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Supreme Court Of India
M.MOHAMMED ABDULLA - Appellant
Versus
STATE OF KERALA - Respondent
S. L. P. (C) 10844 Of 2006
Decided On : 09/25/2007
Advocates Appeared :
Anindita Popli, Babita Sant, BEENA PRAKASH, G.PRAKASH, Hari Kumar, L.NAGESHWAR RAO, Malini Poduval, P.K.JAYAKRISHNAN
Seniority - Kerala Service Rules - Appendix XIIA - Summary of Acts and Sections: Kerala Service Rules, Appendix XIIA, Rule 27, Rule 28, Kerala Local Fund Audit Service Special Rules, 1960 - The court discussed the applicability of paragraph 4 and paragraph 5 of Appendix XIIA to the Kerala Service Rules. It also considered the provisions of Rule 27 and Rule 28 of the Kerala State and Subordinate Service rules, as well as Rule 3 of the Kerala Local Fund Audit Service Special Rules, 1960. The court highlighted the distinction between paragraphs 4 and 5 of Appendix XIIA, the conditions for denying seniority benefits, and the relevance of probation completion in promotion eligibility. The court also emphasized the importance of merit and ability in promotion and recruitment by transfer to the post of Audit Officer.
Fact of the Case:
The appellant, a government servant, availed leave without allowance and faced a dispute regarding the restoration of his original seniority. The High Court dismissed the writ petition filed by the appellant and allowed the writ petition filed by the third respondent, resulting in the cancellation of the appellant's promotion. The appellant appealed against this decision.
Finding of the Court:
The court found that the impugned judgment could not be sustained and set it aside. The court allowed the appeal, stating that the appellant's promotion should not have been cancelled. The court clarified that the order would not affect the benefits given to the third respondent pursuant to the impugned order.
Issues: The issues involved the applicability of Kerala Service Rules, Appendix XIIA, and the Kerala Local Fund Audit Service Special Rules, 1960, in determining the seniority and promotion eligibility of government servants availing leave without allowance.
Ratio Decidendi: The court held that the appellant's promotion should not have been cancelled, emphasizing the distinction between paragraphs 4 and 5 of Appendix XIIA, the conditions for denying seniority benefits, and the relevance of probation completion in promotion eligibility. The court also highlighted the importance of merit and ability in promotion and recruitment by transfer to the post of Audit Officer.
Final Decision: The appeal was allowed, and the impugned judgment was set aside. The court clarified that the order would not affect the benefits given to the third respondent pursuant to the impugned order.
S. B. SINHA, J.
( 1 ) LEAVE granted.
( 2 ) 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.
( 3 ) THE factual matrix involving the dispute is on a narrow compass.
( 4 ) 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.
( 5 ) 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.
( 6 ) 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: "government, 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 Abdulla, 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 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. "
( 7 ) 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.
( 8 ) 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
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