IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 WP(C).No. 32619 of 2003(G) ----------------------------------------- PETITIONER(S): ------------------------ 1. T.V. SURESH CHANDRAN, JUNIOR SUPERINTENDENT, DIRECTORATE OF FISHERIES, THIRUVANANTHAPURAM. 2. S. GOVINDAN POTTI, L.D. CLERK, DIRECTORATE OF FISHERIES, THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J., SRI.P.N.SANTHOSH, SRI.S.D.ASOKAN, SRI.NAVEEN.T. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FISHERIES & PORTS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF FISHERIES, THIRUVANANTHAPURAM. 3. D. VIJAYAMMA, ASST. EXTENSION OFFICER/ INSPECTOR OF FISHERIES, ON DEPUTATION IN THE KERALA FISHERMEN WELFARE FUND BOARD, THIRUVANANTHAPURAM. R1 & R2 BY GOVT. PLEADER MR.ANTONY MUKKATH. R3 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, ADV. SRI.K.VINODKUMAR, SMT.RESMI RAMACHANDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2011, ALONG WITH WPC NO. 31962 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 32619 of 2003(G) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.A1-22978/95. DATED 17/06/1996 OF THE 2ND RESPONDENT. EXT.P2: COPY OF THE ORDER NO.A2-31387/79. DATED 04/03/1980 OF THE 2ND RESPONDENT. EXT.P3: COPY OF THE ORDER NO.A2-14012/83. DATED 05/08/1983 OF THE 2ND RESPONDENT. EXT.P4: COPY OF THE ORDER NO.A1-2878/83. DATED 07/02/1984 OF THE 2ND RESPONDENT. EXT.P5: COPY OF THE ORDER NO.A4.16002/99. DATED 09/11/2001 OF THE 2ND RESPONDENT. EXT.P6: COPY OF THE ORDER NO.13176/A1/99/F & PD. DATED 06/05/2003 ISSUED BY THE GOVERNMENT. EXT.P7: COPY OF THE COMMUNICATION NO.A4/11678/01. DATED 16/07/2003 OF THE 2ND RESPONDENT TO THE GOVERNMENT. EXT.P8: COPY OF THE ORDER NO.A4/11678/01. DATED 25/07/2003 OF THE 2ND RESPONDENT. EXT.P9: COPY OF THE ORDER NO.7055/A1/03/ F&PD. DATED 15/09/2003 OF THE GOVERNMENT. EXT.P10: COPY OF THE REPRESENTATION DATED 25/09/2003 FILED BY THE 1ST PETITIONER TO THE GOVERNMENT. EXT.P11: COPY OF THE ORDER DATED 16TH AUGUST,1960 ISSUED BY THE GOVERNMENT. EXT.P12: COPY OF THE ORDER DATED 18TH JUNE, 1975 ISSUED BY THE GOVERNMENT. EXT.P13: COPY OF THE JUDGMENT DATED 24/07/2007 IN W.A. NO. 1502/2006 OF THIS HONOURABLE COURT. RESPONDENT'S EXHIBITS: EXT.R3(a): COPY OF THE EXTRACT SENIORITY LIST SHOWING THE RESPECTIVE RANK AND SENIORITY OF THE 1ST PETITIONER AND THIRD RESPONDENT ORDER NO.B.15687/99 DATED 10/05/2002 ISSUED BY THE DIRECTOR OF FISHERIES, THIRUVANANTHAPURAM. EXT.R3(b): COPY OF THE ORDER NO.A2-31387/79 DATED 22/11/1979 ISSUED BY THE DIRECTOR OF FISHERIES, TRIVANDRUM. (P.T.O.) WP(C).No. 32619 of 2003(G) EXT.R3(c): COPY OF THE ORDER DATED 05/01/1980 ISSUED BY THE PROJECT OFFICER, KARUNAGAPPALLY TO THE DIRECTOR OF FISHERIES, TRIVANDRUM. EXT.R3(d): COPY OF THE ORDER NO.A2-31387/79 DATED 04/03/1980 ISSUED BY THE DIRECTOR OF FISHERIES, TRIVANDRUM. EXT.R3(e): COPY OF THE ORDER NO.A2-14012/83 DATED 05/08/1983 ISSUED BY THE DIRECTOR OF FISHERIES, TRIVANDRUM. EXT.R3(f): COPY OF THE ORDER NO.A1-2878/83 DATED 07/02/1984 ISSUED BY THE DIRECTOR OF FISHERIES, TRIVANDRUM. EXT.R3(g): COPY OF THE ORDER NO.A4.16002/99 DATED 09/11/2001 ISSUED BY THE DIRECTOR OF FISHERIES, TRIVANDRUM. EXT.R3(h): COPY OF THE LETTER NO.3176/A1/99/F & FD DATED 09/01/2002 ISSUED BY THE PRINCIPAL SECRETARY TO GOVT. TO THE DIRECTOR OF FISHERIES, TRIVANDRUM. EXT.R3(i): COPY OF THE ORDER NO.13176/A1/99/F & FD DATED 06/05/2003 ISSUED BY THE GOVERNMENT TO THE DIRECTOR OF FISHERIES, TVM. EXT.R3(j): COPY OF THE JUDGMENT DATED 16/06/2003 IN WP(C) NO. 18616/2003(N) PASSED BY THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM. EXT.R3(k): COPY OF THE ORDER NO.A4/11678/01 DATED 25/07/2003 ISSUED BY THE DIRECTOR OF FISHERIES, TRIVANDRUM. EXT.R3(l): COPY OF THE LETTER NO.7056/A1/03/F&PD DATED 15/09/2003 ISSUED BY THE GOVERNMENT TO THE DIRECTOR OF FISHERIES, TVM. EXT.R3(m): COPY OF THE JUDGMENT DATED 06/06/2006 IN WP(C) NO. 25857/2003 (C) PASSED BY THE HONOURABLE HIGH COURT OF KERALA AT EKM. EXT.R3(n): COPY OF THE JUDGMENT DATED 24/07/2007 IN W.A. NO. 1253/2006 (A) PASSED BY THE HONOURABLE HIGH COURT OF KERALA AT EKM. EXT.R1(a): COPY OF THE SHOW CAUSE NOTICE NO.12016/A1/07 F& PD DATED 15/10/2007. //TRUE COPY// P.A. TO JUDGE rs S.SIRI JAGAN, J. ---------------------------- W.P.