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 12TH JUNE 2009 / 22ND JYAISHTA 1931 WA.No. 880 of 2008(C) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.8097/2007 Dated 06/02/2008 .................... APPELLANTS/RESPONDENTS: -------------------------- 1. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, GOVT. OF KERALA THIRUVANANTHAPURAM. 2. THE ADDITIONAL SECRETARY TO GOVERNMENT GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER, SRI.BENNY GERVASIS RESPONDENT/PETITIONER: -------------------------- SUCHITHRA C.S., ASSISTANT SENIOR GRADE GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM NOW RESIDING AT PRIYAMVADA, N.C.C. ROAD, PEROORKADA P.O.,THIRUVANANTHAPURAM. ADV. SRI.K.P.RAJEEVAN FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.No. 880 OF 2008 ------------------------------- Dated this the 12th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The point that arises for decision in this appeal is, whether a Senior Grade Assistant in the Secretariat Subordinate Service has to complete one year's service before she is promoted to the post of Selection Grade Assistant. 2. The brief facts of the case are the following: The writ petitioner, the respondent herein, was appointed as Assistant Grade-II in the Secretariat Subordinate Service on 1.6.1990. She was promoted as Assistant Grade-I on 25.5.1996. She was further promoted as Senior Grade Assistant by Ext.P11 order dated 27.10.2001. She went on leave without allowance for a period of three years from 12.11.2001. The leave was granted as per Ext.P12 order dated 9.11.2001. The said leave was extended for a further period of one year by Ext.P13 order dated W.A.No.880/2009 2 25.10.2004. Later, she rejoined duty on 18.7.2005 cancelling the unavailed portion of leave. Immediately, she claimed promotion to the post of Selection Grade Assistant, as vacancies were available in that post. Ext.P15 was the representation filed by her. The Government considered the representation and rejected it by Ext.P17 stating that since no probation was prescribed for the post of Senior Grade Assistant, she has to complete at least one year's service in that post within a continuous period of two years to become eligible for promotion. This decision was taken relying on the proviso to Rule 28(a)(ii) of the Kerala State and Subordinate Service Rules (for short 'KS & SSR') 3. The 1st respondent/petitioner was of the view that since the post of Selection Grade Assistant is a Higher Grade Post of Senior Assistant, her case is covered by Rule 28(e) of the General Rules. Raising this contention, she moved the Government. As per the direction of this Court, the Government reconsidered her case and again rejected her claim by Ext.P26. The writ petition was filed challenging Exts.P17 and P26. She sought a further direction to promote her as Selection Grade Assistant with retrospective effect from the date of occurrence of W.A.No.880/2009 3 first vacancy in that category after she rejoined duty on 18.7.2005. According to the 1st respondent/writ petitioner, the proviso to Rule 28(a)(ii) of the KS & SSR has no application and Rule 28(e) which has been incorporated in the Special Rules for Kerala Secretariat Subordinate Service, as the 2nd provisio to Rule 10 thereof, will govern the case. The appellants, who are respondents in the writ petition, resisted the prayers supporting the stand taken by them in the orders impugned. 4. The learned Single Judge, after hearing both sides, allowed the writ petition. According the learned Single Judge, Rule 10 of the Special Rules for the Secretariat Subordinate Service prescribes probation for various posts. Therefore, Rule 28(a)(ii) of the KS & SSR would not apply. Based on that finding, reliefs were also granted. The respondents in the writ petition, feeling aggrieved by the said judgment, have preferred this Writ Appeal. 5. We heard the learned counsel on both sides. The learned senior Government Pleader, Sri. Benny Gervasis, submitted that the finding of the learned Single Judge that since W.A.No.880/2009 4 probation is prescribed for certain posts in the Secretariat Subordinate Service, the proviso to Rule 28(a)(ii) of the KS & SSR have no application is untenable. If, probation is not prescribed for a particular post, then for further promotion from that post, the 2nd proviso to Rule 28(a)(ii) of the KS & SSR will govern. According to the learned senior Government Pleader, the learned Single Judge has misread the Rule. Sri.K.P.Rajeevan, the learned counsel for the 1st respondent, fully supported the view taken by the learned Single Judge. He further added that, in view of the 2nd proviso to Rule 10 of the Special Rules, it should be taken that the operation of the proviso to Rule 28(a)(ii) of the KS & SSR stands excluded. Something not expressly stated in the Special Rules concerning probation cannot be made applicable by the process of interpretation, it is submitted. 6. The facts in this case are not disputed. If the proviso to Rule 28(a)(ii) of the KS & SSR applies, the 1st respondent will be eligible to get promotion to post of Selection Grade Assistant only on completion of one year's service from 18.7.2005. If the said proviso is not applicable, she is entitled to get the first W.A.No.880/2009 5 arising vacancy in that cadre after she rejoined on the said date. Rule 28(a)(ii) of the KS & SSR reads as follows: “28(a)(ii) Where the Special Rules for a service provide for appointment by promotion to any class or category from a specified class or category of such service, no member shall be eligible for such appointment unless he is a full member or an approved probationer in the class or category so specified: 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.” 7. The main part of the above quoted clause would show that, if promotion to a category is to be made from a specified category, an incumbent can be promoted, if only, he is a full member or an approved probationer in the specified category. The proviso would provide that for a particular post in a service probation is not prescribed, he will not get promotion from that post unless he has put in satisfactory service for one year on duty within a continuous period of two years. The above Rule cannot be understood as saying that, if probation is prescribed W.A.No.880/2009 6 for some posts in a service, the 2nd proviso will not have any application. The learned Single Judge read the Rule like that. The said view is unsupportable going by the plain meaning of the words of the above quoted clause (ii) of sub-rule (a) of Rule 28 of the KS & SSR. 8. Rule 28(e) Reads as follows: “28(e) Probation where there are more than one grade to the same category:- Notwithstanding anything to the contrary contained in the Special Rules where there are more than one grade to the same category and duties and responsibilities attached to the various grades are one and the same, and appointment to the higher grades are made by promotion from the lower grades, then probation shall be insisted only in the lowest grade to such category.” If there are more than one grade in the same category of post and if the duties and responsibilities are same for the various grades, then probation need be insisted only in the lowest grade for promotion to higher grade. It is unnecessary to complete probation in every grade, as per the above quoted Rule. The said Rule will definitely apply to the case on hand as the posts concerned are different grades of the same post of Assistant. The above quoted Rule has been incorporated the Special Rules W.A.No.880/2009 7 also as 2nd proviso to Rule 10 of the Special Rules for Secretariat Subordinate Service. We are of the view that the above provision relieves an incumbent from the burden of completing probation in every grade of the same post and not from the obligation to complete one year's service prescribed in the proviso to Rule 28(a)(ii) of the KS & SSR. In other words, the Rule 28(e) will not obliterate the proviso 28(a)(ii). Both of them will operate simultaneously. The view to the contrary taken by the learned Single Judge is unsustainable. So, the respondent has to complete one year's service after she rejoined duty for getting promotion to the post of Selection Grade Assistant. We are told that the respondent has already been granted promotion on completion of one year's service in the lower grade. In the result, the Writ Appeal is allowed. The judgment of the learned Single Judge is reversed and the Writ Petition is dismissed. No costs. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps