SHAREEF RAWTHER Vs. STATE OF KERALA

JUDGEMENT

(1.) OUR learned brother Gopalan Nambiyar, J. (as he then was) referred this case to a Division Bench since an interesting question was raised before the learned Judge Whether the period of leave taken by a government servant for the pursuit of his studies should count as period during which such Government servant could be treated as on probation is the question that has arisen in this petition. Aspiring to get further promotions to posts which called for higher qualifications the petitioners in this case applied for leave even before they completed their periods of probation, obtained such leave and were pursuing their studies in the M. Sc. course in Analytical chemistry, they were Technical Assistants Grade II at the time they went on leave. When vacancies arose in the posts of Technical Assistants Grade I they could not be regularly promoted as they were not approved probationers. R. 28 of the Kerala State and Subordinate Service Rules requires that no member 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. A junior of the petitioners, the 4th respondent, was promoted in the vacancy which arose during the period the petitioners were on leave. The 4th respondent too was not qualified for that promotion at that time since she also had not completed her period of probation. She was promoted only provisionally. But in due-course she became-qualified for that promotion by completing the period of her probation. That was so even before the petitioners had completed their probation, for, while they were on leave the 4th respondent, though junior, satisfactorily completed the period on duty to qualify her to be an approved probationer. Later the petitioners came back after completing their studies and though first petitioner was then promoted reverting the 4th respondent, on a representation by the 4th respondent this was reversed by Ext. P5 order by the Government which is under challenge in this petition. Evidently the stand taken by the government was that by completing the probation earlier the 4th respondent had become qualified earlier than the petitioners and since she had been appointed to the promoted post provisionally, on getting qualified she was entitled to regular promotion to that post and that being earlier than the date when the petitioner were entitled to such regular promotion by completing their probation the 4th respondent was entitled to hold that post without yielding it to the first petitioner.

(2.) THE petitioners challenge Ext. P5 order on the ground that they are entitled to claim that the period of their leave for purpose of studies must also be taken into account for the purpose of completing their period of probation and if so they should be found to have completed their probation much earlier than the 4th respondent. The short question therefore is whether this plea has any substance. Before the learned single judge the decision of our learned brother Eradi J. was cited as if it would support the case of the petitioners. Evidently we see no support for such a stand in the decision in Mukundan M. P. v. State of Kerala and others (1975 KLT. 682 ).