Pramod S vs State Of Kerala on 21 March, 2024

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Kerala High Court

Pramod S vs State Of Kerala on 21 March, 2024

This writ appeal has been filed by petitioners 1, 2, 3, 5, 7 and 9 in W.P(C).No.31110/2016 against the judgment dated 29/03/2023. The respondents and petitioners 4, 6 and 8 are the respondents herein. The parties and the documents will be referred to as described in the writ petition.

2. The petitioners were appointed as Assistant Grade-II in the second respondent University as per Ext.P1 order dated 14/12/2009. According to the petitioners, they had successfully completed their probation within the prescribed period of two years, within which period they also passed the departmental tests. However, on the ground that they had failed to successfully pass the departmental test conducted in July 2010, that is, in their first attempt, the party respondents were given promotion overlooking the seniority of the petitioners to the post of Senior Grade Assistants. The promotion granted to the party respondents is in violation of Statute 10 in 6 Writ Appeal No.812 of 2023 Part II Chapter 4 of the Mahathma Gandhi University Statute, 1997 (the Statute) and Rule 28(a) Part II Kerala State and Subordinate Service Rules, 1958 (the KS & SSR). Though representations were submitted questioning the promotion of the party respondents who are junior to the petitioners, there has been no response. Further, it was without ascertaining or for that matter identifying the precise vacancies that had arisen in the post of Senior Grade Assistants, the promotions have been effected. In fact there were no vacancies to the post of Senior Grade Assistants for accommodating the party respondents. The writ petition was filed challenging Exts.P6, P6(a), P11, P16 and P23 orders based on which promotion was given to the party respondents to the post of Senior Grade Assistants and Assistant Section Officers.

2.1. During the pendency of the writ petition, this Court dealing with an identical issue in the Kerala University, held vide judgment dated 08/09/2020 in W.P.(C)No.1366/2018 that, as no test(s) had been prescribed as contemplated under the relevant Statute/Ordinance, the Kerala University could not insist on a pass in the same for declaration of probation or for promotion. Thus, the Kerala University was directed to revise all proceedings granting promotion with reference to the date of acquisition of test qualification and to grant promotions on the basis of seniority. The 7 Writ Appeal No.812 of 2023 issue involved in this writ petition is squarely covered by the judgment in the aforesaid writ petition. The Syndicate of the Mahatma Gandhi University has also not prescribed any departmental test or examination for declaration of probation and promotion to the higher post of Assistant Grade II. The writ petition in the light of the said judgment was amended and necessary pleadings brought in to the effect that in the absence of any test prescribed in the Statute applicable to the M.G.University, passing any test cannot be made the basis for declaration of probation or grant of promotion.

3. Respondents 2 and 3, namely, the M.G.University, filed counter affidavit contending thus - The petitioners and respondents 4 to 9 were appointed as Assistant Grade II by Ext. P1 order dated 14/12/2009 from the rank list published on 12/11/2009. Consequent to the enactment of Pre- Degree Commission (Abolition Act), 1997 there was a ban on the appointment of non-teaching staff in the 2nd respondent University from 1997 onwards which was in force till 2009. In 2009 the University decided to fill up the post from PSC rank list. So from that period onwards there were vacancies of Assistants and Senior Grade Assistants in the University. The promotions were effected on the basis of the conditions prevailing at the time of occurrence of vacancies. When the first batch from among those appointed from Exhibit P1 select list acquired test qualification, the 8 Writ Appeal No.812 of 2023 University decided to promote them as Senior Grade Assistants. Going by the note to Clause (iA) to Rule 28(b) of the KS & SSR, the petitioners who became qualified for promotion by passing the departmental test after respondents 4 to 9 passing the test cannot claim preference over the latter in the matter of promotion. The claim of the petitioners purportedly under Rule 28 of Part II of K.S. & S.S.R. is unsustainable and against the Statutes applicable to M.G. University and the K.S&S.S.R. As long as test qualified hands were available as on or after the date of occurrence of vacancy and before the date of publication of department test which the seniors had attended, the seniors cannot claim the benefit of Rule 28(bbb) of Part II K.S & S.S.R. The allegation that there was no proper assessment of vacancies and that considered vacancies are fictitious is incorrect and false.

