Auditors challenged seniority assigned to juniors who acquired the prescribed test qualifications earlier. The Court held that the first proviso to Rule 28(a)(i) protects only test-qualified seniors awaiting completion of probation. It dismissed the petition challenging the Tribunal's refusal to interfere.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 6TH DAY OF JUNE 2016/16TH JYAISHTA, 1938
OP(KAT).No. 353 of 2015 (Z)
AGAINST THE ORDER IN TA 7437/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 31.7.2015
PETITIONERS:
SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, KOLLAM (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CIVIL STATION, COLLECTORATE.P.O., KOTTAYAM-686 001).
BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.G.RENJITH
RESPONDENT(S):
OP(KAT).No. 353 of 2015 (Z)
AUDIT OFFICER, OFFICE OF THE DIRECTOR OF LOCAL FUND AUDIT, VIKHAS BHAVAN, THIRUVANANTHAPURAM-695 033 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, WELFARE FUND AUDIT OFFICE, KOLLAM-691 001).
SELECTION GRADE AUDITOR, OFFICE OF THE DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE) DISTRICT OFFICE, MUNICIPAL BUILDING, OPPOSITE BUS STAND, THODUPUZHA-685 584 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, MINI CIVIL STATION, THODUPUZHA685 584).
SELECTION GRADE AUDITOR, OFFICE OF THE DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), GURUVAYOOR DEVASWOM AUDIT, GURUVAYOOR, THRISSUR DISTRICT-680 101 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CHEMPOOKAVU.P.O., THRISSUR-680 020).
SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), KHRWS AUDIT, RED CROSS ROAD, VANCHIYOOR.P.O., THIRUVANANTHAPURAM-698 037 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, HOUSING BOARD AUDIT OFFICE, HOUSING BOARD BUILDINGS, SANTHINAGAR, THIRUVANANTHAPURAM-695 001.
SELECTION GRADE AUDITOR, OFFICE OF THE AUDIT OFFICER, MUNICIPAL AUDIT, MUNICIPAL OFFICE, KASARAGODE DISTRICT-671121 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, MUNICIPAL AUDIT OFFICE, MUNICIPALITY, KASARAGOD-671 121).
SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), DISTRICT OFFICE, K M COMPLEX, NEAR MUNICIPAL BUS STAND, KANNUR-670 001 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CIVIL STATION, E BLOCK, VIDYA NAGAR.P.O., KASARAGOD-671 123)
SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), DISTRICT OFFICE, MINI CIVIL STATION, PATHANAMTHITTA-689 645 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, MINI CIVIL STATION, PATHANAMTHITTA-689 645).
OP(KAT).No. 353 of 2015 (Z)
OP(KAT).No. 353 of 2015 (Z)
SAJI K SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, WELFARE FUND AUDIT, OPPOSITE PENTECOSTAL MISSION, PLAMOODU, CHARACHIRA ROAD, KOWDIAR.P.O., THIRUVANANTHAPURAM-695 003 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, HOUSING BOARD AUDIT, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001).
SASIKUMAR M.P SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, K M COMPLEX, NEAR MUNICIPAL BUS STAND, KANNUR-670 001 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, K M COMPLEX, NEAR M1 BUS STAND, KANNUR-670 001).
SABU C GEORGE SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, CIVIL STATION, COLLECTORATE P.O., KOTTAYAM-686 002 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, CHANGANASSERY MI AUDIT, MI OFFICE, CHANGANASSERY-686 101).
SUNILKUMAR K.V SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, CORPORATION AUDIT, CORPORATION OFFICE, KOZHIKODE-673 032 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CIVIL STATION, KOZHIKODE-673 020).
OP(KAT).No. 353 of 2015 (Z)
KAKKANADU.P.O., ERNAKULAM-682 030 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CIVIL STATION, KAKKANAD.P.O., ERNAKULAM-682 030).
