Janardhanan v. State of Kerala — 1991 DIGILAW 166 (KER)

Judgment :- Common issues arise for consideration in these Original Petitions. So I consider it advantageous to dispose of them by a common judgment, O.P. 10381/90 is treated as the main petition. Issues raising in that case are to be dealt with in detail. The decision therein will govern the other Original Petitions as well. 2. Government by G.O: M.S.500/89/RD dated 21-6-1989 extended the period of probation of 124 Deputy Tahsildars who failed to pass the obligatory test within the period of probation or the extended period of probation till the date of their acquisition of qualification. On the basis of that order, the Board of Revenue prepared a seniority list. The Government Order and the list so prepared were challenged before this court in O.P. 2709/89 and connected petitions. This court by decision in Appukuttan Nair v. State of Kerala, 1990 (2) KLT 806 quashed the Government Order and the list.. The Board of Revenue was thereupon directed to prepare a proper seniority list of Deputy Tahsildars and to review all promotions effected to the cadre of Tahsildars and Deputy Collectors. That decision was challenged by the Government and the Board of Revenue in Writ Appeal 727/90. That Writ Appeal and connected appeals filed by affected parties were dismissed by Division Bench by judgment dated 5-11-1990. Thereupon the Board of Revenue prepared a seniority list of Deputy Tahsildars. While preparing that list, offers who could not complete probation within the period of probation from the assigned date of pro motion were not included. Consequently a large number of senior Deputy Tahsildars are denied their legitimate promotion. 3. The injustice caused by the preparation of the seniority list as stated above is evident from the facts in O.P. 10389/90. Petitioner was actually promoted as Deputy Tahsildar by proceedings dated 21-4-1986. 1n pursuance to that order she joined duly on 29-4-1986. The Board of Revenue published final seniority list of Deputy Tahsildars from 25-9-1962 to 31-5-1986. In that list petitioner was assigned rank No. 1632 with the assigned date of promotion as 28-4-1981. Thus there occurred a difference of five years between the date of actual promotion and the assigned date. 4. As per the Special Rules for the Kerala Revenue Subordinate Service, a Deputy Tahsildar shall be on probation for a total period of two years of duty within a continuous period of three years. Thus there occurred a difference of five years between the date of actual promotion and the assigned date. 4. As per the Special Rules for the Kerala Revenue Subordinate Service, a Deputy Tahsildar shall be on probation for a total period of two years of duty within a continuous period of three years. He has to pass the following tests: '(Madras). 1. District Officer Manual Test. 2. Revenue Test (Travancore) or Revenue Test (Cochin) or Revenue Test 3. Criminal Judicial Test. 4. Account Test (Lower) or Account Test for Subordinate Officers, Part I (Madras) and 5. Survey Test (Higher). A person who is a graduate in Law need not pass Criminal Judicial Test. According to Rule 6 of the Kerala Revenue Service, no person shall be eligible for appointment as Tahsildar unless he holds a degree in Law or a pass in Criminal Judicial Test, a pass in Revenue test, Account Test (Lower) and Survey Test (Higher). Petitioner passed Part II paper 1 and 2 of Criminal Judicial Test in the examination held on 14-12-1988 and 15-12-1988. The result of that test was declared by the Public Service Commission on 29-4-1989. According to the petitioner, she must be deemed to have completed the test on the date following the last day of the examination, namely, 16-12-1988. 5. Petitioner who actually joined duty as Deputy Tahsildar on 29-4-1986 passed all the obligatory tests on 16-12-1988. In other words, she passed all the obligatory tests within a continuous period of three years of service. But she was not treated to have satisfactorily completed the probation because she did not pass the test within three years from the date of promotion assigned to her, namely, 28-4-1981. The result is that petitioner was not included in the list of approved probationers because she did not pass the tests and thereby completed the probation before she was actually posted as Deputy Tahsildar. In the counter affidavit sworn to by an Assistant Secretary (RE) of the Board of Revenue, it is averred: "The petitioner was actually promoted by Ext.P1 order on21-4-1986 and she joined duty as Deputy Tahsildar on 29-5-1986. 1n Ext. P2 list the petitioner was given rank No. 1632 and the date assigned to the cadre of Deputy Tahsildar is 28-4-1981. In the counter affidavit sworn to by an Assistant Secretary (RE) of the Board of Revenue, it is averred: "The petitioner was actually promoted by Ext.P1 order on21-4-1986 and she joined duty as Deputy Tahsildar on 29-5-1986. 