{"id":222426,"date":"2010-02-10T00:00:00","date_gmt":"2010-02-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/t-k-karunadas-vs-k-r-sona-on-10-february-2010"},"modified":"2016-02-12T19:37:48","modified_gmt":"2016-02-12T14:07:48","slug":"t-k-karunadas-vs-k-r-sona-on-10-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/t-k-karunadas-vs-k-r-sona-on-10-february-2010","title":{"rendered":"T.K.Karunadas vs K.R.Sona on 10 February, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
T.K.Karunadas vs K.R.Sona on 10 February, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWA.No. 2745 of 2009()\n\n\n1. T.K.KARUNADAS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. K.R.SONA,\n                       ...       Respondent\n\n2. STATE OF KERALA,\n\n3. THE DIRECTOR OF ARCHAEOLOGY,\n\n4. K.R.SHYLENDRANATH,\n\n                For Petitioner  :SRI.ELVIN PETER P.J.\n\n                For Respondent  :SRI.O.V.RADHAKRISHNAN (SR.)\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice P.N.RAVINDRAN\n\n Dated :10\/02\/2010\n\n O R D E R\n                                                               C.R.\n\n        K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.\n               ----------------------------------------------\n                      W.A. No.2745 of 2009\n               ----------------------------------------------\n                   Dated 10th February, 2010.\n\n                           J U D G M E N T\n<\/pre>\n
Balakrishnan Nair, J.\n<\/p>\n
           The 4th respondent in the writ petition is the appellant.<\/p>\n
The writ petitioner is the first respondent herein.<\/p>\n
                 2.   The brief facts of the case are the following:<\/p>\n
The first respondent joined the Archaeology Department, as<\/p>\n
Museum Assistant, on 28.11.1986. In due course, her probation<\/p>\n
was declared.     The Special Rules(Recruitment Rules) governing<\/p>\n
qualifications and method of appointment to the posts in the said<\/p>\n
Department, both in the State Service and the Subordinate<\/p>\n
Service, were issued by the Government on 3.1.2000, as per<\/p>\n
G.O.(P) No.3\/2000\/CAD and G.O.(P) No.2\/2000\/CAD, respectively.<\/p>\n
(State service covers gazetted posts and Subordinate service<\/p>\n
covers non-gazetted posts in the department) As per the Special<\/p>\n
Rules, the post of Museum Assistant is a feeder category for<\/p>\n
promotion to the post of Manager, which is category No.8 in the<\/p>\n
Special Rules for the Kerala Archaeological Subordinate Service.<\/p>\n
WA NO.2745\/09                   2<\/span><\/p>\n
The    next higher posts are Research Assistant (Folklore) and<\/p>\n
Research Assistant (Numismatics).     The method of appointment<\/p>\n
to these posts is by direct recruitment.    Category No.2, Field<\/p>\n
Assistant(Malabar Survey) is the promotion post of Manager.<\/p>\n
The post of Field Assistant (Malabar Survey) is a feeder category<\/p>\n
for appointment by transfer to the posts of Epigraphy<\/p>\n
Assistant\/Excavation Assistant\/Curator. While those rules were<\/p>\n
enforced, the promotions in the department were reviewed. After<\/p>\n
the issuance of the Special Rules in 1974, several new posts were<\/p>\n
created in the department. Pending issuance of Special Rules<\/p>\n
covering    them,     they    were     being    filled  up    on<\/p>\n
temporary\/provisional\/ad-hoc basis. When the new Special Rules<\/p>\n
were issued on 3.1.2000, covering them also, it became<\/p>\n
necessary that the appointments made to those posts have to be<\/p>\n
reviewed.\n<\/p>\n
           3. Purportedly, as part of the review, by Ext.P9, the<\/p>\n
first respondent\/writ petitioner, who was working as Museum<\/p>\n
Assistant, was promoted provisionally as Field Assistant (Malabar<\/p>\n
Survey). But, the method of appointment to that post, as per the<\/p>\n
WA NO.2745\/09                       3<\/span><\/p>\n
Special Rules, is by promotion from the post of Manager. One of<\/p>\n
the obligatory qualifications for promotion to the post of Field<\/p>\n
Assistant (Malabar Survey), is three years’ experience in the post<\/p>\n
