STATE OF KERALA Vs. SUNDARAM IYER

JUDGEMENT

(1.) These three appeals arise from the judgment in O.P. No. 3076 of 1982. W.A. No. 87 of 1983 is by the State, W.A. No. 88 of 1983 by the 2nd respondent in OP. and W.A. No. 122 of 1983 by the Petitioners in the Original Petition. Since there are three appeals from the same judgment, reference to the parties in this judgments will be as they are arrayed in the Original Petition.

(2.) The 2nd respondent was the Chief Engineer, Public Health Engineering Department. His date of birth is 4-4-1927. He attained 55 years on 3-4-1982. Under R.60(a) Part I of the Kerala Service Rules, his retirement was to take effect from the A.N. of the last date of the month in which he attained 55 years of age, which meant his retirement was to take effect with effect from 1-5-1982 The Government felt that his continued services were necessary, in view of the fact that certain important negotiations with World Bank authorities regarding Water Supply Schemes with which he was intimately connected, were pending. Therefore by Ext. P1 order dated 7-4-1982 his services as Chief Engineer, P.H.E.D. was extended for a period of two years with effect from 1-5-1982. By the same order an additional post of Chief Engineer in the P.H.E.D. was created and Shri. K. Govindan Nair was provisionally promoted against the newly created post. The 1st petitioner is the seniormost Superintending Engineer and the 2nd petitioner, one of the senior Superintending Engineers. According to them, they are in the normal course entitled to be promoted to the post of Chief Engineer. The petition was filed for the issuance of an appropriate writ to quash Ext. P1 order in so far as it extended the services of the 2nd respondent by two years with effect from 1-5-1982. The learned Judge as per the judgment under appeal set aside Ext. P1 in so far as it related to the grant of extension of service to the 2nd respondent and directed the Government to re-examine the matter in accordance with law and with due regard to the observations contained in the judgment. The learned Judge, however, permitted the 2nd respondent to continue as Chief Engineer for three months more to enable the Government to make up its mind about the future course of action. W A. Nos. 87 and 88 are filed against the quashing of Ext. Pl. The petitioners in the Original/ Petition had attacked Ext. P1, among other things on malafides. This ground did not find favour with the learned Judge. It is this finding that is the subject matter of W.A. No. 122 of 1983.

(3.) The learned Advocate General appearing for the State in W. A. No. 87 of 1983 and the counsel for the appellant in W. A No. 88 of 1983 submit that the learned Judge erred in interfering with Ext. P1 order by his defective approach to the question involved and also by an incorrect understanding of R.60(a) and Note 3 thereunder. According to them, order Ext. P1 was passed strictly in accordance with the provisions of law and after taking into consideration the needs of the Department. The relevant rule clothed the Government with the necessary powers to extend the service of an officer when found necessary. Having found the ground of mala fides unsustainable, the learned Judge should have allowed Ext P1 to stand. According to them, Note 3 does not strictly apply. If at all, the case has to be decided in terms of Note 5. They also contend that undue reliance placed by the learned Judge on R.10 Part I which deals with consultation with the Finance Department is also wrong in as much as the Rule is only directory and not mandatory. In any case there is compliance with R.10 since the Adviser who initiated the proposal was in charge of finance also. They have also a case that the petition is liable to be dismissed for the reason that Shri K. Govindan Nair who was promoted against the newly created additional post by the same order was not made a party to the petition. According to them, the petitioners have no locus standi to sustain the petition. They have no vested right to get promoted as the Chief Engineers. These submissions were met by the petitioner's counsel with the plea that the judgment was based on a proper appreciation of R.60(a) and Note 3 thereunder and R.10 Part I K SR.