4. Respondents 4 to 9, the party respondents filed counter affidavit contending thus - the respondents passed the obligatory departmental test qualification within a period of one year of joining duty as Assistants. None of the petitioners passed the obligatory departmental tests within the period of one year. There is nothing illegal, irregular or improper in granting promotion to the petitioners against the vacancies that were available in the category of Senior Grade Assistant as they had completed their probation in the feeder category and obtained the obligatory test qualifications, in 9 Writ Appeal No.812 of 2023 preference to the petitioners, some of whom were senior to the respondents in the feeder category as they had not obtained the test qualifications within the prescribed period of probation. The proviso to Rule 28(a) KS & SSR protects a senior from supersession by a junior in the matter of promotion only in the event of the senior having passed the test(s) prescribed for successful completion of probation and is otherwise eligible and suitable for such promotion as on the date on which the junior is given promotion. None of the petitioners obtained the above qualification when the petitioners were promoted as Senior Grade Assistants. The proviso extends protection to the senior from supersession only on the ground of non-completion of probation. But he should be qualified in all respects, except in the matter of completion of probation. As per Statute-10 in Part-II, Chapter-4 of the Statutes, the prescribed period of probation for the post of Assistant is not two years as stated by the petitioners. It is one year within a continuous period of two years. The junior who completes probation within a period of one year will become automatically suitable for continuance in service with consequential benefits that includes promotion to the higher categories. If probation is not completed even within the period of two years, the Vice Chancellor, in his discretion can extend the period of probation. It is not the right of the probationer to avail himself of the entire stretch of two years to 10 Writ Appeal No.812 of 2023 obtain the qualification necessary for declaration of probation and promotion, at his leisure, without being superseded by qualified juniors. The right against supersession is available only for a period of one year. The petitioners are not entitled to claim promotion w.e.f. the day following the last day of the departmental examination. The said benefit available under Rule 28(bbb) of KS & SSR is relevant only in the context of vacancies having remained unfilled for want of test qualified persons, which was not the case here.

5. Additional 22nd respondent filed separate counter affidavit and additional counter affidavit supporting the case of the party respondents.

6. The learned Single Judge declined to quash Exts.P6, P6(a), P11, P16 and P23 orders. The stand of the petitioners that passing the departmental test is not obligatory for declaration of probation and promotion thereafter was rejected. Respondents 2 and 3, the M.G.University has been directed to consider the claim of petitioners for promotion with reference to their date of passing the departmental test and with reference to Statute 10(1) of the Statute. Aggrieved, the petitioners have come up in appeal.

7. Heard both sides.

Writ Appeal No.812 of 2023

8. The main argument advanced on the basis of the amended writ petition was that passing the departmental test is not mandatory for declaration of probation or for promotion as no test has been prescribed by the Syndicate of the University as provided for in the M.G.University Statutes, 1997 (the Statute). Reference was also made to Section 2(15) of the M.G.University Act, 1985 (the Act) which defines the term "prescribed".

9. The relevant provisions of the Statutes that need to be referred to for deciding the controversy are -

Statute 10 (1) in Part II, Chapter 4 of the Statutes reads-

"10(1). Every person appointed to class, I, II and III posts shall, from the date on which he joins duty, be on probation for a period of one year within a continuous period of two years:

Provided that it shall be competent for the Vice-Chancellor to extend the period of probation for a period not exceeding one year for good and sufficient reasons."

Statute 12 in Part II, Chapter 4 of the Statutes reads-

"12. Promotion:(1) No member of the University service shall be eligible for promotion from the category in which he was appointed to the service to the service unless he has satisfactorily completed his probation in that category and passed the prescribed test.

(2) If the person is the holder of a post for which no probation has been prescribed, he shall not be eligible for promotion unless he has put in satisfactory service in that post 12 Writ Appeal No.812 of 2023 for a period of one year on duty within a continuous period of two years."

Section 2(15) of the Act reads thus -

"(15) "prescribed" means prescribed by the Statutes, Ordinances, Regulations, rules or bye-laws made under this Act."

10. The aforesaid provisions are pari materia with the provisions applicable to the University of Kerala contained in the Kerala University First Statutes, 1977 (the KUFS) and the Kerala University First Ordinances, 1978 (the KUFOs). We have considered an identical issue relating to Assistants of the Kerala University in a batch of writ appeals, that is, in W.A.No.1266/2020 and connected appeals and disposed of the same by a common judgment of this date. We have held for reasons stated therein that passing of departmental test is essential for declaring probation and granting promotion. The same findings will apply in the present case also and hence we are not repeating the same here.

11. Now coming to the argument based on Ext.P24 that there were no promotion vacancies existing to accommodate the party respondents. The learned counsel for the petitioners pointed out that as per Ext.P24 gradation list of Selection Grade Assistants as on 01/12/2006, the sanctioned 13 Writ Appeal No.812 of 2023 strength is 231 only, whereas the total strength is shown as 253. This according to the counsel, would clearly substantiate the case of the petitioners that there were no vacancies to which the party respondents could have been accommodated. The University, on the other hand, disputes this allegation and contends that it is preposterous to contend that the University had granted promotion to the party respondents to non existing posts. According to the University, pursuant to the enactment of the Pre-degree Course (Abolition) Act, 1997, there was a complete ban on appointing non teaching staff from 1997 onwards which was in force till 2009. So from 1997 onwards there were vacancies of Assistants and Senior Grade Assistants in the University. After the period of ban, it was in the year 2009 that the University decided to fill up the vacancies from the PSC rank list as per which party respondents were granted promotion.

