IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 WA.No. 2503 of 2005() --------------------- AGAINST THE JUDGEMENT IN WPC.2571/2004 Dated 23/06/2005 .................... APPELLANTS/ RESPONDENTS ------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, PUBLIC WORKS (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, PUBLIC OFFICES BUILDING, THIRUVANANTHAPURAM. 3. ACCOUNTANT GENERAL ( A&E ) KERALA, THRISSUR BRANCH. BY SR.GOVERNMENT PLEADER, SRI.BENNY GERVASIS. RESPONDENT/PETITIONER ------------------------- A.XAVIERKUTTY, SPECIAL GRADE EXECUTIVE ENGINEER (RETD.), P.W.D.BUILDING DIVISION, KOTTAYAM, RESIDING AT ANDUNALY HOUSE, VEILLOONNI.P.O, KOTTAYAM-686 008. ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU SRI.MANOJ RAMASWAMY SMT.VIVEEJA RAVEENDRAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2010, ALONG WITH WA NO. 2462 OF 2005 & WPC NO. 27585 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ----------------------------------------- W.A. Nos.2503, 2462 OF 2005 & W.P.(C)No.27585 OF 2006 ----------------------------------------- Dated this, the 11th day of January, 2010 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. W.A. No.2503 OF 2005: The respondents in the Writ Petition are the appellants. The respondent herein was the writ petitioner. 2. The brief facts of the case are the following: After the bifurcation of the Public Works Department and formation of the PWD and Irrigation Department, the chances for promotion for those who opted PWD were very meagre. To mitigate the grievances of the Engineering staff of PWD, arising from the above situation, the Government by G.O.(MS) No.43/96/PW&T dated 9.2.1996 introduced 7 tier system in the said Department. Till the issuance of that order, there were following posts: Assistant Engineer, Assistant Executive Engineer, Executive Engineer, Superintending Engineer and Chief Engineer. By the above W.A. No.2503/2005 & connected cases. - 2 - said order, a new post of Special Grade Assistant Executive Engineer was created in between Assistant Executive Engineer and Executive Engineer. Likewise, another post of Special Grade Executive Engineer was created between Executive Engineer and Superintending Engineer. The 7 tire system was introduced with effect from 1.1.1996. In implementation of that order, the petitioner and others were promoted as Special Grade Executive Engineers, as per Ext.P1 order dated 20.6.1998. Though the writ petitioner was working as Special Grade Executive Engineer, the salary due to the said post was not released. There were several Writ Petitions pending before this Court, challenging the order introducing 7 tier system. Though a learned Single Jude of this Court quashed that order, on appeal, the Division Bench reversed the judgment of the learned Single Judge and restored the order. An S.L.P., attempted against the judgment of the Division Bench, was dismissed by the Apex Court. Later, a public interest litigation was filed before this Court, challenging the order dated 9.2.1996 introducing 7 tire system. During the pendency of the said Writ Petition, the Cabinet on 15.1.2003 decided to withdraw the 3 tire system, W.A. No.2503/2005 & connected cases. - 3 - but also, to protect the promotions already made under that order. This submission was made before the Division Bench of this Court in the aforementioned public interest litigation. Recording that submission, the Writ Petition was disposed of by Ext.P3 judgment. Later, the Cabinet on 1.10.2003 decided not to grant monetary benefits to the persons already promoted and based on that decision Ext.P6 order dated 7.10.2003 was issued by the Government. In the said order, the Government stated that except the 13 persons mentioned therein, who were already paid monetary benefits pursuant to the orders of this Court, nobody else will be entitled to get the benefits flowing from Ext.P1 promotion order. In the meantime, the petitioner moved the Government, claiming the monetary benefits arising from the promotion under Ext.P1. This Court by Ext.P4 judgment directed the Government to consider his claim. His claim was considered and rejected by Ext.P5 order dated 8.12.2003 by the Government. Challenging Exts.P5 and P6 and seeking consequential reliefs, the Writ Petition was filed. The learned Single Judge allowed the Writ Petition. Hence, this appeal by the official respondents. W.A. No.2503/2005 & connected cases. - 4 - 3. The appellants pointed out that while disposing of the public interest litigation, the Government gave an undertaking that promotions already made will not be disturbed and the same is recorded in Ext.P3 judgment. But, later, the Government filed a Review Petition in that judgment and the same was allowed by this Court by order dated 23.6.2009. The Government were relieved of the undertaking that promotions already made will not be disturbed. 