of Manager. In Ext.P9, it is stated by the Director that since the<\/p>\n
first respondent has been found eligible for promotion as<\/p>\n
Manager with retrospective effect, she has been provisionally<\/p>\n
promoted as Field Assistant (Malabar Survey).           A translation of<\/p>\n
the relevant portion of the said order reads as follows :<\/p>\n
                        “In the light of the judgment of the Honourable<\/p>\n
           High Court referred as first paper and the directions issued by<\/p>\n
           the Government as per letter referred as third paper, the<\/p>\n
           promotions made in the Department of Archeology to non-\n<\/p><\/blockquote>\n
           gazetted technical posts have to be reviewed. As part of the<\/p>\n
           third stage of the review proceedings being undertaken by a<\/p>\n
           review committee constituted as per the directions of the<\/p>\n
           Director referred as 6th paper, it was found that Smt.K.R.Sona,<\/p>\n
           who is working as Museum Assistant (Higher Grade) in Thrissur<\/p>\n
           Archaeological Museum, is eligible for promotion to the post of<\/p>\n
           Manager,    in  the  scale   of   pay  of  Rs.5000-8150    with<\/p>\n
           retrospective effect; therefore, she is found eligible for<\/p>\n
           promotion to the next higher post.\n<\/p><\/blockquote>\n
                        In the circumstances, Smt.K.R.Sona, who is<\/p>\n
           working as Museum Assistant in Thrissur Archaeological<\/p>\n
           Museum is provisionally appointed to the post of Field Assistant<\/p>\n
           (Malabar Survey), which was shifted to Kozhikode Pazhassiraja<\/p>\n
WA NO.2745\/09                    4<\/span><\/p>\n
            Museum and which is becoming vacant, as per order referred<\/p>\n
            as 7th paper above.”\n<\/p><\/blockquote>\n
The judgment of this Court mentioned in the above order only<\/p>\n
directs review of provisional promotions made earlier, in the light<\/p>\n
of the new Special Rules issued.     As evident from the above<\/p>\n
quoted order, the first respondent, working as a Museum<\/p>\n
Assistant, was directly promoted as Field Assistant (Malabar<\/p>\n
Survey) by-passing the intermediate post of Manager. Later, her<\/p>\n
probation was declared in the post of Field Assistant (Malabar<\/p>\n
Survey),   as per Annexure R1(a) dated 22.1.2008, with effect<\/p>\n
from 24.10.2004, though she was only a provisional promotee in<\/p>\n
that post.   Thereafter, she was included in the select list for<\/p>\n
promotion to the post of Excavation Assistant\/Curator. Later, she<\/p>\n
was provisionally promoted as Curator, as per Annexure A1,<\/p>\n
produced along with the Appeal Memorandum. Still later, she<\/p>\n
was included in the Departmental Promotion Committee (for<\/p>\n
short, ‘DPC’) list dated 24.9.2009, as a person eligible for<\/p>\n
promotion to the post of Excavation Assistant\/Curator. Ext.R1(b)<\/p>\n
is the DPC list. In the meantime, the Writ Petition was filed by<\/p>\n
WA NO.2745\/09                           5<\/span><\/p>\n
the first respondent, seeking the following reliefs :<\/p>\n
                        (i)     “To issue a writ of mandamus or other
\n            appropriate writ, order or direction directing the respondents 1
\n            and 2 to promote the petitioner to the next arising vacancy of
\n            Curator\/Excavation Assistant, before promoting respondents 3
\n            and 4.\n<\/p>\n
                        (ii) to declare that the action of the 2nd respondent
\n            in promoting respondents 3 and 4 as Research Assistant, Field
\n            Assistant and Technical Assistant, as illegal, irregular and
\n            arbitrary and is in violation of the provisions in the special rules.<\/p>\n
                        (iii) To declare that the action of the 2nd respondent
\n            in declaring the probation of the 4th respondent in the post of
\n            Technical Assistant as illegal and unsustainable.<\/p>\n
                        (iv) to issue a writ of certiorari or other appropriate
