IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 OP.No. 1274 of 2002(B) ---------------------- PETITIONER(S): --------------- C. RAVEENDRAN, ARCHITECTURAL HEAD DRAFTSMAN, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. BY ADV. SRI.N.D.PREMACHANDRAN SRI.V.B.HARI NARAYANAN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION (G) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER, STATE OF KERALA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT. SMITHA SUKUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 1274/2002. -------------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 12-5-1993. EXT.P2 ORDER DT. 20-9-1996. EXT.P3 ORDER DT. 30-12-1997 EXT.P4 ORDER DT. 16-12-1999. EXT.P5 RELEVANT EXTRACT OF SENIORITY LIST. EXT.P6 REPRESENTATION DT. 13-2-2001. EXT.P7 JUDGMENT IN O.P.7900/2001. EXT.P8 LETTER DT. 21-8-2001. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 1274 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 10th February, 2009. J U D G M E N T The petitioner retired from service as an Assistant Town Planner from the Department of Local Administration of the Government of Kerala in 2005. He entered service as an Artist. He was promoted as a Photographer-cum-Commercial Artist on 1-9-1981. By Ext. P1, he was promoted as Architectural Head Draftsman in a newly created post for which no special rules were framed at that time. Therefore, the said appointment was made under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules. The petitioner was promoted by Ext. P2 dated 20-9-1996 as a Deputy Town Planner. However, by Ext. P3 order, the petitioner was reverted as Architectural Head Draftsman on two grounds, namely, (1) he was not regularised in the feeder category of Architectural Head Draftsman and (2) he was not included in the seniority list in the feeder category. Subsequently, by Ext. P4, petitioner's appointment as Architectural Head Draftsman was regularised with effect from 12-5-1993 by the Government in exercise of their powers under Rule 39 of the K.S and S.S.R. Consequent thereto, the petitioner was included in Ext. P5 seniority list also. In Ext. P5 seniority list also, petitioner's appointment as Architectural Head Draftsman was shown to be with effect from 12-5- 1993. According to the petitioner, on his regularisation as an Architectural Head Draftsman with effect from 12-5-1993 and his inclusion in the seniority list on the basis of the date of entry as 12-5- 1993, the reasons on which the petitioner has been reverted by Ext. P3 from the post of Deputy Town Planner cease to exist and therefore the petitioner is liable to be restored to the post of Deputy Town Planner in accordance with Ext. P2 promotion order dated 20-9-1996. Raising this claim, the petitioner filed Ext. P6 representation before the Government. Since it was not disposed of, the petitioner filed O.P.No. 1274/2002. -: 2 :- O.P.No. 7900/2001 before this Court . This Court, by Ext. P7 judgment, directed consideration of the representation filed by the petitioner. It was also directed that one post of Deputy Town Planner should not be filled up till after passing orders on the representation filed by the petitioner. Further it was stated that the petitioner shall be given all consequential benefits in case the decision on such representation is in favour of the petitioner. Pursuant thereto, the Government passed Ext. P8 order rejecting the claim of the petitioner on the ground that since the Special Rules were subsequently amended, the petitioner cannot now be given retrospective promotion on the basis of the unamended Special Rules, which is no longer in existence. The petitioner is challenging Ext. P8 order in this original petition and seeking the following reliefs: “i) To issue a writ of certiorari or other appropriate writ, order or direction to quash Exhibit P8' ii) to issue a writ of mandamus or other appropriate writ, order or direction directing the 2nd respondent to promote the petitioner as Deputy Town Planner; iii) to issue a writ of certiorari or other appropriate writ, order or direction to quash Ext. P3 order reverting the petitioner from the post of Deputy Town Planner.” 2. The petitioner's contention is that the vacancies to which the petitioner lays claim arose on 17-12-1995 and 25-5-1998. In fact, it is to one of those posts that the petitioner had been promoted by Ext. P2 order. Therefore, the eligibility of the petitioner for promotion as Deputy Town Planner has to be considered as on the date of occurrence of vacancy and the fact that with effect from 31-1-2001 the Special Rules were amended does not affect the claim of the petitioner for promotion in accordance with rules in force at the time O.P.No. 1274/2002. -: 3 :- of occurrence of vacancy. He also relies on the decision of of Padmanabhan v. State of Kerala, [1982 KLT 539] in support of his contention. 3. Learned Government Pleader opposes the claim of the petitioner. According to her, for the purpose of promotion, the petitioner's regularisation in the post of Architectural Head Draftsman would arise only from the date of Ext. P4, namely, 16-12-1999. She also pointed out that in Ext. P4 what is stated is that the petitioner 's service is regularised in the post of Architectural Head Draftsman from the date of “this appointment” , which means the date of Ext. P4. She further supports the reasoning in Ext. P8 stating that in view of the subsequent amendment of the Rules, the petitioner cannot be given retrospective promotion applying the unamended Special Rules. 4. I have considered the rival contentions in detail. 