Lakshmanan v. State of Kerala — 1994 DIGILAW 466 (KER)

Judgment :- Kamat, J. We have heard this appeal at the stage of notice before admission in extenso. We are deciding this appeal thus after hearing the counsel for the parties. 2. The appellant presented O.P. 7118/1987 for a prayer that the period of training from July 15,1976 upto June 3,1978 be treated as 'duty' in the post of Sub Inspector of Police and a consequential direction to the respondents to fix pay in the scale of pay of Rs. 345-580 and to grant him increments and all consequential benefits counting the training period as period on duty. 3. This prayer is rejected by the rejection of the Original Petition by the learned Single Judge. 4. The facts to be stated are very narrow. The petitioner was advised for recruitment as Sub Inspector of Police in the scale of Rs. 345-5 80 by memo dated December 11,1975 by the Public Service Commission, perusal of this memo (Ext. PI to the original petition) shows that the petitioner was selected for recruitment as Sub Inspector of Police, subject to the provisions of R.3(c) of the General Rules of the Kerala State and Subordinate Services Rules, 1958 also subject to the proof of health and checking. In pursuance of this advice of the Public Service Commission, the office of the Inspector General of Police, Kerala State issued the orders of appointment as Sub Inspectors. The said order (Ext. P2 to the petition) clearly states that the candidates in the list, which includes the present petitioner, are advised by the Public Service Commission for appointment as Sub Inspector of Police in the General Executive Branch of the Police Department, on the conditions state! in the said letter. It is specified, as one of the conditions-No. iv, that on successful completion of the training in Police Training College and practical training, the candidates will be on probation for a period of two years on duty within a continuous period of three years. 5. The relevant statutory provision relating to what is meant by "appointed to a service" and what is meant by "duty" would be available in the Kerala State and Subordinate Services Rules 1958 - Rule 2(1) and (6) respectively. Rule 2(1) makes it clear that a person who is appointed to a service when he commences the probation, instruction or training prescribed for the members thereof. Rule 2(1) makes it clear that a person who is appointed to a service when he commences the probation, instruction or training prescribed for the members thereof. Equally well R.2(6) tells us what is understood by a person said to be on duty'. A person is said to be on duty when he is performing the duties on the post or he is undergoing the probation, instruction or training prescribed for such service. 6. As stated above, factually it is clear that the petitioner is appointed as a Sub Inspector of Police, after his recruitment on the advice of the Public Service Commission as Sub Inspector on the stated scale. Apart from the statutory provision, it is crystal clear, while being required to consider the length of service in the post of a Gram Sevak for eligibility for recruitment to the post of Block Development Officer, in the decision reported in 1965 KLT 1282 - Louis v. Kerala Public Service Commission - this Court had an occasion to consider this question with regard to the period of training and it is ruled therein that a person is said to be appointed to the service when in accordance with the rules 'or in accordance with the rules applicable at the time, as the case may be, he discharges for the first time the duties of a post borne on such cadre or commences the probation, instruction or training prescribed for the members thereof: In reaching the conclusion, this Court placed reliance on R.2(1) of the Rules referred to above. 7. This Court also had an occasion to consider the nature of the training in the matters of recruitment and subsequent service of the Government servants. Referring to the situation, this Court had an occasion to consider the aspects of the requirement of training. In certain situations training could be a condition precedent, in other words, a qualification for appointment, whereas other situations could also be under consideration that it is the appointment that precedes first in point of time and thereafter an employee is referred to a period of training with the purpose of shaping the selected employee to make him more suitable for the services required of him. In such situations, the training is not considered as a part of a qualification for appointment, but is considered necessary and essential for the requirements of the services to which he is appointed. In this situation, the training is not a condition or qualification, but a further situation thought necessary by the appointing authorities to make the candidates more suitable to the services to which he is appointed. It is in this context that this Court (1987 (2) KLT 466 - Haridasan v. State of Kerala) had an occasion to consider the question of advice as well as the question of training. If after training no advice is called for under the relevant rules and none is given under any provision, the person who is appointed subsequently can only rest his claim for seniority with reference to the date of appointment under Rule 27(a) of the said Rules, 1958. What is required to be considered is whether it is an advice for training when it cannot be considered as advice for appointment. It has to be considered as to whether training is an eligibility for appointment, as a qualification to be acquired before appointment and is not the same as a requirement of training for equipment after appointment. Much depends on the factual position as to whether the selection was to a course of training rather than to an office or post. 8. The facts that appear on the surface of the record are more than clear. The petitioner was appointed on the advice (Ext. P1) on conditions stated in the general letter of appointment (Ext. P2). We have referred to these aspects in detail. 9. There is yet an another approach to consider the situation. This Court (Writ Appeal 145 of 1982 - dated December 6, 1982) had an occasion to consider the construction of proviso to R.13 of the Kerala Public Service Commission Rules of Procedure, referring to which Sub Inspectors of Police came to be recruited and appointed. In this situation, the Public Service Commission by notification dated August 17,1979 on the basis of the estimate of 138 vacancies prepared a rank list and advised 137 candidates from the said list. The petitioners before the Court were those ranked in the list, but were not among those who were advised. In this situation, the Public Service Commission by notification dated August 17,1979 on the basis of the estimate of 138 vacancies prepared a rank list and advised 137 candidates from the said list. The petitioners before the Court were those ranked in the list, but were not among those who were advised. The question was as regards the validity of the rank list and the claim of the petitioners therein, who were not advised. This Court considered on the basis of the proviso to R.13 the question of the normal life of the said rank list. In the process of reasoning, reliance is placed on the Note (1) to the effect that the qualification of the rank list shall cease to be in force after one month from the date of commencement of the training or three months from the date of coming into force of the ranked list whichever is later. It is on the basis of this Note (1) a conclusion is reached that the real crucial period is the commencement of the training period with regard to the question of the life of the list. In the process of reasoning, especially in para.7 of the said judgment, it is observed that the selection of the petitioners therein was for the appointment to the post of Sub Inspectors of Police, in regard to which training was a condition that they have to satisfy and it was not possible, there being no material to show, to see that the initial advice was a case for a selection for a training course. In other words, seeing the advice and the general order of appointment, situation was clear that it was an appointment to the post in regard to which training was a facility as a desirable situation. It must be stated that this is yet an aspect of another way of approach to consider the submission of the petitioner that the order in the nature of advice (Ext. P1) and the subsequent appointment (Ext. P2) is an appointment to the post of a Sub Inspector of Police and could not be said to be selection for a training course. 10. P1) and the subsequent appointment (Ext. P2) is an appointment to the post of a Sub Inspector of Police and could not be said to be selection for a training course. 10. Additionally it must be stated that this Court by its earlier judgment (O.P.) 947/1982-P - dated September 9,1986 - M.P. Menon, J.) had in fact directed the respondent No.l to take up for consideration the specific representation posing the question regarding fixation of pay in the scale of Rs. 345-580 with effect from the date when the training commenced - between July 15,1976 and upto June 4,1978, which had to be treated as service in the grade for the purpose of such petition. In spite of the question having been posed with a specific direction to take up the question for consideration, it was rejected by Ext. P5 when a specific representation (Ext. P5) was made on August 16,1979. 11. It is in these circumstances the petitioner was left with no other alternative than to approach this Court again by another petition. By the impugned judgment, the petition having been rejected, in this appeal we have considered the entire question with regard to the rights of the petitioner to treat the period of training as the period of duty as contended by him. Apart from the statutory provision of the rules, as stated above the question is also settled beyond dispute by the three decisions cited at the Bar. For the above reasons, appeal succeeds and is allowed and accordingly it is declared that the period of training from July 15, 1976 upto June 3, 1978 is treated as period on duty and would be available to the petitioner for the purposes of the scale of pay, increments and all other consequential benefits on the basis that the above training period is the period spent on duty. The respondents are, therefore, directed to grant the above reliefs on the basis that the petitioner would be on duty for the above period. The respondents are further directed to calculate and make the above payments due to the petitioner on or before March 31,1995. It is further directed that in the event of non-payment of dues of the petitioner on the basis above, the said amount due would carry interest at 18% per annum from 1-4-1995 till its payment. In the circumstances, there shall be no order as to costs.