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1990 DIGILAW 329 (KER)

Appukuttan Nair v. State of Kerala

1990-08-17

SREEDHARAN

body1990
Judgment :- Same question arises for consideration in these Original Petitions. The question is one relating to fixation of seniority among Deputy Tahsildars. On the decision of that issue these original petitions can be disposed of. Therefore I consider it advantageous to deal with these original petitions by a common judgment. 2. Learned counsel appearing in these cases on either side agreed to treat O.P. No. 2709/89 as the main case because all relevant documents have been marked in the case. So I am referring to the parties and the documents as they are arrayed and marked in it. 3. Fjct.P1 G.O.(P) No. 852/80/RD dated 16-6-80 is the Special Rules relating to Kerala Revenue Subordinate Service (Deputy Tahsildars). Clause 4 of that Rule dealing with appointment states that appointment of Deputy Tahsildars shall be made either by recruitment by transfer from among the members of the Kerala Ministerial Subordinate Service employed in the Land Revenue Department or by direct recruitment. For getting recruitment by transfer a person should pass the Revenue Test (Travancore) or Revenue Test (Cochin), or Revenue Test (Madras), Account Test (Lower) or Account Test or Subordinate Officers Part I (Madras) and District Office Manual Test. This means that a member in the feeder category eligible for promotion to the cadre of Deputy Tahsildars must have passed the above-mentioned tests. As per R.9 of the Special Rules every person appointed as Deputy Tahsildar shall, from the date on which he joins duty, be on probation for a total period of two years on duty within a continuous period of three years. A probationer in the cadre of Deputy Tahsildar should pass the following tests if he has not already passed them. 1) The District Office Manual Test. 2) The Revenue Test (Travancore) or Revenue Test (Cochin) or Revenue Test (Madras) 3) Criminal Judicial Test 4) Account Test (Lower) or Account Test for Subordinate Officers, Part I (Madras) and 5) Survey Test (Higher). It further provides that a probationer who holds a degree in law of a recognised University shall not be required to pass the Criminal Judicial Test. A person recruited to the cadre of Deputy Tahsildar by transfer as seen earlier must have passed tests 1, 2 and 4 mentioned above before entering the cadre. Direct recruits must pass all the above-mentioned five tests. A person recruited to the cadre of Deputy Tahsildar by transfer as seen earlier must have passed tests 1, 2 and 4 mentioned above before entering the cadre. Direct recruits must pass all the above-mentioned five tests. Thus it is seen that recruits by transfer are bound to pass Criminal Judicial Test, if he is not holding a degree in law and the Survey Test Higher. Only on passing these tests a Deputy Tahsildar can become an approved probationer and consequently a full member of the cadre. 4. Ext.P2 G.O.(P) 853/80/RD dated 16-6-80 is the Special Rules relating to Kerala Revenue Service (Tahsildars). It provides that the appointment of Tahsildars shall be made by recruitment by transfer from among full members and approved probationers in the Kerala Revenue Subordinate Service. R.6 of this Special Rules further provides that no person shall be eligible for appointment to the service unless he holds a degree in law of a recognised University or has passed the Criminal Judicial Test and has passed Revenue Test (All parts), Account Test (Lower) and Survey Test (Higher). Thus it is abundantly clear that a Deputy Tahsildar should have the above-mentioned qualifications for getting the promotion. He should also be an approved probationer and a full member in the cadre of Deputy Tahsildar. 5. As per the Special Rules, Ext.P1 every person appointed as Deputy Tahsildar shall be on probation from the date on which he joins duty for a total period of two years within a continuous period of 3 years. If a person is appointed temporarily otherwise than in accordance with Rules and is subsequently appointed to the service he shall commence his probation from the date of the subsequent appointment or from such earlier date as the appointing authority may determine. A person who is recruited by transfer to the post of Deputy Tahsildar whether permanently or temporarily must be deemed to be aware of the provisions of the Special Rules governing the service. As per the Rules he can become a full member of the cadre only if he passes the mandatory tests prescribed therein. So it is the primary obligation of the recruits by transfer to pass the mandatory tests at the earliest. Only on passing these tests can he become an approved probationer or a full member of the cadre. As per the Rules he can become a full member of the cadre only if he passes the mandatory tests prescribed therein. So it is the primary obligation of the recruits by transfer to pass the mandatory tests at the earliest. Only on passing these tests can he become an approved