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2020 Supreme(Ker) 140
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.VINOD CHANDRAN, P.V.KUNHIKRISHNAN, JJ.
Saju.P., Senior Grade Printer – Appellant
Versus
State Of Kerala – Respondent
OP(KAT).No.214 of 2015, OP(KAT).No.83 of 2014(Z)
Decided on : 20-02-2020
Advocate Appeared:
For the Appellant : SRI.ELVIN PETER P.J., SRI.K.R.GANESH, SRI.T.G.SUNIL (PRANAVAM)
For the Respondent: SRI.P.N. SANTHOSH
IMPORTANT POINT
The Rule 28(a) of Part-II of the Kerala State and Subordinate Service Rules, that except 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. The 1st petitioners in both the original petitions joined service as Printer Grade-II. Hence declaration of probation is necessarily required for further promotion from the entry cadre, as per Rule 28(a) of the KSSSR.
Headnote:
Kerala Service Rules, 1959-Rule 23(c) of Part-I - Rule 28(a)(2) provides that where the Special Rules provide for appointment by promotion to any Class or category from a specified Class or category, no member in the lower category can seek for promotion unless the probation is declared in that category. The Special Rules in this case provides for promotion to the post of Printers Upper Division from Printers Lower Division. Hence necessarily any person in the feeder category will have to complete probation before promotion is granted.
Statement of facts:
Petitioners in both the above cases are persons, who were promoted as Printer Grade-I on the date of declaration of probation or later to that date. When the seniority list of Printers Grade-I and Grade-II in the Government Presses were published, they were granted seniority with a retrospective date, the date on which the vacancy arose. The petitioners were also granted fixation on the basis of the retrospective dates assigned in the seniority list. Later, the same was withdrawn as per Ext.P12 produced in T.A. No.208 of 2013-The petitioners rely on the Special Rules to contend that even without declaration of probation, they could have been promoted to the higher post. It is also contended that they were promoted as Printer Grade-I from Grade-II and there is no change of duties. Rule 23(c) of Part-I Kerala Service Rules, 1959 would be squarely applicable to them, is the contention.
Finding of the court:
There is no change of duties insofar as the Printers Grade-I & II are considered. But as we noticed the right to claim promotion or to be considered for that post arises only after the probation is declared in the lower category, whether it be an entry post or a feeder category. Rule 23 (c) only enabled a retrospective effect in case of administrative delays. There can be no retrospective effect conferred for a promotion, from a date in which the employee was not qualified to hold the higher post. Hence Rule 23(c) has no application, since the promotion had never occasioned and the fixation was only on the basis of a retrospective date granted for assignment of seniority; which was erroneous on the face of it.
Result: Original Petition Rejected
JUDGMENT :
K. Vinod Chandran, J.
Petitioners in both the above cases are persons, who were promoted as Printer Grade-I on the date of declaration of probation or later to that date. When the seniority list of Printers Grade-I and Grade-II in the Government Presses were published, they were granted seniority with a retrospective date, the date on which the vacancy arose. The petitioners were also granted fixation on the basis of the retrospective dates assigned in the seniority list. Later, the same was withdrawn as per Ext.P12 produced in T.A. No.208 of 2013.
2. The petitioners challenged Ext.P12 as also Exts.P10 & P11. The Tribunal found that Exts.P10 & P11 have no application to the petitioners, but upheld the revision carried out in Ext.P12. The petitioners rely on the Special Rules to contend that even without declaration of probation, they could have been promoted to the higher post. It is also contended that they were promoted as Printer Grade-I from Grade-II and there is no change of duties. Rule 23(c) of Part-I Kerala Service Rules, 1959 would be squarely applicable to them, is the contention.
3. The learned Government Pleader relies on the very same Special Rules to contend that only after the declaration of probation, a promotion could be reckoned. It is also submitted that they had not discharged their duties in the higher post and only for the purpose of seniority, the retrospective date was assigned. The learned Counsel for the petitioners, as an alternative argument, also contend that even if the petitioners' claim is rejected, the petitioners are entitled to claim that the refund be not ordered as has been held in State of Punjab & Others v. Rafiq Masih White Washer [(2015) 4 SCC 334], which principle has been followed by a Full Bench of this Court in Sasi P.K. and Others v. State of Kerala and Others [2020 (1) KHC 531 (FB)].
4. We see from the Rule 28(a) of Part-II of the Kerala State and Subordinate Service Rules [for brevity, 'the KS&SSR'], that except 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. The 1st petitioners in both the original petitions joined service as Printer Grade-II. Hence declaration of probation is necessarily required for further promotion from the entry cadre, as per Rule 28(a) of the KSSSR.
5. However, 2nd petitioners in both the original petitions entered service in a Lower Grade and were then promoted to the post to the post of Printer Grade-II. For them Rule 28(a) is not applicable, however Rule 28(a)(2) squarely applies. Rule 28(a)(2) provides that where the Special Rules provide for appointment by promotion to any Class or category from a specified Class or category, no member in the lower category can seek for promotion unless the probation is declared in that category. The Special Rules in this case provides for promotion to the post of Printers Upper Division from Printers Lower Division. Hence necessarily any person in the feeder category will have to complete probation before promotion is granted.
6. The learned Counsel for the petitioners specifically referred to Rule 4(2) of the special Rules, which reads as under:
“(2) In cases where the methods of appointment to any Category provide for promotion from still lower category in the absence of qualified persons in the immediate lower category, the condition regarding the completion of probation in the immediate lower category need not always be insisted on, provided the candidates in the immediate lower category and the still lower category are approved probationers in the still lower category. In such cases persons who are technically qualified but who are only probationers in the immediate lower category may temporarily be promoted till their completion of probation in the immediate lower category instead of preferring those who are approved probationer