\n            writ, order or direction to quash the appointment of 4th
\n            respondent as Research Assistant (Numismatics) and his further
\n            appointment\/promotion from the post of Research Assistant as
\n            Technical Assistant.”\n<\/p>\n
            4.    The appellant\/4th respondent joined service as<\/p>\n
Lower Division Clerk on 2.5.1989. He completed his probation in<\/p>\n
that post.     When a vacancy arose in the post of Research<\/p>\n
Assistant (Numismatics), the Director invited applications from<\/p>\n
the existing employees and thereafter, appointed the appellant<\/p>\n
provisionally to that post, by Ext.P13 order dated 12.6.2003.<\/p>\n
Later, he was promoted to the post of Technical Assistant,<\/p>\n
provisionally on 25.7.2006, under Rule 9(a)(i) of Part II of the<\/p>\n
Kerala State and Subordinate Services Rules (for short, ‘KS &<\/p>\n
WA NO.2745\/09                   6<\/span><\/p>\n
SSR’). His probation was also declared in the post of Technical<\/p>\n
Assistant.\n<\/p>\n
           5. The 4th respondent in the Writ Appeal joined service<\/p>\n
as Lower Division Clerk on 25.7.1980. He was later promoted to<\/p>\n
the post of Gallery Supervisor and further, as Manager in the year<\/p>\n
1989.   Thereafter, he was promoted to the post of Research<\/p>\n
Assistant. All the above promotions were provisional and were<\/p>\n
made before the implementation of the Special Rules. Later, at<\/p>\n
the time of review, the 4th respondent was promoted as Field<\/p>\n
Assistant (Malabar Survey), on 12.1.2005, as per Ext.P11 order.<\/p>\n
He was further promoted as Technical Assistant and thereafter,<\/p>\n
as Excavation Assistant, under Rule 9(a)(i) of Part II of the KS &<\/p>\n
SSR. He was also included in the select list for promotion to the<\/p>\n
post of Excavation Assistant\/Curator, published by the lower DPC.<\/p>\n
           6. The first respondent\/writ petitioner approached this<\/p>\n
Court, apprehending that the appellant and the 4th respondent<\/p>\n
herein may supersede her, in the matter of promotion to the post<\/p>\n
of Curator. At the time of hearing, she pressed her claim only<\/p>\n
against the appellant. The learned Single Judge found that the<\/p>\n
WA NO.2745\/09                       7<\/span><\/p>\n
promotion granted to the appellant as per Ext.P13 was illegal and<\/p>\n
therefore, quashed Ext.P13. The appellant tried to canvass for<\/p>\n
the position that the promotion of the first respondent covered by<\/p>\n
Ext.P9 was also not different and therefore, she had no locus<\/p>\n
standi to raise this challenge. But, the learned Judge did not<\/p>\n
accept that contention and declined to look into the validity of<\/p>\n
Ext.P9.    Feeling aggrieved by the quashing of Ext.P13, the<\/p>\n
appellant has preferred this Writ Appeal.\n<\/p>\n
            7.   We heard Sri.Elvin Peter, learned counsel, who<\/p>\n
appeared for the appellant, Sri.Benny Gervasis, learned Senior<\/p>\n
Government       Pleader     for   the    official   respondents      and<\/p>\n
Sri.O.V.Radhakrishnan, learned senior counsel, who appeared for<\/p>\n
the first respondent.\n<\/p>\n
            8. When the Writ Appeal was heard on 11.1.2010,<\/p>\n
noticing the fact that various promotions were made in the<\/p>\n
department, in violation of the Special Rules,             the following<\/p>\n
interim order was passed by this Court:\n<\/p>\n
                     Certain distressing facts were revealed when this Writ
\n          Appeal was heard by us. The facts brought to our notice show that
\n          promotions are being ordered under the Directorate of Archaeology
\n          without any reference to the Special Rules and qualifications and<\/p>\n
WA NO.2745\/09                         8<\/span><\/p>\n
        method of appointment prescribed therein. We notice that the writ
\n        petitioner\/first respondent herein has been provisionally promoted
\n        as Field Assistant from the post of Museum Assistant by Ext.P9,
\n        without reference to the Special Rules. Now, she has been further
\n        provisionally promoted as Curator, as is evident from Annexure A1.
