IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 WA.No. 1253 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.32988/2000 Dated 13/02/2006 .................... APPELLANT(S): RESPONDENTS ------------------------- 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (IRRIGATION AND ADMINISTRATION, PUBLIC OFFICE, MUSEUM, THIRUVANANTHAPURAM. BY SR.GOVERNMENT PLEADER SRI.BENNY GERVASIS RESPONDENT(S): PETITIONER IN OP ------------------------------- SINA P. RAVEENDRAN, FIRST GRADE DRAFTSMAN, ADDITIONAL IRRIGATION DIVISION, THRISSUR. ADV. DR.K.P.SATHEESAN FOR R1 SRI.K.K.GOPINATHAN NAIR FOR R1 SRI.M.R.JAYAPRASAD FOR R1 SRI.P.MOHANDAS (ERNAKULAM) FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2010, HE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No.1253 of 2007 ---------------------------------------- Dated 16th March, 2010 JUDGMENT Balakrishnan Nair, J. The respondents in the Writ Petition are the appellants. The respondent herein was the writ petitioner. The brief facts of the case are the following. The respondent was appointed as Overseer Grade III in the Irrigation Department, under the dying-in-harness scheme. The appointment was sanctioned by the Government by Ext.P1 Government order dated 7.11.1992. The Chief Engineer, Irrigation Department appointed her as Overseer Grade III by Ext.P2 order dated 27.11.1992. She joined duty on 29.1.1993. Claiming appointment as Overseer Grade I, for which she was having the requisite qualification, she filed representations on 14.12.1992 and 8.2.1993. By Ext.P4 order dated 30.11.1994, the respondent's claim was accepted relaxing Clause 4 of Ext.P5 Government order. 2. At the relevant time, appointment under the dying-in- harness scheme was governed by G.O.(P)No.20/92/P&ARD. dated 10.4.1992. The said Government order was modified by Ext.P5 Government order dated 23.11.1992 with retrospective effect from W.A.No.1253/2007 2 10.4.1992. Clause 4 of Ext.P5 reads as follows: “4. The stipulation that the appointment once offered will not be allowed to be changed will stand revoked. However, appointment once accepted will not be allowed to be changed.” Relaxing the above stipulation, the representation of the respondent was allowed by Ext.P4 Government order dated 30.11.1994. Pursuant to the said order, she was appointed as Overseer Grade I by Ext.P6 order dated 18.3.1995. She joined duty on 24.3.1995. Later, her probation was declared on completion of two years' service on 24.3.1997, by Ext.P7 order dated 16.9.1998. But, in the meantime, the respondent filed Ext.P8 representation on 23.6.1995 and again Ext.P9 representation on 30.1.1997, claiming retrospective effect to her appointment as Overseer Grade I, that is, with effect from 29.1.1993, the date on which she joined as Overseer Grade III. Pursuant to the direction of this Court, the Government considered her representations and rejected it by Ext.P12. Challenging Ext.P12, the Writ Petition was filed by the respondent herein. The appellants herein did not file any counter affidavit in the writ petition. So, the learned Single Judge allowed the Writ Petition and directed to give retrospective effect to the appointment of the petitioner. So, the W.A.No.1253/2007 3 respondents therein have preferred this Writ Appeal. According to them, Clause 4 of Ext.P5 stood in the way of the respondent being posted as Overseer Grade I , But, relaxing that stipulation, she was granted appointment as Overseer Grade I. If her appointment is given retrospective effect, seven persons who were appointed in the meantime as Overseer Grade I will be affected. Therefore, the claim of the respondent was untenable and the appellants prayed for allowing the Writ Appeal. 3. We heard the counsel for the respondent who supported the judgment under appeal. Since the respondent has accepted the appointment as Overseer Grade III, she was not entitled to get appointment in any higher grade by virtue of Clause 4 of Ext.P5. But, as mentioned earlier, relaxing the said stipulation, she was given appointment as Overseer Grade I. She has been given appointment prospectively so that the same may not affect the persons who were already appointed as Overseer Grade I. So, the Government have rightly declined to grant retrospective effect to her promotion. The said decision of the Government is perfectly within jurisdiction. Unless its decision is illegal or ultra vires, this Court cannot interfere with the W.A.No.1253/2007 4 same under Article 226 of the Constitution of India. In the result, the judgment under appeal is reversed and the Writ Petition is dismissed. The Writ Appeal is allowed as above. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS