IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2745 of 2009()
1. T.K.KARUNADAS,
... Petitioner
Vs
1. K.R.SONA,
... Respondent
2. STATE OF KERALA,
3. THE DIRECTOR OF ARCHAEOLOGY,
4. K.R.SHYLENDRANATH,
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :SRI.O.V.RADHAKRISHNAN (SR.)
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :10/02/2010
O R D E R
C.R.
K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A. No.2745 of 2009
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Dated 10th February, 2010.
J U D G M E N T
Balakrishnan Nair, J.
The 4th respondent in the writ petition is the appellant.
The writ petitioner is the first respondent herein.
2. The brief facts of the case are the following:
The first respondent joined the Archaeology Department, as
Museum Assistant, on 28.11.1986. In due course, her probation
was declared. The Special Rules(Recruitment Rules) governing
qualifications and method of appointment to the posts in the said
Department, both in the State Service and the Subordinate
Service, were issued by the Government on 3.1.2000, as per
G.O.(P) No.3/2000/CAD and G.O.(P) No.2/2000/CAD, respectively.
(State service covers gazetted posts and Subordinate service
covers non-gazetted posts in the department) As per the Special
Rules, the post of Museum Assistant is a feeder category for
promotion to the post of Manager, which is category No.8 in the
Special Rules for the Kerala Archaeological Subordinate Service.
WA NO.2745/09 2
The next higher posts are Research Assistant (Folklore) and
Research Assistant (Numismatics). The method of appointment
to these posts is by direct recruitment. Category No.2, Field
Assistant(Malabar Survey) is the promotion post of Manager.
The post of Field Assistant (Malabar Survey) is a feeder category
for appointment by transfer to the posts of Epigraphy
Assistant/Excavation Assistant/Curator. While those rules were
enforced, the promotions in the department were reviewed. After
the issuance of the Special Rules in 1974, several new posts were
created in the department. Pending issuance of Special Rules
covering them, they were being filled up on
temporary/provisional/ad-hoc basis. When the new Special Rules
were issued on 3.1.2000, covering them also, it became
necessary that the appointments made to those posts have to be
reviewed.
3. Purportedly, as part of the review, by Ext.P9, the
first respondent/writ petitioner, who was working as Museum
Assistant, was promoted provisionally as Field Assistant (Malabar
Survey). But, the method of appointment to that post, as per the
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Special Rules, is by promotion from the post of Manager. One of
the obligatory qualifications for promotion to the post of Field
Assistant (Malabar Survey), is three years’ experience in the post
of Manager. In Ext.P9, it is stated by the Director that since the
first respondent has been found eligible for promotion as
Manager with retrospective effect, she has been provisionally
promoted as Field Assistant (Malabar Survey). A translation of
the relevant portion of the said order reads as follows :
“In the light of the judgment of the Honourable
High Court referred as first paper and the directions issued by
the Government as per letter referred as third paper, the
promotions made in the Department of Archeology to non-
gazetted technical posts have to be reviewed. As part of the
third stage of the review proceedings being undertaken by a
review committee constituted as per the directions of the
Director referred as 6th paper, it was found that Smt.K.R.Sona,
who is working as Museum Assistant (Higher Grade) in Thrissur
Archaeological Museum, is eligible for promotion to the post of
Manager, in the scale of pay of Rs.5000-8150 with
retrospective effect; therefore, she is found eligible for
promotion to the next higher post.
In the circumstances, Smt.K.R.Sona, who is
working as Museum Assistant in Thrissur Archaeological
Museum is provisionally appointed to the post of Field Assistant
(Malabar Survey), which was shifted to Kozhikode Pazhassiraja
WA NO.2745/09 4
Museum and which is becoming vacant, as per order referred
as 7th paper above.”
