IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 WA.No. 2052 of 2008 ----------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.15354/2006 DATED 10/07/2008. .................... APPELLANT/PETITIONER: -------------------------------------- C.PREMAKUMARI, JUNIOR SUPERINTENDENT, SUIT CELL, COLLECTORATE, KANNUR, NOW WORIKING AS REVENUE DIVISIONAL OFFICER, ALAPPUZHA. BY ADVS. SMT.S.KARTHIKA, MR.M.S.UNNIKRISHNAN, SMT.K.P.GEETHA MANI, MR.M.R.ANISON, MR.P.S.ABHISHEK, SMT.KAVYA P.PRASAD. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. THE COMMISSIONER, LAND REVENUE DEPARTMENT, TRIVANDRUM. 2. DEPARTMENTAL PROMOTION COMMITTEE (LOWER) FOR REVENUE DEPARTMENT, REP.BY ITS CONVENOR, COMMISSIONER OF LAND REVENUE, TRIVANDRUM. R1 & R2 BY GOVT. PLEADER SMT. R. BINDU. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A. No.2052 OF 2008 ------------------------------ Dated this, the 15th day of January, 2010 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant is the writ petitioner. The respondents herein were the respondents in the Writ Petition. 2. The brief facts of the case are the following: The appellant joined the Revenue Department as Copyist on 10.7.1976. She was promoted to various higher posts in due course and finally as Village Officer on 16.11.1999. The next promotion post is Deputy Tahsildar. Though the petitioner acquired all the requisite qualifications in time, she was not considered for promotion. When her juniors were promoted as Deputy Tahsildar in July and October, 2002, she filed Ext.P1 representation. But, the said representation was not considered. Later, she was promoted as Deputy Tahsildar on 29.11.2002. Still later, while revising the seniority list of W.A. No.2052/2008 - 2 - Deputy Tahsildars, she was assigned seniority with effect from 1.8.2002. The DPC for appointment to the post of Tahsildar met on 31.12.2004 and 18.1.2005, but, her claim was not considered, as she was held to be a probationer in the feeder category. Her service from 29.12.2002 alone was taken into account for the purpose of completion of probation. In the above background the Writ Petition was filed seeking appropriate reliefs. The respondents filed a counter affidavit, in which, in paragraph 19 it is stated as follows: “None of the representations pointed out is received in this office. It is true that the petitioner's name was mistakenly omitted from the promotion order which was issued on 2.9.2002 in which her immediate senior and immediate junior were promoted. The above mistake was immediately corrected by giving her promotion on 29.11.2002. But she failed to complete her probation before the DPC date ie. 31.12.2004 and hence her name was not considered by the DPC convened on 31.12.2004. She has the right to get notional promotion to the post of Deputy Tahsildar only on 2.9.2002. ie. the date on which her immediate junior was promoted. But the W.A. No.2052/2008 - 3 - Honourable High Court in the judgment dated 6.4.1995 in W.A.162/1991 ordered that no one can be said to be on probation from a date anterior to the date on which he began to discharge the duties attached to that post. A member of the Kerala Revenue Ministerial Subordinate Service when recruited by transfer to the post of Deputy Tahsildar, then and then alone will start to discharge the duties attached to the post. Only thereafter he can be said to be on probation. If on a subsequent date she is assigned an anterior notional date of promotion to the cadre of Deputy Tahsildar, by no stretch of imagination, he can be deemed to have discharged the duties attached to the post of Deputy Tahsildar.” 3. In this case, it is admitted that with effect from 2.9.2002 her immediate junior and immediate senior were promoted. If that be so, she should be treated as having been promoted actually on 2.9.2002. The mistake of the appointing authority cannot adversely affect the appellant. It is common ground that she is assigned seniority in the cadre of Deputy Tahsildar from 1.8.2002. So, when the claims of her juniors for promotion were considered in the DPC, which W.A. No.2052/2008 - 4 - met on 31.12.2004 and 18.1.2005, the appellant's claim should have been considered in view of the proviso to Rule 28 (a) of Part- II of the KS & SSR, which reads as follows: “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 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 W.A. No.2052/2008 - 5 - 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]”. 4. In the light of the above quoted first proviso, a senior probationer cannot be superseded on the ground that a junior owing to fortuitous circumstances completed the probation earlier. The senior probationer is entitled to be considered for promotion, if the vacancy arises during the W.A. No.2052/2008 - 6 - period prescribed for completion of probation. In this case, the period of probation is two years within a continuous period of three years. So, before completing three years, on the ground that the appellant has gone on leave for a few days she could not have been superseded. 5. In view of the above position, the Writ Appeal is disposed of with the following directions: It shall be treated that the petitioner has actually commenced discharging duties in the post of Deputy Tahsildar from 2.9.2002 for the purpose of probation. Since the juniors of the appellant's were considered and included in the DPC list for promotion to the post of Tahsildar, she shall also be considered for inclusion in the DPC list, if she is otherwise eligible, ignoring the fact that she is a probationer. If that was the only ground for rejection of her claim, needless to say, she is eligible to be included in the DPC list before her immediate junior. The respondents are directed to reconsider the claim of the appellant for promotion to the post of Tahsildar, in accordance with law, with effect from the W.A. No.2052/2008 - 7 - date her immediate junior superseded her, for the reason that the appellant was a probationer. If she is found eligible for promotion, she shall be granted all consequential benefits permissible as per the Rules. The decision in this regard shall be taken, within a period of four months from the date of production of a copy of this judgment. (K. BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps