IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WP(C).No. 22843 of 2007(T) ---------------------------------------- PETITIONER: -------------------- C.VIJAYAKUMARI AMMA, W/O MOHAN DAS, SUPER CHECK OFFICER(DY. SECRETARY TO GOVERNMENT), SUPER CHECK CELL, GENERAL EDUCATION DEPARTMENT, KOZHIKODE. BY ADV. SRI.C.K.ABDUL RAHIM RESPONDENT: ----------------------- STATE GOVERNMENT REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION(SPECIAL-B)DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SR.GOVERNMENT PLEADER SRI. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2008 ALONG WITH WPC NO. 13094 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.22843/2007 T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, THIRUVANANTHAPURAM IN CC 619/01 DTD. 31/01/06. EXT.P2: COY OF THE ORDER ISSUED BY THE GOVERNMENT DTD. 17/02/2006. EXT.P3: COPY OF THE ORDER ISSUED BY THE GOVERNMENT DTD. 4/03/2006. EXT.P4: COPY OF THE ORDER ISSUED BY THE GOVERNMENT CANCELLING EXTS.P2 AND P3 DTD. 14/06/2006. EXT.P5: COPY OF THE ORDER BY WHICH THE PETITIONER WAS PROMOTED DTD. 17/04/2006. EXT.P6: COPY OF THE SENIORITY LIST PREPARED BY THE GOVERNMENT AS ON 1/1/2007. EXT.P7: COPY OF THE LETTER ADDRESSED BY THE GOVERNMENT TO THE ACCOUNTANT GENERAL, DTD. 19/04/2007. EXT.P8: COPY OF THE LETTER OF THE ACCOUNTANT GENERAL, KERALA ADDRESSED TO THE RESPONDENT DTD.27/6/2007. EXT.P9: COPY OF THE LETTER ISSUED BY THE RESPONDENT TO THE DIRECTOR OF PUBLIC INSTRUCTIONS, DTD.26/6/2007. EXT.P10: COPY OF THE WORK AND CONDUCT CERTIFICATE ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS DTD.3/7/2007. EXT.P11: COPY OF THE PROCEEDINGS ISSUED BY THE RESPONDENT DTD.11/07/07 DECLARING PROBATION OF THE JUNIOR. EXT.P12: COPY OF THE REPRESENTATION SUBMITTED TO THE RESPONDENT, DTD. 16/07/07. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss V. GIRI, J. ------------------------------- WP(C).NOs. 22843/2007 & 13094 of 2008 --------------------------------- Dated this the 16th day of June, 2008 JUDGMENT The parties in these two writ petitions are the same and the issues are also closely connected. Therefore, they have been heard together and are being disposed of by this common judgment. I will refer to the facts in WPC.No.22843/2007 in the first instance. 2. The petitioner is working as the Deputy Secretary in the Government service. She was promoted to the post of Deputy Secretary on 17.4.2006. She was originally posted in the Agricultural Department as Administrative Secretariat. But was later transferred to the Directorate of Tourism as Administrative Officer. Still thereafter she was transferred to the Super Check Cell under the General Education Department at Kozhikode and she is now officiating in the said post. 3. The petitioner submits that while she was working as the Section Officer in the Transport Department on 10.1.2001 the petitioner and some of her lady co-workers were assaulted by WPC. /2008 2 a group of Government employees. The petitioner was beaten with a hot brick taken from the fire hearth and she was injured. 4. A criminal case as CC.No.619/2001 was registered against seven employees for offences punishable under sections 143,147and 323 read with section 149 IPC. They were convicted and sentenced to undergo simple imprisonment for a period of 12 months and a fine of Rs.1000/- each. Apparently taking note of the conviction of these Government employees, they were removed from service under Article 311(2) of the Constitution as per Exts.P2 and P3 orders. According to the petitioner, the abovementioned facts caused the apparent delay on the part of the Government in declaring the probation of the petitioner in the category of Deputy Secretary. Reference is made to the fact that as evidenced by Exts.P7 and P8 the petitioner has completed one year of satisfactory service on 17.4.2007 and that there was no non-qualifying service during the aforementioned period. According to the petitioner, her service was found to be satisfactory, going by Ext.P10 letter issued by the Director of Public Instructions. Ext.P11 will show that the service of the immediate junior of the petitioner was declared with effect from WPC. /2008 3 23.5.2007. The petitioner submits that there was absolutely no reason why her probation ought not to be declared atleast on the date on which the probation of her immediate junior was declared. No disciplinary proceedings were pending against the petitioner during the above mentioned period. There was no factor which could have persuaded the Government to come to the conclusion that the petitioner's service and conduct were not satisfactory. Hence this writ petition for a direction to the Government to pass orders declaring the probation of the petitioner. 