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to Rule 28(a)(i) in Part II of the KS & SSR is available only in respect of ‘Test qualified seniors’, who cannot be superseded by juniors during the period of probation.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benefit of the 1 st proviso to Rule 28(a)(i) of Part II KS & SSR and get a declaration that they could not have been superseded by their juniors who had cleared both the Departmental ‘Test for declaration of probation’ and the ‘Test for getting promotion’ in the lower post of ‘Auditor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.”