IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22843 of 2007(T)
1. C.VIJAYAKUMARI AMMA, W/O MOHAN DAS,
... Petitioner
Vs
1. STATE GOVERNMENT REPRESENTED BY THE
... Respondent
For Petitioner :SRI.C.K.ABDUL RAHIM
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice V.GIRI
Dated :16/06/2008
O R D E R
V. GIRI, J.
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WP(C).NOs. 22843/2007 & 13094 of 2008
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Dated this the 16th day of June, 2008
JUDGMENT
The parties in these two writ petitions are the same
and the issues are also closely connected. Therefore, they have
been heard together and are being disposed of by this common
judgment. I will refer to the facts in WPC.No.22843/2007 in the
first instance.
2. The petitioner is working as the Deputy Secretary in
the Government service. She was promoted to the post of
Deputy Secretary on 17.4.2006. She was originally posted in the
Agricultural Department as Administrative Secretariat. But was
later transferred to the Directorate of Tourism as Administrative
Officer. Still thereafter she was transferred to the Super Check
Cell under the General Education Department at Kozhikode and
she is now officiating in the said post.
3. The petitioner submits that while she was working
as the Section Officer in the Transport Department on 10.1.2001
the petitioner and some of her lady co-workers were assaulted by
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a group of Government employees. The petitioner was beaten
with a hot brick taken from the fire hearth and she was injured.
4. A criminal case as CC.No.619/2001 was registered
against seven employees for offences punishable under sections
143,147and 323 read with section 149 IPC. They were convicted
and sentenced to undergo simple imprisonment for a period of 12
months and a fine of Rs.1000/- each. Apparently taking note of
the conviction of these Government employees, they were
removed from service under Article 311(2) of the Constitution as
per Exts.P2 and P3 orders. According to the petitioner, the
abovementioned facts caused the apparent delay on the part of
the Government in declaring the probation of the petitioner in the
category of Deputy Secretary. Reference is made to the fact
that as evidenced by Exts.P7 and P8 the petitioner has completed
one year of satisfactory service on 17.4.2007 and that there was
no non-qualifying service during the aforementioned period.
According to the petitioner, her service was found to be
satisfactory, going by Ext.P10 letter issued by the Director of
Public Instructions. Ext.P11 will show that the service of the
immediate junior of the petitioner was declared with effect from
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23.5.2007. The petitioner submits that there was absolutely no
reason why her probation ought not to be declared atleast on the
date on which the probation of her immediate junior was
declared. No disciplinary proceedings were pending against the
petitioner during the above mentioned period. There was no
factor which could have persuaded the Government to come to
the conclusion that the petitioner’s service and conduct were not
satisfactory. Hence this writ petition for a direction to the
Government to pass orders declaring the probation of the
petitioner.
5. WPC.No.13094/2008 has been filed essentially for
two purposes. Learned counsel for the petitioner prays that the
respondents may be directed to finalise the disciplinary action
initiated against her pursuant to Ext.P15 order. The petitioner
also prays for a direction to the respondents to provisionally
promote the petitioner to the post of Joint Secretary. She refers
to Ext.P17 order which shows that persons juniors to her in the
post of Deputy Secretary have been promoted as Joint Secretary.
Ext.P18 will show that another seven persons who are juniors to
the petitioner are also provisionally promoted.
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6. A counter affidavit has been filed by the Government
in WPC.No.22843/2007 and a statement has been filed in
WPC.No.13094/2008.
7. I heard learned counsel for the petitioner Sri.
C.K.Abdul Rahim and the learned senior Government Pleader Sri.
Nandakumar. In so far as WPC.No.22843/2007 is concerned, the
only direction that could be issued to the Government at this
stage is to pass orders in the matter of declaration of the
petitioner’s probation. Here is a case where the period of
probation was not specifically extended by the Government.
Normally it should have been declared. The only alternative for
the Government was to pass an order stating that probation will
not be declared. But this could only be if there were materials
before the Government to come to the conclusion that the
conduct of the petitioner during the period of probation was not
satisfactory. It is true that the power available to the
Government in terms of Rule 20 A of Part II of KS and SSR is
discretionary. The Government is entitled to either declare the
probation or extend the probation as the case may be. But if
there were factors which stood in the way of the Government
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declaring the probation of a Government servant, the same must
be considered. More over such factors should have been
available with the Government during the period of probation or
was capable of being taken note of by the Government during the
period of probation.
8. In so far as WPC.No.13094/2008 is concerned, it is
true that Ext.P15 memo of charges were issued only on
23.10.2007. But there was a direction in Ext.P15 to the enquiry
officer to submit the enquiry report. Learned Government
Pleader submits that it has been so submitted. So final orders
have to be passed by the Government on such enquiry. That is
yet to be done. The stand taken by the Government is that the
petitioner’s probation was not satisfactorily declared only on
account of the subject matter of the disciplinary proceedings
under Ext.P15 . I also take note of the fact that the allegations
contained in Ext.P15 cannot be considered as a time consuming.
The petitioner is due to retire on 31.1.2009.
9. In the result, the writ petition is disposed of in the
following terms:-
The disciplinary proceedings as evidenced by Ext.P15 in
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WPC.No.13094/2008 shall be concluded at the earliest, at any rate,
within a period of one month from the date of receipt of a copy of this
judgment. Thereupon the Government shall pass orders under Rule
19/20 of Part II KS and SSR in the matter of declaring the petitioner’s
probation. Such orders shall be passed without any delay after the
completion of the disciplinary proceedings in the manner
aformentioned and at any rate, within two weeks from the date of final
orders on completion of the disciplinary proceedings passed by the
Government. If the petitioner’s probation is declared, steps shall be
taken within two weeks thereafter to consider the petitioner’s claim
for promotion to the post of Joint Secretary. But I make it clear that if
the petitioner’s probation is declared, in view of the fact that she is due
to retire on 31.1.2009, further taking note of the fact that there is no
select list currently available, she shall be provisionally promoted to
the post of Joint Secretary, within two months thereafter.
V. GIRI, JUDGE.
pmn/ WPC. /2008 7