5. WPC.No.13094/2008 has been filed essentially for two purposes. Learned counsel for the petitioner prays that the respondents may be directed to finalise the disciplinary action initiated against her pursuant to Ext.P15 order. The petitioner also prays for a direction to the respondents to provisionally promote the petitioner to the post of Joint Secretary. She refers to Ext.P17 order which shows that persons juniors to her in the post of Deputy Secretary have been promoted as Joint Secretary. Ext.P18 will show that another seven persons who are juniors to the petitioner are also provisionally promoted. WPC. /2008 4 6. A counter affidavit has been filed by the Government in WPC.No.22843/2007 and a statement has been filed in WPC.No.13094/2008. 7. I heard learned counsel for the petitioner Sri. C.K.Abdul Rahim and the learned senior Government Pleader Sri. Nandakumar. In so far as WPC.No.22843/2007 is concerned, the only direction that could be issued to the Government at this stage is to pass orders in the matter of declaration of the petitioner's probation. Here is a case where the period of probation was not specifically extended by the Government. Normally it should have been declared. The only alternative for the Government was to pass an order stating that probation will not be declared. But this could only be if there were materials before the Government to come to the conclusion that the conduct of the petitioner during the period of probation was not satisfactory. It is true that the power available to the Government in terms of Rule 20 A of Part II of KS and SSR is discretionary. The Government is entitled to either declare the probation or extend the probation as the case may be. But if there were factors which stood in the way of the Government WPC. /2008 5 declaring the probation of a Government servant, the same must be considered. More over such factors should have been available with the Government during the period of probation or was capable of being taken note of by the Government during the period of probation. 8. In so far as WPC.No.13094/2008 is concerned, it is true that Ext.P15 memo of charges were issued only on 23.10.2007. But there was a direction in Ext.P15 to the enquiry officer to submit the enquiry report. Learned Government Pleader submits that it has been so submitted. So final orders have to be passed by the Government on such enquiry. That is yet to be done. The stand taken by the Government is that the petitioner's probation was not satisfactorily declared only on account of the subject matter of the disciplinary proceedings under Ext.P15 . I also take note of the fact that the allegations contained in Ext.P15 cannot be considered as a time consuming. The petitioner is due to retire on 31.1.2009. 9. In the result, the writ petition is disposed of in the following terms:- The disciplinary proceedings as evidenced by Ext.P15 in WPC. /2008 6 WPC.No.13094/2008 shall be concluded at the earliest, at any rate, within a period of one month from the date of receipt of a copy of this judgment. Thereupon the Government shall pass orders under Rule 19/20 of Part II KS and SSR in the matter of declaring the petitioner's probation. Such orders shall be passed without any delay after the completion of the disciplinary proceedings in the manner aformentioned and at any rate, within two weeks from the date of final orders on completion of the disciplinary proceedings passed by the Government. If the petitioner's probation is declared, steps shall be taken within two weeks thereafter to consider the petitioner's claim for promotion to the post of Joint Secretary. But I make it clear that if the petitioner's probation is declared, in view of the fact that she is due to retire on 31.1.2009, further taking note of the fact that there is no select list currently available, she shall be provisionally promoted to the post of Joint Secretary, within two months thereafter. V. GIRI, JUDGE. pmn/ WPC. /2008 7