\n        The Special Rules available do not justify such promotions. The
\n        same is the case of promotion of the appellant who was the 4th
\n        respondent in the Writ Petition.        He has been provisionally
\n        promoted as Research Assistant (Numismatics). It was not a post
\n        available under the earlier Special Rules which were framed in
\n        1974. As per Ext.P7 Special Rules which were framed in 2000, the
\n        appellant is not eligible for promotion to that post. The post held
\n        by him is not included in the feeder category, but still, he has been
\n        provisionally promoted as Research Assistant (Numismatics). We
\n        are told that he has been further promoted as Technical Assistant
\n        on 25.7.2006, which is also not permissible in terms of the Special
\n        Rules. We are surprised to hear that the probation of the writ
\n        petitioner\/first respondent has been declared in the post of Field
\n        Assistant.    We are shocked to hear that the probation of the
\n        appellant has also been declared in the post of Research Assistant
\n        (Numismatics). The promotions are ordered without any regard to
\n        Rule 28 of the Kerala State and Subordinate Services Rules.      Both
\n        sides also submit that similar illegal promotions were granted to
\n        one K.R. Shylendranath, the third respondent in the Writ Petition
\n        who is the 4th respondent in the Writ Appeal.          A provisional
\n        appointee cannot be treated as a probationer and his probation
\n        cannot be declared.        Only   an approved probationer can be
\n        regularly promoted. We find these principles are thrown to the
\n        winds.\n<\/p><\/blockquote>\n
               2. We think that there is something wrong with the person
\n        or persons making these promotions and declaration of probation.
\n        So, the second respondent is directed to file an affidavit explaining
\n        as to how the aforementioned         promotions and declaration of
\n        probation happened in disregard of Rule 28 of the General Rules
\n        and the relevant provisions of Ext.P7 Special Rules, on or before
\n        27.1.2010.     If the second respondent feels that the above actions
\n        are illegal, it shall state the steps proposed to rectify this jungle
\n        raj.   If the second respondent does not file       the affidavit, as
\n        directed above, the Secretary, Cultural Affairs Department of the
\n        State of Kerala shall appear in person before this Court with the
\n        relevant files on 29.1.2010 and explain the issue directly to this
\n        Court.\n<\/p><\/blockquote>\n
               Post on 27.1.2010.”\n<\/p><\/blockquote>\n
WA NO.2745\/09                       9<\/span><\/p>\n
Pursuant to the above order, the second respondent has filed a<\/p>\n
counter affidavit, admitting the illegalities in the promotions<\/p>\n
granted to the appellant, first respondent and the 4th respondent.<\/p>\n
Regarding the promotions granted to the appellant, it was stated<\/p>\n
in paragraphs 5 and 6 as follows :\n<\/p>\n
                      “5.  The promotions\/appointments granted to the
\n         appellant as well as the first and 4th respondent would come
\n         within the above category of promotions which were granted in
\n         violation of the special rules of 2000. In so far as the appellant
\n         T.K.Karunadas was concerned, he entered service of the
\n         Directorate of Archeology as LDC on 02.05.1989 and successfully
\n         completed his probation in the above post. A vacancy in the post
\n         of Research Assistant (Numismatics) which was created in 1979
\n         occurred on 01.10.1996 and since the above post was not
\n         included in the special rules a draft rule had been prepared
\n         incorporating the qualifications and mode of appointment to the
\n         above post and also bringing out variation\/amendment to the
\n         above rules. Government was moved for approval to fill up the
\n         above vacancy and to decide as to the method of appointment
