Probation; Vijayakumar Vs. State [Kerala High Court, 06-06-2016]

State and Subordinate Service Rules, 1958 (Kerala) – Rule 28(a)(i) 1st proviso – Probation – Seniority – Selection Grade Auditor – Test for Declaration of Probation – Test for Getting Promotion –  the benefit of the first proviso to Rule 28(a)(i) in Part II of the KS & SSR is available only in respect of ‘Test qualified seniors’, who cannot be superseded by juniors during the period of probation.


IN THE HIGH COURT OF KERALAAT ERNAKULAM

P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

OP(KAT)No.353 OF 2015

DATED THIS THE 6 th DAY OF JUNE, 2016

AGAINST THE ORDER IN TA 7437/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 31.7.2015

PETITIONERS

VIJAYAKUMAR S AND 4 OTHERS

BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.G.RENJITH

RESPONDENT(S)

1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF FINANCE, SECRETARIAT, THIRUVANANTHAPURAM-695 001. OP(KAT).No. 353 of 2015 (Z)

2. THE DIRECTOR OF LOCAL FUND AUDIT VIKAS BHAVAN, THIRUVANANTHAPURAM-695 003 AND 37 OTHERS

JUDGMENT

P.R. RAMACHANDRA MENON, J.

# Whether the petitioners who are now continuing in probation in the post of Selection Grade Auditor are entitled to the benefit of the 1 st proviso to Rule 28(a)(i) of Part II KS & SSR and get a declaration that they could not have been superseded by their juniors who had cleared both the Departmental ‘Test for declaration of probation’ and the ‘Test for getting promotion’ in the lower post of ‘Auditor Gr.I’, thus tilting the seniority, is the basic question to be answered in this case.

2. The essential facts revealed from the pleadings and proceedings are that, the petitioners on coming out successful in the process of selection to the post of Auditor Gr.II were appointed assigning the rank based on the date of advice given by the Public Service Commission. Subsequently, on occurrence of vacancies due to cadre restructuring in Auditor Gr.I, the petitioners as well as the contesting respondents were given provisional promotion as per Ext.P1, in terms of Rule 31(a)(i) of the Kerala State and Subordinate Services Rules. Admittedly, no person was duly qualified at the time of granting the provisional promotion. Later, the seniority came to be re-arranged (as per order dated 23.4.2001 produced along with the additional reply affidavit filed before this Court today) with reference to the date of declaration of probation. By virtue of the said exercise, many of the juniors to the petitioners, whose probation was declared earlier came to be ranked above the petitioners, despite the fact that the petitioners were occupying the higher position at the time of recruitment to the post of Auditor Gr.II, based on the date of advice given by the PSC and their position in the ranked list. This resulted in much grievance to the petitioners, who approached the Tribunal contending that they were entitled to have the two years probation completed within a span of three years and this being the position, they were having sufficient time to clear Departmental Test as well. As such, no junior who had completed the probation on an earlier date could have been given a higher placement, particularly by virtue of the 1 st proviso to Rule 28(a)(i) of Part II of KS & SSR. It was also stated as contrary to Rules 6 & 7 of the Kerala Local Fund Audit Special Rules.

3. The relief sought for was resisted from the part of the State/Department pointing out that the idea and understanding of the petitioners was quite wrong and unfounded. The 1 st proviso was actually intended only to serve the deserving lot to a minimal extent; i.e, in respect of such seniors, who are already qualified by passing the Departmental Test, with reference to the date of occurrence of the vacancy. It is true that the petitioners could complete the two years’ probation within a span of three years. The non-completion of the probation may be due to various reasons. If it is not with reference to the absence of the test qualification, such seniors who had already cleared the test as on the date of occurrence of the vacancies, but still to have the probation declared, are to be protected ensuring that their juniors do not get a march over them.

4. The version of the respondents was accepted and the Tribunal declined interference placing reliance on the verdict already passed in this regard as in T.A.No.6118 of 2012 and also on the judgment rendered by a learned Single Judge of this Court in

# Ajas v. Registrar, 2006 (4) KLT 819

and that of a Division Bench in

# P. Devaki v. State of Kerala, ILR 2006 (3) Ker. 825

This is per se wrong and unsustainable in all respects according to the petitioners, who hence have moved this Court seeking for getting a correct interpretation of the provision of law and to protect their rights and interests over the juniors.

