Antony Dominic, J.
The petitioners in Writ Petition No.38082 of 2010 are the appellants. Their writ petition having been dismissed, they filed this appeal.
2. We heard the learned counsel for the appellants, the learned Government Pleader appearing for respondents 1 and 2 and the learned counsel appearing for the 3rd respondent.
3. Briefly stated, the facts of the case are that, the petitioners, who are the appellants, were the members of the non teaching staff under the 3rd respondent, an aided college. Exts.P1 and P2 are the approved staff pattern and the finalised seniority list. Ext.P1 shows that in the college, the posts of Senior Superintendent and Head Accountant were in existence since 06.05.1986. While so, by Ext.P3 the circular issued by the 2nd respondent, ban was imposed in the matter of appointment of teaching and non teaching staff in the aided colleges. During the pendency of the ban, by Ext.P4 order dated 01.01.2002, the 1st appellant, who was then working as a Head Accountant, was promoted to the post of Senior Superintendent in a retirement vacancy which arose with effect from 01.01.2002. On the same day, Ext.P5 order was also issued promoting the 2nd appellant to the resultant vacancy of Head Accountant. Ext.P4(a) and Ext.P5(a) are the joining reports, which shows that the appellants had joined the promoted posts. While so, the 2nd appellant attained the age of superannuation and retired from service on 31.08.2002. Subsequently by Ext.P6 dated 25.09.2002, the Manager submitted his proposal to the 2nd respondent seeking approval of the promotions ordered. That was considered and was rejected by the 2nd respondent as per Ext.P7 proceedings dated 26.10.2002. Reason stated is that the ban ordered as per Ext.P3 was still in force.
4. Subsequently, by Ext.P8 dated 17.09.2004, fresh staff pattern was issued by the 1st respondent and soon thereafter, on 31.12.2004, the 1st appellant also attained the age of superannuation and retired from service. Long thereafter, this Court rendered Ext.P9 judgment in Writ Petition No.28955 of 2004 on 03.04.2006 quashing Ext.P3 ban order. It is to be mentioned that the said writ petition was filed by certain other persons and the appellants are not parties to the case. Thereafter, on 29.04.2006 the 2nd respondent issued Ext.P10 circular directing that if there are no supernumeraries in the college, promotions can be effected from among the qualified hands in the feeder category. During this period, following the de-linking of pre-degree from colleges, orders were issued by the Government, grading colleges on the basis of the number of courses. In terms of the said grading, 3rd respondent was graded as a B Grade college. Later, Ext.P14 order was issued by the 1st respondent on 09.05.2008, where, the number of courses in A Grade colleges was re-fixed from 20 to 18. While so, referring to Ext.P8, Ext.R2(a) circular was issued by the 2nd respondent clarifying Ext.P8. In this circular it was clarified that, if posts are existing as per the old staff pattern and the revised staff pattern, promotions can be effected with effect from 17.09.2004 or from the date of occurrence of vacancy. It was also clarified that, if promotions are to be effected to the posts, which are newly created, the same shall be either from 10.11.2008 when Ext.R2(a) was issued or from the date of the Manager's order, which ever is later.
5. The relevance of the circular is that the post of Administrative Assistant, the promotion post of Senior Superintendent, was created in the 3rd respondent college only after 09.05.2008, when the college got A Grade. Therefore, if that post was to be filled up, it could have been filled up only from 10.11.2008 or from the date of the order issued by the Manager, which ever is later.
6. Later, by Ext.P11 dated 07.07.2009, revised staff fixation order was issued, which is based on Ex.P8 and this was given retrospective effect from 17.09.2004. Reading of this order shows that the post of Administrative Assistant was also sanctioned in the 3rd respondent college and reference is made to Ext.P14 mentioned above. Despite the fact that the 1st appellant had retired from service on 31.12.2004, the Manager issued Ext.P12 order dated 10.09.2009, promoting him to the post of Administrative Assistant, a post created under Ext.P11 order mentioned above. This promotion was ordered to be with effect from 17.09.2004. Ext.P12(a) dated 28.10.2009 is the joining report signed by the Principal of the College certifying that the 1st appellant had joined duty as Administrative Assistant in the college on 17.09.2004.
7. Here again in terms of the provisions contained in the University Act and Statutes, the Manager submitted a proposal for approving the promotion effected by Ext.P12. That proposal was returned by the 2nd respondent by Ext.P13 dated 09.06.2010. This is the factual background in which the writ petition was filed during December, 2010 with prayers for quashing Exts.P7 and P13 and to direct the 2nd respondent to approve the promotions ordered by Exts.P4, P5 and P12.