(C) Nos.32619 of 2003 & 31962 of 2007 --------------------------------- Dated this the 21st day of July, 2011 JUDGMENT These two writ petitions raise the same issue and therefore, are heard together and disposed of by this common judgment. 2. The petitioner in W.P.(c) No.31962/2007 was originally appointed as clerk-typist in the Ministerial Wing of the Fisheries Department of the Government of Kerala. She was appointed by transfer to the Executive Wing which according to the petitioner was provisional, as Sub Inspector of Fisheries. Her probation in that post had not been declared. She was provisionally promoted further also. In the meanwhile, the petitioner sought repatriation to her original post in the Ministerial Wing. That was not allowed. The petitioner approached this court by filing W.P(c) No.25857/2003 in which by Ext.P18 judgment, this Court held thus: “The petitioner's right is protected by Rule 8 of KS & SSR, as interpreted by the Full Bench of this Court in Balakrishnan Nair v.Ram Mohan Nair (1998(1) KLT 766). There can be no estoppel against the statute. Further, W.P.(C) Nos.32619 of 2003 & 31962 of 2007 2 the Government have also accepted the claim of the petitioner by issuing Ext.P11 order. In view of the above position, the objection of the additional third respondent cannot be sustained. In the result, the Writ Petition is allowed. Ext.P6 is quashed. The second respondent is directed to repost the petitioner in the Ministerial Wing, in the light of Ext.P11, within one month from the date of receipt of a copy of this judgment. Her claim for further promotion in the Ministerial Wing shall be considered by the competent authority within three months thereafter.” 3. The first petitioner in W.P.(c) No.32619/2003 challenged that judgment in Writ Appeal No.1253/2006 in which by Ext.P20 judgment, the Division Bench dismissed the appeal finding no illegality in the direction of the learned Single Judge. Pursuant to the same the Director of Fisheries issued Ext.P23 order whereby the petitioner was reverted to the Ministerial Wing and posted as Clerk-Typist. By Ext.P11 order, the Government directed the Director of Fisheries to assign the petitioner seniority in the post of U.D.Clerk, Junior Superintendent etc. with effect from the date on which her immediate junior was given promotion. But by Ext.P24 petitioner was directed to show cause why Ext.P11 order should not be cancelled. Petitioner in W.P.(c) No. 31962/2007 is W.P.(C) Nos.32619 of 2003 & 31962 of 2007 3 challenging those orders seeking the following reliefs: A. Issue a Writ of Certiorari or other appropriate writ, order or direction to quash Ext.P24. B. Issue a Writ of Certiorari or other appropriate writ, order or direction to quash Exhibit P23 order in so far as the said order has posted the petitioner in the category of Clerk Typist in the GRFTHs Kasaragode. C. Issue a writ of Mandamus or other appropriate writ, order or direction directing the respondents 1 and 2 to post the petitioner as L.D. Clerk in the Ministerial Wing of the fisheries Department and to grant to the petitioner all further promotions to the post of U.D.Clerk. Head Clerk, Junior Superintendent and Senior Superintendent in the Ministerial Wing of the Fisheries Department with all consequential service benefits. D. To grant to the petitioner such other and further reliefs that may be prayed for from time to time and this Hon'ble Court may deem fit and proper to grant. E. To award to the petitioner the cost of this proceeding. W.P.(C) Nos.32619 of 2003 & 31962 of 2007 4 4. W.P.(c) No.32619/2003 is filed by two employees of the Ministerial Wing, who would be affected by the reversion of the petitioner to the Ministerial Wing, since as per the original seniority they were juniors to the petitioner in W.P.