12. We went through Ext.P24. Below the table given in Ext.P24, the total strength of 253 is explained thus - "vacancies due to deputation and LWA are also filled." This we think, explains the discrepancy if any pointed out by the petitioners. Moreover, as contended by the party respondents and the University, it is highly unlikely and improbable for the University to promote 106 Assistants as Senior Grade Assistants involving huge financial commitments against non existing posts. 14 Writ Appeal No.812 of 2023

13. The learned counsel for the petitioners further pointed out that the relief of setting aside Exts.P6, P6(a), P11 and P23 orders was rejected solely on the ground of delay and laches, which conclusion is wrong. Referring to the list of events and dates given in ground (D) of the appeal memorandum, it was argued that there was absolutely no delay or laches on the part of the petitioners in approaching this Court. Per contra, it was submitted by the party respondents that the claim made by the petitioners was highly belated and hence on that sole ground the writ petition was liable to be dismissed. In support of this argument, reference was made to the dictum in P.S.Sadasivaswamy v. State of Tamil Nadu, AIR 1974 SC 2271.

14. It is seen that the probation of the party respondents was declared and promotion granted to them to the higher grade from the post of Assistant long back. Exts.P6, P6(a) and P11 are of the year 2011. In Exts.P7, P10, P14 representations dated 03/05/2011 ; 07/05/2011 and 13/02/2013 respectively given by the petitioners, they do not challenge the declaration of probation of the party respondents or the grant of promotion to them but only say that they need to pass or qualify the departmental test within a period of two years and as they were also eligible, they may also be included in the list. Ext.P7 reads -

Writ Appeal No.812 of 2023

"I was provisionally appointed to the post of Assistant based on the rank list of Assistants published on 12.11.2009 from this University. A provisional seniority list of this batch of Assistants was published, based on the result of the department test held in July 2010.

I have cleared the department test held in January 2011 well within the period permitted for the completion probation as per the provisions of the M.G University Statute and as per the provisions in the Kerala State Subordinate Service rules, mentioned below, I am eligible to be included in the provisional gradation list published.

As per the Chapter 4, Part 1, Para 10(1) M.G University Statute "Every person appointed to class I,II,III posts shall, from the date on which he joins duty, be on probation for a period of one year within a continuous period of two years" and as per Chapter 4 Part 1 Para 11 "The University employees shall be required to pass "within the period of probation" such departmental tests or examinations as may be prescribed by the Syndicate".

In Rule 28(a) Part II of the Kerala State & Subordinate Service Rules, it specifically states that a probationer in a grade shall not be superseded for promotion to a higher grade by his junior if the vacancy arises within the period of completion of probation and is otherwise eligible and suitable for promotion.

Hence I request that necessary steps may be initiated to include me in the provisional gradation list published."

Writ Appeal No.812 of 2023 Exts.P10 and P14 are also more or less in the same line.

15. The argument that probation need only be completed within the prescribed period of two years is apparently incorrect. As per Statute 10(1), the probation period is one year within a continuous period of two years. The junior who completes the probation within a period of one year, will become eligible to be considered for promotion, in case they exist. The junior would certainly overtake and steal a march over the senior unless the latter is also qualified or eligible for promotion. The interest of the senior would be protected by the 1st proviso to Rule 28(a)(i) of the KS & SSR. But to attract the proviso, three requirements are to be satisfied - (i) the vacancy should have arisen during the period of probation, (ii) the senior should have the relevant test qualifications prescribed for promotion and (iii) he should be otherwise eligible and suitable for promotion. The proviso extends protection to the senior from supersession only on the ground of non completion of probation. The senior should be qualified in all respects except in the matter of completing the term of probation. In the case on hand, the petitioners had not qualified or passed the departmental test when the vacancy had arisen at which time, the party respondents, though juniors to the petitioners, were eligible and hence promoted. There is no illegality in the same in the light of Rule 28(a)(i) of the KS & SSR. The petitioner 17 Writ Appeal No.812 of 2023 cannot claim the benefit available under Rule 28(bbb) of KS & SSR also because the said provision comes into play only when vacancies remain unfilled for want of test qualified persons. Here, when the vacancy arose, the party respondents were test qualified approved probationers. Hence Rule 28(bbb) is also not applicable. The prayer of the petitioners to quash the gradation list and seniority list published in March - May 2011 is certainly belated because even when the representations were given, they had no such grievance and their only request was that they also be included in the list. This cannot be done for reasons stated herein above. We find no infirmity in the impugned judgment calling for an interference.

In the result, the appeal sans merit is dismissed.

Interlocutory applications, if any pending, shall stand closed.

Sd/-

AMIT RAWAL JUDGE Sd/-

C.S.SUDHA JUDGE ami/ 18 Writ Appeal No.812 of 2023 APPENDIX OF WA 812/2023 RESPONDENT ANNEXURES Annexure R22(a) True copy of the counter affidavit dated 30.04.2019 filed by respondent no.22 in W.P.C No. 31110/2016 Annexure R22(b) True copy of the additional counter affidavit dated 19.01.2023, filed by respondent no.22 in W.P.C No. 31110/2016

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