The judgment of this Court mentioned in the above order only
directs review of provisional promotions made earlier, in the light
of the new Special Rules issued. As evident from the above
quoted order, the first respondent, working as a Museum
Assistant, was directly promoted as Field Assistant (Malabar
Survey) by-passing the intermediate post of Manager. Later, her
probation was declared in the post of Field Assistant (Malabar
Survey), as per Annexure R1(a) dated 22.1.2008, with effect
from 24.10.2004, though she was only a provisional promotee in
that post. Thereafter, she was included in the select list for
promotion to the post of Excavation Assistant/Curator. Later, she
was provisionally promoted as Curator, as per Annexure A1,
produced along with the Appeal Memorandum. Still later, she
was included in the Departmental Promotion Committee (for
short, ‘DPC’) list dated 24.9.2009, as a person eligible for
promotion to the post of Excavation Assistant/Curator. Ext.R1(b)
is the DPC list. In the meantime, the Writ Petition was filed by
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the first respondent, seeking the following reliefs :
(i) “To issue a writ of mandamus or other
appropriate writ, order or direction directing the respondents 1
and 2 to promote the petitioner to the next arising vacancy of
Curator/Excavation Assistant, before promoting respondents 3
and 4.
(ii) to declare that the action of the 2nd respondent
in promoting respondents 3 and 4 as Research Assistant, Field
Assistant and Technical Assistant, as illegal, irregular and
arbitrary and is in violation of the provisions in the special rules.
(iii) To declare that the action of the 2nd respondent
in declaring the probation of the 4th respondent in the post of
Technical Assistant as illegal and unsustainable.
(iv) to issue a writ of certiorari or other appropriate
writ, order or direction to quash the appointment of 4th
respondent as Research Assistant (Numismatics) and his further
appointment/promotion from the post of Research Assistant as
Technical Assistant.”
4. The appellant/4th respondent joined service as
Lower Division Clerk on 2.5.1989. He completed his probation in
that post. When a vacancy arose in the post of Research
Assistant (Numismatics), the Director invited applications from
the existing employees and thereafter, appointed the appellant
provisionally to that post, by Ext.P13 order dated 12.6.2003.
Later, he was promoted to the post of Technical Assistant,
provisionally on 25.7.2006, under Rule 9(a)(i) of Part II of the
Kerala State and Subordinate Services Rules (for short, ‘KS &
WA NO.2745/09 6
SSR’). His probation was also declared in the post of Technical
Assistant.
5. The 4th respondent in the Writ Appeal joined service
as Lower Division Clerk on 25.7.1980. He was later promoted to
the post of Gallery Supervisor and further, as Manager in the year
1989. Thereafter, he was promoted to the post of Research
Assistant. All the above promotions were provisional and were
made before the implementation of the Special Rules. Later, at
the time of review, the 4th respondent was promoted as Field
Assistant (Malabar Survey), on 12.1.2005, as per Ext.P11 order.
He was further promoted as Technical Assistant and thereafter,
as Excavation Assistant, under Rule 9(a)(i) of Part II of the KS &
SSR. He was also included in the select list for promotion to the
post of Excavation Assistant/Curator, published by the lower DPC.
6. The first respondent/writ petitioner approached this
Court, apprehending that the appellant and the 4th respondent
herein may supersede her, in the matter of promotion to the post
of Curator. At the time of hearing, she pressed her claim only
against the appellant. The learned Single Judge found that the
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promotion granted to the appellant as per Ext.P13 was illegal and
therefore, quashed Ext.P13. The appellant tried to canvass for
the position that the promotion of the first respondent covered by
Ext.P9 was also not different and therefore, she had no locus
standi to raise this challenge. But, the learned Judge did not
accept that contention and declined to look into the validity of
Ext.P9. Feeling aggrieved by the quashing of Ext.P13, the
appellant has preferred this Writ Appeal.
7. We heard Sri.Elvin Peter, learned counsel, who
appeared for the appellant, Sri.Benny Gervasis, learned Senior
Government Pleader for the official respondents and
Sri.O.V.Radhakrishnan, learned senior counsel, who appeared for
the first respondent.
