Full Judgment Text
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CASE NO.:
Appeal (civil) 4490 of 2007
PETITIONER:
M. MOHAMMED ABDULLA
RESPONDENT:
STATE OF KERALA AND ORS
DATE OF JUDGMENT: 25/09/2007
BENCH:
S.B. SINHA & H.S. BEDI
JUDGMENT:
J U D G M E N T
(Arising out of SLP(C) No.10844/2006)
S.B.SINHA, J.
Leave granted.
Appellant herein is aggrieved by and dissatisfied with the judgment and
order dated 23.11.2005 passed by a Division Bench of the Kerala High Court
in Writ Petition (C) No.26149 of 2004.
The factual matrix involving the dispute is on a narrow compass.
There are two services in the State of Kerala; one is governed by the Kerala
Service Rules and the other by the Kerala State and Subordinate Service
Rules. Within the State service falls Local Fund Audit Service, known as
Kerala Local Fund Audit Service.
Appellant was appointed as Grade II Auditor on the recommendation of
Public Service Commission on 7.7.1975. He was promoted as Inspector Local
Fund Account on 18.11.1995, which post was re-designated as Audit Officer.
In terms of paragraph 4 of Appendix XIIA of the Kerala Service Rules, to
which we will advert to a little later, the appellant while holding the post of
Audit Officer, applied for and was granted leave without allowance for a
period of 5 years from 1.9.1996 vide G.O. dated 18.11.1996 for taking
employment abroad. He rejoined his duties as an Audit Officer on 8.11.2001.
Respondent No.3 herein, who was junior to the appellant, was promoted as
Deputy Director of Local Fund Account on 5.8.2002 and he joined the said
post on 24.8.2002. Appellant was declared to have completed his period of
probation in the category of Audit Officer in terms of order passed by
Respondent No.2 dated 6.11.2003 with effect from 6.3.2003. In the seniority
list which was published on 6.11.2003, his seniority was shown at serial
No.8A. The original seniority assigned to the appellant in the category of
Audit Officer as published on 18.5.1998 was restored in favour of the
appellant by an order dated 3.1.2004 stating:
\023Government, in their orders read as 7th paper above, have
clarified that the seniority of those who avail of leave without
allowances before completion of probation in a grade will be
protected though they will lose promotion chances that may
arise during the currency of leave and until the date of
completion of successful probation above those recruited
after him and remaining in that grade.
Accordingly, the original seniority of Sri M. Mohammed
Ahdulla, Audit Officer as in the seniority list published as per
this office proceedings read as 1st paper above has to be
restored.
It is therefore ordered that the original seniority of Sri
Mohammed Abdulla is restored as Sl. No.111, below Sri U.P.
Ramachandran (Sl. No.109) in the seniority list published as
per this office proceedings No. LF/6188/Spl. Cell/98 dated
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18.5.1998.
The revision and modification orders issued as per 5th
paper read above is hereby replaced by this final order
restoring the original seniority of Sri Mohammed Abdulla in
the light of Government orders.\024
Questioning the said G.Os. dated 6.11.2003, 19.11.2003 and 3.1.2004, the
third respondent filed a writ application before the High Court of Kerala which
was marked as Writ Petition No.2075/2004. An interim order of stay was
granted therein pursuant whereto the G.O. dated 3.1.2004 was cancelled. A
Select List was prepared on 7.5.2004 on the recommendation of the
Departmental Promotion Committee. Pursuant thereto, the appellant was
promoted to the post of Deputy Director of Local Fund Audit Account by order
dated 27.5.2004. However, the said order was reviewed by the Government
by its order dated 26.8.2004, inter alia on the premise that while passing the
same, the order of stay passed in Writ Petition No.2075/2004 had not been
taken into account whereby the promotion of the appellant was cancelled.
Aggrieved thereby the appellant filed another writ application being Writ
Petition (Civil) No.26149/2004 before the Kerala High Court for a declaration
that the inclusion of his name in the Select List and the order dated 27.5.2004
giving promotion to him was legal and valid and the same should not have
been reviewed.
The said writ petition although was dismissed but the review application
filed by the appellant was allowed. By reason of the impugned judgment, the
High Court upon hearing the parties, while dismissing the writ petition filed
by the appellant herein, allowed the writ petition filed by the third respondent
herein.
In view of the controversy involving the applicability of paragraph 4 or
paragraph 5 of Appendix XIIA to the Kerala Service Rules, we may at the
outset notice the same:
\0234 Permanent officers and non-permanent officers who have
completed probation in their entry cadre in the regular service
of Government may be granted leave without allowances
under these rules. In such cases, for, and during the currency
of the period of leave, the officers shall lose all service
benefits such as the earning of leave including half pay leave,
pension, gratuity, increment, etc., and also promotion
chances as may arise with reference to their seniority in the
posts from which they proceeded on leave. They shall also
lose seniority in the higher grade/grades with reference to
their juniors who might get promoted to such grade/grades
before they rejoin duty.
5. In the case of non-permanent officers in regular service
who have not completed probation in the entry grade, leave
without allowances may be granted subject to the condition
that they will have to start afresh and complete their
probation on return from the leave without allowances. In
other words, the officers will forfeit the service benefits that
had accrued to them prior to their proceeding on leave and
they will be deemed as new entrants to Government service
on return from leave. What is protected is only their right to
rejoin Government service in the same entry grade as if they
were new entrants.\024
The High Court relying upon its earlier decisions in Lukose vs. State of
Kerala (1995 (2) KLT 285) and Unnikrishna Panicker vs. Bhasi (2000 (1) KLT
449), held that in this case, paragraph 5 of Appendix XIIA shall apply.
Appellant contends that paragraph 4 is applicable in this case.
We may before embarking on the said issue at this juncture, notice the
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stand taken by the State of Kerala in its counter affidavit before the High
Court:
\023It is submitted that the petitioner is governed by Clause 5 of
Appendix XIIA of KSR since he had not completed probation
before proceeding on leave. As per the Clause 4 & 5 of
Appendix XIIA of KSR, entry cadre means the cadre from
which the officer proceeds on leave. Officers who avail long
leave without allowances for employment abroad before the
completion of probation are governed by Clause 5 of the Rule
under Appendix XIIA of KSR. As per this rule, such officers
will be treated as new entrants when they rejoin duty and will
have to start the probation afresh. Since they have not
completed probation before proceeding on leave, they are
not eligible for promotion during the currency of leave
period.\024
Before us, however, Mr. G. Prakash, learned counsel appearing on behalf of
the State would submit that in view of the fact that the appellant joined his
services in the Subordinate Service of the State on the post of Inspector of
Local Fund Account, now re-designated as Audit Officer, which is in the State
service and he having been appointed by transfer from the former to the
latter, would be deemed to have entered into the State service on 8.11.2001
and as before completion of his period of probation; the third respondent had
already been promoted as Deputy Director of Local Fund Account, the matter
would be governed by paragraph 5 and not paragraph 4 of Appendix XIIA of
the said rules.
We may notice Rules 27 & 28 of the Kerala State and Subordinate Service
Rules which read as under:
\02327. Seniority.- (a) Seniority of a person in a service, class,
category or grade shall, unless he has been reduced to a
lower rank as punishment, be determined by the date of the
order of his first appointment to such service, class, category
or grade.
Explanation:- For the purposes of this sub-rule, ’appointment’
shall not include appointment under rule 9 or appointment by
promotion under rule 31.
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:
Kerala Local Fund Audit Service Special Rules, 1960 consists of only four
category of officers:
1. Examiner of Local Fund Accounts (re-designated as Director)
2. Deputy Examiner of Local Fund Accounts (re-designated as
Assistant Director)
3. Assistant Examiner of Local Fund Accounts (re-designated as
Deputy Director)
4. Inspectors of Local Fund Accounts (re-designated as Audit
Officers)
Rule 3 of the 1960 Rules provides as under:
\023Promotion to the posts of Deputy Examiner of Local Fund
Accounts and Assistant Examiner of Local Fund Accounts
and appointment by transfer to the post of Inspector of Local
Fund Accounts shall be made from select lists prepared from
among eligible officers on the basis of merit and ability,
seniority being considered only where merit and ability are
approximately equal.\024
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Appellant availed leave without allowance in terms of paragraph 4 of the
said rules while he was working as Audit Officer of Local Fund Accounts. But
prior thereto he had already entered the cadre of Grade II Auditor and
completed his period of probation. He was a permanent Government servant.
Once he became permanent Government servant, the question of his availing
leave while he had not completed the period of probation in the entry grade
as envisaged in paragraph 5 of Appendix XIIA of the rules would not arise.
Distinction between paragraphs 4 and 5 is apparent. Paragraph 4 deals with
the cases of permanent officers who have completed the period of probation
in their entry cadre in the regular service, whereas paragraph 5 speaks of
non-permanent officers in regular service who have not completed probation
in their entry grade. In the latter case, all the service benefits which had
accrued to the officer prior to his proceeding on leave, would be forfeited and
he has to be treated as new entrant when he rejoins his post. It has
categorically been stated in paragraph 5 that only the service of the
concerned officer is protected but any benefit thereof is not to be given.
Paragraph 4, on the other hand, deals with a situation where a person
availing leave thereunder would lose his seniority in the higher grade with
reference to his juniors who might get senior grade before he rejoins his
duty.
Condition precedent for denying the concerned officer the benefit of his
seniority is that his junior in the meantime must obtain a senior grade before
he rejoins his duty. Paragraph 4, in our opinion, speaks of the entry in the
regular service of the Government, whatever be the cadre held by the
employee.
The State, as noticed hereinbefore, proceeded on the basis that the
appellant had not completed his period of probation before proceeding on
leave. A factual error appears to have been committed by the State as it is
evident from the factual matrix, as noticed hereinbefore, that the appellant
had entered into Government service in the year 1975 and he had already
been promoted several times.
Furthermore, Rule 28 as noticed hereinbefore, provides for promotion,
which will be applicable in a case of this nature. In terms of the said rule the
question as to whether the employee had completed his period of probation
or not may not be a relevant criteria.
We may now notice the decisions of the High Court whereupon reliance has
been placed while passing the impugned judgment. In Lukose (supra), the
Full Bench had no occasion to consider the applicability of Appendix XIIA
which was inserted only in the year 1986, as the cause of action therein had
arisen much prior thereto. Unnikrishna Panicker (supra) is a case where
admittedly paragraph 5 of the Rules was applicable. In that case, the third
respondent therein joined the service on 24.12.1981 and before completion of
his probation in the post of Drug Inspector, he had applied for leave for a
period of 5 years to take up employment abroad. It was in that view of the
matter that on rejoining his duty, he was treated as a new entrant in service.
In the fact situation obtaining therein, paragraph 5 indisputably was
applicable. It was so noticed by the Bench in the following terms:
\023The Government Order dated 16.12.1983 provided that non-
permanent employees in regular service who have not
completed probation in the entry grade will have to start
afresh and complete their probation on return from leave
without allowance. In other words, the officers will forfeit the
service benefits that have accrued to them prior to their
proceeding on leave and they will be deemed as new entrant
to Government service on return from leave. Government
Order however protected their right to rejoin Government
service on the same grade as if they were new entrants. The
aforementioned G.O. was given the status of a rule and
inserted as Appendix XIIA vide G.O.(P) No. 953/86/Fin dated
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2.12.1986 published in the Keala Gazette dated 3.3.1987 with
effect from 16.12.1983.\024
The High Court, therefore, in our opinion committed a serious error in
relying upon the decision in Lukose (supra) as also Unnikrishna Panicker
(supra). We may furthermore observe that a declaration of probation in a
grade would not automatically confer an employee a right of promotion. All
eligible permanent employees are required to be considered for promotion
inter alia upon taking into consideration their seniority in the service.
The submission of Mr. G. Prakash that the appellant was a fresh entrant in
the post of Inspector, Local Fund Account (now Audit Officer) may not be
entirely correct. He might have entered into the State service for the purpose
of the said rule, the same would not affect his career, if paragraph 5 of the
Appendix XIIA of the Kerala Service Rules is found to be inapplicable. At the
cost of repetition, we may reiterate that paragraphs 4 & 5, talk of the position
of the employees with reference to their permanent or temporary status,
meaning thereby the persons who have completed their probation and who
are yet to complete their probation. It does not take into consideration the
question in regard to entry in any other service to which he might have been
promoted or appointed by transfer.
The High Court furthermore wrongly applied clause (c) of Rule 27 of the
Kerala State and Subordinate Service Rules, as the question of fixation of
the relative seniority and the order in which their names are arranged in the
revised list (as recommended by Public Service Commission) would not arise
in a case of this nature where the question is as to whether the entry in the
State Service is by way of transfer from Subordinate Service or by promotion
as such a situation has to be made from amongst the existing Government
servants and not outsiders.
Rule 3 of the Kerala Local Fund Audit Service Special Rules in no
unmistakable term says that even for the purpose of appointment by transfer
to the post of Audit Officer the names of the employees mentioned in the
select list prepared from amongst the eligible officers on the basis of their
merit and ability are to be taken into consideration as the seniority is to be
considered only when merit and ability are approximately equal. Once,
therefore, the appellant was found to be eligible for promotion or for that
matter, for recruitment by transfer, to the post of Audit Officer on the basis of
his merit and ability, although seniority being the relevant criteria provided
merit and ability of the respective candidates were approximately equal, in
our opinion, his promotion shall not have been cancelled.
For the reasons aforementioned, we are of the opinion that the impugned
judgment cannot be sustained which is set aside accordingly. The appeal is
allowed. However, in the facts and circumstances of this case, there shall be
no order as to costs.
We make it clear that this order shall not affect the benefits which might
have been given to the third respondent herein pursuant to the order
impugned in the writ application.