IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 WA.No. 2044 of 2007(E) ---------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.4989/2005 Dated 05/07/2007 .................... APPELLANT(S): PETITIONER ------------------------ EASWARAN NAMBOODIRI V.G., HIGHER GRADE SUB GROUP OFFICER, PATHIRAMKULANGARA(DOING DUTY AT INTERNAL AUDIT WING, FINANCE AND ACCOUNTS OFFICE), TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL RESPONDENT(S): RESPONDENTS -------------------------- 1. THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM. 3. SRI. R.G.RADHAKRISHNAN, HEAD CLERK, OFFICE OF THE ASSISTANT DEVASWOM COMMISSIONER, NEYYATTINKARA GROUP, NEYYATTINKARA. 4. SRI. T.K.AJITH PRASAD, HEAD CLERK, DEVASWOM BOARD OFFICE, NANTHANCODE, THIRUVANANTHAPURAM. 5. SRI. G.SANTHOSH, HEAD CLERK, FINANCE AND ACCOUNTS OFFICE, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN, SC, TDB FOR R1,2 BY ADV. DR.K.P.KYLASANATHA PILLAY FOR R3 SMT.SREEDEVI KYLASANATH FOR R3 BY ADV. SRI.S.RAMESH BABU FOR R4,5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. P.R. RAMAN, Ag. C.J. & C .N. RAMACHANDRAN NAIR, J. -------------------------------------------- W. A. No. 2044 OF 2007 -------------------------------------------- Dated this the 18th day of February, 2010 JUDGMENT Ramachandran Nair, J. Appellant joined as LD Typist with the Travancore Devaswom Board. While serving as LD Typist he requested for change of category in the service to LD Clerk, which was permitted by the Devaswom Board. However, before completion of one year probation, appellant came to be eligible for promotion to the post of UD Clerk which was vacant. The Devaswom Board promoted the appellant even before completion of one year probation in the category of LD Clerk. When contesting respondents 3 to 5 pointed out this to the Devaswom Board they reviewed the promotion given to the appellant and reverted him to the post of LD Clerk, which was challenged before the learned single Judge who rejected the claim. It is against this judgment the appellant has filed this appeal. We have heard senior counsel Sri. K.R.B. Kaimal appearing for the appellant, counsel appearing for the W.A. No. 2044 of 2007 2 Devaswom Board and separate counsel appearing for respondents 3 to 5. 2. The main contention canvassed by appellant's counsel is that there was no rule providing for completion of probation as a condition for promotion until Ext.P8 was issued with retrospective effect. According to counsel, when promotion was given to the appellant from the category of LD Clerk to the category of UD Clerk there was no requirement under the Rules for completion of probation and so much so, the promotion originally granted is justified and it's reversal based on Ext.P8 is illegal. However, counsel appearing for the Devaswom Board as well as counsel appearing for the contesting respondents have really relied on Rule 8(3) of the Service Rules of the Devaswom employees which is as follows: No employee in any category of service shall be eligible for confirmation unless he has satisfactorily completed his probation in that category, stipulated in the order of appointment. If there is no stipulation in the order of appointment, the period of probation shall be deemed to be a continuous period of one year from the date of appointment. 3. Before proceeding to consider appellant's challenge against W.A. No. 2044 of 2007 3 Board's reliance on Ext.P8 to effect his reversal from UD Clerk to LD Clerk for want of completion of probation in the category of LD Clerk, we have to examine whether Rule 8(3), which provides for mandatory probation in each category of service, permits promotion being given to a probationer during the period of probation itself. There is no dispute that in order to get confirmation in the post of LD Clerk the appellant has to successfully complete one year of probation which admittedly he had not completed as on the date of his promotion as UD Clerk. We are unable to accept the contention of counsel for the appellant that for the purpose of promotion to a higher category there is no need for an employee to have completed probation in the lower category, because in our view only the person who is eligible to be confirmed in the lower category is entitled for promotion to the higher category unless the rule otherwise provides for it. Appellant has no case that Service Rules of the Devaswom Board provides for promotion of an unconfirmed employee during the period of probation. In the case of the appellant, though he completed promotion as LD Typist, when he was allowed to change category of post from LD Typist to LD Clerk, he becomes a probationer in the category of LD Clerk because Rule 8(3) speaks of W.A. No. 2044 of 2007 4 probation in each category of service. Even though an amendment is introduced vide Ext.P8 with retrospective effect stating that for the purpose of promotion as well successful completion of service during the period of probation is necessary, we feel it is only clarificatory because in our view as already stated a person is eligible to be promoted to a higher category only if he has successfully completed the probation in the lower category, more so when a minimum period of one year probation is prescribed under the mandatory provision of Rule 8(3) referred to above for confirmation. May be in a given case, even after successful completion of probation the higher authorities would not declare probation or a formal order would not have been issued in the case of a person who has completed the period of probation. Even though formal orders declaring the probation may not be required for considering for promotion, in our view, necessarily the employee has to complete the minimum period of probation in the lower category for promotion to the higher category, though declaration to that effect has not been effected as on the date of promotion. Further, when a person is granted promotion after the period of probation, such promotion itself is indicative of completion of probation successfully in the lower W.A. No. 2044 of 2007 5 category making him eligible for confirmation in the lower category. In view of the interpretation given by us on Rule 8(3) even without reference to Ext.P8 amendment introduced with retrospective effect, the premature promotion given to the appellant during the period of probation was rightly corrected by the Devaswom Board in review proceedings on complaint by the persons senior to him in the category of LD Clerk. Consequently we dismiss the appeal. However, we feel that for the period during which the appellant had worked as UD Clerk, excess salary, if any, drawn by the appellant should not be recovered from him. We therefore direct the Devaswom Board to desist from proceeding with recovery of excess payments, if any, made to the appellant. (P.R.RAMAN) Ag. Chief Justice (C.N.RAMACHANDRAN NAIR) Judge. kk W.A. No. 2044 of 2007 6