IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 WP(C).No. 8097 of 2007(L) ------------------------- PETITIONER: ------------ SUCHITHRA.C.S.,ASSISTNAT SENIOR GRADE, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF KERALA, SECRETRIAT, THIRUVANANTHPAURAM NOW RESIDING AT PRIYAMVADA, N.C.C.ROAD,PEROORKADA P.O.,THIRUVANANTHPAURAM. BY ADV. SRI.K.P.RAJEEVAN SMT.K.K.SHEEBA RESPONDENTS: ------------- 1. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF KERALA,SECRETRIAT, THIRUVANANTHAPURAM. 2. THE ADDITIONAL SECRETRATY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETRIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8097 of 2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1- TRUE AND CORRECT COPY OF THE MEMO DATED 28.5.90 EXT.P2- TRUE AND CORRECT COPY OF THIS MOMO DATED 2.6.90 EXT.P3- A TRUE AND CORRECT COPY OF THE G.O. DATED 31.7.91 EXT.P4- TRUE AND CORRECT COPY OF THE G.O. DATED 23.4.93 EXT.P5- TRUE AND CORRECT COPY OF THIS G.O. DATED 29.3.94 EXT.P6- A TRUE AND CORRECT COPY OF THIS G.O. DATED 29.3.94 EXT.P7- TRUE AND CORRECT COPY OF THIS OFFICE ORDER DATED 12.5.97 EXT.P8- TRUE AND CORRECT COPY OF THIS G.O. DATED 5.3.99 EXT.P9- TRUE AND CORRECT COPY OF THIS G.O. DATED 25.8.00 EXT.P10- TRUE AND CORRECT COPY OF THIS G.O. DATED 23.10.01 EXT.P11- TRUE AND CORRECT COPY OF THIS OFFICE ORDER DATED 8.11.01 EXT.P12- TRUE AND CORRECT COPY OF THE SAID G.O.DATED 9.11.01 EXT.P13- TRUE AND CORRECT COPY OF THIS G.O. DATED 25.`10.04 EXT.P14- TRUE AND CORRECT COPY OF THIS G.O. DATED 18.7.05 EXT.P15- TRUE AND CORRECT COPY OF THIS REPRESENTATION DATED 22.7.05 EXT.P16- TRUE AND CORRECT COPY OF THIS REPRESENTATION DATED 27.3.2005 EXT.P17- TRUE AND CORRECT COPY OF THE LETTER DATED 4.4.06 EXT.P18- TRUE AND CORRECT COPY OF the G.O. DATED 31.1.95 EXT.P19- TRUE AND CORRECT COPY OF THIS G.O.(P) 195/95/FIN.DATED 9.3.95 EXT.P20- TRUE AND CORRECT COPY OF THE SAID G.O.DATED 6.4.06 EXT.P21- TRUE AND CORRECT COPY OF THE SAID REPRESENTATION DATED 6.5.06 EXT.P22- TRUE AND CORRECT COPY OF THIS REPRESENTATION DATED 6.6.06 EXT.P23- TRUE COOPY OF THE KERALA STATE & SUBORDINATE SERVICE (AMENDMENT) RULES 1984, NO.G.O.(P).47/84/GAD DATED 9.2.84 WP(C).No. 8097 of 2007 -2- EXT.P24- TRUE COPY OF THE KERALA STATE & SUBORDINATE SERVICE (AMENDMENT)RULES 1986 NO.G.O.(P)456/86/GAD DATED 3.12.86 EXT.P25- A TRUE COPY OF JUDGMENT DATED 25.7.06 IN W.P.(C).15848 OF 2006 EXT.P26- A TRUE COPY OF G.O.(RT).8329/2006/GAD DATED 27.10.06 (TRUE COPY) P.A TO JUDGE V.GIRI, J ------------------- W.P.(C).8097/2007 -------------------- Dated this the 6th day of February, 2008 JUDGMENT Petitioner entered service in the Secretariate Department as Assistant Grade-II on 1.6.1990. Before completing her probation in the said post, she entered on leave without allowance with effect from 31.7.1991 and re-joined duty only on 28.3.1994. Her probation was declared under Ext.P6 order dated 24.9.1996. But since she had become qualified by that time and vacancy in the post of Assistant Grade-I had arisen on 25.5.1996, she was given promotion as Assistant Grade-I with effect from 25.5.1996, invoking Rule 28(a)(ii) of Part-II of K.S & S.S.R as evidenced by Ext.P7 order dated 12.5.1997. Subsequently petitioner was promoted as Senior Grade Assistant with effect from 27.10.2001 as per Ext.P11 order. Thereafter, she again went on leave without allowance for joining her spouse abroad with effect from 12.11.2001 to 17.7.2005 and re-joined duty on 18.7.2005. She made a claim for promotion to the post of Selection Grade Assistant which was then declined as per Ext.P17 W.P.