GNANAMONY Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant in this Writ Appeal is the petitioner in O.P. No.91 of 1982-J. The petitioner as well as the second respondent were Legal Assistants Gr.II and were advised for appointment on 5-11-1966 and 7-12-1966 respectively. The second respondent was junior to the petitioner. While serving as Legal Assistant Gr.II the petitioner took 50 days' medical leave. Declaration of satisfactory completion of his probation was postponed. The petitioner's probation was declared with effect from 9-1-1969. The second respondent was so declared with effect from 7-22-1968. The second respondent was promoted as Legal Assistant Gr. I earlier, from 7-12-1968 and the petitioner was promoted to that cadre with effect from 9-1-1969. On representations tiled by aggrieved persons, the Government passed Ext. P10 order dated 30-9-1981 placing the petitioner below the second respondent and one E. K.. Reghuramachandran. In the O.P. the challenge was against Ext. P10 order and also for a declaration that the petitioner is entitled to have his probation in the cadre of Legal Assistant Grade II declared with effect from 18-11-1968 and to get consequential promotions on that basis. M.P.Menon, J. by judgment under appeal dated 10-2-1986 dismissed the Original Petition. The petitioner has come up in Writ Appeal.

(2.) We heard counsel for the appellant, Mr. C. P. Sudhakara Prasad. It is fairly clear that under R.27 of the K. S. S. R. seniority in a grade should count from the date of regular appointment to a post. The second respondent was appointed as Legal Assistant Gr.I on 7-12-1968. The petitioner was appointed on 9-1-1969 only. The second respondent is admittedly senior to the petitioner in the post of Legal Assistant Gr.I. One E. K. Reghuramachandran, who is also declared as senior to the petitioner in Ext. P10 dated 30-9-1981, took up the matter before the Government and the Government Dy G.O. (Rt) No. 640/77/ Law dated 11-8-1977, held that seniority in Grade I should depend upon the date of regularisation in that grade In that view, Reghuramachandran was held to be senior to the petitioner. The petitioner filed O.P. No. 3669/77-C assailing the aforesaid Government Order dated 11-8-1977 (Ext. P9 in that case). George Vadakkel, J. by judgment dated 5-3-1980, upheld Ext. P9 order dated 11-8-1977 and held that E. K. Reghuramachandran is senior to the petitioner in the category of Legal Assistant Gr. I. The petitioner filed an appeal therefrom as W.A. 230 of 1980. The writ appeal was also dismissed. One of the contentions raised in the writ appeal was that the petitioner's probation should be declared to have been completed earlier and the period when he was on medical leave should also have been treated as period of probation. The Division Bench referred to the relevant decisions on the subject, and in particular, the earlier Division Bench decision in Shareef Rawther v. State of Kerala ( 1977 KLT 814 ) and observed as follows:

(3.) Only two points were raised before the learned Single Judge. The first was that the order dated 11-3-1969 (Ext. P1) regarding the declaration of satisfactory completion of the prescribed period of probation in the category of Legal Assistants Grade II, was not directly challenged in O.P. No. 3669 of 1977, as affirmed in W.A. No. 230 of 1980. The second was that the period of medical leave should have been reckoned as period of duty for the purpose of probation. There is no force in the above submissions. The declaration regarding the satisfactory completion of the probation was very much in issue in O.P. No. 3669 of 1977 as also in W.A. No. 230 of 1980. If it was not challenged earlier, we see no reason why the petitioner should be allowed to challenge Ext. P1 dated 11-3-1969, at this distance of time, nearly 16 years after Ext. P1. The first ground of attack is without force. Regarding reckoning the period of medical leave as period of duly, it was directly in issue in O.P. No. 3669 of 1977. It was also pointedly urged in W.A. No. 230 of 1980 and in para 6 of the judgment the learned Judges held that the medical leave for 30 days could not be taken to be a period of probation to be reckoned in considering the satisfactory completion of the probation. The second ground of attack also fails.