Somarajan v. State of Kerala — 1992 DIGILAW 132 (KER)

Judgment :- An issue of general importance arises for consideration in this Original r Petition. It is whether a member of the service or cadre who could not gel his probation declared within the statutory period or the extended period will lose seniority in the cadre. 2. Petitioner was promoted as Deputy Superintendent of Police in the Kerala Police Service on 22-3-1982. As per the Special Rules, an officer appointed in the rank of Deputy Superintendent of Police has to pass Account Test for Executive Officers during the period of probation, if he has not already passed the test or Account Test (Lower). Petitioner passed Account Test (Lower) while he was Circle Inspector of Police. The period of probation is one year on duty within a continuous period of two years. Petitioner's probation in the category of Deputy Superintendent of Police was declared with effect from 22-3-1983 as per Exhibit P-1 G.O. dated 8-11-1985. 3. Respondents 3 to 8 got promotion to the cadre of Deputy Superintendent of Police earlier than the petitioner.; Therefore, they were shown as seniors to the petitioner in Ext. P-2 provisional seniority list of officers in the General Executive Branch of the Police Department of and above the rank of the Deputy Superintendent of Police as on 1-1-1988. Petitioner was assigned rank No. 60, while respondents 3 to 8 were ranked as 44,49, 50,52,57 and 58 respectively. By Ext. P4 order, Government confirmed 41 Deputy Superintendent of Police, including ihe petitioner. Item -39 in that order is the petitioner. Date from which he was confirmed as Deputy Superintendent is shown as 21-10-J9S3. Respondents 3 to 8 are not included in the confirmation order. Since respondents 3 to 8 were not given confirmation, it is evident that they did not complete probation and consequently they were not made full members of the service. Their non-inclusion in Ext. P-4 order shows that they did not complete probation within the maximum period of three years allowed under the Rules and consequently, it is alleged, they are not eligible to be placed above the petitioner in the seniority list. The provisional seniority list of Deputy Superintendent of Police as on 1-1-1988 was finalised by Ext. P8 order dated 17-6-1988. While finalising that list, it is the petitioner's case that the delay caused in getting the probation of respondents 3 to 8 declared was not noted. The provisional seniority list of Deputy Superintendent of Police as on 1-1-1988 was finalised by Ext. P8 order dated 17-6-1988. While finalising that list, it is the petitioner's case that the delay caused in getting the probation of respondents 3 to 8 declared was not noted. Had it been taken into consideration, according to the petitioner, he should have been ranked above respondents 3 to 8. As a result of the erroneous ranking in the seniority list, 4th respondent was included in the revised select list of Deputy Superintendent of Police fit for promotion as Superintendent of Police in Ext. P9. So also, respondents 5,6 and 8 were included in the supplementary select list for 1990 for promotion to the cadre of Superintendent of Police (Non I.P.S.). Once the seniority of the petitioner is settled based on the law laid down by this Court, he has necessarily to be placed above respondents 3 to 8 and the select lists, Exts. P9 and P10, modified accordingly. Depending on the seniority, petitioner, it is alleged, ought to have been considered for promotion to the category of Superintendent in preference to respondents 3 to 8, 4. A detailed counter affidavit has been filed on behalf of the first respondent. The contentions raised therein are to the following effect.-As per R.27(a) of the Kerala State and Subordinate Service Rules, hereinafter referred to as "General Rules", seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of order of his first appointment to such service, class, category or grade. Petitioner was appointed as Deputy Superintendent of Police along with respondents 7 and 8 as per Order dated 19-3-1982. Respondents 3 to 6 were promoted during 1980. Petitioner was junior to respondents 3 to 7 in the cadre of Circle Inspector of Police and so, he is junior to them in the category of Deputy Superintendent of Police as well. Probation of the third respondent in the category of Deputy Superintendent of Police was declared with effect from 27-5-1981. As per order dated 24-6-1987, 8th respondent was declared to have satisfactorily completed probation on 20-1-1985. Probation of respondents 4 to 7 was declared with effect from 5-5-1988,18-8-1986,17-11-1987 and 20-1-1985 respectively. Probation of the petitioner was declared with effect from 22-3-1983 as per order dated 8-11-1985. As per order dated 24-6-1987, 8th respondent was declared to have satisfactorily completed probation on 20-1-1985. Probation of respondents 4 to 7 was declared with effect from 5-5-1988,18-8-1986,17-11-1987 and 20-1-1985 respectively. Probation of the petitioner was declared with effect from 22-3-1983 as per order dated 8-11-1985. 4th respondent has already been promoted as Superintendent of Police by order dated 31-7-1991. Neither in the Special Rules for Kerala Police service nor in the General Rules there is provision to the effect that only confirmed officers should be promoted to the higher category. Seniority of an officer is governed by R.27(a) and the question of satisfactory declaration of probation has nothing to do with seniority. However, respondents 3 to 8 have been confirmed in the category of Deputy Superintendent of Police. Petitioner is not entitled to rely on the judgment in Appukuttan Nair v. State of Kerala (1990 (2) KLT 806). As per Rule 21 of the General Rules, in the case of probationer falling under sub-rule (b) of R.19 or sub-rule (c) of R.20, the appointing authority may extend his probation so as to enable him to acquire special qualification. As per R.19 of the General Rules, probationer who has not passed the test will remain as probationer until a positive action is initiated by the Government to terminate his probation. No action was ever taken to terminate the probation of respondents. So, the petitioner cannot claim seniority over them on the basis of the earlier declaration of his probation. If the contentions of the petitioner are accepted, a large number of appointments made in the various departments have to be reviewed, which will result in unsettling the seniority and promotions finalised long ago. This very fact of unsettling of settled things will disentitle the petitioner from seeking a discretionary relief from this Court under Art.226 of the Constitution. Thus, petitioner is not entitled to any of the reliefs asked for. 5. Respondents 3, 5, 7 and 8 have filed counter affidavits. They have virtually adopted the contentions raised by the first respondent. 