(c) No.31962/2007, challenging the reversion of the petitioner in W.P(C) No.31962/2007 itself. But they would now submit that in view of Ext.P.20 judgment of the Division Bench in the other Writ Petition they cannot now challenge the reversion of the petitioner in the other Writ Petition to the Ministerial Wing. But they would contend that still the third prayer in W.P(c) No.32619/2003 would survive, which reads as follows: “iii. issue a writ of mandamus or any other appropriate writ, direction or order declaring that even if the third respondent is allowed to come back to the Ministerial Cadre; she could be given posting only as L.D.Clerk and after completing two years period of probation alone she should be considered for promotion to the higher categories of U.D.Clerk, Head Clerk and Junior Superintendent.” W.P.(C) Nos.32619 of 2003 & 31962 of 2007 5 5. According to them under the first proviso to Rule 8(c) of the Kerala State and Subordinate Service Rules, on reversion, the reverted employee has to satisfactorily complete the period of probation after reversion. Their contention is that the petitioner has to first complete the probation in the post of Junior Superintendent and then only the petitioner can hope for promotion to the post of Senior Superintendent. 6. I have considered the rival contentions in both these Writ Petitions. Rule 8 of the Kerala State and Subordinate Service Rules reads as follows: “The absence of a member of a service from duty in such service, whether on leave, [other than leave without allowances for taking up other employment] on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit, render him ineligible in his turn- a. for re-appointment to a substantive or officiating vacancy in the class, category, grade or post in which he may be a probationer or an approved probationer; W.P.(C) Nos.32619 of 2003 & 31962 of 2007 6 (b) for promotion from a lower to a higher category in such service; and (c) for appointment to any substantive or officiating vacancy in another service for which he may be an approved candidate; as the case may be, in the same manner as if he has not been absent. He shall be entitled to all the privileges in respect of appointment, seniority, probation and appointment as full member which he would have enjoyed but for his absence. [Provided that subject to the provisions of rule 18 he shall satisfactorily complete the period of probation on his return;] Provided further that a member of a service who is appointed to another service and is a probationer or an approved probationer in the latter service, shall not be appointed under clause (c) to any other service for which he may be an approved candidate unless he relinquishes his membership in the latter service in which he is a probationer or an approved probationer: Provided further that this rule shall not have retrospective effect so as to disturb the decision taken by the Travancore-Cochin Government in respect of the Travancore-Cochin personnel: W.P.(C) Nos.32619 of 2003 & 31962 of 2007 7 Provided also that this rule shall not apply in the case of a member of a service whose absence from duty in such service is by reason of his appointment to another service, not being Military Service, solely on his own application, unless such appointment is made in the exigencies of public service. Note.-(1) An appointment made in pursuance of applications invited, sponsored or recommended by Government or other competent authority shall be deemed to be an appointment made in the exigencies of Public Service for the purpose of this rule. [(2) The benefit of this rule shall not be available to a person holding a post in any class or category in a service if his appointment to that post was from a post in another class or category in the same service.”] 7. The first proviso to rule (c) certainly provides that on return under Rule 8, the government servant shall satisfactorily complete the period of probation. Of course, in the cadre of Lower Division Clerk that proviso can be applicable only if the petitioner had not completed probation in that post at the time when she was appointed by transfer to the other wing. The W.P.