## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
## **&**
**THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941**
**OP(KAT).No.292 OF 2015(Z)**
**AGAINST THE ORDER/JUDGMENT IN OA 134/2013 DATED 28-05-2015 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM**
## **PETITIONER/S:**
**I.V.CHANDRAN AGED 52 YEARS S/O K.P.GOVINDAN NAIR, AUDIT OFFICER (HIGHER GRADE), KANNUR UNIVERSITY P.O., MANGATHUPARAMBA, KANNUR, RESIDING AT ILLATH VEEDU, P.O. AROLI, KERALA-670561.**
**BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SRI.T.G.SUNIL (PRANAVAM)**
## **RESPONDENT/S:**
**1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001. 2 THE DIRECTOR OF LOCAL FUND AUDIT VIKAS BHAVAN, THIRUVANANTHAPURAM-695033, KERALA. 3 SALAMMA BASALIOSE DEPUTY DIRECTOR LOCAL FUND AUDIT MUNCIPAL AUDIT, KOTTAYAM MUNICIPALITY, KOTTAYAM, KERALA-686001.**
## **R1-2 BY GOVERNMENT PLEADER**
## **OTHER PRESENT:**
## **SR. GP SRI.P.N.SANTHOSH**
**THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 09.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**O.P(KAT) No. 292 of 2015**
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## **JUDGMENT**
**Dated, this the 09[th] day of March, 2020**
## **Vinod Chandran, J.**
**The applicant, while in the State service, before completing his probation in the post to which he was promoted, availed Leave Without Allowances and joined back after a period of time. Whether he is entitled to the benefit of the earlier period of probation he underwent before he left on leave and whether on re-joining he should be considered for promotion over his juniors;** _**de hors**_ **declaration of his probation in the promoted**
**post are the two questions arising for consideration.**
**2. The Tribunal found the first question in favour of the applicant and held that he need only complete the balance period of probation after re-joining. On the question of seniority,**
**O.P(KAT) No. 292 of 2015**
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**the Tribunal held that he could claim promotion only on declaration of probation and every person irrespective of their seniority who were promoted prior to that would be considered senior in the higher category.**
**3. The learned Counsel for the applicant relies on a judgment of the Hon'ble Supreme Court reported in** _**2008(1) KLT 712 (SC) [Mohammed Abdulla v. State of Kerala]**_ **produced as Annexure A5. The learned Government Pleader, however, relies on the Special Rules to contend that only on declaration of probation the applicant would be considered for the higher post.**
**4. On facts, the applicant joined the Local Fund Audit Department in the subordinate service of the State as Auditor Grade II on 16.07.1987. He went through the promotion channel available in the subordinate service and was promoted to the State service as Audit Officer by**
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**Annexure A1 order dated 28.02.2006. Within two months he availed LWA from 05.08.2006 to 30.05.2009. He joined back, cancelling the unavailed portion of five years leave, on 30.05.2009. The applicant on re-joining duty was immediately promoted as Audit Officer(Higher Grade) by Annexure A4 order dated 17.06.2009 with effect from 31.05.2009.**
**5. The petitioners probation in the cadre of Audit Officer was declared by Annexure A7 order dated 20.04.2011 with effect from 07.04.2010. On objections being filed by the persons in the seniority list, there was a revised seniority list of Audit Officers (Higher Grade) published, produced at Annexure A9(a) which contained the persons appointed during the period from 16.12.2007 to 30.04.2010. The applicant's exclusion from the list resulted in filing of the OA.**
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**6. The learned Counsel for the petitioner places reliance on the cited decision of** _**Mohammed Abdulla**_ **(supra) to contend that even in the case of the applicant, Rule 4 of Appendix XII A of the Kerala Service Rules applied. We have no quarrel with that, insofar as the applicant's juniors being promoted, only during the period of leave, retaining their seniority in the higher post. If it was left at that, definitely, the applicant could have been promoted to the post of Audit Officer(Higher Grade) on re-joining duty after the leave availed,** _**dehors**_ **his declaration of probation in the post of Audit officer having not been declared.**
**7. But, however, in the present case, we see the fundamental difference is insofar as the State service being regulated by Special Rules for the Kerala Local Fund Audit Service issued as per S.R.O No.650/2008 produced in the OA as Annexure**
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**A13. We pertinently notice that in the cited decision what came up for consideration is the Kerala Local Fund Audit Service Special Rules 1960.**
