Government Order Cannot Have Retrospective Operation Particularly When It's Not A Legislation: Kerala High Court

The Kerala High Court on Tuesday held that the retrospective operation of a Government Order cannot be permitted particularly when it is merely an executive order, and not a legislation. 

Justice Devan Ramachandran observed that the petitioner joined the University unaware of any conditions as put forth by the subsequent Government order; therefore, the retrospective operation of the order cannot be permitted.  

"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."

Advocate Kaleeswaran Raj appearing for the petitioner submitted that the petitioner was appointed as an Assistant in the services of the Kannur University by creating a supernumerary post to accommodate him, based on a Government Order dated 07.08.2013, 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 University had shifted the petitioner to a regular post when the vacancy arose. 

However, the Government, with a subsequent order in 2016, clarified that a person with disability who is appointed in a supernumerary post as per a previous government order could not be granted any benefit of either promotion or declaration of probation. Because of the said impugned order, the University cancelled the appointment of the petitioner to the regular post. This was challenged in the petition. 

Government Pleader, Advocate Reshmi Thomas, argued against the contentions raised by the Petitioner that it was made very clear even in the year 2013 that persons like the Petitioner could have been accommodated only against supernumerary posts, which would be abolished on the incumbent demitting office. Therefore, the order brought out by the government cannot be construed to be a new order, but only a clarification and 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. 

Advocate I.V. Pramod, Standing Counsel for the University, submitted that the University acted faithfully in appointing the Petitioner in a regular vacancy under the mandate of the Kerala Financial Code, particularly Article 69(C) of Chapter IV of Volume I, which provides that when a supernumerary post is sanctioned, it is the duty of the head of the department to absorb the incumbent in the first vacancy; and that this was done not only in his case but in the case of several other persons also. However, when the Government brought forth the new order, the University was left without any other option but to cancel the petitioner's appointment to the regular post of Attendant.

The Court, taking into consideration that the petitioner gave up his employment with the Police Department to join the University; Thereafter, the petitioner was given the benefit of being appointed to a regular vacancy on 20.01.2015, and his probation was later declared on the same year, observed that the petitioner's position could not have been altered by the Government order clarifying that a person who is appointed to a supernumerary post cannot be granted any benefit of either promotion or declaration of probation.

The Court also observed that in the initial order according to which the petitioner was appointed, there is no mention of any conditions enumerated in the subsequent order. Therefore, the University is justified in shifting the petitioner to a regular vacancy in the absence of any inhibitory directions. Further, the Court also observed it is pertinent to note that the petitioner had thereafter completed his probation. 

Therefore the Court observed that the order barring persons appointed to supernumerary posts from being granted any benefit of either promotion or probation applies only to persons appointed after the order was issued and does not have retrospective effect as when the petitioner joined the University, he wasn't aware of any such inhibitions as ordered by the subsequent order, and therefore the retrospective operation of the order cannot be permitted, particularly because it is an executive order and not legislation. 

The Court also observed that there is no justifiable reason for the government to object to the appointment of the petitioner to a regular vacancy as the vacancy would have been filed in any case, and the government is not facing any additional financial burden. 

Therefore, the Court allowed the petition with a consequential direction to the University to grant all eligible benefits to the petitioner.

Case Title: Linson Thomas v. State of Kerala and Others.

Citation: 2022 LiveLaw (Ker) 416

Click Here To Read/Download The Order