NARAYANA KAMMATH
SELECTION GRADE AUDITOR, ACCOUTNS RECONCILIATION WING (AUDITOR), OFFICE OF THE TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-695 003 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, TDB AUDIT, NANTHANCODE, THIRUVANANTHAPURAM695 003).
OP(KAT).No. 353 of 2015 (Z)
R1,R 2 BY SR. GOVERNMENT PLEADER SIR K.C.VINCENT
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 06-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No. 353 of 2015 (Z)
APPENDIX
PETITIONER(S)' EXHIBITS
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P17- COPY OF ORDER DT.23.4.2001 ISSUED BY THE 2ND RESPONDENT, EXCLUDING THE SENIORITY LIST.
ANNX.6- COPY OF ORDER OF THE TRIBUNAL DT.31.7.15.
RESPONDENT(S)' EXHIBITS: NIL
TRUE COPY
P.S.TO JUDGE
dsn
“CR”
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
--------------------------------------------------
OP(KAT)No.353 OF 2015
-------------------------------------------------DATED THIS THE 6th DAY OF JUNE, 2016
JUDGMENT
P.R.RAMACHANDRA MENON, J .
Whether the petitioners who are now continuing in probation in the post of Selection Grade Auditor are entitled to the benefit of the 1st proviso to Rule 28(a)(i) of Part II KS & SSR and get a declaration that they could not have been superseded by their juniors who had cleared both the Departmental 'Test for declaration of probation' and the 'Test for getting promotion' in the lower post of 'Auditor Gr.I', thus tilting the seniority, is the basic question to be answered in this case.
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Ext.P1, in terms of Rule 31(a)(i) of the Kerala State and Subordinate Services Rules. Admittedly, no person was duly qualified at the time of granting the provisional promotion. Later, the seniority came to be re-arranged (as per order dated 23.4.2001 produced along with the additional reply affidavit filed before this Court today) with reference to the date of declaration of probation. By virtue of the said exercise, many of the juniors to the petitioners, whose probation was declared earlier came to be ranked above the petitioners, despite the fact that the petitioners were occupying the higher position at the time of recruitment to the post of Auditor Gr.II, based on the date of advice given by the PSC and their position in the ranked list. This resulted in much grievance to the petitioners, who approached the Tribunal contending that they were entitled to have the two years probation completed within a span of three years and this being the position, they were having sufficient time to clear Departmental Test as well. As such, no junior who had completed the probation on an earlier date could have been given a higher placement, particularly by virtue of the 1st proviso to
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Rule 28(a)(i) of Part II of KS & SSR. It was also stated as contrary to Rules 6 & 7 of the Kerala Local Fund Audit Special Rules.
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already passed in this regard as in T.A.No.6118 of 2012 and also on the judgment rendered by a learned Single Judge of this Court in Ajas v. Registrar (2006 (4) KLT 819) and that of a Division Bench in P.Devaki v. State of Kerala (ILR 2006 (3) Ker. 825) . This is per se wrong and unsustainable in all respects according to the petitioners, who hence have moved this Court seeking for getting a correct interpretation of the provision of law and to protect their rights and interests over the juniors.
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with reference to the proviso to Rule 28(a)(i) is the point to be looked into, for which purpose a scrutiny of the said Rule is essential.
Provided that a probationer in a class, category or grade shall not be superseded for promotion to a higher class, category or grade by his junior, if the vacancy in the higher class, category or grade arises within the period specified in the Special Rules for completion of probation in the class, category or grade in which he is probationer and if he has passed the test or tests prescribed for successful completion of probation and is otherwise eligible and suitable for such promotion; but his promotion shall be subject to the condition that he satisfactorily completes the probation in the class, category or grade from which he was promoted within the period prescribed therefor, and for this purpose the period
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of service put in by him in the higher class, category or grade shall be reckoned towards probation in the class, category or grade from which he was promoted and also in the class, category or grade to which he was promoted.”