probationer or a full member of the cadre. If within the period of probation a probationer fails to acquire the special qualifications or to pass the tests prescribed in the Special Rules, the appointing authority is bound to discharge him unless the period of probation is extended as per Rule 21 of the Kerala State and Subordinate Service Rules, hereinafter referred to as the General Rules. Thus the recruits by transfer to the cadre of Deputy Tahsildar should pass the mandatory tests within the period of probation of two years of service within a continuous period of 3 years or within the period extended as per the General Rules. If a temporary appointee to the cadre of Deputy Tahsildar is given the benefit of rational promotion with an anterior date he will be deemed to have been on duty as a member of the service with effect from the above mentioned anterior date (vide definition of duty in Rule 2(6) of the General rules ). Thus if a Deputy Tahsildar has not passed the mandatory test within the period of probation or the extended period of probation, he should be discharged from the duty. This responsibility Rests with the appointing authority. If an officer did not pass the test during the period of probation and was not discharged on account of the delay caused by appointing authority what will be his position in the seniority list? 6. As per Rule 20 of the General Rules, at the end of the prescribed or the extended period of probation the appointing authority shall consider the probationer's suitability for full membership of the service. In case the probation is extended under Rule 21 of the General Rules the appointing authority has to consider the officers suitability for full membership as soon as he has acquired the special qualifications or has passed the prescribed test. If the officer is found suitable for membership, the appointing authority should issue an order declaring the officer to have satisfactorily completed his probation. If the officer is found suitable for membership, the appointing authority should issue an order declaring the officer to have satisfactorily completed his probation. If the appointing authority is of the view that the probationer is not suitable for full membership, it should discharge him after giving him a reasonable opportunity of showing cause against the proposed action. From these provisions of the General Rules, it is evident that a Deputy Tahsildar can become a full member of the cadre only on passing the mandatory tests within a period of two years on duty within a continuous period of 3 years of his joining duty. If the officer does not acquire the qualification within two years, the appointing authority can extend the period by one year. Within the period so extended if he does not get qualified period of probation can be extended for a further period of one year. This extension can be under R.21 of the General Rules. Extension of period under that Rule for enabling the probationer to acquire the special qualification or to pass the prescribed test can only be for a further period of one year. This extension should be on condition that the probationer's increment shall be stopped until he is declared to have satisfactorily completed his probation. A cumulative effect of the above-mentioned provisions in the General Rules is to the following effect. A probationer in the cadre of Deputy Tahsildar should pass the mandatory tests during the period of probation of two years on duty within a continuous period of 3 years. If he fails in passing the tests and acquiring the qualifications, the appointing authority can extend the period of probation by one year. If the probationer fails to acquire the qualifications or to pass the tests during the extended period of probation, he will have to be discharged after affording him an opportunity of being heard. But instead of discharging him, the appointing authority may extend the period of probation for another year on condition that his increment shall be stopped unless he is declared to have satisfactorily completed his probation. Thus the total period, during which an officer can be on probation, is 4 years. 7. But instead of discharging him, the appointing authority may extend the period of probation for another year on condition that his increment shall be stopped unless he is declared to have satisfactorily completed his probation. Thus the total period, during which an officer can be on probation, is 4 years. 7. A probationer on acquiring the qualifications and passing the tests within the period of probation should be appointed to be a full member of the service at the earliest possible opportunity in a substantive vacancy. A person who has thus become an approved probationer and is adjusted to a substantive vacancy should be considered to be senior to those who are subsequently appointed to full membership and to substantive vacancies. The result is all persons who have passed the test within the period of probation or the extended period of probation as provided by the General Rules are approved probationers and full member of the service. Their seniority in the cadre has to be reckoned from the date of commencement of probation. The delay in actual declaration of their probation due to administrative reasons and for ho fault of the officers concerned can in no manner affect his seniority in the cadre. The delay in actual declaration of probation cannot have any effect on the seniority of the officer concerned. 