4. In view of the above position, the undertaking given by the Government before the Division Bench, which is recorded in Ext.P3, that it will not disturb the promotions already made no longer binds it. It is submitted that the 1st respondent/writ petitioner was never granted the monetary benefits though he was promoted by Ext.P1. Therefore, the appellants supported Exts.P5 and P6 and prayed for dismissal of the Writ Petition. The 1st respondent/writ petitioner, on the other hand, submitted that the Review Petition has no effect on his case. He was promoted as per Ext.P1 in 1998 and he has already retired from service on 30.6.2000. At the W.A. No.2503/2005 & connected cases. - 5 - relevant time, the promotion order as well as the 7 tire system was in force. Therefore, he was entitled to get the monetary benefits flowing therefrom. 13 persons named in Ext.P6 were able to get benefits pursuant to the orders of this Court. That means, the Government have a duty to pay the benefits and the aforesaid persons have a legal right to get the benefits. The 1st respondent/writ petitioner being identically placed, he is also entitled to get the benefits, it is submitted. 5. The 7 tier system was introduced in 1996. The 1st respondent was promoted in 1998. The Government decided to revoke the 7 tire system, but, to protect the promotions ordered on 15.1.2003. Thereafter, only on 7.10.2003, a new decision was taken not to grant monetary benefits to those who were already promoted. We think, those decisions cannot have any bearing on the claim of the 1st respondent, who has already retired from service in 2000. Under Ext.P1, the 1st respondent got promotion. He has worked in the promoted post also till his date of retirement. Therefore, the appellants have a duty to pay him the salary in W.A. No.2503/2005 & connected cases. - 6 - the promoted post and the 1st respondent has a legal right to claim that benefit. 6. In view of the above position, we find no reason to interfere with the judgment under appeal. Accordingly, the Writ Appeal is dismissed. W.A. No.2462 OF 2005: 7. The case of the 1st respondent in this case is identical to the case of the 1st respondent in W.A.No.2503/2005. The only distinction is that he was promoted to the post of Executive Engineer. He has already retired from service in 30.9.1999. So, the decision taken in 2003 cannot affect his rights. Accordingly, this Writ Appeal is also dismissed. W.P.(C).No.27585/2006: 8. The petitioner retired from service in 1998. He is claiming promotion on the strength of the 7 tire system introduced on 1.1.1996. When promotions were ordered, as per Ext.P2 dated 20.6.1998, the petitioner's turn did not arise W.A. No.2503/2005 & connected cases. - 7 - for promotion. Therefore, he could not be promoted. If he was eligible for promotion as on 1.1.1996, his name would have found a place in Ext.P2. But, the petitioner has not chosen to challenge Ext.P2 in time. Further, the Writ Petition is filed belatedly. If the petitioner was entitled to be included in Ext.P2, he should have approached this Court pointing out the person, who should be sent out to accommodate him. The Government have decided to recall the 7 tire system and also to recall the promotions already made, except the promotions granted to 13 named persons. Those orders are also not under challenge in this Writ Petition. Therefore, he cannot get any relief. Even according to the petitioner for the first time, he approached this Court only in 2000, that is, two years after his retirement. In view of the said delay and for the aforementioned reasons, the claim of the petitioner must fail. Accordingly, this Writ Petition is also dismissed. (K. BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps