IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 880 of 2008(C)
1. STATE OF KERALA,
... Petitioner
2. THE ADDITIONAL SECRETARY TO GOVERNMENT
Vs
1. SUCHITHRA C.S.,
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.K.P.RAJEEVAN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :12/06/2009
O R D E R
"CR"
K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.
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W.A.No. 880 OF 2008
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Dated this the 12th day of June, 2009
J U D G M E N T
~~~~~~~~~~~
Balakrishnan Nair, J.
The point that arises for decision in this appeal is, whether a
Senior Grade Assistant in the Secretariat Subordinate Service has
to complete one year’s service before she is promoted to the post
of Selection Grade Assistant.
2. The brief facts of the case are the following:
The writ petitioner, the respondent herein, was appointed as
Assistant Grade-II in the Secretariat Subordinate Service on
1.6.1990. She was promoted as Assistant Grade-I on 25.5.1996.
She was further promoted as Senior Grade Assistant by Ext.P11
order dated 27.10.2001. She went on leave without allowance for
a period of three years from 12.11.2001. The leave was granted
as per Ext.P12 order dated 9.11.2001. The said leave was
extended for a further period of one year by Ext.P13 order dated
W.A.No.880/2009 2
25.10.2004. Later, she rejoined duty on 18.7.2005 cancelling the
unavailed portion of leave. Immediately, she claimed promotion
to the post of Selection Grade Assistant, as vacancies were
available in that post. Ext.P15 was the representation filed by
her. The Government considered the representation and rejected
it by Ext.P17 stating that since no probation was prescribed for
the post of Senior Grade Assistant, she has to complete at least
one year’s service in that post within a continuous period of two
years to become eligible for promotion. This decision was taken
relying on the proviso to Rule 28(a)(ii) of the Kerala State and
Subordinate Service Rules (for short ‘KS & SSR’)
3. The 1st respondent/petitioner was of the view that
since the post of Selection Grade Assistant is a Higher Grade
Post of Senior Assistant, her case is covered by Rule 28(e) of the
General Rules. Raising this contention, she moved the
Government. As per the direction of this Court, the Government
reconsidered her case and again rejected her claim by Ext.P26.
The writ petition was filed challenging Exts.P17 and P26. She
sought a further direction to promote her as Selection Grade
Assistant with retrospective effect from the date of occurrence of
W.A.No.880/2009 3
first vacancy in that category after she rejoined duty on
18.7.2005. According to the 1st respondent/writ petitioner, the
proviso to Rule 28(a)(ii) of the KS & SSR has no application and
Rule 28(e) which has been incorporated in the Special Rules for
Kerala Secretariat Subordinate Service, as the 2nd provisio to
Rule 10 thereof, will govern the case. The appellants, who are
respondents in the writ petition, resisted the prayers supporting
the stand taken by them in the orders impugned.
4. The learned Single Judge, after hearing both sides,
allowed the writ petition. According the learned Single Judge,
Rule 10 of the Special Rules for the Secretariat Subordinate
Service prescribes probation for various posts. Therefore, Rule
28(a)(ii) of the KS & SSR would not apply. Based on that finding,
reliefs were also granted. The respondents in the writ petition,
feeling aggrieved by the said judgment, have preferred this Writ
Appeal.
5. We heard the learned counsel on both sides. The
learned senior Government Pleader, Sri. Benny Gervasis,
submitted that the finding of the learned Single Judge that since
W.A.No.880/2009 4
probation is prescribed for certain posts in the Secretariat
Subordinate Service, the proviso to Rule 28(a)(ii) of the KS &
SSR have no application is untenable. If, probation is not
prescribed for a particular post, then for further promotion from
that post, the 2nd proviso to Rule 28(a)(ii) of the KS & SSR will
govern. According to the learned senior Government Pleader,
the learned Single Judge has misread the Rule.
Sri.K.P.Rajeevan, the learned counsel for the 1st respondent, fully
supported the view taken by the learned Single Judge. He
further added that, in view of the 2nd proviso to Rule 10 of the
Special Rules, it should be taken that the operation of the
proviso to Rule 28(a)(ii) of the KS & SSR stands excluded.
Something not expressly stated in the Special Rules concerning
probation cannot be made applicable by the process of
interpretation, it is submitted.
6. The facts in this case are not disputed. If the proviso
to Rule 28(a)(ii) of the KS & SSR applies, the 1st respondent will
be eligible to get promotion to post of Selection Grade Assistant
only on completion of one year’s service from 18.7.2005. If the
said proviso is not applicable, she is entitled to get the first
W.A.No.880/2009 5
arising vacancy in that cadre after she rejoined on the said date.
Rule 28(a)(ii) of the KS & SSR reads as follows:
“28(a)(ii) Where the Special Rules for a
service provide for appointment by promotion
to any class or category from a specified
class or category of such service, no member
shall be eligible for such appointment unless
he is a full member or an approved
probationer in the class or category so
specified:
Provided that if he is the holder of a
post in any service for which no probation has
been prescribed, he shall not be eligible for
promotion unless he has put in satisfactory
service in that post for a period of one year
on duty within a continuous period of two
years.”
7. The main part of the above quoted clause would show
that, if promotion to a category is to be made from a specified
category, an incumbent can be promoted, if only, he is a full
member or an approved probationer in the specified category.
The proviso would provide that for a particular post in a service
probation is not prescribed, he will not get promotion from that
post unless he has put in satisfactory service for one year on
duty within a continuous period of two years. The above Rule
cannot be understood as saying that, if probation is prescribed
W.A.No.880/2009 6
for some posts in a service, the 2nd proviso will not have any
application. The learned Single Judge read the Rule like that.
The said view is unsupportable going by the plain meaning of the
words of the above quoted clause (ii) of sub-rule (a) of Rule 28 of
the KS & SSR.
8. Rule 28(e) Reads as follows:
"28(e) Probation where there are more
than one grade to the same category:-
Notwithstanding anything to the contrary
contained in the Special Rules where there are
more than one grade to the same category and
duties and responsibilities attached to the
various grades are one and the same, and
appointment to the higher grades are made by
promotion from the lower grades, then
probation shall be insisted only in the lowest
grade to such category.”
If there are more than one grade in the same category of post
and if the duties and responsibilities are same for the various
grades, then probation need be insisted only in the lowest grade
for promotion to higher grade. It is unnecessary to complete
probation in every grade, as per the above quoted Rule. The said
Rule will definitely apply to the case on hand as the posts
concerned are different grades of the same post of Assistant.
The above quoted Rule has been incorporated the Special Rules
W.A.No.880/2009 7
also as 2nd proviso to Rule 10 of the Special Rules for Secretariat
Subordinate Service. We are of the view that the above
provision relieves an incumbent from the burden of completing
probation in every grade of the same post and not from the
obligation to complete one year’s service prescribed in the
proviso to Rule 28(a)(ii) of the KS & SSR. In other words, the
Rule 28(e) will not obliterate the proviso 28(a)(ii). Both of them
will operate simultaneously. The view to the contrary taken by
the learned Single Judge is unsustainable. So, the respondent
has to complete one year’s service after she rejoined duty for
getting promotion to the post of Selection Grade Assistant. We
are told that the respondent has already been granted promotion
on completion of one year’s service in the lower grade.
In the result, the Writ Appeal is allowed. The judgment of
the learned Single Judge is reversed and the Writ Petition is
dismissed. No costs.
(K.BALAKRISHNAN NAIR, JUDGE)
(C.T.RAVIKUMAR, JUDGE)
ps