IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 WP(C).No. 5054 of 2010(F) ------------------------- PETITIONERS: --------------- 1. T.V.DIVAKARAN, AGED 43 YEARS, S/O.T.K.VELAYUDHAN, EXCISE INSPECTOR, EXCISE RANGE OFFICE, ERATTUPETTA, KOTTAYAM, RESIDING AT THOTTUNGAL HOUSE, KANNIMALA P.O., ERUMBOORIKKARA, ERUMELI, KOTTAYAM. 2. ABDUL AZEEZ K.M., 45 YEARS, S/O.K.MOHAMMED, EXCISE INSPECTOR, SULTHANBATHERY RANGE, WAYANAD DISTRICT, RESIDING AT KALLATHINGAL OLD VYTHIRI, WAYANAD. 3. P.J.ROBIN BABU, AGED 44 YEARS, S/O.T.V.JOHN, EXCISE INSPECTOR, KARUNTHURUTHI RANGE, KOTTAYAM DISTRICT, RESIDING AT POOTHAVELIL, VAIKKOM, KOTTAYAM. 4. KOCHUNARAYA PILLAI G.P., AGED 45 YEARS, S/O.G.PILLAI, EXCISE INSPECTOR, OFFICE OF ASSISTANT EXCISE COMMISSIONER (IB), THIRUVANANTHAPURAM. BY ADV. SRI.U.BALAGANGADHARAN RESPONDENTS: ----------------- 1. STATE OF KERALA, REP. BY SECRETARY, DEPARTMENT OF TAXES(F), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. THE JOINT EXCISE COMMISSIONER, THIRUVANANTHAPURAM. BY GOVT. PLEADER, SRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 'CR' C.T.RAVIKUMAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 5054 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of March, 2010 JUDGMENT Alleging invidious discrimination meted out by the respondents, this writ petition has been filed by the petitioners who are presently working as Excise Inspectors. While working as Preventive Officers, they were promoted to the post of Assistant Excise Inspectors as per Ext.P3 dated 19.07.2003. Thereafter, they were promoted to the post of Excise Inspectors as per Ext.P5 dated 09.03.2005. This writ petition has been filed mainly with a prayer to issue a direction to the 2nd respondent for pre-dating their promotions as Excise Inspectors with effect from the date of their promotion as Assistant Excise Inspectors viz., from 19.07.2003 in the light of Exts.P1, P2 and P6. The further prayer is that the 1st respondent may be directed to consider and pass orders on Ext.P7 and similar representations filed by the petitioners carrying similar prayers. 2. The petitioners were promoted to the post of W.P.(C)No.5054 OF 2010 -:2:- Assistant Excise Inspectors only as per Ext.P3 order dated 19.07.2003. Ext.P5 would reveal that they were promoted to the post of Excise Inspectors as per order dated 09.03.2005. The claim of the petitioners is to predate their promotion as Excise Inspectors with effect from their date of promotion as Assistant Excise Inspectors in the light of Exts.P1, P2 and P6. Exts.P1, P2 and P6 would reveal that in the case of certain personnel in the department, they were given promotion to the post of Assistant Excise Inspectors on the same date they were given promotion to the post of Excise Inspectors. Based on the said orders it is contended that the action on the part of the respondents in not considering the claims of the petitioners is nothing but arbitrary and hostile discrimination and therefore, they are entitled to the reliefs sought for in this Writ Petition. The petitioners did not have a contention that they were illegally superseded in the matter of such promotions. 3. The question to be decided is whether an Excise Preventive Officer can claim promotion to the post of Assistant W.P.(C)No.5054 OF 2010 -:3:- Excise Inspector and Excise Inspector on the same day, with effect from the same day, as a matter of right. In other words, whether an Excise Preventive Officer can legally claim for a double promotion with effect from the same date. Normally, going by the relevant rules, none can stake such a claim. Usually, a promotee to a post has to undergo a particular period of probation or in the absence of a probation period, such promottee has to stay in that particular post for a specified period to earn eligibility for further promotion. In this context it is worthwhile to note Rule 28(a) of the General Rules in the Kerala State and Subordinate Services Rules, 1958 which reads thus: “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: [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 W.P.