8. When the Writ Appeal was heard on 11.1.2010,
noticing the fact that various promotions were made in the
department, in violation of the Special Rules, the following
interim order was passed by this Court:
Certain distressing facts were revealed when this Writ
Appeal was heard by us. The facts brought to our notice show that
promotions are being ordered under the Directorate of Archaeology
without any reference to the Special Rules and qualifications andWA NO.2745/09 8
method of appointment prescribed therein. We notice that the writ
petitioner/first respondent herein has been provisionally promoted
as Field Assistant from the post of Museum Assistant by Ext.P9,
without reference to the Special Rules. Now, she has been further
provisionally promoted as Curator, as is evident from Annexure A1.
The Special Rules available do not justify such promotions. The
same is the case of promotion of the appellant who was the 4th
respondent in the Writ Petition. He has been provisionally
promoted as Research Assistant (Numismatics). It was not a post
available under the earlier Special Rules which were framed in
1974. As per Ext.P7 Special Rules which were framed in 2000, the
appellant is not eligible for promotion to that post. The post held
by him is not included in the feeder category, but still, he has been
provisionally promoted as Research Assistant (Numismatics). We
are told that he has been further promoted as Technical Assistant
on 25.7.2006, which is also not permissible in terms of the Special
Rules. We are surprised to hear that the probation of the writ
petitioner/first respondent has been declared in the post of Field
Assistant. We are shocked to hear that the probation of the
appellant has also been declared in the post of Research Assistant
(Numismatics). The promotions are ordered without any regard to
Rule 28 of the Kerala State and Subordinate Services Rules. Both
sides also submit that similar illegal promotions were granted to
one K.R. Shylendranath, the third respondent in the Writ Petition
who is the 4th respondent in the Writ Appeal. A provisional
appointee cannot be treated as a probationer and his probation
cannot be declared. Only an approved probationer can be
regularly promoted. We find these principles are thrown to the
winds.
2. We think that there is something wrong with the person
or persons making these promotions and declaration of probation.
So, the second respondent is directed to file an affidavit explaining
as to how the aforementioned promotions and declaration of
probation happened in disregard of Rule 28 of the General Rules
and the relevant provisions of Ext.P7 Special Rules, on or before
27.1.2010. If the second respondent feels that the above actions
are illegal, it shall state the steps proposed to rectify this jungle
raj. If the second respondent does not file the affidavit, as
directed above, the Secretary, Cultural Affairs Department of the
State of Kerala shall appear in person before this Court with the
relevant files on 29.1.2010 and explain the issue directly to this
Court.
Post on 27.1.2010.”
WA NO.2745/09 9
Pursuant to the above order, the second respondent has filed a
counter affidavit, admitting the illegalities in the promotions
granted to the appellant, first respondent and the 4th respondent.
Regarding the promotions granted to the appellant, it was stated
in paragraphs 5 and 6 as follows :
“5. The promotions/appointments granted to the
appellant as well as the first and 4th respondent would come
within the above category of promotions which were granted in
violation of the special rules of 2000. In so far as the appellant
T.K.Karunadas was concerned, he entered service of the
Directorate of Archeology as LDC on 02.05.1989 and successfully
completed his probation in the above post. A vacancy in the post
of Research Assistant (Numismatics) which was created in 1979
occurred on 01.10.1996 and since the above post was not
included in the special rules a draft rule had been prepared
incorporating the qualifications and mode of appointment to the
above post and also bringing out variation/amendment to the
above rules. Government was moved for approval to fill up the
above vacancy and to decide as to the method of appointment
to be resorted to. Government as per its communication dated
25.4.2003 directed the Director to make a provisional
appointment against the above post from among the existing
employees after calling for applications in this regard. The
above appointment was to be provisional till the appointment of
regular qualified hand. Pursuant to the same, it is understood
that the Director issued a circular dated 19.5.2003 inviting
applications from the existing employees for appointment to the
post of Research Assistant (Numismatics). It was pursuant to the
above circular and on the basis of application received from the
appellant that the appellant was appointed provisionally to the
post of Research Assistant (Numismatics) by the order dated
12.6.2003. The above appointment was purely provisional and
under Rule 9(a)(i) of KS and SSR. It was also mentioned in the
appointment order that the above appointment was for a period
until a regular hand fully qualified as per the Special Rules was
appointed. In the meanwhile the special rule was duly issued as
per G.O.(P) No.2/2000 and the mode of recruitment to the post ofWA NO.2745/09 10
Research Assistant (Numismatics) as per the same was direct
recruitment alone.