\n         to be resorted to. Government as per its communication dated
\n         25.4.2003    directed  the   Director   to  make   a   provisional
\n         appointment against the above post from among the existing
\n         employees after calling for applications in this regard.      The
\n         above appointment was to be provisional till the appointment of
\n         regular qualified hand. Pursuant to the same, it is understood
\n         that the Director issued a circular dated 19.5.2003 inviting
\n         applications from the existing employees for appointment to the
\n         post of Research Assistant (Numismatics). It was pursuant to the
\n         above circular and on the basis of application received from the
\n         appellant that the appellant was appointed provisionally to the
\n         post of Research Assistant (Numismatics) by the order dated
\n         12.6.2003. The above appointment was purely provisional and
\n         under Rule 9(a)(i) of KS and SSR. It was also mentioned in the
\n         appointment order that the above appointment was for a period
\n         until a regular hand fully qualified as per the Special Rules was
\n         appointed. In the meanwhile the special rule was duly issued as
\n         per G.O.(P) No.2\/2000 and the mode of recruitment to the post of<\/p>\n
WA NO.2745\/09                       10<\/span><\/p>\n
         Research Assistant (Numismatics) as per the same was direct
\n         recruitment alone.\n<\/p><\/blockquote>\n
                       6.    The Direction that had been issued by the
\n         Government was to make a provisional appointment till direct
\n         recruitment was resorted to for filling up the above post. The
\n         post was duly reported to the Public Service Commission for
\n         recruitment, however during the process of filling up the above
\n         post by direct recruitment a vacancy occurred in the post of
\n         Technical Assistant and the appellant put forward a claim to the
\n         above post.     It is understood that the 3rd respondent without
\n         considering the fact that the appellant had been appointed to the
\n         post of Research Assistant (Numismatics) only provisionally
\n         under rule 9(a)(i) promoted him to the post of Technical
\n         Assistant by order dated 25.7.2006 on the ground that the post
\n         of Research Assistant was included in the feeder category for
\n         promotion to Technical Assistant. The above promotion granted
\n         in violation of the rules has been granted again under Rule 9(a)(i)
\n         of KS & SSR.”\n<\/p><\/blockquote>\n
Concerning the promotions granted to the first respondent, it<\/p>\n
was stated in paragraphs 7 to 9 as follows :\n<\/p>\n
                         “7. As regards the first respondent\/writ petitioner
\n          Smt.Sona, entered service as Museum Assistant on 28.11.1986
\n          and probation was also declared in the above post. As per 1974
\n          Subordinate Service Rules the post of Museum Assistant was a
\n          feeder category for promotion to the post of Curator. Thereafter,
\n          several new category of posts such as Technical Assistant, Field
\n          Assistant, Research Assistant, Assistant Editor, Documentation
\n          Assistant, Manager, etc. were created and no rules or orders
\n          were issued laying down the qualifications or mode of
\n          appointment to the above post. The post of Manager and Field
\n          Assistant were created as intermediary post between Curator
\n          and Museum Assistant. Though draft rules were prepared the
\n          final rules were issued only as per G.O.(P)No.2\/2000 which dealt
\n          with the Subordinate Service of Archeology Department that is
\n          Kerala Archaeological Subordinate Service Rules.     As per the
\n          above rule which was issued on 03.01.2000 the post of Curator
\n          was taken out of the purview of Subordinate Service Rules and
\n          included in the State service rules which was issued as per G.O.
