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 25TH MARCH 2010 / 4TH CHAITHRA 1932 WA.No. 1845 of 2009() --------------------- AGAINST THE JUDGEMENT IN OP.1274/2002 .................... APPELLANT(S):/RESPONDENTS: -------------- 1. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION (G) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER, STATE OF KERALA, THIRUVANANTHAPURAM. BY SR.GOVERNMENT PLEADER SRI.BENNY GERVACIS RESPONDENT(S): PETITIONER: -------------------------- C.RAVEENDRAN, ARCHITECTURAL HEAD DRAFTSMAN, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. ADV. SRI.N.D.PREMACHANDRAN HIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No. 1845 of 2009 ---------------------------------------- Dated 25th March, 2010 JUDGMENT Balakrishnan Nair, J. The respondents in the Writ Petition are the appellants. The respondent herein was the writ petitioner. The brief facts of the case are the following. The respondent was appointed as an Artist in in the Town Planning Subordinate Service in 1972. At the relevant time, he was having the qualification of Diploma in Painting and Drawing. Later, he was appointed as Photographer-cum-Commercial Artist on 1.9.1981. While in service, he acquired the qualifications of Masters Degree in Sociology and Masters Degree in Town and Country Planning. He also became the Associate Member of Institute of Town Planners. Artist and Photographer-cum-Commercial Artist were isolated posts. They were not included in the feeder category for promotion to other posts. But, having regard to his qualifications, he was appointed as Architectural Head Draftsman under Rule 9(a)(i) of the Kerala State & Subordinate Services Rules on 12.5.1993. Later, he was provisionally promoted as Deputy Town Planner under Rule 31 (a)(i) of the Kerala State & Subordinate Service Rules on 20.9.1996. Later, he was reverted by order dated 30.1.1997 on the ground that he is not included in the seniority list of Architectural Head Draftsman, which is the feeder category for promotion as Deputy Town Planner. W.A.No.1845/2009 2 His reversion to the post of Architectural Head Draftsman was challenged before this Court. There was an interim stay for some time. Later, when the stay was vacated, the reversion was effected as per Ext.P3 order on 30.12.97. Later, the Government by Ext.P4 order dated 16.12.1999 regularised his posting in the cadre of Architectural Head Draftsman invoking its power under Rule 39 of the Kerala State & Subordinate Service Rules. Thereafter, when the Government published Ext.P5 seniority list, he was included in the said list of Architectural Head Draftsman with effect from 12.5.1993 (Sl.No.13). Thus, he was included in the feeder category of Architectural Head Draftsman for promotion to the post of Deputy Town Planner with retrospective effect. So, he felt that his reversion on the ground that he was not in the feeder category was not correct. So, he sought review of his reversion ordered in 1997, as per Ext.P3. Ext.P6 is the representation filed by him. But, that representation was rejected by the Government as per Ext.P8. Challenging Ext. P8 and seeking consequential reliefs the Writ Petition was filed. The respondents filed a detailed counter affidavit resisting the prayer in the Writ Petition. The learned Single Judge after hearing both sides allowed the Writ Petition. Hence, this appeal. W.A.No.1845/2009 3 2. We heard the learned counsel on both sides. We notice that the ground given in Ext.P8 for rejecting his representation is not valid. The Government obviously took the view that since new rules are introduced with effect from 31.1.2001, his claim for promotion under the repealed rule cannot be considered. We think, the same is not a valid ground. The petitioner has been reverted on the ground that he was not an Architectural Head Draftsman in 1997. But, in view of Ext.P4 order and Ext.P5 seniority list, it is evident that he has been included in the cadre of Architectural Head Draftsman with retrospective effect from 12.5.1993. If that be so, he is entitled to be considered for promotion as Deputy Town Planner in the light of the repealed rules. But, we notice that under the repealed rules, a copy of which is produced as Annexure A1, the respondent should have at least 16 years' service to get promotion as he does not have other prescribed qualifications. If that be so, there is nothing wrong with the reversion ordered in 1997 from the post of Deputy Town Planner and the rejection of his representation by Ext.P8. We are told that the respondent has been promoted as Deputy Town Planner on 2.5.2003 under the new rules and he has retired from service on 31.5.2003. W.A.No.1845/2009 4 In view of the position that the respondent was not qualified in 1997, the direction of the learned Single Judge cannot be sustained. Accordingly, the Writ Appeal is allowed. The judgment under appeal is reversed and the Writ Petition is dismissed. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS