IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WA.No. 164 of 2007 -------------------- AGAINST THE JUDGEMENT IN OP.12796/2003 Dated 28/08/2006 .................... APPELLANT/PETITIONER IN THE OP: ---------------------------------------- N.RAMACHANDRAN, SELECTION GRADE TYPIST, OFFICE OF THE RESIDENT COMMISSIONER, KERALA HOUSE, NEW DELHI (NOW RETIRED FROM SERVICE) RESIDING AT SRUTHI SREE, HILL TOP GARDENS, KARAKULAM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.NAVEEN.T RESPONDENTS/RESPONDENTS IN THE OP: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE RESIDENT COMMISSIONER, GOVERNMENT OF KERALA, KERALA HOUSE, 3-JANTAR MANTAR ROAD, NEW DELHI-110 001. R1 & R2 BY SENIOR GOVT. PLEADER, SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.N.Ravindran, J. ------------------------------------------ W.A. No.164 of 2007 ------------------------------------------ Dated this the 2nd day of July, 2010 JUDGMENT Ravindran, J. The appellant was initially appointed as Lower Division Typist in the office of the Resident Commissioner, New Delhi by Ext.P1 order dated 26.4.1973. He was placed in the scale of pay of Rs.100-210. In the office of the Resident Commissioner, New Delhi there are only two posts of Typists, one Senior Grade Typist and one Lower Division Typist. Years after the appellant was appointed, by Ext.P3 order dated 28.9.1979, the post of L.D.Typist held by him was upgraded to that of U.D.Typist and he was placed in the scale of pay of Rs.390-685. In that order it was specifically stipulated that the upgraded post will form part of the Secretariat pool of Typists for the purpose of promotion to Senior Grade only. By Ext.P6 order dated 19.6.1990 the Government ordered promotion of the appellant as Senior Grade Typist with effect from 17.4.1989 the day on which W.A.No.164 of 2007 - 2 - the person immediately junior to the appellant in the Administrative Secretariat was promoted as Senior Grade Typist. In this context, it is stated in the counter affidavit that the appellant is not an employee borne in the establishment of the Administrative Secretariat at Thiruvananthapuram and he is not governed by the Service Rules governing such employees. 2. In view of Ext.P3, the appellant could not have claimed any further promotion. He however moved the Government and the Government ultimately passed Ext.P8 order dated 12.4.2002 notionally promoting the appellant as Selection Grade Typist with effect from 1.3.1992 subject to the condition that he would not be entitled for payment of arrears of salary and allowances on account of such promotion. In other words, though the appellant stood notionally promoted as Selection Grade Typist with effect from 1.3.1992 he was entitled to receive higher salary and allowances only from the date of the order namely 12.4.2002. The appellant represented against the W.A.No.164 of 2007 - 3 - said stipulation, but that request was turned down twice as can be seen from Exts.P11 and P12 letters. The instant writ petition was filed challenging Exts.P9, P11 and P12 orders and seeking a declaration that the appellant is entitled to salary and allowances in the category of Selection Grade Typist with effect from 1.3.1992. 3. By the judgment under appeal, the learned single Judge dismissed the writ petition holding that Ext.P3 order dated 28.9.1979 whereby the post of L.D Typist held by the appellant was upgraded as U.D.Typist would not have the effect of integrating the appellant with the corresponding category of post in the Administrative Secretariat and that the said order will not confer on him any right for promotion to the higher categories of posts, namely Head Clerk and Office Superintendent. The learned single Judge also noticed that the order of upgradation was passed as the appellant was holding a single isolated post in the office of the Resident Commissioner. As regards the W.A.No.164 of 2007 - 4 - appellant's claim for arrears of salary and allowances in the category of Selection Grade Typist with effect from 1.3.1992, the learned single Judge held that said claim was rightly rejected by Ext.P12 order. Hence this writ appeal. 4. We heard Sri.S.Ramesh, learned counsel appearing for the appellant and Sri.Benny Gervasis, learned senior Government Pleader appearing for the respondents. We have also gone through the pleadings and the materials available on record. It is not in dispute that the appellant was not borne in the establishment of the Administrative Secretariat. He was locally recruited at New Delhi through the Employment Exchange and was appointed to the post of Lower Division Typist. At that point of time, in the office of the Resident Commissioner the only other post of Typist was that of Senior Grade Typist manned by a person borne in the establishment in the Administrative Secretariat. Since there was no avenue of promotion and the appellant was not entitled to be integrated W.A.No.164 of 2007 - 5 - with the staff in the Administrative Secretariat, as a concession the Government upgraded the post of Lower Division Typist held by him to that of Upper Division Typist, subject to the condition that the upgraded U.D. post will form part of the Secretariat pool of Typists for the limited purpose of promotion to the Senior Grade Typist only. The appellant did not challenge the said stipulation in Ext.P3 which was made way back in the year 1979. Pursuant to Ext.P3 he was promoted as Senior Grade Typist by Ext.P6 order dated 19.6.1990. In the light of Ext.P3 he could not have aspired for any further promotion. He however moved the Government and the Government by Ext.P8 order dated 12.4.2002 notionally promoted him as Selection Grade Typist with effect from 1.3.1992 subject to the condition that he will not be entitled to arrears of salary and allowances on account of the said promotion. In view of the stipulation in Ext.P3 the appellant could not have aspired for promotion beyond the post of Senior W.A.No.164 of 2007 - 6 - Grade Typist. However, the Government in relaxation of the said stipulation promoted him as Selection Grade Typist with effect from 1.3.1992. Since the appellant had no right to be promoted and was not in the channel of promotion to the post of Selection Grade Typist, the Government was perfectly justified in stipulating that the appellant would be entitled for increased salary and allowances only from the date of the order and not with retrospective effect. In view of the admitted fact that the appellant was not a member of the establishment in the Administrative Secretariat he cannot claim or be granted the same service conditions as existed in the Administrative Secretariat. Ext.P8 order is actually an order passed by the Government in relaxation of the rules and therefore the appellant cannot be heard to contend that he should have been given the monetary benefits also with retrospective date. 5. On the materials available, we are of the considered opinion that the learned single Judge was perfectly W.A.No.164 of 2007 - 7 - right in holding that the appellant had no right to claim arrears of salary and allowances with effect from the date on which he was given notional promotion as Selection Grade Typist. We also notice that the appellant retired from service in the year 2003 and that nearly seven years have passed thereafter. In such circumstances we do not find any ground to interfere with the judgment under appeal. The writ appeal fails and is accordingly dismissed. J.Chelameswar, Chief Justice P.N.Ravindran, Judge vns