On going through the first proviso to Rule 28(a)(i), it of course protects the interest of seniors to some extent. But the fact remains that, so as to attract this proviso, three requirements are to be satisfied. Firstly, that the vacancy should have arisen during the period of probation. Secondly, that the senior should be having the relevant Test qualifications prescribed for declaration of probation and thirdly, that he should be otherwise eligible and suitable for such promotion.
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acquisition of the said test qualification by the petitioners is also not a matter of dispute. The contention of the petitioners is that, since the petitioners as well as the juniors were taken together and were given provisional promotion as per Ext.P1, there could not have been any further segregation, as it was quite legally permitted to have the two years' probation declared within a span of three years. The learned counsel made a reference to the judgment rendered by a Division Bench of this Court in W.A.No.880/1998 and contended that the petitioners are also entitled to have the benefits flowing from the said verdict, a copy of which, dated 5.1.2000, is made available before this Court.
............. The purpose of insertion/amendment has been detailed in the Explanatory Note, which is not part of the
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Notification but is intended to indicate its general purport and reads as follows:
'There is at present no provision in the Kerala State and Subordinate Service Rules, 1958 to protect seniors against being superseded by juniors who complete probation earlier, when, owing to reasons beyond their control such as illness, delay in transit or delay to get relief from any service, the seniors are able to join duty only later than the juniors. It is now proposed to incorporate suitable provisions in the Rules with a a view to affording protection to such seniors. This Notification is intended to achieve the above object.”
When the object for which the proviso was inserted is taken into consideration, the inevitable conclusion was that the period prescribed for completion of probation has to be reckoned to be three continuous years as provided in Rule 10 of the Special Rules. ...........”
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words, the acquisition of Test qualification was never a subject matter decided in the said case. Subsequently, it has come to the notice of this Court that the State had moved the Bench by filing a Review petition as R.P.No.383/2002 referring to the facts, circumstances and relevant provisions of law. After hearing, it was observed that no interference was being made in the review petition (presumably for the reason that the judgment had already worked out, as pointed out across the Bar). However, it was made clear that the judgment therein should not be having any precedential value and will remain only for the purpose of the
said case, i.e., as an 'inter parte judgment', which does not help to advance the case of the petitioners.
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through the Rule extracted above and from the discussions already made, we affirm the said finding and that the challenge raised from the part of the petitioners shall necessarily fail. We also find support from the ruling already rendered by another Bench of this Court in P.Devaki v. State of Kerala (ILR 2006
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the test or tests prescribed for successful completion of probation and is otherwise eligible and suitable for such promotion; but his promotion shall be subject to the condition that he satisfactorily completes the probation in the class, category or grade from which he was promoted within the period prescribed therefor, and for this purpose the period of service put in by him in the higher class, category or grade shall be reckoned towards probation in the class, category or grade from which he was promoted and also in the class, category or grade to which he was promoted:
Provided further that if a probationer promoted in pursuance of the above proviso fails to complete his probation in the class, category or grade from which he was promoted within the period prescribed therefor, his probation in the higher class, category or grade shall be terminated and he shall be reverted to the class, category or grade from which he was promoted, and any subsequent promotion of such person to the higher class, category or grade shall not also entitle such person to claim seniority in the higher class, category or grade by reason only of his previous promotion in pursuance of the preceding proviso and he shall commence probation afresh in that class, category or grade from the date of such subsequent promotion.
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(b) that the incumbent had passed obligatory test.”
came up for consideration before the Apex Court, involving the scope of the first proviso to Rule 28(a)(i) in Part II of the KS &
SSR. The observation made by the Apex Court in Haridas v. High Court of Kerala ( 2000 (3) KLT 430 (SC)) is to the following effect.