5. Before going into the rival contentions, I would like to sort out a confusion arising on account of the wording used in Ext. P4. In Ext. P4, the operative portion reads thus: “Therefore considering his higher qualifications in Town Planning and his prolonged experience of 6 years in the post, Government are pleased to regularise the service of Shri. G. Raveendran in the post of Architectural Head Draftsman from the date of this appointment as Architectural Head Draftsman in relaxation of the minimum qualifications prescribed for the post of Architectural Head Draftsman by invoking Rule 39 of the General rules of the Kerala State and Subordinate Service Rules 1958.” (underlining supplied) The learned Government Pleader stresses the underlined word 'this' occurring in Ext. P4 to mean that the regularisation of the petitioner is with effect from the date of Ext. P4. Order. I am unable to countenance the contention of the learned Government Pleader. I am O.P.No. 1274/2002. -: 4 :- of opinion that obviously, the word 'this' is a mistake. It ought to have been 'his'. This is further proved by the fact that the regularisation is with retrospective effect. If it is with retrospective effect, it cannot be with effect from the date of Ext. P4. Further, in Ext. P5 seniority list, the petitioner has been assigned the date of promotion as 12-5-1993, which is the date of his original appointment as Architectural Head Draftsman. In view of the same, the word 'this' occurring in Ext. P4 mentioned above ought to have been 'his'. I hold so. 6. By Ext. P2 dated 20-9-1996, the petitioner was promoted as Architectural Head Draftsman. Therefore, obviously, as on 20-9-1996, at least there was one vacancy of Deputy Town Planner. (It may be noted here that the post of Architectural Head Draftsman had subsequently been re-designated as Assistant Town Planner). As on the date of Ext. P2, admittedly, the petitioner was eligible to be promoted as a Deputy Town Planner. The only reason for cancelling the promotion given to the petitioner given in Ext. P3 is that his appointment as Architectural Head Draftsman had not been regularised and his appointment was under Rule 9(a)(i) of the K.S and S.S.R. The second reason is that he was not borne on the seniority list in the feeder category. Those defects ceased to exist by virtue of Ext. P4 order retrospectively with effect from 12-5-1993. As a result, he became a full member of the service as Architectural Head Draftsman with effect from 12-5-1993. If that be so, as on the date of Ext. P2, namely, 20-9-1996, he was fully qualified to be promoted as a Deputy Town Planner. When the grounds on which Ext. P3 order of reversion was passed cease to exist retrospectively, then the petitioner is entitled to be restored to the post of Deputy Town Planner, to which he was promoted as per Ext. P2. O.P.No. 1274/2002. -: 5 :- 7. The only reason mentioned in Ext. P8 for denying that benefit to the petitioner is that since with effect from 2001 the Special Rules have been amended, the petitioner cannot be retrospectively promoted based on the amended Special Rules. In this connection, I find merit in the reliance of the petitioner in the judgment in Padmanabhan's case. In the said judgment, a learned Judge of this Court had held thus: “Now the question is: What is the method to be adopted in filling up the posts which existed as on 28-7-1979, the date of coming into force of Ext. P3? Is it to be done following the ratio mentioned in the rules as amended by Ext. P3, or applying the ratio as it stood before the amendment by Ext. P3? The contention raised by Sri. Rawther is that whatever might have been the ratio before the coming into force of the amendment, once the amendment came into force, not only the vacancy that arose after the amendment, but also all the vacancies which arose before the amendment, but remained without being filled up, had to be filled up following the ratio mentioned in the rule as amended. I am afraid, this construction sought to be placed to the rule in question is not correct. The amendment does not claim to have retrospective operation. In the absence of any intention to the contrary it should be deemed to have prospective operation; prospective operation would mean that the ratio mentioned in the amended rule could be applied only in relation to vacancies that arose from the coming into force of the amendment. Any other view is not only not warranted by the true spirit of the rules of construction, but also would tend to defeat the very principle underlying the provisions of rule 31(a)(i) of the Kerala State and Subordinate Services Rules, as it would pave the way for unfair practices tainted with mala fides by refusing or omitting to fill up the vacancies by direct recruits, as and when vacancies arise, with ulterior motives.” The said decision squarely applies to the facts of this case as far as the reasons mentioned in Ext. P3 is concerned. Therefore, Ext. P8 is clearly unsustainable and the same is quashed. It is declared that the petitioner is entitled to promotion as Deputy Town Planner with effect from 20-9-1996 as per Ext. P2 order of promotion, which was later cancelled and that the petitioner is O.P.No. 1274/2002. -: 6 :- entitled to have Ext. P2 promotion restored, on the Government passing Ext. P4 order. However, I am not inclined to grant the petitioner arrears of monetary benefits arising from such retrospective promotion. He shall be entitled to have his pay fixed in the particular scale applicable to the post of Deputy Town Planner from 20-9-1996 and to have his retirement benefits re-computed accordingly. Orders in this regard shall be passed and arrears of retirement benefits due to the petitioner paid as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. Siri Jagan, Judge. Tds/