IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11410 of 2008(R)
1. A.BALAGANGADHARAN, ASSISTANT REGISTRAR
... Petitioner
Vs
1. THE HIGH COURT OF KERALA, ERNAKULAM,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.K.JAJU BABU
For Respondent :SRI.KRB.KAIMAL (SR.)
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :11/02/2011
O R D E R
S.SIRI JAGAN, J.
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W.P(C).No.11410 of 2008
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Dated this the 11th day of February, 2011
JUDGMENT
Petitioner was a member of the Kerala High Court Service. His
original date of retirement on attaining the age of 55 years as per
the original rule was 31.7.2007. But the Chief Justice of the Kerala
High Court, invoking his powers vested in him, framed revised rules
as per which the retirement age was enhanced to 58 years. Validity
of that rule was upheld in the decision reported in Valsakumari v
State of Kerala (2007(3) KLT 805). Subsequently, the Government
of Kerala issued Ordinance No.61/07, by which retirement age was
retrospectively reduced as 55 years. Subsequently, all persons who
had crossed the age of 55 years including the petitioner, who was
also continuing by virtue of the rules fixing the retirement age as 58
years, were retired on 22.10.2007. The petitioner now contends that
in view of the retrospective amendment of the rules, two Deputy
Registrars in service would have notionally retired on 31.5.2007 and
30.6.2007, as a result of which there would have been two
vacancies of Deputy Registrars arising on 1.6.2007 and 1.7.2007.
But, because of the intervening amendment of the rules, those
WP(C) No.11410/08
– 2 –
vacancies did not physically arise and the petitioner had to retire
without getting the promotion as Deputy Registrar which was
notionally due to the petitioner on account of the retrospective
Ordinance. Therefore, the petitioner is entitled to have his
retirement benefits calculated in the scale of pay applicable to
Deputy Registrar, is the contention raised by the petitioner in this
Writ Petition.
2. Learned counsel for the first respondent would contend that
without actually a vacancy arising on 1.6.2007 and 1.7.2007 and
without a declaration that the rule framed by the Chief Justice was
unsustainable, it cannot be stated that the petitioner is entitled to
promotion to any vacancy which did not physically arise. Therefore,
the petitioner is not entitled to any notional retrospective
promotion, is the contention raised.
3. I have considered the rival contentions in detail. I am of
opinion that insofar as no vacancy legally arose on 1.6.2007 and
1.7.2007, the petitioner cannot aspire for promotion to the post of
Deputy Registrar with effect from any date whatsoever. Till the date
of retirement of the petitioner there was no vacancy of Deputy
Registrar, to which the petitioner could have aspired for promotion.
The raising of the retirement age to 58 years and lowering of the
same subsequently by the State by a legislative declaration all were
made legally. Of course, if the raising of retirement age was not
WP(C) No.11410/08
– 3 –
there, perhaps the petitioner would have been eligible for
promotion, but that is not a reason to say that there was actually a
vacancy on 1.6.2007 or 1.6.2007 even notionally so as to enable the
petitioner to claim promotion to one of those vacancies. Such
lowering of the retirement age will have effect only on the
retirement benefits of those who continued beyond the age of 55
years till the Ordinance came into force and not for any other
purpose. In this connection I note that even when the retirement
age was 55 years, the Chief Justice had powers to extend the period
of service of particular employees after complying with the
procedure prescribed. As such, I am not inclined to countenance the
claim of the petitioner and accordingly, the Writ Petition is
dismissed.
S.SIRI JAGAN, JUDGE
vgs