“5. First proviso to R. 28(a) provides that a probationer shall not be superseded for promotion to a higher class or grade by a junior if the vacancy in the higher class category arises within a period specified in the Rules for completion of probation in the class. The period of probation being two years under R. 12 of the Judicial Service Rules and the appellant having not passed the examination within the probationary period of two years the proviso to R. 28(a) is not attracted in the present case. In the present case, the appellant passed the required examination during the extended period of probation and,
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therefore, he was not entitled to the benefits arising out of the first proviso to R. 28(a) of the State Service Rules. On this short ground the argument of learned Counsel has to be rejected.”
Court, on the point, to the effect that the benefit of the first proviso to Rule 28(a)(i) in Part II of the KS & SSR is available only in respect of 'Test qualified seniors', who cannot be superseded by juniors during the period of probation, which is not the position in the case of the petitioners.
the factual particulars given in the form of a table, in Paragraph
No.2 of the statement, which is extracted below:
| Sl. No. |
Name | Date of joining as Grade II Auditor |
Date of provisional promotion as Grade I Auditor |
Test quali Probation (LFAD Lower) |
fying for Promotion ((Account test (Lower) |
Date of declaration of probation in the category of Grade II Auditor |
|---|---|---|---|---|---|---|
| 1 | Sri Binukumar G | 05.07.1996 | 26.08.1998 | 12/1997 | 12/1997 | 05.07.1998 |
| 2 | Smt.Sudra Das | 09.07.1996 | 26.08.1998 | 06/1997 | 06/1998 | 18.09.1998 |
| 3 | Sri Sabu Joseph | 11.07.1996 | 26.08.1998 | 12/1997 | 12/1997 (Higher) |
11.07.1998 |
| 4 | Sri Vikram Singh S. | 08.07.1996 | 26.08.1998 | 06/1998 | 06/1998 | 09.08.1998 |
| 5 | Sri A. Saheer | 11.07.1996 | 26.08.1998 | 06/1997 | 06/1997 | 20.07.1998 |
| 6 | Sri R.Chakreswara | 15.07.1996 | 26.08.1998 | 06/1998 | 06/1998 | 20.07.1998 |
| 7 | Sri Santhosh B | 28.12.1996 | 26.08.1998 | 06/1998 | 6/1998 | 28.12.1998 |
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| Sl. |
Name | Date of |
Date of |
Test quali | fying for | Date of |
|---|---|---|---|---|---|---|
| No. | joining as Grade II Auditor |
provisional promotion as Grade I Auditor |
Probation (LFAD Lower) |
Promotion ((Account test (Lower) |
declaration of probation in the category of Grade II Auditor |
|
| 8 | Sri Shajahan A.S. | 24.12.1996 | 26.08.1998 | 6/1998 | 6/1997 (Higher) |
24.12.1998 |
| 9 | Sri Habeeb Muhammed | 23.12.1996 | 26.08.1998 | 6/1999 | 6/1997 (Higher) |
24.12.1998 |
| 10 | Smt.Sini M.v. | 19.12.1996 | 26.08.1998 | 06/1998 | 12/1997 | 19.12.1998 |
| 11 | Sri Jaleel K. | 23.12.1996 | 26.08.1998 | 06/1992 | 12/1996 | 23.12.1998 |
| 12 | Sri Mathew Roy K.P. | 16.12.1996 | 26.08.1998 | 06/1998 | 06/1997 | 16.12.1998 |
| 13 | Sri B.Gopakumar | 19.12.1996 | 26.08.1998 | 06/1998 | 06/1998 | 01.01.1999 |
| 14 | Harikumar G. | 19.12.1996 | 26.08.1998 | 06/1990 | 06/1990 | 19.12.1998 |
| 15 | Shyju S. | 05.07.1996 | 26.08.1998 | 12/1998 | 12/1997 | 15.01.1999 |
| 16 | Bindu G.S. | 05.07.1996 | 26.08.1998 | 12/1998 | 12/1997 | 15.01.1999 |
| 17 | Ajith R. | 10.04.1997 | 26.08.1998 | 06/1997 | 06/1997 | 10.04.1999 |