6. As per the Special Rules issued for Kerala Police Service, every person appointed in the post of Deputy Superintendent of Police shall be on probation for a period of one year on duty within a continuous period of two years. They have virtually adopted the contentions raised by the first respondent. 6. As per the Special Rules issued for Kerala Police Service, every person appointed in the post of Deputy Superintendent of Police shall be on probation for a period of one year on duty within a continuous period of two years. It is also provided therein that during the period of probation, a Deputy Superintendent of Police has to pass the Account Test for Executive Officers, if he has not already passed the test or Account Test (Lower). Petitioner was appointed as Deputy Superintendent of Police by order dated 19-3-1982. His probation was declared with effect from 22-3-1983. Except in the case of third and 8th respondents, the probation of respondents 4 to 7 was declared long subsequent to the declaration of probation of the petitioner and long after the expiry of three years from the date of their entry in service as Deputy Superintendent of Police. 7. In Appukuttan Nair v. State of Kerala (1990 (2) KLT 806), this Court considered the effect of Rules 19 to 21 of the General Rules. This Court observed:- "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. 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. Thus the total period during which an officer can be on probation, is 4 years. 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 no 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". (This decision was upheld in W.A.Nos. 691, 719 and 727 of 1990). Rule 19(b)(i) and (b)(ii) of the General Rules are in the following terms:- "(b) (i) If within the period of probation a probationer fails to acquire the special qualifications or to pass the special tests, if any, prescribed in the Special Rules, or to acquire such other qualifications as may be declared by the State Government or by the appointing authority with the approval of the State Government to be equivalent to the said special qualifications or special tests, the appointing authority shall, by order, discharge him unless the period of probation is extended under rule 21. (b)(ii) If within the period of probation prescribed in the Special Rules for the service or within the extended period or probation, as the case may be, a probationer has appeared for any such tests or for any examinations in connection with the acquisition of any such qualifications and the results of the tests or examinations for which he has so appeared are not known before the expiry of such period, he shall continue to be on probation until the publication of the results on the tests or examinations for which he has appeared or the first of them in which he fails to pass as the case may be. In case the probationer fails to pass any of the tests or examinations for which he has so appeared, the appointing authority shall by order discharge him". The effect of the above provision read with R.21 of the General Rules is that a person should be discharged, if he fails to complete the test qualification within the normal period of probation or the extended period of probation. If the officer fails to pass the test. it is the duty of the appointing authority to discharge him from service. The fact that appointing authority did not pass an order discharging the probationer does not entitle him to claim that he had continued in the higher post and that he should get seniority on the basis of first appointment. Respondents 4 to 7 did not pass the test within the period of probation or the extended period of probation. In such a situation, as per the provision quoted above, the appointing authority should have discharged them from the post of Deputy Superintendent of Police. The fact that the appointing authority did not act promptly cannot in any way go to support their contention that they must get seniority with effect from the date of their appointment. 8. Learned counsel representing the respondents placed reliance on R.27(a) of the General Rules in support of their contention that declaration of probation has no relevance in deciding the seniority. R.27(a) states that seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade. R.27(a) states that seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade. Respondents were seniors to the petitioner in the cadre of Circle Inspector. They were promoted to the cadre of Deputy Superintendent of Police earlier or along with the petitioner. So, at the time of their entry into the cadre of Deputy Superintendent of Police, they were seniors to the petitioner. They were not reduced to a lower rank as punishment. So, they must continue to maintain their seniority over the petitioner. I find it difficult to accept this argument. It is true that at the time of their en try in to the cadre of Deputy Superintendent of Police, they were ranked seniors to the petitioner. But, they could not complete the probation within the period sanctioned by the Special Rules or the extended period and contemplated by R.21 of the General Rules. As per Rule 19(b)(ii), in all cases where the probationer fails to pass the test, the appointing authority is bound to discharge him. The delay of the appointing authority in ordering the discharge cannot enure the benefit of the probationer, who failed to pass the test.R.20A makes it clear that any delay in the issue of an order discharging a probationer shall not entitle him to be deemed to have satisfactorily completed his probation. So, on the expiry of the extended period of probation, the probationer should be deemed to have been discharged. This results in the break of service. Only after passing the test, can he be deemed to have come into the higher cadre. 