\n          (P)No.3\/2000 dated 3.1.2000.     The appointment to the above<\/p>\n
WA NO.2745\/09                        11<\/span><\/p>\n
          post was to be transfer from the category of Field Assistant
\n          Folklore\/Field Assistant (Malabar Survey) and Technical Assistant
\n          and in the absence of qualified hands the same was to be filled
\n          up by direct recruitment. The qualifications prescribed for the
\n          post was post graduate degree in History\/Malayalam\/Sanskrit\/
\n          Archeology\/Museology or any other equivalent qualifications
\n          from a recognized University. It was also specified that persons
\n          appointed to any of the categories coming within the special
\n          rules had to pass either the Account test for Executive officers or
\n          the Accountant Test (Lower) within the period of probation.\n<\/p><\/blockquote>\n
                           8. The post of Curator was made a selection post
\n          as per the Special Rules for subordinate service.          Further
\n          promotion from the post of Museum Assistant was to the post of
\n          Manager and from the Manager post to the post of Field
\n          Assistant\/Technical      Assistant.     The    post     of   Field
\n          Assistant\/Technical Assistant alone were included in the feeder
\n          category for selection\/appointment to the post of Curator.
\n          During the pendency of issuance of Special Rules some of the
\n          employees      moved    this   Hon’ble  Court  in  writ   petition
\n          O.P.No.3692\/1993 which was disposed of as per judgment dated
\n          29.09.1998. The court as per the judgment directed that the
\n          rules should be formulated within six months and promotions
\n          should thereafter be effected as per the same.        It was also
\n          directed to review the promotions already effected pending
\n          finalization of the rules.\n<\/p><\/blockquote>\n
                           9. After the issuance of Special Rules a review
\n          committee was constituted for reviewing the promotions made
\n          pending finalization of the Special Rules. After the issuance of
\n          Special Rules the first respondent was provisionally promoted to
\n          the post of Field Assistant (Malabar Survey) on 20.10.2003. The
\n          above promotion was granted without promoting her to the
\n          intermediary post of Manager. The above promotion was made
\n          on the ground that she was eligible for holding the post of
\n          Manager, but no actual promotion as Manager was granted to
\n          the first respondent.     Moreover the Special Rules specifically
\n          stated that for promotion from the post of Manager to that of
\n          Field Assistant a minimum experience of 3 years was required in
\n          the post of Manager. The first respondent also did not have the
\n          above experience.      Thereafter, probation was declared in the
\n          post of Field Assistant (Malabar Survey) to which she had been
\n          provisionally promoted and further promotion also granted as
\n          Curator provisionally on 19.11.2008.      The above promotions<\/p>\n
WA NO.2745\/09                         12<\/span><\/p>\n
           granted to the first respondent as Field Assistant (Malabar
\n           Survey) and declaration of probation in the above post and the
\n           further promotion to the post of Curator are illegal and violative
\n           of the Special Rules.”\n<\/p><\/blockquote>\n
Regarding the illegalities in the promotions granted to the 4th<\/p>\n
respondent, it was stated in paragraph 10 of the affidavit, as<\/p>\n
follows :-\n<\/p>\n
                        “10. The 4th respondent Sri.K.R.Shylendranath joined
\n          service in the Archeology Department as LDC on 25.7.1980. He
\n          was further promoted to the post of Gallery Supervisor on
\n          17.12.1983 provisionally under rule 9(a)(i) of KS & SSR and
\n          further promoted to the post of Manager in the year 1989 again
\n          provisionally and from this post he was further       promoted as
\n          Research Assistant. It is understood that the 4th respondent did
\n          not have graduation in the required subject and therefore was
\n          granted two years time for acquiring the graduation.       All the
\n          above promotions were granted prior to 2000 that is before
\n          issuance of the special rules.     All the above promotions were
\n          reviewed and duly approved by the review committee constituted
\n          as   per    the    directions   of   this  Honourable   Court    in
\n          O.P.No.3692\/1993. The 4th respondent was thereafter promoted