| 18 | Vijayakumar S. | 27.12.1996 | 26.08.1998 | 06/1999 | 06/1998 | 21.7.1999 |
| Sri Satheesh Maveli | ||||||
| 19 | Puthenveedu | 03.09.1997 | 26.08.1998 | 12/1998 | 12/1998 | 03.09.1999 |
| 20 | Jayarajan K. | 01.10.1997 | 26.08.1998 | 06/1998 | 12/1997 | 08.12.1999 |
| 21 | Aravindakshan P. | 05.09.1997 | 26.08.1998 | 12/1998 | 06/1998 | 05.09.1999 |
| 22 | Saji K. | 30.08.1997 | 26.08.1999 | 12/1998 | 12/1998 | 09.09.1999 |
| 23 | Sasikumar M.P. | 05.01.1998 | 26.08.1998 | 12/1998 | 12/2006 | 05.01.2000 |
| 24 | Sabu C.George | 08.01.1998 | 26.08.1998 | 06/1999 | 06/1997 | 30.01.2000 |
| 25 | Sunilkumar K.V. | 02.01.1998 | 26.08.1998 | 12/1998 | 06/1998 | 02.01.2000 |
| 26 | Baby Sanooja | 12.01.1998 | 26.08.1998 | 12/1998 | 12/1998 | 12.01.2000 |
| 27 | Jaya C.R. | 05.01.1998 | 26.08.1998 | 06/1998 | 06/1998 | 09.01.2000 |
| 28 | Harikumar T.K. | 02.01.1998 | 26.08.1998 | 06/1998 | 06/1998 | 03.01.2000 |
| 29 | David K.John | 12.09.1997 | 26.08.1998 | 16/1999 | 12/1999 | 11.02.2000 |
| 30 | M.Muhammed Salim | 03.09.1997 | 26.08.1998 | 06/2000 | 06/1999 | 22.07.2000 |
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requirement of clearance of test for declaration of probation and for promotion as on the date of arising the vacancies. In the case of the first person by name Binukumar G., who has been assigned rank No.1, he joined the post of Auditor Grade II on 5.7.1996. The provisional date of promotion is the same, i.e., 26.8.1998. The said person had cleared both the Tests, i.e., for declaration of probation (LFAD Lower) in December 1997 and Account Test (Lower) in December 1997. Thus, his probation was declared immediately on completion of two years on 5.7.1998 and came to be ranked as the seniormost person. It was applying the very same principle, that one of the petitioners by name Vijayakumar S., who was rank No.41 in Ext.P1, came to be ranked on a higher position at Rank No.18, as evident from the said table. This being the position, there is absolutely nothing illegal or irregular with regard to the declaration of probation and fixation of seniority in the case of the petitioners and as such the verdict passed by the Tribunal is not assailable under any circumstance.
In the above facts and circumstances, we find that the
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petitioners are not entitled to have any reliefs. The challenge against the verdict passed by the Tribunal fails. The Original Petition stands dismissed accordingly.
Sd/-
P.R.RAMACHANDRA MENON ,
JUDGE
Sd/- ANIL K.NARENDRAN, JUDGE
dsn
True copy
P.S.to Judge
1 issue framed by the court
Does the first proviso to Rule 28(a)(i) protect senior probationers against supersession when they had not acquired the prescribed test qualifications at the relevant time?
Colour shows how this judgement treated each authority
W.A.No.880/1998Distinguished¶142
R.P.No.383/2002Relied on¶151
Ajas v. RegistrarFollowed¶153
(2006 (4) KLT 819)
P.Devaki v. State of KeralaRelied on¶156
(ILR 2006 (3) Ker. 825) · Who else cites this
Haridas v. High Court of KeralaApplied¶170
2000 (3) KLT 430 (SC)
1 provisions across 1 enactments
VIJAYAKUMAR S
SHYJU S
VIKRAM SINGH C
BINDU G.S
M.MOHAMMED SALIM
STATE OF KERALA
P.R.RAMACHANDRA MENON
ANIL K.NARENDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