5. Heard the learned counsel appearing for the petitioners at length and the learned Senior Government Pleader.

6. There is no dispute with regard to the factual sequence, that the petitioners were ranked above the party respondents when appointments were made to the post of Auditor Gr.II. There is also no dispute as to the fact that nobody was qualified at the time of granting provisional promotion as per Ext.P1 order dated 26.8.1998. The heart-burn started thereafter, when seniority was assigned to the juniors who had completed the probation earlier than the petitioners herein. To what extent the relief, if any, is extendable to the persons like the petitioners with reference to the proviso to Rule 28(a)(i) is the point to be looked into, for which purpose a scrutiny of the said Rule is essential.

7. Rule 28(a)(i) reads as follows:

# 28. (a) Promotion

(i) ( Except in the case of appointment to the posts of Heads of Departments) no member of a service or class of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category.

Provided that a probationer in a class, category or grade shall not be superseded for promotion to a higher class, category or grade by his junior, if the vacancy in the higher class, category or grade arises within the period specified in the Special Rules for completion of probation in the class, category or grade in which he is probationer and if he has passed the test or tests prescribed for successful completion of probation and is otherwise eligible and suitable for such promotion; but his promotion shall be subject to the condition that he satisfactorily completes the probation in the class, category or grade from which he was promoted within the period prescribed therefor, and for this purpose the period of service put in by him in the higher class, category or grade shall be reckoned towards probation in the class, category or grade from which he was promoted and also in the class, category or grade to which he was promoted.”

# On going through the first proviso to Rule 28(a)(i), it of course protects the interest of seniors to some extent. But the fact remains that, so as to attract this proviso, three requirements are to be satisfied. Firstly, that the vacancy should have arisen during the period of probation. Secondly, that the senior should be having the relevant Test qualifications prescribed for declaration of probation and thirdly, that he should be otherwise eligible and suitable for such promotion.

8. The learned counsel for the petitioners submits that the petitioners had cleared the Test for declaration of probation (Local Fund Department Test) within a span of three years, though the Account Test, which is a must for promotion had been cleared within a span of two years. Similarly, the factual position in respect of the party respondents that the juniors had cleared both the above tests within two years or at least before the acquisition of the said test qualification by the petitioners is also not a matter of dispute. The contention of the petitioners is that, since the petitioners as well as the juniors were taken together and were given provisional promotion as per Ext.P1, there could not have been any further segregation, as it was quite legally permitted to have the two years’ probation declared within a span of three years. The learned counsel made a reference to the judgment rendered by a Division Bench of this Court in W.A.No.880/1998 and contended that the petitioners are also entitled to have the benefits flowing from the said verdict, a copy of which, dated 5.1.2000, is made available before this Court. 9. On going through the above judgment, it is seen that the declaration was made by the Court with regard to the eligibility to get the probation declared and the rights flowing therefrom. To ascertain the scope, the “explanation” in the notification was adverted to, which is reproduced below for easy reference:

…………. The purpose of insertion/amendment has been detailed in the Explanatory Note, which is not part of the Notification but is intended to indicate its general purport and reads as follows:

‘There is at present no provision in the Kerala State and Subordinate Service Rules, 1958 to protect seniors against being superseded by juniors who complete probation earlier, when, owing to reasons beyond their control such as illness, delay in transit or delay to get relief from any service, the seniors are able to join duty only later than the juniors. It is now proposed to incorporate suitable provisions in the Rules with a a view to affording protection to such seniors. This Notification is intended to achieve the above object.”

When the object for which the proviso was inserted is taken into consideration, the inevitable conclusion was that the period prescribed for completion of probation has to be reckoned to be three continuous years as provided in Rule 10 of the Special Rules. ………..”

10. From the above, it is clear that, the proviso was incorporated only to protect those who happen to be unfortunate to join the service on the due date because of various circumstances as stipulated therein, such as sickness, missing of conveyance, etc. and it was never with reference to the clearance in the concerned Test for declaration of probation. In other words, the acquisition of Test qualification was never a subject matter decided in the said case. Subsequently, it has come to the notice of this Court that the State had moved the Bench by filing a Review petition as R.P.No.383/2002 referring to the facts, circumstances and relevant provisions of law. After hearing, it was observed that no interference was being made in the review petition (presumably for the reason that the judgment had already worked out, as pointed out across the Bar). However, it was made clear that the judgment therein should not be having any precedential value and will remain only for the purpose of the said case, i.e., as an ‘inter parte judgment’, which does not help to advance the case of the petitioners.

