T G JANARDHANA BABU Vs. STATE OF KERALA

JUDGEMENT

(1.) AN interesting question as to the true effect of the proviso to Rule 28 (a) (i), Part II of the Kerala State and Subordinate Service rules, 1958 (in short 'the Rules') has arisen in this case. Factual position is undisputed. Appellant entered into service as Junior Accountant in the Department of Treasuries on the advice of the Kerala Public Service Commission (in short 'the Commission') on 17-9-1971. His probation was declared on 18-9-1973. He has passed account Test (Lower) and test in manual of Office Procedure. Select list for promotion as Section Officer/manager-cum-Superintendent was prepared by the departmental Promotion Committee (in short the 'd. P. C. ') and was approved by the Speaker of the Legislature (hereinafter referred to as 'speaker' ). It was later revised as promotion to the post of Section Officer is to be made by selection by the D. P. C. Appellant was appointed as Assistant Grade II in the scale of pay of Rs. 240-445 as per the advice of the Commission dated 24-11-197 8. Along with the appellant two others Were also appointed by the very same advice. He joined duty on 14-12-197 8. Before he was appointed to the secretariat, he was working as Junior Accountant in the Treasury department. Only 8 including the appellant, out of the 11 advised by the commission joined duty and from among them, one left the service. The said 8 candidates joined duty in the Secretariat as Assistant Grade II on different dates. For being absorbed as Assistant Grade II, satisfactory completion of probation has to be there and the candidate has to pass Secretariat Manual test. Though the appellant had completed to years duty so as to be eligible for declaration of having satisfactorily completed the period of probation on 13-12-1980, he passed the test on 18-7-1981. Therefore satisfactory completion of probation in the category of Assistant Grade II was declared on 19-7-1981. In order to be eligible to promotion to the post of Assistant Grade I, qualifications prescribed are as follows : (1) Satisfactory completion of probation in the category of Assistant Grade II. (2) Passing the Account Test (Lower ). Though the appellant had passed the Account Test (Lower), he was held not eligible for regular promotion to the category of Grade I prior to 19-7-1981, i. e. , the date when he passed the test. Appellant questioned the stand taken by the employer and contended that in view of the proviso to Rule 28 (a) (i) of the Rules he was eligible. Learned single Judge held that the appellant was not entitled to the benefits envisaged under Rule 28 (a) (i) of the rules as he had not passed the Secretariat Manual test, which is envisaged under the Special Rules. In supports of the appeal, Shri E. Subramoni, learned counsel submitted that the learned single Judge had not appreciated the true import of the proviso to Rule 28 (a) (i ). According to him, the period of probation may be two years, but under the Special Rules, one can pass the test within a period of three years and if that is taken into account he is eligible. Learned counsel for the State however supported the order and submitted that what is important is the period specified in the Special Rules and that is two years and not three years, as contended by the appellant. In order to appreciate the rival submissions it is necessary to quote the provision itself. Same reads as follows : "r. 28 (a) (i) : (Except in the case of appointment to the post of Heads of Departments) no member of a service or class of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category : (Provided that a probationer in a class, category or grade shall not be superseded for promotion to a higher class, category or grade by his junior, if the vacancy in the higher class, category or grade arises within the period specified in the Special Rules for completion or probation in the class, category or grade in which he is probationer and if he has passed the test or tests prescribed for successful completion of probation and is otherwise eligible and suitable for such promotion; but his promotion shall be subject to the condition that he satisfactorily completes the probation in the class, category or grade from which he was promoted within the period prescribed therefor, and for this purpose the period of service put in by him in the higher class, category grade shall be reckoned towards probation in the class, category or grade from which he was promoted and also in the class, category or grade to which he was promoted. Provided further that if a probationer promoted in pursuance of the above proviso fails to complete his probation in the class, category or grade from which he was promoted within the period prescribed therefor, his probation in the higher class, category or grade shall be terminated and he shall be reverted to the class, category or grade from which he was promoted, and any subsequent promotion of such person to the higher class, category or grade shall not also entitle such person to claim seniority in the higher class, category or grade by reason only of his previous promotion in pursuance of the preceding proviso and he shall commence probation afresh in that class, category or grade from the date of such subsequent promotion. " The only thing that needs to be adjudicated is what is the period to which reference has been made in the proviso. The relevant expression used in the provision is : "if he has passed the test or tests prescribed for successful completion of probation". . . . "within the period specified in the Special Rules for completion of probation". It is to be noted that the first proviso was inserted by G. O. (P) No. 29/78/gap dated 16-1-1978 published in SRO No. 90/78 in K. G. No. 5 dated 31-1-1978. Under the special Rules, the period of probation is two years. "special Rules" are specified in, Rule 2, Part II relating to services as contained in Part iii. So far as Secretariat Subordinate Service is concerned, the rules are called the Kerala Secretariat Subordinate Service Rules (in short the secretariat Rules), which have been issued under G. O. (P) 208/pd dated 5-7-1967 in K. G. No. 27 dated 11-7-1967. Rule 10 thereof is relevant, which reads as follows : R. 10. Probation :- Every person appointed to a category shall from the date on which he joins duty be on probation, - (i) if he is appointed by direct recruitment or by transfer, for a total period of two years on duty within a continuous period of three years, and (ii) in other cases, for a total period of one year on duty within a continuous period of two years : (Provided that every person appointed as Legal Assistant grade II, shall from the date on which he joins duty, be on probation for a total period of two years on duty within a continuous period of three years.) (Provided further that 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, the appointments 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 ). " The first proviso referred to above is the relevant provision in the case at hand. It provides that every person appointed as Legal assistant Grade II shall from the date on which he joins duty, be "on probation for a total period of two years", "on duty within a continuous period of three years". The period of duty of two years within a continuous period of three years is applicable to those who are appointed by direct recruitment or by transfer. S. R. O. No. 90/78 as referred to above was issued in exercise of powers conferred by sub-section (1) of Section 2 of the kerala Public Services Act, 1968 (hereinafter referred to as 'kps Act') read with Section 3 thereof. The purpose of insertion/amendment has been detailed in the Explanatory Note, which is not part of the Notification but is intended to indicate its general purport and reads as follows : "there is at present no provision in the Kerala State and Subordinate Service Rules, 1958 to protect seniors against being superseded by juniors who complete probation earlier, when, owing to reasons beyond their control such as illness, delay in transit or delay to get relief from any service, the seniors are able to join duty only later than the juniors. It is now proposed to incorporate suitable provisions in the Rules with a view to affording protection to such seniors. This Notification is intended to achieve the above object. "when the object for which the proviso was inserted is taken into consideration, the inevitable conclusion was that the period prescribed for completion of probation has to be reckoned to be three continuous years as provided in Rule 10 of the Special Rules. That being the position, the proviso to Rule 28 (a) (i) was clearly applicable to the appellant's case. The benefits which he is entitled to are to be worked out on that basis. The Appeal is allowed as above. Appeal allowed. . .