(C).8097/2007 2 and same stand was affirmed in Ext.P26 order passed by the Government. Exts.P17 and P26 are under challenge in this writ petition. It may be noted herein that Ext.P26 order came to be passed by the Government pursuant to the directions issued by this Court in Ext.P25 judgment, relevant portion of which reads as follows:- Having heard counsel for the petitioner and the Government Pleader for the respondents, there shall be an order directing the 1st respondent-Government to consider Ext.P21 as also the supplementary representation filed thereafter as evidenced by Ext.P22, in the light of Rule 28(e) of K.S. & S.S.R and the category of post to which the petitioner seeks promotion. This shall be done within two months on production of a copy of this judgment. 2. Special Rules for the Secretariat Subordinate Services includes the post of Assistant Grade-II in category No.8 and Assistant Grade-I in category No.5. Special Rules do not specifically refer to Senior Grade W.P.(C).8097/2007 3 Assistant or the post of Selection Grade Assistant. There was a dispute as to whether the said two posts are covered by the Special Rules for the Subordinate services and if so, whether they come under the same category. This is a matter which should have been looked into by the Government pursuant to Ext.P25 judgment. Unfortunately, that has not been done in spite of a specific direction issued by this Court. 3. Aforementioned aspect becomes crucial in the light of the fact that if the post of senior Grade Assistant is only another Grade in the same category as that of Assistant Grade-I, then in terms of the Second Proviso to Rule 10 of the Special Rules and Rule 28(e) of the General Rules, probation can be insisted only in the lowest grade in such category. 4. Learned counsel for the petitioner submits that since her probation as Assistant Grade-II has been declared as per Ext.P6 order, Department cannot insist W.P.(C).8097/2007 4 that she should complete her probation again in the post of the Senior Grade Assistant. In my view, petitioner's contention is eligible to be accepted provided that the posts of Senior Grade Assistant and Assistant Grade-I come under the same category and they involve the same duties and responsibilities. If the answer to the said questions are in the affirmative then the petitioner is entitled to insist that she be considered for promotion to the post of Selection Grade Assistant without being required to complete her probation afresh in the post of Senior Grade Assistant, to which she was promoted with effect from 27.10.2001 as evidenced by Ext.P11 order. 5. Learned Government Pleader submits that even if Rule 28(e) of the General Rules is applicable in the case of the petitioner as contended by her, she shall become eligible by promotion as Selection Grade Assistant only if she had satisfactory service in the post of Senior Grade Assistant for a period of one year on duty within a continuous period of two years in terms of the proviso to W.P.(C).8097/2007 5 Rule 28(a)(ii) of the General Rules. Said proviso is extracted herein: ..... 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. 6. I am unable to accept the submission. In my view, one year's duty within a continuous period of two years as pre-requisite for being considered as eligible for promotion, is required only in a case where the rules applicable to the service in question do not prescribe a period of probation for the service as such. In the present case, Rule 10 of the Special Rules relating to Secretariate Subordinate Service prescribes a period of probation and consequently the proviso to Rule 28(a)(ii) would not apply. W.P.(C).8097/2007 6 7. In the result, writ petition is allowed in part. Exts.P17 and P26 are set aside. First respondent shall re-consider the question as to whether the petitioner was required to complete her probation in the post of Senior Grade Assistant to which she was promoted as per Ext.P11 order with effect from 27.10.2001, in the light of Rule 28(e) of Part-II of K.S. & S.S.R. In taking such a decision, first respondent shall be guided by the observations made herein. Fresh orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. V.GIRI, Judge mrcs