The Kerala High Court has held that retrospective operation of a Govt Order cannot be permitted, particularly when the same is only an Executive Order and not a Legislative Order.
The single-judge bench of Justice Devan Ramachandran in this view allowed a writ petition filed by an Assistant Professor observing that he joined the University before the subsequent Government order and retrospective operation of the order cannot be permitted.
The petitioner was joined in Kannur University, by creating a supernumerary post to accommodate him, on the strength of which provides for such a benefit to persons who are physically disabled and who had been appointed initially through the employment exchange for a period of less than 180 days.
The petitioner was previously employed with the Police Department. It was his case that subsequently, when a regular vacancy arose, the University appointed him to it, acting under the provisions of Article 69(C) of Chapter IV of Volume I of the Kerala Financial Code and that his probation was also thereafter declared.
However, in the meanwhile, the Government brought out another order whereby, a clarification is made saying that persons who are appointed on supernumerary posts will continue only on such posts and will not be entitled to any other service benefits, including promotion or declaration of probation.
On the basis of the above order the University cancelled his appointment.
Learned Government Pleader submitted that persons like the petitioner could have been accommodated only against supernumerary posts, which would be abolished on the incumbent demitting office. She submitted that, therefore, the recent order cannot be construed to be a new order, but only a clarification of the terms and conditions of previous one.
Therefore, that the action of the University in having shifted the petitioner to regular vacancy was incorrect and improper and that he can only be continued in the supernumerary post, as has been ordered, she pleaded.
The learned standing counsel for the University submitted that his client acted faithfully in granting appointment to the petitioner in a regular vacancy, under the mandate of Kerala Financial Code; and that this was done not only in his case, but in the case of several other persons also. He added that, subsequently, the petitioner completed his probation, leading to the University issuing Ext.P6 order dated 31.10.2015 to such effect; but that when Ext.P7 was issued, they were left without any other option, but to cancel the petitioner's appointment to the regular post of Attendant.
The Court after analysing all facts, opined that the petitioner's position could not have been altered by Ext.P7, which was issued by the Government much later. More so because, in Ext.P2, there is no mention of any of the conditions enumerated in Ext.P7 and the said order only stated that sufficient number of supernumerary posts be created to appoint persons like the petitioner, the Court said.
The Court was of the firm view that Ext.P7, which came into effect only on 03.02.2016 - being several months after the declaration of probation of the petitioner had been completed - could not have, in any manner, disturbed his position, nor was it necessary for the University to have ordered that he be reinstated to the supernumerary post.
"Even assuming that Ext.P7 could have any application on the appointments made pursuant to Ext.P2, it would apply only to those persons who had been appointed after the date of the said order, and not to those like the petitioner who are appointed prior to it. This is indubitable because the petitioner joined the University on the strength of Ext.P2 order without being aware of any such inhibition as ordered in Ext.P7 and that retrospective operation of the said order cannot be permitted, particularly when it is only an executive order and not a legislation."
The petitioner's appointment to a regular post would cause no prejudice to the Government because he was only shifted from the supernumerary post to it by the University, the Court further stated.
"The petitioner's appointment to a regular post would cause no prejudice to the Government because he was only shifted from the supernumerary post to it by the University Of course, on such shifting, the supernumerary post would have had to be abolished and this can certainly be verified and confirmed by the Government. In other words, since the petitioner was shifted to a regular vacancy – which, in any case would have had to be filled – the Government faces no additional financial burden; and hence I see no justifiable reason for them to now object to such appointment."
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(With input from news agency language)
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