IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WA.No. 570 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.6433/2010 Dated 01/03/2010 .................... APPELLANT/PETITIONER:- ------------------------------------- C.L.SISSAMMA AGED 43 YEARS,W/O.MONCY JOSEPH, HIGH SCHOOL ASSISTANT, LUTHERAN HIGH SCHOOL, SOUTH ARYAD, ALAPPUZHA-6. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS/RESPONDENTS:- -------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THRIVANDURM. 2. THE DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA DISTRICT 3. THE CORPORATE MANAGER, LUTHERAN SCHOOLS, PEROORKADA,TRIVANDURM. 4. THE HEADMASTER, LUTHERAN HIGH SCHOOL, SOUTH ARYAD,ALAPPUZHA-6. GOVT.PLEADER SMT.T.B.REMANI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON 13/08/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = WA.No.570 of 2010. = = = = = = = = = = = = Dated this the 13th day of August, 2010. J U D G M E N T Gopinathan, J. The writ appellant was working as Assistant Teacher with effect from 27-7-1988. According to her, due promotion was earlier denied. On representation to the Director of Public Instruction, by Ext.P1 order, the writ appellant was granted notional promotion with effect from 30-7-2001. As on 29-7-2009 she completed eight years of service including the period of notional promotion as High School Assistant. Hence she is entitled to further grade. Request of the writ appellant on that count was turned down by the first respondent by Ext.P4 order stating that as per para.5 of the Circular dated 8-8-2008 notional retrospective period of promotion will not be reckoned as qualifying service in the promoted post for granting time WA.No.570 of 2010. -: 2 :- bound grade. Assailing that order the appellant preferred the writ petition WP(C)No.6433/2010. By Ext.P7 judgment dated 1-3-2010, the learned single Judge dismissed the writ petition giving reliance to Ext.P7 judgment of a Division Bench decision of this Court. Assailing the above judgment dismissing the writ petition, this appeal was preferred. 2. In Ext.P7 judgment, another Division Bench of this Court held that period of retrospective notional promotion cannot be reckoned as qualifying service for the purpose of second time bound higher grade. The Division Bench also observed that grant of time bound higher grade is only a benefit granted by the Government so as to remove the frustration of those employees who remain or stagnate in a particular post and that Government orders, in our view, do not give such benefit to those who are given retrospective notional promotion and such benefit is available only to those who actually remain or stagnate in a particular post. WA.No.570 of 2010. -: 3 :- 3. Para.5 of the Govt.Circular No.46/86/Fin., dated 8-8-2008, copy of which was produced as Ext.P8 would show that period of notional retrospective promotion will not be reckoned as qualifying service in the promoted post for granting time bound higher grade promotions. According to the learned counsel for the appellant, Ext.P8 is only a Circular and shall not have any overriding effect over the rules. It is pertinent to note that the benefit of higher grade was given to the employees not by any rule but by such Government Orders or Circulars as the case may be. In that circumstance, the Government can impose restrictions or guidelines by Circular/Orders regarding granting of higher grade. Hence we find that Ext.P8 cannot be rejected as it is only a Circular and having no overriding effect over any rules. 4. The learned counsel for the writ appellant canvassed our attention to a decision in Union of India and others v. K.B.Rajoria (AIR 2000 SC 1819). That is a WA.No.570 of 2010. -: 4 :- case relating to counting the period of regular service. It has no application with the counting of actual service for the purpose of higher grade. Adding to the above, a Full Bench of this Court in State of Kerala v. Philomina (2008 (1) KLT 666) also has held, 'that when concessions having financial implications are granted by the Government, widening the scope of such concessions by judicial interpretation would invite unexpected burden on the public exchequer. Time bound higher grade is not a condition of service guaranteed by statutory rules but a concession extended to employees who are stagnating in a particular post for want of regular promotion.' It was a case in which prior military service was reckoned for granting first grade promotion. The claim for subsequent grade promotion was declined for the above reason. We find no reason to have a different view or to distinguish this case to apply a different law. It is also pertinent to note that the appellant might have got a grade promotion before her promotion as High WA.No.570 of 2010. -: 5 :- School Assistant. The learned single Judge was right in dismissing the writ petition. In the above circumstance, we find that the appeal is devoid of merits. Accordingly, the appeal is dismissed. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) Kvs/-