11. Coming to the decision rendered by a learned Single Judge of this Court in

# Ajas v. Registrar, 2006 (4) KLT 819

(cited supra), which has been relied on by the Tribunal, the issue was almost similar and the learned Judge made it clear that the scope of the first proviso to Rule 28(a)(i) was only to protect the ‘Test qualified seniors’ whose probation was still to be declared within the permitted time of three years. On going through the Rule extracted above and from the discussions already made, we affirm the said finding and that the challenge raised from the part of the petitioners shall necessarily fail. We also find support from the ruling already rendered by another Bench of this Court in

# P. Devaki v. State of Kerala, ILR 2006 (3) Ker 825

paragraphs 7 and 8 of which are to the following effect.

“7. R.28(a)(i) of the General Rules in Part II of the Kerala State and Subordinate Services Rules, 1958 provides that “except in the case of appointment to the posts of Heads of Departments no member of a service or class of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category “. Therefore, probation is an essential requirement for promotion. The only exception is that provided in the proviso which reads as under:

Provided that a probationer in a class, category or grade shall not be superseded for promotion to a higher class, category or grade by his junior, if the vacancy in the higher class, category or grade arises within the period specified in the Special Rules for completion of probation in the class, category or grade in which he is probationer and if he has passed the test or tests prescribed for successful completion of probation and is otherwise eligible and suitable for such promotion; but his promotion shall be subject to the condition that he satisfactorily completes the probation in the class, category or grade from which he was promoted within the period prescribed therefor, and for this purpose the period of service put in by him in the higher class, category or grade shall be reckoned towards probation in the class, category or grade from which he was promoted and also in the class, category or grade to which he was promoted:

Provided further that if a probationer promoted in pursuance of the above proviso fails to complete his probation in the class, category or grade from which he was promoted within the period prescribed therefor, his probation in the higher class, category or grade shall be terminated and he shall be reverted to the class, category or grade from which he was promoted, and any subsequent promotion of such person to the higher class, category or grade shall not also entitle such person to claim seniority in the higher class, category or grade by reason only of his previous promotion in pursuance of the preceding proviso and he shall commence probation afresh in that class, category or grade from the date of such subsequent promotion.

8. The first among these provisos can be pressed into service only by a person who had not completed the period of probation only if two conditions are satisfied namely;

(a) that the occasion for promotion arises during the period of probation and

(b) that the incumbent had passed obligatory test.”

12. It is relevant to make a reference to a similar issue, which came up for consideration before the Apex Court, involving the scope of the first proviso to Rule 28(a)(i) in Part II of the KS & SSR. The observation made by the Apex Court in

# Haridas v. High Court of Kerala, 2000 (3) KLT 430 (SC)

is to the following effect.

“5. First proviso to R. 28(a) provides that a probationer shall not be superseded for promotion to a higher class or grade by a junior if the vacancy in the higher class category arises within a period specified in the Rules for completion of probation in the class. The period of probation being two years under R. 12 of the Judicial Service Rules and the appellant having not passed the examination within the probationary period of two years the proviso to R. 28(a) is not attracted in the present case. In the present case, the appellant passed the required examination during the extended period of probation and, therefore, he was not entitled to the benefits arising out of the first proviso to R. 28(a) of the State Service Rules. On this short ground the argument of learned Counsel has to be rejected.”

13. There is a crystal-clear declaration of law by the Apex Court, on the point, to the effect that the benefit of the first proviso to Rule 28(a)(i) in Part II of the KS & SSR is available only in respect of ‘Test qualified seniors’, who cannot be superseded by juniors during the period of probation, which is not the position in the case of the petitioners.

