SOMARAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) An issue of general importance arises for consideration in this Original Petition. It is whether a member of the service or cadre who could not get his probation declared within the statutory period or the extended period will lose seniority in the cadre.

(2.) Petitioner was promoted as Deputy Superintendent of Police in the Kerala Police Service on 22-3-1982. As per the Special Rules, an officer appointed in the rank of Deputy Superintendent of Police has to pass Account Test for Executive Officers during the period of probation, if he has not already passed the lest or Account Test (Lower). Petitioner passed Account Test (Lower) while he was Circle Inspector of Police .The period of probation is one year on duty within a continuous period of two years. Petitioner's probation in the category of Deputy Superintendent of Police was declared with effect from 22-3-1983 as per Exhibit P1 G.O. dated 8-11-1985.

(3.) Respondents 3 to 8 got promotion to the cadre of Deputy Superintendent of Police earlier than the petitioner. Therefore, they were shown as seniors to' the petitioner in Ext. P2 provisional seniority list of officers in the General Executive Branch of the Police Department of and above the rank of the Deputy Superintendent of Police as on 1-1-1988. Petitioner was assigned rank No.60, while respondents 3 to 8 were ranked as 44,49, 50,52,57 and 58 respectively. By Ext. P4 order, Government confirmed 41 Deputy Superintendent of Police, including the petitioner. Item-39 in that order is the petitioner. Date from which he was confirmed as Deputy Superintendent is shown as 21-10-1983. Respondents 3 to 8 are not included in the confirmation order. Since respondents 3 to 8 were not given confirmation, it is evident that they did not complete probation and consequently they were not made full members of the service. Their non inclusion in Ext. P4 order shows that they did not complete probation within the maximum period of three years allowed under the Rules and consequently, it is alleged, they are not eligible to be placed above the petitioner in the seniority list. The provisional seniority list of Deputy Superintendent of Police as on 1-1-1988 was finalised by Ext. P8 order dated 17-6-1988. While finalising that list, it is the petitioner's case that the delay caused in getting the probationer respondents. 3 to 8 declared was not noted. Had, it been taken into consideration, according to the petitioner, he should have been ranked above respondents 3 to S. As a result of the erroneous ranking in the seniority list, 4th respondent was included in the revised select list of Deputy Superintendent of Police fit for promotion as Superintendent of Police in Ext. P9. So also, respondents 5, 6 and 8 were included in the supplementary select list for 1990 for promotion to the cadre of Superintendent of Police (Non I.P.S.). Once the seniority of the petitioner is settled based on the law laid down by this Court, he has necessarily to be placed above respondents 3 to 8 and the select lists, Exts. P9 and P10, modified accordingly. Depending on the seniority, petitioner, it is alleged, ought to have been considered for promotion to the category of Superintendent in preference to respondents 3 to 8,