Full Judgment Text
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PETITIONER:
R. SUSEELA DEVI
Vs.
RESPONDENT:
KERALA PUBLIC SERVICE COMMISSION & ORS.
DATE OF JUDGMENT: 12/02/1998
BENCH:
SUJATA V.MANOHAR, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The appellant was appointed as Assistant Grade-II in
the General Secretariat Service with the Public Service
Commission by an advice dated 29.6.71. The Public Service
Commission thereafter issued two further advice lists dated
4.7.71 and 14.7.71. Pursuant to these advice lists,
respondents 2 to 9 were also appointed as Assistants
Grade-II. The dates of actual joining of various persons
shown in these advice lists varied depending upon exigencies
of the situation. However, in the seniority list of
Assistants Grade-II, admittedly, the appellant was senior to
respondents 2 to 9.
The next promotional post for Assistant Grade-II is
Assistant Grade-I. The promotion is purely by seniority
subject to fitness. To qualify for promotion, Assistants
Grade-II are required to have completed satisfactorily their
two years’ period of probation. On 3.7.73 a number of posts
of Assistants Grade I were vacant. Since none of the
Assistants Grade II were qualified on that date for
promotion because they had not then completed their
probation period, they were given provisional promotions by
an order of that date. The appellant as well as respondents
2 to 9 were thus provisionally promoted as Assistants Grade
I by the order of 3.7.73. In this list also the appellant is
shown senior to respondents 2 to 9. On 29.12.73, the
respondent - Kerala Public Service Commission, issued an
order giving regular promotion to 45 Assistants Grade II as
Assistants Grade I. In the order of 29.12.73 respondents 2
to 9 are given the date of promotion which is prior to the
date of promotion given to the appellant, thus making the
appellant was junior to respondents 2 to 9. The respondents
contend that this was done because although the appellant
was senior to respondents 2 to 9 in the cadre of Assistants
Grade II, her actual date of joining that cadre was later
than the actual date of joining of respondents 2 to 9. As a
result, respondents 2 to 9 completed their period of
probation earlier than the appellant and hence they became
eligible for promotion earlier than the appellant. That is
why the appellant is shown as junior to respondents 2 to 9
in the cadre of Assistants Grade I.
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This contention of the respondents has been upheld by
the High Court relying upon a full bench decision of that
Court in the case of Verghese v. State of Kerala (1981 KLT
458).
The promotion in the present case was dependant
entirely upon the seniority of the person concerned in the
cadre of Assistants Grade II. The seniority in the cadre of
Assistants Grade II was dependant upon the date of advice
received from the Public Service Commission, since
candidates were directly recruited as Assistants Grade II.
This seniority did not depend upon the date of completion of
probation of the direct recruits so appointed. This is
because the date of completion of probation will depend upon
other fortuitous circumstances. The date of joining may also
depend upon various fortuitous circumstances. Seniority does
not depend upon these fortuitous circumstances.
Therefore, when promotions are made to the next higher
post, the seniormost in the lower cadre will normally be
promoted, when promotions are by seniority subject to
fitness. In the present casae, however, when the vacancies
were first sought to be filled in the higher post on the 3rd
July, 1973, nobody was eligible because nobody had completed
the period of probation. We do not know when the vacancies
actually arose. We only have the first date when promotions
were made to the existing vacancies provisionally which is
3rd of July, 1973. In the provisional promotion list inter
se seniority of Assistants Grade II was preserved.
The order for regular promotions was issued on
29.12.73. By this date all eligible persons holding the
substantive post of Assistants Grade II were qualified for
promotion and were actually provisionally promoted on 3rd of
July, 1973. Therefore, their inter se seniority on the date
of regular promotion was required to be preserved in order
to give effect to the principle of seniority being the
criterion for promotion to Assistants Grade I when seniority
was the only criterion for such promotion.
We are concerned with the case where an order for
regular promotion was issued at a time when appellant as
well as respondents 2 to 9 were qualified for promotion.
Therefore, in making such a promotion, the principle of
seniority should not have been departed from when it had
been adhered to up to that date. We may add that the
respondents had very fairly waited till all concerned
Assistants Grade II had completed their probation period
before issuing the order of regular appointment. This was
correctly done so as to give effect to the principle of
seniority in granting promotion to Assistants Grade I.
Subsequently, by amendment of Rule 28(a) this principle has
been clarified by providing that a probationer in a grade
shall not be superseded for promotion to a higher grade by
his junior if the vacancy arises within the period of
completion of probation and if he has passed the test or
tests prescribed for successful completion of probation and
is otherwise eligible and suitable for promotion; but his
promotion shall be subject to the condition that he
satisfactorily completes the probation in the grade from
which he was promoted within the period as prescribed and
for this purpose the period of service put in by him in the
higher grade shall be reckoned towards probation in the
grade from which she was promoted.
The appeal is, therefore, allowed and the impugned
judgment and order of the High Court is set aside. The writ
petition filed by the appellant in the High Court is
allowed. There will, however, be no order as to costs.
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