\n          to the post of Field Assistant (Malabar Survey) on 12.1.2005 on
\n          which date 4th respondent was not having the due graduation
\n          qualification. He was further transferred and posted to the post of
\n          Technical Assistant and from the above post was granted
\n          promotion to the post of Excavation Assistant under Rule 9(a)(i) of
\n          KS & SSR on 19.11.2008. The above post is a selection post
\n          which is included in the State service. It is submitted that the
\n          promotions granted to the 4th respondent to the post of Field
\n          Assistant, Technical Assistant and Excavation Assistant are found
\n          to be violative of the Special Rules.”\n<\/p><\/blockquote>\n
Finally, the second respondent indicated the course of action<\/p>\n
proposed, to remedy the illegalities in the promotions granted to<\/p>\n
the aforementioned persons and others in the following manner :-<\/p>\n
WA NO.2745\/09                       13<\/span><\/p>\n
                         “11. As submitted herein, the above mentioned
\n         promotions\/appointments to the various categories of posts in the
\n         Department are carried out by the Director of the Archeology
\n         Department and this respondent, it is respectfully submitted, was
\n         not aware that the same was being carried out in violation of the
\n         Special Rules.    On being aware of the irregularities this
\n         respondent has issued directions to the 3rd respondent to review
\n         all the promotions that has been effected after the issuance of
\n         Special rules as per G.O.(P) No.2\/2000 and 3\/2000 dated
\n         03.01.2000.       It    is   also     directed    to   report    the
\n         appointments\/promotions that has been effected if any, in
\n         violation of the Special Rules and to take appropriate action to
\n         cancel the above appointments\/promotions with due notice to the
\n         affected persons. In respect of the appellant\/ first respondent
\n         and the 4th respondent directions were already issued to review
\n         the promotions granted to them and to cancel the same after
\n         hearing them. Strict directions have also been issued to the third
\n         respondent to make further promotions to various posts under
\n         the Department only in strict conformity with the Special Rules
\n         and also to seek approval from the Government in the case of
\n         provisional promotion, if any. It is respectfully submitted that this
\n         respondent       became       aware        of      the     irregular
\n         appointment\/promotions      granted    in  the    Department    only
\n         subsequent to the filing of the writ appeal and necessary curative
\n         actions\/remedial measures have already been taken to rectify the
\n         same and also to see that further promotions\/ appointments in
\n         the Directorate of Archeology are carried out only in conformity
\n         and compliance with the Special Rules.”<\/p><\/blockquote>\n
     9. The first respondent has filed a counter affidavit, dealing<\/p>\n
with the averments in the above affidavit of the second<\/p>\n
respondent and trying to support her promotions.<\/p>\n
            10. We considered the rival submissions made at the<\/p>\n
Bar. We notice that persons who are not in the feeder category,<\/p>\n
as per the Special Rules\/Recruitment Rules, have been granted<\/p>\n
WA NO.2745\/09                          14<\/span><\/p>\n
promotion. Further, regular promotion can be ordered only of<\/p>\n
approved probationers, in view of the mandate of Rule 28(a)(i) of<\/p>\n
Part II of the KS & SSR. The said Rule reads as follows :-<\/p>\n
                     “28(a) Promotion–(i) Except in the case of appointment
\n         to the posts of Heads of Departments no member of a service or
\n         class of a service shall be eligible for promotion from the category
\n         in which he was appointed to the service unless he has
\n         satisfactorily completed his probation in that category.”\n<\/p><\/blockquote>\n
A person will commence probation in a post, only on his regular<\/p>\n
appointment to the said post. Rule 18(a) of Part II of the KS &<\/p>\n
SSR deals with the above aspect. The said rule reads as follows :-<\/p>\n
                      “18.(a) Date of commencement of probation of persons
\n           first appointed temporarily.– If a person, having been appointed
\n           temporarily under sub-rule (a) or sub-rule(c) of rule 9 to a post
\n           borne on the cadre of any service, class or category otherwise
\n           than in accordance with the rules governing appointment thereto,