(C)No.5054 OF 2010 -:4:- 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 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.] (ii) Where the Special Rules for a service provide for appointment by promotion to any class or category from a specified class or category of such service, no member shall be eligible for such appointment unless he is a full member or an approved probationer in the class or category so specified: [Provided that if he is the holder of a post in any service for which no probation has been prescribed, he shall not be eligible for promotion unless he has put in satisfactory service in that post for a period of one year on duty within a continuous period of two years.] (iii) Notwithstanding anything contained in these Rules or in W.P.(C)No.5054 OF 2010 -:5:- the Special Rules/Executive Orders, the period of probation for persons appointed by direct recruitment or recruitment by transfer through Public Service Commission shall be two years on duty within a continuous period of three years and for persons appointed in a post or category from another post or category in the same service or appointed by transfer from one service to another within the same Department or in another department (where direct recruitment is not resorted to) shall be one year on duty within a continuous period of two years.” 4. Rules 1, 2 and 8 of the Special Rules for the Kerala Excise and Prohibition Subordinate Service (for short 'the Special Rules') are also relevant in this context. Rule 1 of the 'Special Rules' reads thus:- “1. Constitution:- The service shall consist of the following categories of Officers, namely:- Category 1. Excise Inspectors Category 1A Assistant Excise Inspectors Category 2. Excise Preventive Officers Category 3. Excise Guards Category 4. Drivers” Rule 2 of the Special Rules would reveal that the posts of Excise Inspectors and Assistant Excise Inspectors are borne on the Subordinate Service and promotion from the category of Assistant Excise Inspectors is one of the methods of appointment W.P.(C)No.5054 OF 2010 -:6:- to the category of Excise Inspectors. It would also reveal that promotion from the category of Excise Preventive Officers is the method of appointment to the category of Assistant Excise Inspectors. Rule 8 of the Special Rules prescribes the period of probation and it, in so far as relevant for the purpose of this case, reads as follows: “8. Probation:-Every person appointed to any of the categories of the service shall from the date on which he joins duty be on probation - (b) if appointed by promotion for a total period of one year on duty within a continuous period of two years.” 5. A scanning of the contentions of the petitioners in the light of the aforesaid provision would reveal the absolute absence of any legal right to claim that their promotion to the post of Excise Inspectors should be predated and it should be given effect from the same date on which they were promoted to the post of Assistant Excise Inspectors. When this be the legal position, the fact that in the case of certain similarly situated persons, they were given promotion to the post of W.P.(C)No.5054 OF 2010 -:7:- Assistant Excise Inspector and Excise Inspector on the same day, by itself cannot be a reason for this Court to interfere with Ext.P5 and to direct respondents to give effect to the orders of promotion of the petitioners to the post of Excise Inspector with effect from the very same day on which they were promoted as Assistant Excise Inspectors. Merely because in the case of few personnel the Government have issued such orders, this Court cannot issue a writ of mandamus directing the respondents to consider or grant the reliefs sought for, in total disregard to the specific provisions as extracted above. 6. When faced with the said situation, the learned counsel for the petitioners submits that he is pressing only the second prayer viz., the one to consider Ext.P7 representation in the light of Exts.P1, P2 and P6. I am afraid that such a prayer also cannot be countenanced because the prayer in Ext.P7 will infact, run counter to the specific provision as extracted above and therefore the direction to dispose of Ext.P7 in such circumstances would amount to a direction to the authorities to consider their request W.P.(C)No.5054 OF 2010 -:8:- in derogation of law. I am of the view that there is no merit in the writ petition and accordingly it is dismissed. However, it is made clear that the dismissal of this Writ Petition will not stand in the way of the Government to consider the claims of the petitioners in the light of Rule 39 of Part II of the KS & SSR and Exts.P1, P2 and P6 in case it appears to the Government that it would be just and equitable to do so. C.T.RAVIKUMAR, JUDGE ttb