R. GODAVARMA Vs. K.P. ABOOBACKER

JUDGEMENT

(1.) These appeals are by the third respondent in O. P. No. 1220 of 1969 and by the first and second respondents therein the State of Kerala and the Director of Dairy Development, Trivandrum against the judgment of Isaac J. allowing the original petition and setting aside the order Ex. P2 impugned in that original petition. By Ex. P2 order the inter se seniority of the petitioner and respondents 3 and 4 in O. P. No. 1220 of 1969 was settled. We will be referring to the parties as they were arrayed in O. P. No. 1220 of 1969. The order Ex. P2 it was contended was discriminatory and against R.27 of the Kerala State and Subordinate Services Rules (hereinafter referred to as the Rules) 1958. Isaac J. accepted the contention that the order was against R.27 of the Rules and also accepted a further contention that the order was liable to be set aside in view of the principle laid down by this Court in its Full Bench decision in Raghavan Nair v. State Insurance Officer & others (1971 KLJ 281). This Court held in that decision that if a promotion granted unconditionally had not been challenged by persons who could have challenged such promotions those who had not so challenged the promotions cannot later on seek to in effectuate such a promotion. The principle so laid down was sought to be applied in this case on the basis of the contentions that the petitioner in O. P. No. 1220 of 1969 had been promoted as an Assistant Director as early as 22-6-1963 and that respondents 3 and 4 therein were promoted only on 6-7-1965 and 26-7-1965 and that respondents 3 and 4 not having challenged the promotion given to the petitioner on 22-6-63, they were not entitled to ineffectuate that promotion by altering the seniority of the petitioner and respondents 3 and 4 in the cadre of Dairy Extension Officers to which posts all the three were appointed. We do not think this contention is well founded. We have verified the nature of the promotions that have been granted to the petitioner. The order of promotion had specifically stated that it was a provisional one. It has become customary in this State to use the expression "provisional" though such an expression as such is not envisaged by the rules. This expression 'provisionally' is mainly used in regard to appointments under R.9 (or R.31) of the Kerala State and Subordinate Services Rules. We have therefore to understand the promotion that had been granted as one falling under R.31 of the Rules. Though the word "temporary" is not used the order of promotion can only be understood as one passed under R.31. The appointee therefore did not become a probationer and will not be entitled by reason only of such promotion to any preferential claim to future promotion to such higher category (see R.31(2)(d)). In cases of appointments which can be treated as appointments falling under R.31 we do not think the principle of the decision in Raghavan Nair v. State Insurance Officer and others (1971 KLJ 281) can be applied.

(2.) The only other question arising for consideration is whether the order Ex. P2 violates R.27 of the Rules. It is true that the petitioner had been appointed as an Extension Officer in the Dairy Development as early as 7-1-1963 and the respondents 3 and 4 were appointed only on 8-5-1963 and 20-12-1963 respectively. We notice on perusal of the file that the petitioner's appointment was stated to be specifically under R.9(a)(i) of the Rules. The order of appointment of respondent 3 had been made available to us. The order of appointment of the 3rd respondent does not show that the appointment was a provisional one. The order of the 4th respondent is not made available. Ex. P2 order however states that the petitioner as well as respondents 3 and 4 were appointed provisionally. All the three were working in the Animal Husbandry Department before they were transferred and appointed in the Dairy Development Department on the dates mentioned above. In the Animal Husbandry Department the 3rd respondent was the senior most. The 4th respondent was the next senior and the petitioner was the junior most. By the order Ex. P2 it was directed that the appointments of the three persons in the Dairy Development Department as Extension Officers will be regularised with effect from 20-12-1963 the date on which the 4th respondent was transferred to the Dairy Development Department and that the three will have the respective ranks which they held while they were in the Animal Husbandry Department. The principle that has been applied by Ex. P2 order is challenged on the ground that by the appointment of the petitioner to the Dairy Development Department on 7-1-1963 he was entitled to reckon that date for the purpose of his seniority by virtue of R.27 of the Rules. This is the contention that has been accepted by the learned judge. As far as the petitioner is concerned it is clear from R.9 that by virtue of his appointment as Extension Officer in the Dairy Development Department he had not become a probationer (see R.9(a)(iv) and R.27 has specifically stated that in cases where any portion of the service of the person appointed does not count towards probation under the rules, that person's seniority shall be determined by the date of commencement of his service which counts towards probation. We have not been told and it has not been established that there has been what we may term 'regular appointment' as Extension Officer in the Dairy Development Department and that the petitioner had commenced his probation in the service. This being so R.27 on which reliance has been placed will have no application.

(3.) The order Ex. P2 has stated that all the three were appointed as Extension Officers in the Dairy Development Department 'provisionally'. In the original petition that has been filed there has been no categorical denial of this statement in Ex. P2. We have therefore to take it that the appointments of all the three persons as Extension Officers in the Dairy Development Department were on a provisional basis. Even if this is not so, before the petitioner can claim that he is entitled under R.27 to service from the date of his appointment he must establish that he had become a probationer. The petitioner was specifically appointed under R.9(a)(i) and had not therefore become a probationer. He cannot claim seniority on the basis of his service from the date of his appointment.