IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K. SURENDRA MOHAN SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 WP(C).No. 32006 of 2011(A) ------------------------------------- PETITIONER(S): ------------------------ D. SUDHAKARAN NAIR, MANAGER GRADE-III, YATHRI NIVAS, ERNAKULAM. BY ADVS. SRI. DINESH R. SHENOY SRI. R.V. RAHUL SRI. LIJIN THAMBAN RESPONDENT(S): ------------------------- 1. THE SECRETARY TO GOVERNMENT, TOURISM DEPARTMENT, THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR, TOURISM DEPARTMENT, PARK VIEW, THIRUVANANTHAPURAM - 695 001. * R3 IMPLEADED 3. ANITHA.M U.D.CLERK DEPARTMENT OF TOURISM GOVT.GUEST HOUSE KOZHIKKODE. *ADDL.R3 IS IMPLEADED AS PER ORDER DATED 03/12/11 IN IA.NO.19428/11 ADVS. SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RK RK WPC.NO.32006 APPENDIX P1: COPY OF APPLICATION DATED 30-6-2009. P2: COPY OF THE ORDER NO.E2-2546/10 DATED 8-11-2010 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF THE REPRESENTATION DATED 8-8-2011 FORWARDED TO THE 1ST RESPONDENT THROUGH PROPER CHANNEL. P4: COPY OF THE COVERING LETTER DATED 24-8-2011 ISSUED TO THE 1ST RESPONDENT. P5: COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR.T.K.RAJAGOPAL, DATED 11-9-2009 SUBMITTED BY THE PETITIONER. P6: COPY OF NOTICE DATED 14-11-2011 ISSUED BY THE ADDITIONAL DIRECTOR (G) TOURISM DEPARTMENT. P7: COPY OF REPRESENTATION DATED 23-11-2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RK K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NO: 32006 OF 2011 ----------------------------------------------------------- Dated this the 3rd December, 2011. JUDGMENT The petitioner who is working as Manager Gr. III at Yathri Nivas, Ernakulam has filed this writ petition complaining that Ext.P3 request submitted by him has not been forwarded to the first respondent. The petitioner was promoted as Manager Gr.III as per order dated 29-10-2007. He joined duty on 30-10-2007. As per the rules applicable, he had to undergo probation for a period of two years on duty within a continuous period of three years. According to the petitioner, he has completed the two years duty within a continuous period of three years but, he has not passed the obligatory Account Test (lower) within the period of three years. Therefore, his probation has not been declared as satisfactorily completed. 2. The case of the petitioner is that he is a person who is suffering from certain medical problems as a result of which, he has not been able to appear for the qualifying test or to pass the same. Therefore, he had applied for extension of his period of probation so as to enable him to acquire the mandatory test qualification. WPC 32006/2011 2 Accordingly, as per Ext.P2 dated 8-11-2010 his probation period was extended from 30-10-2010 to 29-10-2011. Ext.P2 also contains a rider that his increments would not be granted until he is declared to have satisfactorily completed his probation. However, according to the petitioner he has still not been able to appear for the test or to acquire the test qualification. Therefore, he submitted Ext.P3 application dated 8-8-2011 seeking a further extension of time. The petitioner complains that Ext.P3 has not been forwarded to the first respondent by the second respondent. Instead, as per Ext.P6 proceedings under Rule 19 of the Kerala State and Subordinate Service Rules (KS & SSR for short) have been initiated against the petitioner. Accordingly, he has been directed to show cause, the petitioner has submitted Ext.P7 explanation and the matter is pending. According to the counsel for the petitioner Shri. Dinesh R.Shenoy Rule 21 of the KS & SSR confers sufficient power on the first respondent to extend the period of probation, in appropriate cases, even beyond the maximum period stipulated therein. Therefore, the action of the second respondent in not forwarding Ext.P3 to the first respondent is absolutely without any justification whatsoever. Consequently, the petitioner has been visited with adverse consequences to his career by the issue of WPC 32006/2011 3 Ext.P6. The petitioner therefore seeks the issue of appropriate directions to respondents 1 and 2 to consider Ext.P3 and to pass appropriate orders thereon, in accordance with law. 3. The learned Govt. Pleader opposes the contentions of the petitioner by pointing out that extension has already been granted to the petitioner once, by Ext.P3 and that no further extension is called for in the case of the petitioner. 4. Shri. T. Naveen who appears for the additional third respondent who has got himself impleaded submits that the petitioner is a person who has not even attempted to appear or pass the mandatory account test. He is a person who has been promoted to the post of Manager Gr.III from the post of Steward. According to the counsel, Rule 8 of the Special Rules for the Kerala Tourism and Subordinate Services 1995 (Special Rules for short) is the provision that applies to the case of the petitioner. Sub Rule 2 of Rule 8, provides that where a person is appointed by promotion, the period of probation shall be a total period of one year within a continuous period of two years. Rule 9 provides that every person appointed to the post of Manager Gr.III shall pass the account test (lower) within the period of probation. Therefore, it is pointed out that it was imperative on the part of the petitioner to have passed WPC 32006/2011 4 the account test lower. But, the attempt of the petitioner is to somehow wriggle out of the above obligation. The counsel refers in particular to the prayer in Ext.P3 to point out that the attempt of the petitioner is only to continue as a Manager Gr.III till he attains 50 years of age. On completion of 50 years of age he would get permanent exemption from acquiring test qualification. According to the counsel, if the petitioner is permitted to achieve the above objective that would block the chances of promotions due to persons like the additional third respondent, who have acquired the test qualification much earlier. Therefore, the counsel submits that the petitioner has no right whatsoever to have Ext.P3 considered by the first respondent. 5. I have considered the rival contentions anxiously. It is certainly true that the petitioner was promoted as Manager Gr.III in the year 2007. However, he has not attempted to acquire the test qualification by appearing for the examination at any time. This is clear from Ext.P3 representation where he states that though he has been submitting application for departmental test, he has not been able to attend and write the examination due to his medical problems. As per Ext.P2, the petitioner has been granted an exemption for the period from 30-10-2010 to 29-10-2011. WPC 32006/2011 5 However, the exemption has been granted subject to the following conditions:- “If he fails to acquire the required qualifications, even within the extended period, further action will be purused as laid down in Rule 19 of KS & SSR.” However, he has not acquired the test qualification till date. 6. It is true, that Rule 21 of the KS & SSR confers power on the Government to extend the probation for a further period “if found necessary.” The question as to whether the period of probation is to be extended is to be decided by the Government. However, it is also absolutely necessary to ensure that such extension is not utilised to achieve the objective of somehow continuing in service until the incumbent becomes entitled for permanent exemption. The above aspect would also have to be taken into account while exercising the power under Rule 21 of the KS & SSR. 7. In view of the fact that Ext.P2 has been submitted by the petitioner to the second respondent, there is no justification for the said authority to retain the same without forwarding the same to the first respondent who is the competent authority to take action thereon. The second respondent shall therefore forward Ext.P3 to WPC 32006/2011 6 the first respondent who shall take a decision in the matter, expeditiously. 8. After hearing the petitioner as well as the additional third respondent this writ petition is disposed of directing the second respondent to forward Ext.P3 to the first respondent and further directing the first respondent to consider and pass orders on Ext.P3 in accordance with law, as expeditiously as possible and at any rate within a period of six weeks from the date of receipt of a copy of this judgment. Until final orders are passed by the first respondent as indicated above, the proceedings initiated as per Ext.P6 shall be deferred. Sd/- K. SURENDRA MOHAN Judge jj P.S.to Judge WPC 32006/2011 7