IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 WA.No. 1520 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN RP.685/2008 Dated 04/03/2009 .................... APPELLANT/NAME AND ADDRESS OF THE APPELLANT ------------------ K.C.MOHANAN, AGED 46 YEARS S/O.CHERUKANDAN, KOLATE HOUSE, SANTHIPURAM PO SREENARAYANAPURAM VILLAGE, KODUNGALLOOR TALUK TRISSUR DISTRICT. BY ADV. SRI.BABU KARUKAPADATH RESPONDENTS/RESPONDENTS: --------------- 1. STATE OF KERALA REP BY ITS SECRETARY TO GOVERNMENT ,DEPARTMENT OF AGRICULTURE, THIRUVANANTHAPURAM. 2. DIRECTOR OF AGRICULTURE, VIKAS BHAVAN THIRUVANANTHAPURAM. 3. PRINCIPLE AGRICULTURAL OFFICER, TRISSUR. 4. ASSISTANT EXECUTIVE ENGINEER (AGRICULTURE) TRISSUR. SR.GOVT.PLEADER, SRI.BENNY GERVASIS. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. -------------------------------- W.A.No.1520 OF 2009 -------------------------------- Dated this the 24th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant was the petitioner in R.P.No.685/2008 and the writ petitioner in W.P.(C) No.29426/2007. He is working as a Draftsman Grade-I in the Department of Agriculture. The Writ Petition was filed by him seeking a direction to grant Second Higher Grade in the scale of pay applicable to the post of Assistant Engineer/Head Draftsman. When the said claim was rejected, the Writ Petition was filed. 2. The petitioner joined the department of Agriculture as Second Grade Draftsman on 27.6.1994. He was granted First Higher Grade in the scale of pay applicable to First Grade Draftsman on 27.6.1994. Later, he was given cadre promotion as First Grade Draftsman on 19.7.1995. He completed 18 years service in 2002. As per the 1998 pay revision order, a person like the appellant stagnating in the first promoted post is W.A.No.1520/2009 2 entitled to get a Second Higher Grade on completion of total 18 years of service, provided he is qualified for promotion and in the promotion post there is no vacancy. If there is no promotion post or if the incumbent is not qualified, he is entitled to get only the next higher scale of pay in the standard scales of pay prescribed by the pay revision order. The petitioner's claim was rejected for the reason that the post of First Grade Draftsman in the Irrigation Department does not have a promotion post. Though he claimed the Second Higher Grade in the scale of pay applicable to the Assistant Engineer, the respondents took the view that the First Grade Draftsman is not a feeder category for the said post and therefore, he is ineligible to get the scale of pay of post of Assistant Engineer. Feeling aggrieved by the said stand, the Writ Petition was field. According to the appellant, several persons working in the cadre of First Grade Draftsman were promoted earlier as Assistant Engineer. They were granted Higher Grade also in the scale of pay applicable to Assistant Engineer. So, it should be treated that First Grade Draftsman was always a feeder category for promotion to the post of Assistant Engineer, it is submitted. W.A.No.1520/2009 3 3. It is common ground that with the promulgation of Ext.P7 special rules on 20.10.2004, the First Grade Overseer is a feeder category for promotion to the post of Assistant Engineer. The learned Government Pleader pointed out that the post of First Grade Overseer is a feeder category for appointment by transfer and not by promotion. We feel that the said distinction does not make any difference. The claim made by the appellant based on the practice followed in the department was rejected by the learned Single Judge in the judgment as well as in the Review Petition. Hence, this appeal. 4. Smt. Vaheeda Babu, the learned counsel for the appellant, canvassed the very same point unsuccessfully canvassed before the learned Judge in the Writ Petition and in the Review Petition. But, we notice that there is no rule or order in force before 20.2.2004 making the First Grade Overseer eligible for promotion to the post of Assistant Engineer. If that be so, he cannot claim that his promotion post is Assistant Engineer and therefore, he should be granted the scale of pay of that post as Second Higher Grade. The practice followed in the W.A.No.1520/2009 4 department or the judgment rendered by this Court in similar cases pointed out by the appellant will not enable the incumbent to get higher grade in the cadre of Assistant Engineer, unless as per the rules or executive orders in force, the said post was a promotion post of First Grade Draftsman. In the absence of any legal right, there cannot be any remedy. Legal right flows from statutory orders or executive orders, as far as this case is concerned. In view of the above position, we find no merit in the appeal and it is accordingly dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps