E.R. Sobhana v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 8TH DAY OF JUNE 2018 / 18TH JYAISHTA, 1940** **OP(KAT).No. 139 of 2018** **AGAINST THE ORDER DATED 20.03.2018 IN O.A.NO. 2117/2016 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/ APPLICANT IN O.A :** **------------------------------** ## **E.R.SOBHANA,** **AGED 54 YEARS, W/O. V.S ANANDAN, ADDITIONAL DIRECTOR, SURVEY AND LAND RECORDS, DIRECTORATE OF SURVEY AND LAND RECORDS, SURVEY BHAVAN, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014, RESIDING AT VELAMPARAMBIL HOUSE, MOORKANADU P.O, KARUVANNOOR, THRISSUR - 679 338.** **BY ADVS.SRI.P.NANDAKUMAR SRI.S.ANEESH SMT.AMRUTHA SANJEEV** ## **RESPONDENTS/ RESPONDENTS 1 TO 5 IN O.A :** **-----------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF SURVEY AND LAND RECORDS, DIRECTORATE OF SURVEY AND LAND RECORDS, SURVEY BHAVAN, VAZHUTHAKAD, THIRUVANANTHAPURAM - 695 014.** **3. BABU THEKKAN,** **JOINT DIRECTOR OF SURVEY AND LAND RECORDS, CIVIL STATION, KUDAPPANAKUNNU, THIRUVANANTHAPURAM - 695 043.** **4. K. SURENDRAN, REGIONAL DIRECTOR OF SURVEY AND LAND RECORDS, KOZHIKODE - 673 020.** **5. THE DEPARTMENTAL PROMOTION COMMITTEE(HIGHER), PROMOTION TO THE POST OF ASSISTANT DIRECTOR OF SURVEY AND LAND RECORDS, REPRESENTED BY ITS CONVENOR, THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R1, R2 & R5 BY PUBLIC PROSECUTOR SMT. POOJA SURENDRAN R3-R4 BY ADV. SMT.I.SHEELA DEVI** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 08-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **RKM** **OP(KAT).No. 139 of 2018 (Z) ----------------------------** **-2-** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** ## **-----------------------** **EXHIBIT P1 COPY OF ORDER DATED 20.03.2018 IN O.A. NO. 2117 OF 2016. EXHIBIT P2 COPY OF O.A. NO. 2117 OF 2016 ALONG WITH ANNEXURES. EXHIBIT P3 COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT. EXHIBIT P4 COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT. EXHIBIT P5 COPY OF THE REJOINDER FILED BY THE PETITIONER.** ## **RESPONDENTS' EXHIBITS : NIL** **---------------------** **TRUE COPY** **PA TO JUDGE** ## **RKM** ## **K. SURENDRA MOHAN & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **O.P. (KAT) No.139 of 2018** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- **Dated this the 8[th] day of June, 2018** ## **JUDGMENT** ## _**Surendra Mohan, J.**_ This original petition is filed by the applicant in O.A.No.2117/2016 of the Kerala Administrative Tribunal, Trivandrum ('KAT', for short) challenging Ext.P1 order dated 20.03.2018 dismissing the same. The original application was filed by the petitioner challenging Annexure A23 Government order seeking a direction to set aside the same. Certain ancillary reliefs were also claimed. As per Annexure A23, the Government had rejected the claim of the petitioner for being treated as senior to respondents 3 and 4 herein. 2. The short facts necessary for a consideration of the disputes in this case are summarised as under. The petitioner is working as Additional Director, Survey and Land Records. The petitioner as well as respondents 3 and 4 were directly recruited to the post of Superintendent of the Survey and Land Records pursuant to a selection conducted by the Public Service Commission in the year 1987. The petitioner was advised on 28.05.1987 while the 3[rd] and 4[th] respondents were advised on 17.07.1987 and 02.06.1988 respectively. Therefore, on the basis of the advises issued by the O.P. (KAT) No.139 of 2018 2 PSC, respondents 3 and 4 were ranked below the petitioner. Pursuant to their appointments, they underwent training for 100 weeks and thereafter, they joined duty. As per the special rules, they were to be on probation for a period of one year within a continuous period of three years. For the successful completion of their probation, it was necessary for them to pass the First Grade Surveyors Test as well as the Head Surveyors Test conducted by the PSC. The petitioner appeared for both the tests together, in the year 1990. Since only a person who had successfully passed the First Grade Surveyors Test was entitled to take the Head Surveyors Test, her answer scripts in respect of the Head Surveyors Test were invalidated by the PSC. However, respondents 3 and 4 acquired the test qualification during 1989-1997. Therefore, the 3[rd] respondent's probation was declared on 01.11.1992 and the 4[th] respondent's probation was declared on 01.01.1994. 3. According to the petitioner, she could not appear for the Head Surveyors Test after her answer scripts were invalidated as stated above, since she was on maternity leave. The PSC did not conduct test for a number of years thereafter. Therefore, she was deprived of a chance of passing the test from 1992 to 1998. She appeared for the test and passed the same, in 1998. It was thereafter, only on 22.05.1998 that her probation was declared. While so, when promotion to the post of Assistant Director of O.P. (KAT) No.139 of 2018 3 Survey and Land Records arose, the petitioner moved the 2[nd] respondent with a request for treating her as a special case and to exempt her from passing the test permanently. On the said representation, as per Annexure A6 order, she was provisionally promoted as Assistant Director of Survey and Land Records, relaxing the special rules by invoking Rule 39 of the General Rules. 4. Later on, the seniority list in the cadre of Superintendents in the Department for the period from 01.11.1956 to 31.12.2002 was published as per Annexure A9. In the said seniority list, the petitioner was Serial No.165, while respondents 3 and 4 were shown as Serial Nos.166 and 171 respectively. However, in the provisional seniority list of Assistant Directors for the period from 01.11.1956 to 01.06.2000, the petitioner was placed at Serial No.150 while respondents 3 and 4 were placed above her. Against the same, the petitioner preferred Annexure A12 objections. In the meanwhile, the petitioner was promoted as Deputy Director. However, when the select list of Superintendents of Survey and Land Records for appointment to the category of Assistant Director was notified, the 3[rd] respondent was assigned the 1996 batch, the 4[th] respondent was included in the 1997 batch and the petitioner in 1998. Against the said action, Annexure A13 was filed. O.P. (KAT) No.139 of 2018 4 5. In the meanwhile, the post of Junior Director of Survey and Land Records had become vacant, which had to be filled up. The petitioner thereupon moved this Court by filing W.P.(C).No.3830 of 2007, which was disposed of by Annexure A15 judgment directing respondents 2 and 4 to dispose of the representation filed by the petitioner. Pending disposal of the objections, respondents 3 and 4 were promoted as Joint Directors. The promotion orders were challenged by the petitioner in W.P.(C).No.25828 of 2007 before this Court. The said case was transferred to the KAT and renumbered as T.A.No.432 of 2014. 6. While so, on 03.08.2011, a fresh provisional seniority list of Assistant Directors for the period from 01.11.1956 to 01.01.2005 was issued. The petitioner submitted her objections to the provisional seniority list and Annexure A17 order was issued finalising the seniority list of Assistant Directors. Thereafter, a vacancy of Additional Director has occurred. Since respondents 3 and 4 were involved in vigilance cases, the petitioner was provisionally promoted as Additional Director of Survey and Land Records as per Annexure A18 orders. However, the same was subsequently cancelled by Annexure A19 order dated 04.04.2015. T.A.No. 432 of 2014 and O.A.No.2230/2015 were heard and disposed of by the KAT as per Annexure A20 order permitting the applicant to file an appeal before the Government. The Government O.P. (KAT) No.139 of 2018 5 was directed to consider the same after affording an opportunity of personal hearing to the petitioner and others. Accordingly, an appeal was preferred by the petitioner. 7. In the meanwhile, O.A.(Ekm).No.321/2014, filed by the 3[rd] respondent was disposed of by Annexure A22 order directing the first respondent to convene a DPC for preparing the select list for promotion to the post of Deputy Director, Joint Director and Additional Director. In the above circumstances, the petitioner was heard pursuant to the direction in Annexure A20 order and her claim was rejected by Annexure A23. It was challenging the said order that the petitioner had approached the KAT. 8. The O.A. was contested by the first respondent as well as the the 3[rd] respondent by filing reply statements. According to the first respondent, a direct recruit to the post of Superintendent of Survey