1n Ext. P2 list the petitioner was given rank No. 1632 and the date assigned to the cadre of Deputy Tahsildar is 28-4-1981. Hence by operation of judgment rendered in O.P. No. 2709/89 the petitioner is not an approved probationer or full member in the cadre of Deputy Tahsildars since her probation commenced from 28-4-1981 and within the period of four years she did not acquire test qualification for the purpose of declaration of probation in the cadre of Deputy Tahsildar. It is submitted that the qualification for the purpose of declaration of probation in the cadre cannot contend for the proposition that it is something factually and physically impossible to complete the period of probation". Can this stand taken by the Board of Revenue by considered to be proper? 6. Nowhere in the judgment in O.P. 2709/89 (1990(2) KLT 806) had this court directed the Board of Revenue to prepare a seniority list of persons who completed the predation from the date of their notional promotion. In Writ Appeal 727/90 filed against the said decision, the Board of Revenue had not taken up a contention before the Division Bench that this court had directed to prepare the list reckoning the period of probation from the date of notional promotion. Whether the actual dates of promotion to the category of Deputy Tahsildars are later on the date of notional or assigned promotion and the dates of acquisition of requisite test qualifications are to be reckoned from the dates of notional or assigned promotion, it will work out havoc and injustice to the officers. This aspect has been rightly and fairly conceded by the learned Accountant General. 7. I will proceed to examine the absurdity in the stand taken by the Board of Revenue in reckoning the period of probation of Deputy Tahsildars with reference to the date of their notional promotion or the dates assigned to them in the seniority list. This aspect has been rightly and fairly conceded by the learned Accountant General. 7. I will proceed to examine the absurdity in the stand taken by the Board of Revenue in reckoning the period of probation of Deputy Tahsildars with reference to the date of their notional promotion or the dates assigned to them in the seniority list. Rule 9 of the Special Rules for the Kerala Revenue Subordinate Service reads: "Every person appointed as Deputy Tahsidlar shall, from the date en which he joins duty, be on probation for a total period of two years on duty within the continuous period of three years. (Emphasis added)". As per this rule, a person appointed as the Deputy Tahsildar can be on probation only from the date on which he joins duty. It is nobody's case that a Deputy Tahsildar could have joined duty on the date of his notional promotion or on the date assigned to him. If that date happens to be anterior to the actual date on which he joined duty, by no stretch of imagination can it be taken as the date on which he joined duty. If this rule was understood in a common sense view, the Board of Revenue would not have committed the absurdity. In the case of the petitioner who joined duty on 29-4-1986 the Board of Revenue wants her to be on probation with effect from 28-4-81, the assigned date, which has no relation whatsoever to the date on which she joined duty. The board of Revenue has gone to the extent of excluding her from the seniority list because she did not complete the probation within four years, the extended period, from the assigned date 28-4-81. In other words the board wanted the petitioner to complete the probation one year earlier to the actual date on which she joined duty as Deputy Tahsildar. This stand of the board to say the least is Utopian. 8. As per Rule 2(1) of the Kerala State and Subordinate Service Rules, a person can be said to be appointed on service when he discharges for the first time the duties of the post borne on the cadre of that service. A person can be said to be appointed to the post of Deputy Tahsildar when he discharges for the first time the duties attached to that post. A person can be said to be appointed to the post of Deputy Tahsildar when he discharges for the first time the duties attached to that post. Only after he starts to discharge the duties attached to be post can be considered to be on probation. This means that no one can be said to be on probation from a date anterior to the date on which he began to discharge the duties attached to that post. In the instant case if the petitioner should be deemed to have started her probation from the assigned date, namely, 28-4-1981, she should be deemed to have started to discharge the duties as a Deputy Tahsildar five years