6. The Direction that had been issued by the
Government was to make a provisional appointment till direct
recruitment was resorted to for filling up the above post. The
post was duly reported to the Public Service Commission for
recruitment, however during the process of filling up the above
post by direct recruitment a vacancy occurred in the post of
Technical Assistant and the appellant put forward a claim to the
above post. It is understood that the 3rd respondent without
considering the fact that the appellant had been appointed to the
post of Research Assistant (Numismatics) only provisionally
under rule 9(a)(i) promoted him to the post of Technical
Assistant by order dated 25.7.2006 on the ground that the post
of Research Assistant was included in the feeder category for
promotion to Technical Assistant. The above promotion granted
in violation of the rules has been granted again under Rule 9(a)(i)
of KS & SSR.”
Concerning the promotions granted to the first respondent, it
was stated in paragraphs 7 to 9 as follows :
“7. As regards the first respondent/writ petitioner
Smt.Sona, entered service as Museum Assistant on 28.11.1986
and probation was also declared in the above post. As per 1974
Subordinate Service Rules the post of Museum Assistant was a
feeder category for promotion to the post of Curator. Thereafter,
several new category of posts such as Technical Assistant, Field
Assistant, Research Assistant, Assistant Editor, Documentation
Assistant, Manager, etc. were created and no rules or orders
were issued laying down the qualifications or mode of
appointment to the above post. The post of Manager and Field
Assistant were created as intermediary post between Curator
and Museum Assistant. Though draft rules were prepared the
final rules were issued only as per G.O.(P)No.2/2000 which dealt
with the Subordinate Service of Archeology Department that is
Kerala Archaeological Subordinate Service Rules. As per the
above rule which was issued on 03.01.2000 the post of Curator
was taken out of the purview of Subordinate Service Rules and
included in the State service rules which was issued as per G.O.
(P)No.3/2000 dated 3.1.2000. The appointment to the aboveWA NO.2745/09 11
post was to be transfer from the category of Field Assistant
Folklore/Field Assistant (Malabar Survey) and Technical Assistant
and in the absence of qualified hands the same was to be filled
up by direct recruitment. The qualifications prescribed for the
post was post graduate degree in History/Malayalam/Sanskrit/
Archeology/Museology or any other equivalent qualifications
from a recognized University. It was also specified that persons
appointed to any of the categories coming within the special
rules had to pass either the Account test for Executive officers or
the Accountant Test (Lower) within the period of probation.
8. The post of Curator was made a selection post
as per the Special Rules for subordinate service. Further
promotion from the post of Museum Assistant was to the post of
Manager and from the Manager post to the post of Field
Assistant/Technical Assistant. The post of Field
Assistant/Technical Assistant alone were included in the feeder
category for selection/appointment to the post of Curator.
During the pendency of issuance of Special Rules some of the
employees moved this Hon’ble Court in writ petition
O.P.No.3692/1993 which was disposed of as per judgment dated
29.09.1998. The court as per the judgment directed that the
rules should be formulated within six months and promotions
should thereafter be effected as per the same. It was also
directed to review the promotions already effected pending
finalization of the rules.
