Kerala High Court
Pradeesh.K.R vs The Kerala Agricultural University on 5 October, 2021
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
WP(C) NO. 13827 OF 2013
PETITIONER/S:
PRADEESH.K.R.
SENIOR GRADE ASSISTANT, KERALA AGRICULTURAL UNIVERSITY,
VELLANIKARA HEAD QUARTERS,THRISSUR(NOW UNDER ORDER OF
REVERSION AS ASSISTANT)
BY ADV SRI.P.C.SASIDHARAN
RESPONDENT/S:
1 THE KERALA AGRICULTURAL UNIVERSITY
UNIVERSITY , REP BY ITS REGISTRAR, VELLANIKKARA,THRISSUR
2 THE VICE CHANCELLOR
KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA THRISSUR
BY ADVS.
SRI.BABU JOSEPH KURUVATHAZHA,SC,KERALA AGRICULTURAL
UNIVERSI
SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL UNIVERSITY
SRI.AJITH KRISHNAN, SC, KERALA AGRICULTURAL UNIVERSITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.09.2021, THE COURT ON 5.10.2021 DELIVERED THE FOLLOWING:
WP(C) NO. 13827 OF 2013
2
JUDGMENT
Reversion of the petitioner vide Ext.P5 has been challenged in this Court with a further prayer to declare that since the petitioner has cleared test in the 4 th chance within the three year period, and entitled for the benefit of Rule 13 A of the KS & SSR.
2. In support of the aforementioned prayer, it is pleaded that the petitioner a member of the Scheduled Caste was appointed as Assistant Grade-II in Kerala Agricultural University on 31.1.2007. On account of adoption of the staff pattern of the Secretariat, the post of Assistant Grade -II and Assistant Grade-I merged as Assistant as per the proceedings dated 3.1.2008. In the cadre of Assistant, with effect from 25.3.2006, there are three grades ie., Assistant, Senior Grade Assistant and Selection Grade Assistant in the ratio of 1:1:1.
3. Counsel for the petitioner submitted that subsequent promotion were ordered either as Assistant Selection Grade or to higher posts. Vide order dated 5.5.2009, petitioner was promoted to the post of Assistant Senior Grade, Ext.P2 wherein it WP(C) NO. 13827 OF 2013 3 was stated that since the vacancy arose on 29.2.2008, the date of notional promotion of the petitioner would be with reference to that date. The provisions of the KS & SSR are applicable to the employees of the University also.
4. It was,next, submitted that for promotion to the post of Assistant Senior Grade, it is mandatory to pass departmental test of Account Test (Lower) and also pass in Manual of Office Procedure during probation in the cadre of Assistant Grade -II. Petitioner had passed the Account Test Examination in July 2011, Ext.P3 and appeared for next examination, after promotion, as notified by the Kerala Public Service Commission. As per the rules, a candidate will get six (6) chances and by availing only four(4) chances he cleared the test. Without even issuing a notice to the petitioner or hearing, the 1st respondent issued an order reverting the petitioner to the post of Assistant with effect from 29.2.2008, Ext.P5. The actual date of promotion of the petitioner was on 5.5.2009 and the first examination attended by him was in the year 2010 and passed the examination availing 4 chances within the three year period time. But the stand of the WP(C) NO. 13827 OF 2013 4 respondent is that the petitioner is not entitled for the relief under Rule 13A (4) of the KS&SSR as he has got two chances to appear for the departmental test for each year of examination (a total of 6 chances during the period of three years), which is not at all maintainable. In fact, the crucial date to be taken into account was 5.5.2009 and not 29.2.2008.
5. On the other hand, learned counsel appearing for the respondents opposed the aforementioned contentions and submitted that the petitioner was given promotion to the post of Senior Grade Assistant on 29.2.2008 and was drawing the salary and allowances attached to the post of Senior Grade Assistant with effect from 29.2.2008 as evidenced from the order Ext.R1(a). This fact was reiterated by the University as per the order dated 29.1.2009. Since 29.2.2008, petitioner was discharging the duties and responsibilities attached to the post of Senior Grade Assistant in the scale of pay of Rs.9190-15510 and he was drawing the salary attached to the post of Senior Grade Assistant with effect from 29.2.2008, thus, the contention of the petitioner that he was not given promotion to the post of Senior WP(C) NO. 13827 OF 2013 5 Grade Assistant with effect from 29.2.2008 is absolutely false and erroneous. Petitioner failed to pass departmental test upto 29.2.2011 and was accordingly reverted from the post of Senior Grade Assistant with effect from the date of his promotion to the post of Senior Grade Assistant, ie., 29.2.2008. Order Ext.P5, was thus strictly in accordance with law and there is no illegality or arbitrariness.
6. I have heard the learned counsel for the parties and appraised the paper book. It would be apt to reproduce the relevant portion of the order Ext.P5 pertaining to the petitioner.
"Read: 1) Rule 13A 1(a) of KS &SSR
1.2) University order No GA/A2/940/08 dated 05-05-2009
1.3) Rule 13A(2), 13A(4) of KS & SSR)
4) Certificate No 5321/12 dated 13-04-12 issued by the Under Secretary.