prior to her actual joining the duty. It is a physical impossibility. No rule can he interpreted in such a manner as to result in a physical impossibility. The interpretation now given by the Board of Revenue is not only absurd but it is impossible for anyone to comply with. 9. A person is said to be on duty as a member of service when he is performing the duties in a post borne on the cadre of such service. Before a person is appointed to service, he cannot be deemed to be a member of that service. A person who is not a member of the service cannot be a probationer in the service. A person will also be deemed to be on duty when he is given the benefit of notional promotion consequent on revision of rank and seniority. This definition of duty cannot enable an officer to commence his probation before he is appointed to the service. Therefore the exercise carried out by the Board of Revenue in preparing 'probation list' of Deputy Tahsildars, purporting to be in compliance with the direction given by this court in the judgment in O.P. 2709/89 was futile. It is illegal and has no legal validity. It is to be quashed and I do so. 10. Another aspect to be dealt with in this case is the delay caused by the Department in deputing the officers to Survey Test Higher. No Deputy Tahsildar will get a chance to acquire the Survey Test Higher unless he is deputed by the Department for that purpose. The acquisition of Survey Test Higher does not solely depend on the volition of the officer concerned. No Deputy Tahsildar will get a chance to acquire the Survey Test Higher unless he is deputed by the Department for that purpose. The acquisition of Survey Test Higher does not solely depend on the volition of the officer concerned. If for no fault of the* officer he was deputed for Higher Survey training later than his juniors, can be denied seniority on that count? That issue came up for consideration before a Division Bench in Writ Appeal 155/88. In that case the Bench observed: "It is necessary to point out that we have laid down in judgments rendered by us in Writ Appeal No. 374/88, 609/88 and 861/88 that if seniors are not given an opportunity for going for training for acquiring qualification which they can acquire only when they were deputed for training by the Department, they cannot" be denied promotion when their turn comes solely on the ground that they have not acquired the said qualification and that their juniors who have been sent up for training earlier have acquired the qualification. We have pointed out that such conduct on the part of the authorities would infringe equality clauses contained in Articles 14 and 16 of the Constitution". In view of this statement of the law, if any Deputy Tahsildar was sent for Higher Survey training long after his juniors were afforded the opportunity, he should not be forced to surrender his seniority in favour of the juniors who acquired the qualification earlier. This principle has also to be borne in mind by the Board of Revenue while preparing the seniority list of Deputy Tahsildars. 11. This court by order dated 27-3-1991 on CMP No. 4071/91 in O.P. 2296/91 has stayed promotion to the cadre of Deputy Collectors. Revenue Board and the Government will have to promote officers to the cadre of Tahsildars and Deputy Collectors in compliance with the directions given in this judgment. The promotions thus effected may result in consequential transfers and postings. Learned Advocate General submitted that the orders of transfer and postings consequent on the implementation of the judgment may be taken as infringement of the embargo imposed by the Election Commission in view of the impending election to the Lok Sabha and Legislative Assembly. I do not think that the said embargo can apply to the implementation of the orders of this court. I do not think that the said embargo can apply to the implementation of the orders of this court. The promotions and postings to be effected in pursuance to the direction given in this judgment are not to be delayed on account of the embargo imposed by the Election Commissioner. I make it clear that the orders of postings and transfers effected in implementation of the judgment can never be treated as violation of the embargo imposed by the Election Commission. 12. In view of what has been stated above, I direct the Board of Revenue to prepare a proper seniority list of Deputy Tahsildars ignoring the "probation list" prepared by them in the purported compliance with the judgment in O.P. 2709/89 as expeditiously as possible. Promotions given to juniors of petitioners in these cases, will have to be reviewed and petitioners' legitimate promotion must be ordered without any delay. Original Petitions are allowed in the above orders. I make no order as to costs.