8. In conformity with the above provisions the Board of Revenue passed Ext.P3 order LRE6.4072/88 dated 10-1-89 declaring the satisfactory completion of probation of Deputy Tahsildars as per the Kerala Revenue Subordinate Service Rules. The list attached to Ext.P3 shows the ranking of officers oh the basis of the date of completion of probation. That list was modified by the Board by its Order No. LRB6-47519/88(1) dated 10-1-1989, a copy of which is marked as Ext.P4. In Ext.P4, it is stated that proceedings Ext.P3 was issued on the basis of the satisfactory completion of probation of Deputy Tahsildars who have acquired the prescribed tests either within the normal period of probation of two years duty or before expiry of the extendable period of probation by one year i.e. 3 years duty and whose turn for promotion as Tahsildars against the vacancies that arose till 31-5-1986. In respect of those Deputy Tahsildars who failed to acquire the tests within the extendable period of probation of 3 years duty but passed the tests subsequently the Board moved the Government to extent their period of probation till the date of acquisition of the test qualifications. It reads that the Board wanted the period of probation of those officers who failed to pass the test within 3 years extended to the date of acquisition of the test qualifications. The period sought to be extended was not the one-year as contemplated by R.21 of the General Rules but was till the officer acquired the test qualifications. Government by G.O.MS.500/89/RD dated 21-6-89 (Ext.PS) extended the period of probation of Deputy Collectors who have failed to pass the tests within the period of probation or the extended period of probation till the date of their acquisition of qualification. The period of probation of 124 persons in the list appended to Ext.PS was thus extended. Consequently those 121 persons were ranked above those who became approved probationers earlier and who got their due rank settled as seen in Ext.P8 fixed. The question that arises for consideration is whether the Order G.O.MS.500/89/RD dated 21-6-89 (Ext.P8) passed by the Government and the ranking of the officers in Ext.P4 rank list are sustainable in law. 9. 124 persons who are now in service have got the benefit of Ext.PS by extending their periods of probation till they passed the test. Similarly situated persons like the 124 who are ranked in Ext.P4 have not been given same benefit of extension of period of probation. Therefore those officers who have retired from service without getting the benefit of Ext.P8 have to be removed from Ext.P4 list. Their places will have to be filled up by approved probationers. It is seen that there are 409 Deputy Tahsildars whose probation have not been extended are still ranked in Ext.P4 list. Their places are to be allotted to qualified approved probationers in accordance with the date of occurrence of the vacancy. Thus even after Ext.P8 order the list appended to Ext.P4 proceedings issued by the Board of Revenue requires modification. 10. Ext.P8 order appears to have been issued in relaxation of R.21 of the General Rules. Their places are to be allotted to qualified approved probationers in accordance with the date of occurrence of the vacancy. Thus even after Ext.P8 order the list appended to Ext.P4 proceedings issued by the Board of Revenue requires modification. 10. Ext.P8 order appears to have been issued in relaxation of R.21 of the General Rules. Rule 21 of the General Rules gives power to extend the period of probation for one year beyond the three years period prescribed in the Special Rules. The extension under R.21 should be on condition that the petitioner's increment shall be stopped until he is declared to have satisfactorily completed the probation. R.21 of the General Rules has been relaxed for issuing Ext.P8. This has been done presumably by invoking R.39of the General Rules. The circumstances under which and the purpose for which R.39 can be invoked by the Government to relax the rigour of the other Rules has been dealt with by a Full Bench of this Court in T. C. Sreedharan Filial & Others v. State of Kerala& Others (1973 KLT151). This court has laid down the parameters within which The powers under that Rule are to be exercised. When the effect of Ext.P8 is taken note of there can be no hesitation in holding that the Government transgressed their limits in issuing Ext. P8. By Ext.PS the then existing position of the seniors in the cadre of Deputy Tahsildars was altered even violating the principles of audialterampartem. They are now directed to surrender their seniority to officers who failed to acquire the test qualifications within the period of probation fixed under the Special Rules. Government has given this favour as a premium for their inability in passing the test. The Government have no power to pass such an order extending the period of probation of officers till they acquire the test qualifications without applying its mind to the number of years taken by them for passing the same. What the Government has done was to enunciate a separate Rule regarding determination of seniority of those officers included in the list appended to Ext.P8 different from the one by which the others are governed. R.39 of the General Rules does not confer power on the State Government to fix a different norm regulating seniority of a few employees when everyone else is governed by the appropriate statutory provision in that behalf (Vide Varghesev. R.39 of the General Rules does not confer power on the State Government to fix a different norm regulating seniority of a few employees when everyone else is governed by the appropriate statutory provision in that behalf (Vide Varghesev. State of Kerala (1988(1) KLT 507). In this view I quash Exts.P order of Government. Consequently the seniority list of Deputy Tahsildars appended to Ext.P4 proceedings passed by the Board of Revenue has also to be declared invalid. I do so. The Board of Revenue has to revise the seniority list of Deputy Tahsildars on the basis of their passing the mandatory tests within the period of probation or the extended period of probation as per the General Rules. An officer who completed the period of probation satisfactorily should be adjusted to the substantive vacancy. A person who becomes an approved probationer on a later date on such satisfactory completion of probation must take a rank below the first. Seniority list of Deputy Tahsildars has to be prepared by ranking officers in this manner. On the basis of that seniority alone promotions to the cadre of Tahsildars have to be effected. After revising the seniority list of Deputy Tahsildars in the above manner promotion to the cadre of Tahsildars, taking into account the position as on the date of occurrence of the vacancy, has to be effected. The ranking of the Tahsildars must be made with reference to their eligibility of the officer in the cadre of Deputy Tahsildars for promotion as on the date of occurrence of vacancy. Further promotion to the cadre of Deputy Collectors must be made from the list of Tahsildars prepared in the above manner. If promotions are effected to the cadres of Tahsildar and Deputy Collector after the preparation of a proper seniority list of approved probationers in the cadre of Deputy Tahsildars as mentioned above, I feel the grievances of the petitioners regarding their seniority vis-a-vis those of the respondents in the respective O.Ps. Will be settled. Therefore I do not consider it necessary to deal with the individual claims put forward by the petitioners in this judgment. 11. O.P.No. 3646/89 is one filed by a direct recruit to the cadre of Deputy Tahsildar. He was appointed by G.O.MS. 943/74/RD dated 7-9-74. Will be settled. Therefore I do not consider it necessary to deal with the individual claims put forward by the petitioners in this judgment. 11. O.P.No. 3646/89 is one filed by a direct recruit to the cadre of Deputy Tahsildar. He was appointed by G.O.MS. 943/74/RD dated 7-9-74. By Ext.P2 order dated 19-10-76 the Board of Revenue declared him to have satisfactorily completed his probation in the cadre of Deputy Tahsildar with effect from the forenoon of 26-9-76. On the basis of that declaration, he should be treated as a full member of the cadre with effect from 29-6-76 and his rank fixed accordingly. Basing on the rank, he must be promoted to the cadre of Tahsildar and then as Deputy Collector. This has not been done by the Board of Revenue. In view of what has been stated above and as a consequence of striking down Exts. P4 and P8 as invalid, respondents 1 and 2 have to recast the seniority list of Deputy Tahsildars on the basis of their satisfactory completion of probation as per the provisions contained in the General Rules. Ext. P3 list prepared in the above manner is to be updated. Basing on the ranking in the said list, promotions to the cadre of Tahsildars and to the higher cadre have to be effected. This process will have to be carried out by the Board within six months from the date of receipt of a copy of this judgment. All promotions effected to the cadre of Tahsildars and Deputy Collectors based on Ext. P4 list are invalid and they are to be reviewed forthwith. All the affected parties are parties to these proceedings by virtue of publication of notice under Order I Rule 8 of the Code of Civil Procedure. Promotion to higher cadre based on Ext. P4 list should not be effected hereafter. The original petitions are disposed of with the above direction. A copy of this judgment will be given to the Government pleader free of costs for complying with the above direction.