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1996 DIGILAW 528 (KER)

Girija Devi v. Kerala Kalamandalam

1996-12-10

C.S.RAJAN

body1996
Judgment :- C.S. Rajan, J. The petitioner was appointed as an Instructor in Koodiyattom by Ext. P1 order dated. 29.12.1980. By Ext. P2 order dated 13.8.1991, she was promoted as First Grade Instructor with retrospective effect from 18.12.1990. By Ext. P3 order dated 31.12.1993, she was reverted as second grade Instructor and the additional third respondent was posted in the vacancy. The additional third respondent was reverted earlier to the post of second grade Instructor as a punished. The original petition has been filed challenging Ext. P3 order by which the petitioner was reverted as a second grade Instructor when the additional third respondent joined duty as first grade Instructor on completion of the period of reversion. The contention of the petitioner is that she is not liable to give Place to the additional third respondent merely because the additional third respondent is posted as first grade Instructor on the expiry of the period of punishment. The additional third respondent contends that he is entitled to get the post of first grade Instructor automatically after the completion of the period of punishment. 2. In order to appreciate the rival contentions of the petitioner and of the additional third respondent, it is necessary to look into the relevant provisions contained in the Kerala Civil Service (CC & a) Rules (hereinafter referred to as 'the rules'). R.11 of the Rules deals with the nature of penalties which could be imposed on a Government servant. It is admitted on all the sides that the above Rules are made applicable to the service of 'Kalamandalam'. R.11(1)(v) deals with the punishment of reduction to a lower rank in the seniority list or grade or time scale. Note (1) stipulates that the period of reduction shall not be less than six months and not more than five years. If the period is not specified in the order, the period of reduction shall be deemed to be six months. Note (3) says that an order of reduction to a lower post or to a lower time scale shall entail loss of seniority. According to Note (4) an officer on reduction to a lower grade shall take his place at the top of the list of officers in the lower grade. On completion of the period of reduction, he shall be considered for promotion. On promotion he shall take his place in the bottom of the higher grade. According to Note (4) an officer on reduction to a lower grade shall take his place at the top of the list of officers in the lower grade. On completion of the period of reduction, he shall be considered for promotion. On promotion he shall take his place in the bottom of the higher grade. Note (5) provides that the previous service in the higher grade of the person who has been reduced to lower grade shall on re-promotion count for increments only subject to the provisions of R.36 of the Kerala Service Rules. 3. Sri. Asok Kumar, learned counsel for the additional third respondent brought to my notice a Division Bench judgment of this Court reported in Sethu Jayasree Bhasker v. Secretary, Travancore Dev (iswoinBoard (1993)(2)KL]494). In the above ruling, the question to consideration was whether the Government or the Devaswom Board (the appointing authority i n that case) could review the orders of any subordinate authority and whether such an order was an original order or an appellate order under R.34 of the Rules. But in the last portion of the judgment, the Division Bench has stated as follows: "Once the punishment is completed, the appellant will go to the original post in which she was working on the date of suspension". Learned counsel places strong reliance on that sentence. According to me, it was not the decision in the above ruling. In fact, the impact of R.11(1)(v) and the consequence of the expiry of the period of reduction to lower rank was never in issue in the above case. Therefore, I do not think that the above sentence can be relied on, to hold that once the punishment is completed the officer is entitled to get back the original post automatically. 4. Smt. Anu Sivaraman, learned counsel for the petitioner brought to my notice another Division Bench ruling reported in Knshnan v. State of Kerala (1992 (2) KLT 618). In the above ruling the Division Bench held that if an officer was reduced to lower grade as a punishment, he shall lose the seniority. In the above case, the Division Bench was considering R.27 of the Kerala State & Subordinate Service Rules wherein the seniority is to be determined excluding the period of reduction of rank as a punishment. In the above ruling the Division Bench held that if an officer was reduced to lower grade as a punishment, he shall lose the seniority. In the above case, the Division Bench was considering R.27 of the Kerala State & Subordinate Service Rules wherein the seniority is to be determined excluding the period of reduction of rank as a punishment. Thus, the additional third respondent will be losing his period of service which he suffered as a punishment of reduction to the lower grade for 5 years. At the same time, the petitioner who was promoted as first grade instructor is entitled to reckon her seniority from the date of the first appointment as Instructor Grade I. If that be so, the additional third respondent cannot contend that he is entitled to get an automatic promotion on the expiry of the period of reduction. This can only be the intention of R.11(1)(v) of the Rules read along with the notes. The provision for losing of seniority in Note (3) is consistent with R.27 of the KS & SSR. The stipulation in Note (4) that an officer who suffered the reduction in grade shall be considered for promotion on the completion of the specified period of reduction will go to show that the promotion is not automatic. Being the seniormost in the lower grade, he is entitled to be considered for promotion in accordance with the above seniority. At the same time, it must, be remembered that the person who was promoted in the place of the person who was reduced to lower grade is already enjoying the benefit of his promotion in the higher grade. Otherwise the result will be the person, who was promoted in the place of the person who was lowered, must be replaced by the person who suffered punishment. If that be so, the seniority of the person so promoted will be affected. That cannot be the intention of the Rules referred to above. 5. Therefore, reading the R.11(1) (v) and the Notes thereunder along with R.27 of the KS & SSR there cannot be any doubt that a person who was reduced to a lower grade as a punishment is not entitled to get restoration of his position automatically on the expiry of the period of punishment. 5. Therefore, reading the R.11(1) (v) and the Notes thereunder along with R.27 of the KS & SSR there cannot be any doubt that a person who was reduced to a lower grade as a punishment is not entitled to get restoration of his position automatically on the expiry of the period of punishment. He has to wait for promotion in accordance with the seniority as mentioned in Notes (3) and (4) of R.11(1)(v). Viewing the matter in the above perspective, the reversion of the petitioner in order to accommodate the additional third respondent is opposed to the Rules. Therefore, Ext. P3 is quashed. It is declared that the petitioner is entitled to continue in the post of Instructor Grade I as per Ext. P2 order of promotion. The original petition is disposed of as above.