9. After the issuance of Special Rules a review
committee was constituted for reviewing the promotions made
pending finalization of the Special Rules. After the issuance of
Special Rules the first respondent was provisionally promoted to
the post of Field Assistant (Malabar Survey) on 20.10.2003. The
above promotion was granted without promoting her to the
intermediary post of Manager. The above promotion was made
on the ground that she was eligible for holding the post of
Manager, but no actual promotion as Manager was granted to
the first respondent. Moreover the Special Rules specifically
stated that for promotion from the post of Manager to that of
Field Assistant a minimum experience of 3 years was required in
the post of Manager. The first respondent also did not have the
above experience. Thereafter, probation was declared in the
post of Field Assistant (Malabar Survey) to which she had been
provisionally promoted and further promotion also granted as
Curator provisionally on 19.11.2008. The above promotionsWA NO.2745/09 12
granted to the first respondent as Field Assistant (Malabar
Survey) and declaration of probation in the above post and the
further promotion to the post of Curator are illegal and violative
of the Special Rules.”
Regarding the illegalities in the promotions granted to the 4th
respondent, it was stated in paragraph 10 of the affidavit, as
follows :-
“10. The 4th respondent Sri.K.R.Shylendranath joined
service in the Archeology Department as LDC on 25.7.1980. He
was further promoted to the post of Gallery Supervisor on
17.12.1983 provisionally under rule 9(a)(i) of KS & SSR and
further promoted to the post of Manager in the year 1989 again
provisionally and from this post he was further promoted as
Research Assistant. It is understood that the 4th respondent did
not have graduation in the required subject and therefore was
granted two years time for acquiring the graduation. All the
above promotions were granted prior to 2000 that is before
issuance of the special rules. All the above promotions were
reviewed and duly approved by the review committee constituted
as per the directions of this Honourable Court in
O.P.No.3692/1993. The 4th respondent was thereafter promoted
to the post of Field Assistant (Malabar Survey) on 12.1.2005 on
which date 4th respondent was not having the due graduation
qualification. He was further transferred and posted to the post of
Technical Assistant and from the above post was granted
promotion to the post of Excavation Assistant under Rule 9(a)(i) of
KS & SSR on 19.11.2008. The above post is a selection post
which is included in the State service. It is submitted that the
promotions granted to the 4th respondent to the post of Field
Assistant, Technical Assistant and Excavation Assistant are found
to be violative of the Special Rules.”
Finally, the second respondent indicated the course of action
proposed, to remedy the illegalities in the promotions granted to
the aforementioned persons and others in the following manner :-
WA NO.2745/09 13
“11. As submitted herein, the above mentioned
promotions/appointments to the various categories of posts in the
Department are carried out by the Director of the Archeology
Department and this respondent, it is respectfully submitted, was
not aware that the same was being carried out in violation of the
Special Rules. On being aware of the irregularities this
respondent has issued directions to the 3rd respondent to review
all the promotions that has been effected after the issuance of
Special rules as per G.O.(P) No.2/2000 and 3/2000 dated
03.01.2000. It is also directed to report the
appointments/promotions that has been effected if any, in
violation of the Special Rules and to take appropriate action to
cancel the above appointments/promotions with due notice to the
affected persons. In respect of the appellant/ first respondent
and the 4th respondent directions were already issued to review
the promotions granted to them and to cancel the same after
hearing them. Strict directions have also been issued to the third
respondent to make further promotions to various posts under
the Department only in strict conformity with the Special Rules
and also to seek approval from the Government in the case of
provisional promotion, if any. It is respectfully submitted that this
respondent became aware of the irregular
appointment/promotions granted in the Department only
subsequent to the filing of the writ appeal and necessary curative
actions/remedial measures have already been taken to rectify the
same and also to see that further promotions/ appointments in
the Directorate of Archeology are carried out only in conformity
and compliance with the Special Rules.”