\n           is subsequently appointed to the service, class or category in
\n           accordance with the rules, he shall commence his probation from
\n           the date of such subsequent appointment or from such earlier
\n           date as the appointing authority may determine, without
\n           prejudice to seniority of others.”\n<\/p><\/blockquote>\n
Further, an appointee under Rule 9(a)(i) of Part II of the KS & SSR<\/p>\n
can never be treated as a probationer. Rule 9(a)(iv) is categoric<\/p>\n
on this aspect. Rules 9(a)(i) and 9(a)(iv) respectively read as<\/p>\n
follows :-\n<\/p>\n
                           “9. Temporary appointments.–(a) (i) Where it is
\n             necessary in the public interest, owing to an emergency which
\n             has arisen to fill immediately a vacancy in a post borne on the<\/p>\n
WA NO.2745\/09                        15<\/span><\/p>\n
           cadre of a service, class or category and there would be undue
\n           delay in making such appointment in accordance with these
\n           rules and the Special Rules, the appointing authority may
\n           appoint a person, otherwise than in accordance with the said
\n           rules, temporarily :\n<\/p><\/blockquote>\n
                     Provided that before a person is appointed under this
\n           clause, persons who are admittedly senior to him shall also be
\n           appointed, even if they are absent from duty, whether on leave
\n           other than leave without allowances or taking up other
\n           employment or on foreign service or on deputation or for any
\n           other valid reason, except due to suspension and allowed to
\n           continue as such subject to the condition that persons so
\n           appointed shall not be eligible for the higher time scale of pay
\n           by virtue of such appointments unless otherwise specifically
\n           ordered by the Government.\n<\/p><\/blockquote>\n
                         x x x x x x x x x x x x x x<\/p>\n<\/blockquote>\n
                       (iv) A person appointed under clause (i) or (ii) shall
\n           not be regarded as a probationer in such service, class or
\n           category or be entitled by reason only of such appointment to
\n           any preferential claim to future appointment to such service,
\n           class or category.”\n<\/p><\/blockquote>\n
In the face of the above statutory provisions, it is clear that the<\/p>\n
appointments, declaration of probation, promotions etc. made in<\/p>\n
the   Archaeology      Department         were      plainly illegal     and<\/p>\n
unauthorised. In view of the above position, we think, the proper<\/p>\n
course for this Court is to direct the Government to proceed with<\/p>\n
the review, which is mentioned in paragraph 11 of the affidavit<\/p>\n
filed by the second respondent. The promotions hitherto granted<\/p>\n
to the appellant, first respondent and the 4th respondent have to<\/p>\n
be treated as provisional. They can continue in their posts, only<\/p>\n
WA NO.2745\/09                    16<\/span><\/p>\n
till the review is completed and consequential orders are passed.<\/p>\n
The direction of the learned Single Judge concerning Ext.P13 will<\/p>\n
be replaced by the above direction. The finding of the learned<\/p>\n
Judge regarding Ext.P9 is vacated. The second respondent shall<\/p>\n
complete the review, as undertaken in paragraph 11 of its<\/p>\n
affidavit, within four months from the date of production\/receipt<\/p>\n
of a copy of this judgment. While undertaking the review, if any<\/p>\n
one, who is not a party to the Writ Petition\/ Writ Appeal is<\/p>\n
affected, he shall be afforded an opportunity of being heard,<\/p>\n
before final orders are passed.\n<\/p>\n
               The Writ Appeal is disposed of as above.\n<\/p>\n<\/p>\n
                               K.BALAKRISHNAN NAIR, JUDGE.\n<\/p>\n<\/p>\n
                                       P.N.RAVINDRAN, JUDGE.\n<\/p>\n
tgs<\/p>\n
                                      C.R.\n<\/p>\n
         K.BALAKRISHNAN NAIR &<\/p>\n
                  P.N.RAVINDRAN, JJ.\n<\/p>\n
———————————————-\n<\/p>\n
              W.A. No.2745 of 2009\n<\/p>\n
———————————————-<\/p>\n
              J U D G M E N T<\/p>\n
     Dated 10th February, 2010.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court T.K.Karunadas vs K.R.Sona on 10 February, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-222426","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nT.K.Karunadas vs K.R.Sona on 10 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/t-k-karunadas-vs-k-r-sona-on-10-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"T.K.Karunadas vs K.R.Sona on 10 February, 2010 - 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