Departmental tests KPSC, Thiruvananthapuram
5) University order No GA/A2/940/08 dated 17-04-2012
6) Note to Rule 20(b) of KS & SSR
7) Rule 28(bbb) of KS & SSR) ORDER As per Rule 13A(1)(a) of KS & SSR, employees belonging to scheduled Castes and Scheduled Tribes are eligible for three years extension from the date of promotion for passing the obligatory departmental tests. As per this office order read as 2 nd above, Sri Pradeesh K.R Assistant was promoted as Senior Grade assistant w.e.f 29-02-2008, as per provisions of the said Rule.
As per Rule 13 A(2) of KS & SSR, if a person promoted under Rule 13 A1(a) could not qualify the Departmental test within 3 WP(C) NO. 13827 OF 2013 6 years from the date of such motion, he shall be reverted to the grade from which he was promoted. As per the reference read as 4th above, Sri Pradeesh K.R had passed the departmental test only ring July 2011 i.e, after a clear period of 3 years from 29-02- 2008. Sri Pradeesh is not eligible for relief under Rule 13 A(4) of KS & SSR since he has got two chances to appear for the Departmental test for each year of exemption(a total of 6 chances during the period of three years).
As per the University order read as 5th above, Smt Yamuna K.B, Assistant was promoted to the cadre of Senior Grade Assistant w.e.f 07-07-2011, she having qualified the Departmental test during July 2011. But as per Note to Rule 20(b) and Rule 28(bbb) of KS & SSR, she will be eligible for promotion w.e.f 20- 07.2011, the last date of Account test(Higher) during July 2011 being on 19-07-2011.The same case applies in respect of Sri Pradeesh also In the circumstances the following orders are issued:
Sri Pradeesh K.R, Sr Gr Assistant is reverted as Assistant w.e.f 29-02-2008 under Rule 13 A(2) and Rule 13 A(4) of KS & SSR and again promoted as Senior Grade Assistant w.e.f 20-07-2011 vide Note under Rule 20(b) and Rule 28(bbb) of KS & SSR
2) The date of promotion of Smt Yamuna K.B as Senior Grade Assistant is revised as 20-07-11 instead of 07-07-2011, in tune with the Note under Rule 20(b) and Rule 28(bbb) of KS & SSR.
3) The controlling officers will regulate the pay of the incumbents accordingly.
4) Sri Pradeesh K.R is placed just above Smt Yamuna K.B in the seniority list.
5) The AC (DD&A) will recover the excess salary disbursed to the incumbents
6) The University order read as 2nd and 5the above stands modified to this extent.
From the perusal of the same, it is evident that no opportunity of hearing was given to the petitioner before reverting him to Assistant with effect from 29.2.2008 under Rule WP(C) NO. 13827 OF 2013 7 13 A(2) and Rule 13 A(4) of KS & SSR and again promoted as Senior Grade Assistant with effect from 20-07-2011 vide Note under Rule 20(b) and Rule 28(bbb) of KS & SSR. I would be refraining myself to comment further whether the promotion of the petitioner would be from May 2009 or 29.2.2008, as per the stand taken by the respondent. But the fact of the matter is respondents ought to have given an opportunity to the petitioner before passing the order of reversion. Thus the order Ext.P5 is hereby quashed. However this will not preclude the respondent to take a fresh call on the point aforementioned by giving opportunity of hearing to the petitioner for the purpose of reckoning the date of three years for passing the test whether it should be from 29.2.2008 or 5.5.2009. Writ petition is allowed in the aforementioned terms.
SD/-
sab AMIT RAWAL
JUDGE
WP(C) NO. 13827 OF 2013
8
APPENDIX OF WP(C) 13827/2013
PETITIONER EXHIBITS
EXT.P1:-TRUE COPY OF THE ORDER DTD 5/11/2009 EXT.P2:-TRUE COPY OF THE ORDER DTD 5/5/2009 PROMOTING THE PETITIOERN AS ASSISTANT SENIOR GRADE EXT.P3:-TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIOENR EXT.P4:-TRUE COPY OFTHE HALL TICKET ISSUED TO THE PETITIOENR EXT.P5:-TRUE COPY OF THE ORDER ISSUED BY THE IST RESPODNENT DTD 8/5/2012 RESPONDENT'S EXHIBITS R1(a) TRUE PHOTOCOPY OF THE PROCEEDING ISSUED BY THE UNIVERSITY DETAILING THE FACT THAT PETITIONER WAS GIVEN PROMOTION FROM 29.2.2008 AND HE WAS DRAWING THE SCALE OF PAY OF SENIOR GRADE ASSISTANT WITH EFFECT FROM 29.2.2008 R1(b) TRUE COPY OF THE ORDER DATED 29.1.2009 ISSUED BY THE UNIVERSITY R1(c) TRUE COPY OF THE ORDER DATED 19.2.2009 ISSUED BY THE UNIVERSITY