MUKUNDAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is a Senior Grade Assistant in the Administrative Secretariat of the Kerala Government at Trivandrum. He had entered service as lower division clerk in the Secretariat on 9th September 1957. Subsequently he was promoted as Assistant Grade I on 25th February 1963 and as Senior Grade Assistant with effect from 3rd July 1970. The next higher post to which personnel in the category of Senior Grade Assistants can aspire for promotion is that of Section Officer. Appointments to that category are to be made by selection by the departmental promotion committee on the basis of merit and ability, seniority being taken into account only when merit and ability are approximately equal.

(2.) On 3rd June 1974, the Government issued the notification Ext. P-1 publishing the select list of officers for appointment to the category of Section Officers in the Administrative Secretariat prepared by the departmental promotion committee and approved by the Government. The petitioner's name was included as item No. 11 in the said list which contained in all 30 names. The select list was published in the Kerala Gazette dated 4th June, 1974. On 15th November 1974 the Government issued another notification publishing a revised select list of officers selected for appointment to the category of Section Officers. That list also contained 30 names, but the petitioner's name had been omitted and the name of one Smt. I. M. Mariamma had been added in the list. The petitioner's grievance is that before proceeding to revise the original select list by removing his name therefrom no notice was given to him by the State Government nor was he afforded any opportunity to state his case and that the action had been taken by the 1st respondent in gross violation of the principles of natural justice. It is further contended by the petitioner that he has a record of unblemished service and that there is no justifiable reason for overlooking his claim based on seniority and for preferring his juniors for inclusion in the list for promotion as Section Officer. In arbitrarily removing the petitioner's name from the select list the petitioner's fundamental rights under Art.14 and 16 of the Constitution are alleged to have been seriously infringed. The petitioner has therefore come up to this court with this writ petition praying that Ext. P-2 should be quashed and that a writ of mandamus should be issued to the State Government to appoint the petitioner as a Section Officer before appointing respondents 2 to 19 all of whom are said to be juniors in service in relation to the petitioner.

(3.) In the counter affidavit filed on behalf of the State Government it is stated that subsequent to the publication of the select list Ext. P-1, one Sri K. J. Joseph, a Senior Grade Assistant, filed a petition before the Convener of the departmental promotion committee complaining against the inclusion of the petitioner's name in the select list on the ground that the petitioner had been on longer periods of leave prior to 1st April 1974, that those periods would not count for probation or seniority under R.27 of the Kerala State and Subordinate Services Rules and that hence the petitioner could not be treated as senior in relation to himself (K J. Joseph). The counter affidavit proceeds to state that the said representation was considered by the departmental promotion committee at its meeting held on 10th October, 1974, that the committee felt that the inclusion of the petitioner's name in the select list Ext. P-1 had been wrongly made without the knowledge of the facts stated in Mr. Joseph's representation, and that consequently the departmental promotion committee decided to drop the petitioner's name from the select list. The reasons which weighed with the departmental promotion committee for considering the petitioner as ineligible for being included in the select list have been set out in Para.3 to 5 of the counter affidavit. In Para.3 it is stated that according to R.10 of the Special Rules for the Kerala Secretariat Subordinate Service every person appointed to the said service has to be on probation for a total period of one year on duty within a continuous period of two years. It is then pointed out that the petitioner was on leave at the time of his promotion as Senior Grade Assistant and that the period spent by him under leave would not count for probation. Based on the fact of the petitioner's probation having been declared by the Government only with effect from 31st March 1973 a contention has been put forward in Para.4 of the counter affidavit that the petitioner's seniority in the category of Senior Grade Assistant can be counted only from the date on which he rejoined duty and commenced his probation in the category of Senior Grade Assistant. It is averred in Para.5 of the counter affidavit that when the departmental promotion committee met on 6th and 7th May, 1974 and prepared the select list Ext. P-1 the fact that the petitioner had commenced probation as Senior Grade Assistant only subsequent to the commencement of the probation of Sri K. J. Joseph had not been brought to the notice of the departmental promotion committee. It was only when the representation filed by Sri K. J. Joseph was considered by the departmental promotion committee that they came to know of the aforesaid fact. Thereafter the committee is said to have considered the matter again at its meeting held on 10th October, 1974 and decided to drop the petitioner's name from the select list on the ground that it was a wrong inclusion.