8. As we already stated, the learned Single Judge, by judgment dated 15th of November, 2013, dismissed the writ petition, and the judgment shows that the main reason stated by the learned Single Judge is the delay on the part of the petitioners.
9. Contention raised by the learned counsel for the appellants is that the non statutory ban ordered by Ext.P3 and administrative delay on the part of the 2nd respondent could not have resulted in depriving the appellants the legitimate promotions which they were entitled to from the date of occurrence of the vacancies to which they were promoted by the orders issued by the Manager. Therefore, he says that the learned Single Judge was wrong in dismissing the writ petition filed by them. On the other hand, referring to the counter affidavit filed in the writ petition and the affidavit filed in the writ appeal, the learned Government Pleader contended that there was long and inordinate delay on the part of the petitioners and that when the post of Administrative Assistant was created, the appellant having already retired from service, could not have even aspired to be considered for the post. The learned Government Pleader also told us that since Ext.P7 had already become final and was unchallenged, the appellants could not have been considered for promotion to any higher posts.
10. We have considered the submissions made by the learned Counsel for the appellants and the learned Government Pleader. From the facts that we have stated above, it is the admitted position that on attaining the age of superannuation the appellants retired from service on 31.12.2004 and 31.08.2002 respectively. Based on the staff pattern and the seniority list, they were promoted to the posts of Senior Superintendent and Head Accountant by Exts.P4 and P5 orders dated 01.01.2002. Ext.P6 proposal made by the Manager to the 2nd respondent seeking approval was returned by Ext.P7 dated 26.10.2002. Reason stated therein was that the ban ordered by Ext.P3 was in force when the promotions were ordered. Though it is true that at the instance of some other persons Ext.P3 ban order was quashed by this Court in Ext.P9 judgment dated 03.04.2006, insofar as the appellants are concerned, they did not challenge either Ext.P7 proceedings of the 2nd respondent or Ext.P3 ban order issued by the 2nd respondent. Therefore, as far as the appellants are concerned, Ext.P7 order rejecting the proposal of the Manager had become final.
11. Insofar as the promotion to the post of Administrative Assistant is concerned, it was by Ext.P12 order dated 10.09.2009 that despite the fact that the 1st appellant had already retired from service as early as on 31.12.2004 that the Manager promoted him with effect from 17.09.2004. We have already stated that the post of Administrative Assistant was allowed only in A Grade colleges and the 3rd respondent became eligible for A Grade only on account of Ext.P14 Government Order dated 09.05.2008. In respect of such post, in view of Ext.R2(a) Circular clarifying Ext.P8, the appointments could have been effected only with prospective effect. Therefore, although Ext.P11 revised staff fixation order was issued with effect from 17.09.2004, the post of Administrative Assistant could not have been created for any time prior to 09.05.2008, for the simple reason that during that period, the college was only a B Grade college, which did not have any post of Administrative Assistant. It was in spite of that, the Manager issued Ext.P12 order of 10.09.2009, promoting the 1st appellant to the post and that too with effect from 17.09.2004 and curiously enough, the Principal issued Ext.P12(a) certificate dated 28.10.2009 certifying that the 1st appellant joined duty pursuant to Ext.P12 on 17.09.2004. These facts therefore, show that the promotion to the post of Administrative Assistant with effect from 17.09.2004 was to a post, which was not existing, in violation of Ext.R2(a) circular and also ignoring the fact that the 1st appellant had already retired from service on 31.12.2004. In such circumstances, the 2nd respondent had rightly returned the proposal made by the Manager by Ext.P13 proceedings dated 09.06.2010.
12. Our attention was invited to the judgment of the learned Single Judge of this Court in Writ Petition No.26202 of 2009, where, according to the counsel for the appellants, in similar circumstances, notional promotion was ordered to be granted. Reading of the judgment would show that in that case, promotion was declined only on account of the ban on promotions, and it was therefore that relief was granted. However, that judgment did not deal with a situation where there was no challenge against the rejection of proposal for approval of appointments nor does the judgment deal with a case where promotions were effected to non existent post, even ignoring the retirement of the employees concerned. In such circumstance, we are not inclined to think that this judgment can be of any application with the facts of this case.
In the above factual scenario, we do not find any reason to interfere with the judgment of the learned Single Judge. The appeal therefore, lacks merit and it is dismissed.
Sd/-
ANTONY DOMINIC JUDGE das Sd/-
ANIL K. NARENDRAN JUDGE