and Land Records had to pass the departmental test, which is a prerequisite for declaration of probation. The selective test consists of Part A Grade Surveyors Test and Part B Head Surveyors Test, conducted by the PSC. The petitioner applied for both the tests in the year 1990. The candidates are permitted to appear for Part B Head Surveyors Test only after passing the Part A Test. Though the petitioner had applied for both the tests together by separate applications, the defect was not initially noticed. When the same was noticed, after issuing a show cause notice to the O.P. (KAT) No.139 of 2018 6 petitioner her answer scripts were invalidated. It was contended that, the petitioner had opportunities to appear for the tests held during 1987, 1988, 1989 and 1990. Since respondents 3 and 4 had cleared the test before her, they were granted provisional promotion under Rule 31(a) (i) Part II KS&SSR. The petitioner was granted a provisional promotion by invoking Rule 39 of Part II KS&SSR. Thereafter, respondents 3 and 4 were promoted as Deputy Directors. In the seniority list of Assistant Directors, the petitioner was placed above respondents 3 and 4. Respondents 3 and 4 were further promoted to the post of Joint Director of Survey and Land Records. Though the petitioner had sought for the maintenance of her seniority in the Assistant Director category in the post of Superintendent of Survey also, the same was considered and was rejected for valid reasons. 9. According to the 3[rd] respondent, though the petitioner had been advised earlier, the probation of 3[rd] and 4[th] respondents were declared earlier since they had qualified the departmental test, during the probation period itself. On the said date, the petitioner had not passed the departmental test. Therefore it is contended that, her claim for maintenance of her seniority position in the higher post also, though she was not entitled to be promoted was rightly rejected. On the other aspects, the 3[rd] respondent had also reiterated the contentions put forward O.P. (KAT) No.139 of 2018 7 by the first respondent. 10. The KAT considered the respective contentions found that, the omission on the part of the PSC to hold the departmental test during the period from 1992 to 1996 had not adversely affected the petitioner. Since passing of the test was one of the conditions for declaration of the probation, the probation of the petitioner was declared only in the year 1998. Consequently, she was not eligible to be appointed on the date of occurrence of the vacancies, whereas respondents 3 and 4 were so eligible. In view of the above, it was found that the claim of the petitioner should not be allowed. The original application has therefore been dismissed. It is aggrieved by the said order that this original petition is filed. 11. According to Adv. P.Nandakumar, the PSC had not conducted the departmental test during the period from 1992 to 1998. Respondents 3 and 4 had passed the departmental test in the year 1990. During that year, the petitioner was incapacitated from appearing for the test for the reason that she was on maternity leave. Though she appeared for the test together on an earlier occasion, her answer scripts were invalidated. Consequently, on the next available chance, the petitioner had passed the departmental test. Therefore, it is contended that she should not be adversely affected for the lapse that occurred for no fault of O.P. (KAT) No.139 of 2018 8 hers. The Learned counsel placed reliance on the decision of this Court in _**Ramamoorthy v. State of Kerala [1991 (1) KLT 838], State of Kerala v. Chathan [2005 (1) KLT 75], Nijeesh K.K. v. High Court of Kerala and Others [2016 (5) KHC 874]**_ to contend that, the seniority position of the petitioner ought to be maintained and restored, after setting aside Annexure A23 order of the Government. 