**8. As per the Special Rules of 2008, there**
**are 8 categories in the State service starting from Office Superintendents and in the ascending order of the promotional hierarchy ending with Director of Local Fund Audit. The petitioner was in the post of Audit officer when he proceeded on leave; within two months of his appointment, admittedly when he had not completed probation in the post of Audit Officer. We take note of Rule 6 of the Special Rules of 2008 which provides for probation for every persons appointed to 8 categories except category no.5 Audit Officer(Higher Grade). Hence without probation being declared in the post of Audit Officer there can be no promotion to the post of Audit**
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**Officer(Higher Grade). The Tribunal also found that the petitioner cannot avail the benefit of the 1[st] proviso to Rule 28(a) since he was on leave without allowance when the period for completion of probation in the post of Audit Officer expired. We perfectly agree with the reasoning of the Tribunal.**
**In such circumstance we do not think that the challenge is sustainable and we reject the original petition upholding the order of the Tribunal. No order as to costs.**
**Sd/K. Vinod Chandran, Judge**
**jma**
**Sd/P.V.Kunhikrishnan Judge.**
**O.P(KAT) No. 292 of 2015**
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## **APPENDIX**
**PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1**
**TRUE COPY OF THE O.A.1354/2013 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.**
- **EXHIBIT P2**
- **TRUE COPY OF M.A.FILED BY THE PETITIONER FOR OR PAPER PUBLICATION BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.**
## **EXHIBIT P3**
- **TRUE COPY OF REPLY ALONG WITH ANNEXURES FILED BY THE IST RESPONDENT IN OA NO.134/2013 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.**
- **EXHIBIT P4**
- **TRUE COPY OF ORDER DATED 28.5.2015 IN O.A.NO.134/2013 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.**
- **ANNEXURE A1 TRUE COPY OF ORDER DATD 28-02-2006 ISSUED BY THE 2ND RESPONDENT**
- **ANNEXURE A2**
- **TRUE COPY OF ORDER DATED 15-11-2007 ISSUED BY THE 2ND RESPONDENT.**
- **ANNEXURE A2(a)**
- **TRUE COPY OF FINAL SENIORITY LIST OF AUDIT OFFICERS FROM 25-06-2005 TO 0206-2006 PUBLISHED AS PER ANNEXURE A2.**
## **ANNEXURE A3**
- **TRUE COPY OF G.O.(Rt) NO.3557/2006/FIN. DATED 09-05-2006 ISSUED BY THE GOVERNMENT.**
- **ANNEXURE A3(a) TRUE COPY OF G.O.(Rt) NO.6728/2009/FIN. DATED 07-10-2009 ISSUED BY THE GOVERNMENT.**
## **ANNEXURE A4**
**TRUE COPY OF ORDER DATD 17-06-2009 ISSUED BY THE 2ND RESPONDENT.**
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## **ANNEXURE A5**
**TRUE COPY OF DECISION OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO.4490/2007 REPORTED IN 2008(1) KLT 712.**
## **ANNEXURE A6**
- **TRUE COPY OF ORDER DATED 29-07-2010 ISSUED BY THE 2ND RESPONDENT.**
## **ANNEXURE A6(a)**
- **TRUE COPY OF FINAL SENIORITY LIST OF AUDIT OFFICERS (HIGHER GRADE) FOR THE PERIOD FROM 16-12-2007 TO 30-04-2010 PUBLISHED AS PER ANNEXURE A6**
- **ANNEXURE A7 TRUE COPY OF ORDER DATED 20-04-2011 ISSUED BY THE 2ND RESPONDENT.**
- **ANNEXURE A8 TRUE COPY OF ORDER DATED 16-06-2012 ISSUED BY THE 2ND RESPONDENT.**
- **ANNEXURE A8(a)**
- **TRUE COPY OF ENGLISH TRANSLATION OF ANNEXURE A8.**
- **ANNEXURE A9 TRUE COPY OF ORDER DATED 21-06-2012 ISSUED BY THE 2ND RESPONDENT.**
- **ANNEXURE A9(a) TRUE COPY OF REVISED FINAL SENIORITY LIST OF AUDIT OFFICERS (HIGHER GRADE) FOR THE PERIOD FROM 16-12-2007 TO 3004-2010 PUBLISHED AS PER ANNEXURE 9.**
- **ANNEXURE 10 TRUE COPY OF REPRESENTATION DATED 0108-2012 FILED BY THE PETITIONER BEFORE THE GOVERNMENT.**
- **ANNEXURE 11 TRUE COPY OF ORDER DATED 06-08-2012 IN OA NO.1555/2012 OF KERALA ADMINISTRATIVE TRIBUNAL.**
- **ANNEXURE A12 TRUE COPY OF ORDER DATED 19-12-2012 ISSUED BY THE GOVERNMENT.**
- **ANNEXURE A12(a) TRUE COPY OF ENGLISH TRANSLATION OF ANNEXURE A12.**
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## **ANNEXURE A13**
**TRUE COPY OF SPECIAL RULE FOR THE KERALA LOCAL FUND AUDIT SERVICE, 2008 ISSUED AS PER G.O. DATED 20-06-2008.**
- **ANNEXURE A14**
**TRUE COPY OF REPLY ISSUED BY THE STATE PUBLIC INFORMATION OFFICER AS PER COMMUNICATION DATED 02-04-2012.**
## **ANNEXURE A14(a)**
- **TRUE COPY OF ENGLISH TRANSLATION OF ANNEXURE A14**
- **ANNEXURE A15 TRUE COPY OF REPLY ISSUED BY THE 2ND RESPONDENT AS PER COMMUNICATION DATED 03-03-2012 ALONG WITH THE ENCLOSURE.**
- **ANNEXURE A15(a) TRUE COPY OF ENGLISH TRANSLATIN OF ANNEXURE A15**
- **ANNEXURE A16 TRUE COPY OF G.O.(Rt) NO.7685/12/FIN. DATED 22-08-2012 ISSUED BY THE GOVERNMENT..**
- **ANNEXURE A17 TRUE COPY OF G.O.(Rt)NO.9036/12/FIN DATED 20-10-2012 ISSUED BY THE GOVERNMENT.**
- **ANNEXURE 18 TRUE COPY OF G.O.(Rt)NO.10677/12/FIN DATED 21-12-2012 ISSUED BY THE GOVERNMENT.**
- **EXHIBIT P5**
- **TRUE COPY OF REPLY DATED 31-10-2013 ISSUED BY THE 2ND RESPONDENT.**
- **RESPONDENT'S/S EXHIBITS:**
- **ANNEXURE R1(a) TRUE COPY OF ORDER NO.LF.10970/ESTT.3/2012 DATED 12-032013 ISSUED BY THE 2ND RESPONDENT.**
- **ANNEXURE R1(b)**
- **TRUE COPY OF ORDER NO.LF.882/O & M1/2011 DATED 16-04-2013 ISSUED BY THE 2ND RESPONDENT.**
