Public servants cannot be denied promotion to senior posts if they fulfill probation and testing criteria earlier than juniors, as governed by relevant service rules.

JUDGMENT

[ WP(C).16955/2019, WP(C).24718/2019 ]

Dated this the 22nd day of January 2021

This judgment shall dispose of two writ petitions, viz. W.P. (C).No. 16955 of 2019 (1st petition) filed on behalf of four petitioners and W.P.(C).No.24718/2019 (2nd petition) filed on behalf of one petitioner namely Smt.Anupama V. Nair. Challenge in both writ petitions has been laid to orders dated 26.11.2012 and 10.05.2019 pertaining to placing the petitioners below the juniors in the seniority list on account of fact of not passing the test for the purpose of promotion to the post of Senior Grade Assistant.

2. Counsels representing parties to lis referred to the relevant facts which are ad idem regarding the applicability of Rule 28(a)(i) and 28(bb) of Kerala State and Subordinate Services Rules, 1958 (hereinafter called 'KS & SSR Rules' for short) in view of the provisions in the statutes of Cochin University of Science and Technology (hereinafter called 'CUSAT' for short).

3. The interpretation of the Rules would be dealt with after discussing the facts and submissions of rival parties.

4. Respondent University invited applications through notification dated 06.07.2010 for appointment to the post of Assistant. All petitioners were appointed as Assistants. Petitioners 1 and 4 (1st petition) were advised on 11.11.2010 and joined duty on 22.11.2010 and 20.11.2010 (Exts.P2 and P3) whereas petitioners 2 and 3 (1st petition) were advised on 15.07.2010 and they joined duty on 21.07.2010 and 16.07.2010 respectively (Petitioners in W.P. (C).No.16955/2019) whereas Smt.Anupama V.Nair (Petitioner in W.P.(C).No.24718/2019) ie 2nd petition, joined duty on 21.07.2010. From here onwards, Petitioners in first petition successfully completed their period of probation on following dates; i) 22.01.2012, ii) 21.07.2011, iii)17.07.2011 and iv) 20.11.2011 whereas the petitioner in second petition completed the period of probation on 21.07.2011.

5. The case of petitioners as admitted by respondents 3 to 6 are that petitioners in the first writ petition cleared their Secretariat Office Manual Test (SOM) on following dates; Petitioner No.1 passed her SOM on 21.01.2012, Petitioner No.2 on 20.07.2011, Petitioner No.3 on 13.01.2011 and Petitioner No.4 on 20.07.2011 whereas petitioner in second writ petition on 20.07.2011.

6. Respondent Nos. 3 to 6, in both petitions, were advised for appointment as Assistants during the year 2011 and they joined duty on the following dates; i) 28.02.2011, ii) 16.05.2011, iii) 08.06.2011 and vi) 12.10.2012.

7. As per the seniority list Ext.P3 produced in the second petition, petitioners in the first writ petition were at serial Nos.64, 42, 23 and 66, the petitioner in the second writ petition at Sl.No.38 and respondents 3 to 5 at Sl.Nos.69, 74, 78 whereas respondent No.6 was not shown in the seniority list but completed probation only on 14.10.2012.

8. Probation of respondents 3 and 4 were declared with effect from 28.02.2012 and 16.05.2012 respectively, whereas, in the case of respondents 5 and 6, their declared with effect from 08.06.2012 and 14.10.2012.

9. Learned counsel appearing on behalf of petitioners submittted that though petitioners had acquired the test qualification for promotion and completed the probation but despite availability of vacancies in the cadre of Senior Grade Assistants, promotions were not effected. Respondents are juniors to petitioners based upon the joining date and completion of the probation as per the impugned decision Ext.P7 dated 26.12.2012. Respondents 3 to 6 have been given promotion with effect from 28.02.2012, 16.05.2012, 08.06.2012 and 14.10.2012 whereas petitioners in the first writ petition, with effect from 22.01.2012