14. The learned Government Pleader made a reference to the factual particulars given in the form of a table, in Paragraph No.2 of the statement, which is extracted below:

Sl. No. Name Date of joining as Grade II Auditor Date of provisional promotion as Grade I Auditor Test qualifying for Probation (LFAD Lower) Promotion ((Account test (Lower) Date of declaration of probation in the category of Grade II Auditor

1 Sri Binukumar G 05.07.1996 26.08.1998 12/1997 12/1997 05.07.1998

2 Smt.Sudra Das 09.07.1996 26.08.1998 06/1997 06/1998 18.09.1998

3 Sri Sabu Joseph 11.07.1996 26.08.1998 12/1997 12/1997 (Higher) 11.07.1998

4 Sri Vikram Singh S. 08.07.1996 26.08.1998 06/1998 06/1998 09.08.1998

5 Sri A. Saheer 11.07.1996 26.08.1998 06/1997 06/1997 20.07.1998

6 Sri R.Chakreswara 15.07.1996 26.08.1998 06/1998 06/1998 20.07.1998

7 Sri Santhosh B 28.12.1996 26.08.1998 06/1998 6/1998 28.12.1998

8 Sri Shajahan A.S. 24.12.1996 26.08.1998 6/1998 6/1997 (Higher) 24.12.1998

9 Sri Habeeb Muhammed 23.12.1996 26.08.1998 6/1999 6/1997 (Higher) 24.12.1998

10 Smt.Sini M.v. 19.12.1996 26.08.1998 06/1998 12/1997 19.12.1998

11 Sri Jaleel K. 23.12.1996 26.08.1998 06/1992 12/1996 23.12.1998

12 Sri Mathew Roy K.P. 16.12.1996 26.08.1998 06/1998 06/1997 16.12.1998

13 Sri B.Gopakumar 19.12.1996 26.08.1998 06/1998 06/1998 01.01.1999

14 Harikumar G. 19.12.1996 26.08.1998 06/1990 06/1990 19.12.1998

15 Shyju S. 05.07.1996 26.08.1998 12/1998 12/1997 15.01.1999

16 Bindu G.S. 05.07.1996 26.08.1998 12/1998 12/1997 15.01.1999

17 Ajith R. 10.04.1997 26.08.1998 06/1997 06/1997 10.04.1999

18 Vijayakumar S. 27.12.1996 26.08.1998 06/1999 06/1998 21.7.1999

19 Sri Satheesh Maveli Puthenveedu 03.09.1997 26.08.1998 12/1998 12/1998 03.09.1999

20 Jayarajan K. 01.10.1997 26.08.1998 06/1998 12/1997 08.12.1999

21 Aravindakshan P. 05.09.1997 26.08.1998 12/1998 06/1998 05.09.1999

22 Saji K. 30.08.1997 26.08.1999 12/1998 12/1998 09.09.1999

23 Sasikumar M.P. 05.01.1998 26.08.1998 12/1998 12/2006 05.01.2000

24 Sabu C.George 08.01.1998 26.08.1998 06/1999 06/1997 30.01.2000

25 Sunilkumar K.V. 02.01.1998 26.08.1998 12/1998 06/1998 02.01.2000

26 Baby Sanooja 12.01.1998 26.08.1998 12/1998 12/1998 12.01.2000

27 Jaya C.R. 05.01.1998 26.08.1998 06/1998 06/1998 09.01.2000

28 Harikumar T.K. 02.01.1998 26.08.1998 06/1998 06/1998 03.01.2000

29 David K.John 12.09.1997 26.08.1998 16/1999 12/1999 11.02.2000

30 M.Muhammed Salim 03.09.1997 26.08.1998 06/2000 06/1999 22.07.2000

15. The learned Government Pleader points out that seniority has been assigned only with reference to the basic requirement of clearance of test for declaration of probation and for promotion as on the date of arising the vacancies. In the case of the first person by name Binukumar G., who has been assigned rank No.1, he joined the post of Auditor Grade II on 5.7.1996. The provisional date of promotion is the same, i.e., 26.8.1998. The said person had cleared both the Tests, i.e., for declaration of probation (LFAD Lower) in December 1997 and Account Test (Lower) in December 1997. Thus, his probation was declared immediately on completion of two years on 5.7.1998 and came to be ranked as the seniormost person. It was applying the very same principle, that one of the petitioners by name Vijayakumar S., who was rank No.41 in Ext.P1, came to be ranked on a higher position at Rank No.18, as evident from the said table. This being the position, there is absolutely nothing illegal or irregular with regard to the declaration of probation and fixation of seniority in the case of the petitioners and as such the verdict passed by the Tribunal is not assailable under any circumstance.

In the above facts and circumstances, we find that the petitioners are not entitled to have any reliefs. The challenge against the verdict passed by the Tribunal fails. The Original Petition stands dismissed accordingly.

Comments