 6th January, 2010 W.A. NO. 1544/2007 6