9. The first respondent has filed a counter affidavit, dealing
with the averments in the above affidavit of the second
respondent and trying to support her promotions.
10. We considered the rival submissions made at the
Bar. We notice that persons who are not in the feeder category,
as per the Special Rules/Recruitment Rules, have been granted
WA NO.2745/09 14
promotion. Further, regular promotion can be ordered only of
approved probationers, in view of the mandate of Rule 28(a)(i) of
Part II of the KS & SSR. The said Rule reads as follows :-
“28(a) Promotion–(i) Except in the case of appointment
to the posts of Heads of Departments no member of a service or
class 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 person will commence probation in a post, only on his regular
appointment to the said post. Rule 18(a) of Part II of the KS &
SSR deals with the above aspect. The said rule reads as follows :-
“18.(a) Date of commencement of probation of persons
first appointed temporarily.– If a person, having been appointed
temporarily under sub-rule (a) or sub-rule(c) of rule 9 to a post
borne on the cadre of any service, class or category otherwise
than in accordance with the rules governing appointment thereto,
is subsequently appointed to the service, class or category in
accordance with the rules, he shall commence his probation from
the date of such subsequent appointment or from such earlier
date as the appointing authority may determine, without
prejudice to seniority of others.”
Further, an appointee under Rule 9(a)(i) of Part II of the KS & SSR
can never be treated as a probationer. Rule 9(a)(iv) is categoric
on this aspect. Rules 9(a)(i) and 9(a)(iv) respectively read as
follows :-
“9. Temporary appointments.–(a) (i) Where it is
necessary in the public interest, owing to an emergency which
has arisen to fill immediately a vacancy in a post borne on theWA NO.2745/09 15
cadre of a service, class or category and there would be undue
delay in making such appointment in accordance with these
rules and the Special Rules, the appointing authority may
appoint a person, otherwise than in accordance with the said
rules, temporarily :
Provided that before a person is appointed under this
clause, persons who are admittedly senior to him shall also be
appointed, even if they are absent from duty, whether on leave
other than leave without allowances or taking up other
employment or on foreign service or on deputation or for any
other valid reason, except due to suspension and allowed to
continue as such subject to the condition that persons so
appointed shall not be eligible for the higher time scale of pay
by virtue of such appointments unless otherwise specifically
ordered by the Government.
x x x x x x x x x x x x x x
(iv) A person appointed under clause (i) or (ii) shall
not be regarded as a probationer in such service, class or
category or be entitled by reason only of such appointment to
any preferential claim to future appointment to such service,
class or category.”
In the face of the above statutory provisions, it is clear that the
appointments, declaration of probation, promotions etc. made in
the Archaeology Department were plainly illegal and
unauthorised. In view of the above position, we think, the proper
course for this Court is to direct the Government to proceed with
the review, which is mentioned in paragraph 11 of the affidavit
filed by the second respondent. The promotions hitherto granted
to the appellant, first respondent and the 4th respondent have to
be treated as provisional. They can continue in their posts, only
WA NO.2745/09 16
till the review is completed and consequential orders are passed.
The direction of the learned Single Judge concerning Ext.P13 will
be replaced by the above direction. The finding of the learned
Judge regarding Ext.P9 is vacated. The second respondent shall
complete the review, as undertaken in paragraph 11 of its
affidavit, within four months from the date of production/receipt
of a copy of this judgment. While undertaking the review, if any
one, who is not a party to the Writ Petition/ Writ Appeal is
affected, he shall be afforded an opportunity of being heard,
before final orders are passed.
The Writ Appeal is disposed of as above.
K.BALAKRISHNAN NAIR, JUDGE.
P.N.RAVINDRAN, JUDGE.
tgs
C.R.
K.BALAKRISHNAN NAIR &
P.N.RAVINDRAN, JJ.
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W.A. No.2745 of 2009
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J U D G M E N T
Dated 10th February, 2010.