9. According to the learned counsel representing the respondents, an order of discharge under R.19(b) should be by an order. Unless an order is issued by the appointing authority, there cannot be a discharge. In the instant case, no such order of discharge was issued. Therefore, respondents must be deemed to have continued in the post and their seniority should be determined as per R.27(a). This argument does not carry conviction. Lethargy on the part of the appointing authority cannot confer any benefit on the respondents who failed to pass the test, must be deemed to have been discharged. Therefore, respondents must be deemed to have continued in the post and their seniority should be determined as per R.27(a). This argument does not carry conviction. Lethargy on the part of the appointing authority cannot confer any benefit on the respondents who failed to pass the test, must be deemed to have been discharged. 10A discharge of a probationer is not a punishment. So, according to counsel representing the respondents even if respondents 4 to 7 are deemed to have been discharged from the cadre of Deputy Superintendent of Police, that discharge cannot be by way of punishment and so, it will not have any impact on the seniority. For respondents to lose their seniority, they should have been reduced to lower rank as punishment. The discharge on account of their failure in passing the test being not a punishment, cannot have any impact on their seniority. I do not find my way to accept this argument either, in view of the decision of the Supreme Court in K.V. Subba Rao v. Government of Andhra Pradesh (AIR 1988 SC 887). Their Lordships were considering the effect of R.33(a) of the General Rules, which is identically worded as 'Rule 27 (a)' of the General Rules. According to Their Lordships, the word "date of first appointment" should refer to continuous appointment only. If there was any break in the continuity, then the date of first appointment is not relevant. Their Lordships observed: "The legal position is well-settled that the State is entitled to prescribe the manner of computing inter-se seniority and in the absence of such prescription length of service in the basis. A series of recent decisions of this Court has made that position certain. Rule 33 of the General Rules contains prescription regarding seniority and has different provisions to meet varying situations. Sub-rule (a) which provides that seniority of a person is to be determined "by the date of his first appointment to such service" has obviously been mis-interpreted on account of the presence of the words 'unless he has been reduced to a lower rank as a punishment'. It could not be the' intention of Rule 33(a) to compute seniority from the date of first appointment even though it was not a continuous one.... It could not be the' intention of Rule 33(a) to compute seniority from the date of first appointment even though it was not a continuous one.... It is appropriate to interpret that rule to mean that the data of first appointment is intended to refer to continuous appointment only and the words'unless he has been reduced to a lower rank by way of punishment' are really redundant". In the instant case, eventhough respondents 4 to 7 were promoted earlier or along with the petitioner to the cadre of Deputy Superintendent of Police, they could not satisfactorily complete the probation within the extended period on account of their failure to pass the test. So they must be deemed to have been discharged from service. Only after their completing the test, could they become the members of the service, namely, Deputy Superintendent of Police. By that time, the petitioner got his probation satisfactorily declared. Therefore, respondents 4 to 7 are to take their rank below the petitioner only. 11. The above legal position may lead to a situation wherein settled position of seniority has to be unsettled. To avoid such a situation, it is to be taken that this decision will not give a cause of action to initiate any proceedings for unsettling the settled seniority. This view is supported by the Supreme Court in the decision in K.V. SubbaRao v. Government of Andhra Pradesh, where Their Lordships observed: "We are aware of the fact that this rule has been widely applied for determining inter-se seniority and in case challenge to fixation of inter-se seniority is permitted to be raised on what we have stated above, limitless litigation would crop up. We would, therefore, make it clear that the interpretation which was now given of this rule shall have prospective application and unless there be any litigation already pending challenging the interpretation of this rule no new litigation would be permitted on that score". 12. In the instant case, petitioner must be deemed to have become a full member in the cadre of Deputy Superintendent of Police earlier to respondents 4 to 7. Therefore, respondents 4 onwards can have their ranking only below the petitioner. But for the wrong ranking in the seniority list, Exhibits P9 and P10 select list would not have been prepared in the manner in which they are now prepared. Therefore, respondents 4 onwards can have their ranking only below the petitioner. But for the wrong ranking in the seniority list, Exhibits P9 and P10 select list would not have been prepared in the manner in which they are now prepared. So, I quash those lists and direct the authorities to prepare a fresh rank list on the basis of the petitioner's rank vis-a-vis that of respondents 4 to 7. This must be done as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Original Petition is allowed in the above terms. Parties are directed to suffer their costs. Issue photo copy of the judgment to the parties on usual terms.