(C) Nos.32619 of 2003 & 31962 of 2007 8 petitioner in W.P.(c) No.31962/2007 has produced documents to show that she had opted to be posted as Lower Division Clerk and her probation in that post had been declared. If that be so, as far as the post of Lower Division Clerk is concerned, the petitioner in W.P.(c) No.31962/2007 is not liable to again undergo probation. 8. But still the question has to be considered as to whether in the post of Junior Superintendent in which post admittedly a probation period is prescribed under the Rules, she is liable to undergo probation before she can be promoted as Senior Superintendent. In view of the proviso to Rule 8(c), I am of the opinion that she has to undergo probation in the post of Junior Superintendent before becoming eligible for promotion as Senior Superintendent. But the counsel for the petitioner in W.P.(c) No.31962/2007 points out that the Government does not insist on such completion of probation in any other case. Therefore, the petitioner cannot be singled out for discrimination is her contention. In answer to that petitioners in the other Writ Petition would point out that it is because the others have been holding corresponding posts in other services where they had W.P.(C) Nos.32619 of 2003 & 31962 of 2007 9 completed probation. But Rule 8 does not make such a distinction and the proviso says that the government servant shall satisfactorily complete the period of probation on the return of the government servant to the original service or wing. That being so in the cadre of Junior Superintendent, the petitioner in W.P(c) No.31962/2007 is liable to undergo probation on her return to the Ministerial Wing. 9. But in this case there is an anomalous situation which is the making of the government in not implementing the orders of this Court in time. As early as on 06.06.2006, this Court by Ext.P8 judgment directed repatriation of the petitioner in W.P.(c) No. 31962/2007 to the Ministerial Wing and she applied for such repatriation long before that date. Of course, in the Writ Appeal filed by the first petitioner in W.P.(c) No.32619/2003 there was a stay. But that Writ Appeal was also disposed of on 24.07.2007. If the Director of Fisheries and the Government had passed orders immediately thereafter, the petitioner would have completed probation in the post of Junior Superintendent by now. According to me for no fault of the petitioner, the petitioner W.P.(C) Nos.32619 of 2003 & 31962 of 2007 10 should not be visited with the consequences of such delay on the part of the department to revert the petitioner to the Ministerial Wing at the appropriate time. This is particularly so, since the petitioner is due to retire from service on 31.03.2012. It is now required to undergo probation in the post of Junior Superintendent she would retire before completion of probation. That would amount to denying justice to the petitioner for absolutely no fault of hers. Nobody has a case that there is anything in her service which would render her ineligible for successful completion of probation. In such circumstances, I am of the opinion that petitioner should be given the benefit of promotion deeming that she had completed probation in the post of junior Superintendent. Accordingly, the orders impugned in W.P.(c) No.31962/2007 are quashed. Ext.P11 in W.P.(c) No.31962/2007 is restored. Consequently, the petitioner in W.P.(c) No.31962/2007 would be entitled to be appointed in the post held by the immediate junior of the petitioner in the Ministerial Wing before she was appointed in the Executive Wing. Orders in this regard shall be issued and all monetary and other W.P.(C) Nos.32619 of 2003 & 31962 of 2007 11 benefits disbursed to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. W.P.(c) No.31962/2007 is allowed as above. W.P.(c) No.32619/2003 is dismissed. S.SIRI JAGAN, JUDGE. ln