12. The contentions of the counsel for the petitioner are opposed by the learned Government Pleader as well as Adv.I. Sheela Devi, who appears for respondents 3 and 4. The learned counsel points out that, it was a condition for the successful completion of the probation that the tests were passed. Since respondents 3 and 4 had passed the test on an earlier date, they had acquired the necessary qualification for being promoted to the higher post, on an earlier date. Therefore, they were the persons entitled to be promoted as on the date of occurrence of vacancies. It is contended that, as on the date of occurrence of the vacancies in the higher post in 1996, even the probation of the petitioner had not been declared. Therefore, the claim now made by the petitioner that she ought to be treated as senior to respondents 3 and 4 cannot be found accepted. The KAT had correctly considered the issue and has rightly dismissed the O.A. Therefore, the learned counsel seeks dismissal of the original petition. O.P. (KAT) No.139 of 2018 9 13. Heard. There is no dispute regarding the dates of advice of the respective incumbents, the petitioner, respondents 3 and 4. Going by the dates of advices, the 3[rd] respondent is the senior in the post of Additional Director of Survey and Land Records to which all of them were directly recruited. All of them belong to the SC/ ST categories. As already noticed above, it was a condition for the declaration of their probation that, they had to pass the test of Part A Grade Surveyors Test and Part B Head Surveyors Test, which is conducted by the PSC. It is also not in dispute that, both respondents 3 and 4 had passed the test in the year 1989-1990. The petitioner passed the same only in 1998. Consequently, the probation of the petitioner was declared only on 22.05.1998 whereas, the probation of respondents 3 and 4 were declared on 01.11.1996 and 01.01.1997 respectively. 14. Considering the dates on which the PSC had advised the incumbents for appointment, the petitioner was treated as senior to respondents 3 and 4 in the post of Superintendent of Survey and Land Records. However, in the seniority list of Assistant Directors, which is the next higher post, taking into account the dates on which the vacancies arose and the dates on which the incumbents had acquired the qualification, the 3[rd] respondent has been included in the select list of 1996, the 4[th] respondent has been O.P. (KAT) No.139 of 2018 10 included in the select list of 1997 and the petitioner has been included in the select list of 1998. We are not satisfied that there is any infirmity in the said action for the reason that, the probation of the petitioner was declared only in the year 1998 and she could not have been considered for the vacancy that arose in the year 1996. it is trite that the eligibility for being promotion to a vacancy has to be considered as on the date of occurrence of the vacancy. As a result, in the post of Assistant Directors, respondents 3 and 4 naturally became seniors to the petitioner. 15. It is true that, as per Annexure A6 order, exemption was granted to the petitioner under Rule 39 of Part II KS&SSR and was provisionally promoted. However, since the same was only a provisional promotion, no claim on the basis thereof could be put forward by the petitioner for a regular promotion. Therefore, the DPC has rightly found that respondents 3 and 4 were entitled to be promoted in preference to the petitioner, to the promotional post. The above aspect has been considered properly in Annexure A23. The KAT has therefore rightly repelled the challenge against Annexure A23. Though it is vehemently contended that, the omission on the part of the PSC to conduct the departmental test from 1992 to 1998 had prejudicially affect the petitioner, we are not satisfied that there is any substance in the said contention. This is for the reason that respondents 3 and 4 had O.P. (KAT) No.139 of 2018 11 passed the departmental test in the year 1989-1990 itself. Therefore, in the year 1996 when the first vacancy arose, it was the 3[rd] respondent, who was eligible to be appointed to the said post. According to the learned counsel for the petitioner, the petitioner as well as respondents 3 and 4 were undergoing training after 1989 and therefore the conclusion of the KAT that there were five chances, available for the petitioner before 1990 is not correct. However, in fact, the respondents 3 and 4 had appeared, and passed the test by 1990 itself. In the above factual scenario, we are not satisfied that there are any grounds to interfere with the impugned order or to set aside the same. For the foregoing reasons, this OP (KAT) is dismissed. Sd/- **K. SURENDRA MOHAN JUDGE** Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge RKM