Krishna Moorthy v Travancore Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942** ## **WP(C).No.35486 OF 2019(I)** ## **PETITIONER:** **KRISHNA MOORTHY V AGED 39 YEARS** **S/O.VENKITESWARA IYER, EDASSERY AKARAM, ASWATHY BHAVAN, OTTASSEKHARAMANGALAM, THIRUVANANTHAPURAM-695 125 (MANAGER, VARANASY SATHRAM, TRAVANCORE DEVASWOM BOARD, VARANASY).** **BY ADV. SRI.S.SUBHASH CHAND** ## **RESPONDENTS:** - **1 TRAVANCORE DEVASWOM BOARD OFFICE OF THE TRAVANCORE DEVASWOM BOARD, DEVASWOM BUILDINGS, NANDHANCODE, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN-695 033.** - **2 THE DEVASWOM COMMISSIONER, OFFICE OF THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM BUILDINGS, NANDHANCODE, THIRUVANANTHAPURAM-695 033.** - **3 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE (DEVASWOMS) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **4 THE DEPUTY DEVASWOM COMMISSIONER(ADMINISTRATION), OFFICE OF THE DEPUTY DEVASWOM COMMISSIONER, NANDHANCODE, TDB, THIRUVANANTHAPURAM-695 033.** - **R1-2, R4 BY SRI.P.V.KUNHIKRISHNAN, SC, TDB R1-2, R4 BY SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.35486 OF 2019 2** ## **JUDGMENT** The petitioner says that he entered the services of Travancore Devaswom Board as a Part-Time Santhi in the year 2003 and that he was promoted as a Full-Time Santhi with effect from 03.02.2006. He says that he was, subsequently, promoted as Lower Division Clerk/Sub Group Officer Gr.II and posted as the Manager of the “Varanasi Sathram” in Uttar Pradesh, as is evident from Exts.P1 to P3 orders. He alleges that even though he was placed on probation only for a period of one year, same has not been formally declared at any stage, even though endorsement to the said effect was made in his service book, but scored of later. 2. The petitioner says that he has been working at the “Varanasi Sathram” from 07.09.2015 onwards and without being granted any benefit, except the basic scale of pay. The petitioner alleges that the action of the Travancore Devaswom Board in having continued ## **WP(C).No.35486 OF 2019 3** him in such passion, without declaring his probation, is illegal and unlawful and therefore, prays that this Court be pleased to direct respondents 1,2 and 4 to sanction and disburse to him the increments, earned leave surrender, pay fixation - including the benefits of 10[th] pay revision and provident fund, deeming that the probation has been declared after one year of his initial date of appointment. 3. In response to the afore submissions made on behalf of the petitioner by his learned counsel - Sri. Subhash Chand.S., the learned Standing Counsel for the Board – Sri.G.Biju, submitted that a counter affidavit has been filed on record, wherein, they have explained that the petitioner's probation has not been declared even as of now, since his performance has been found to be inept. The learned Standing Counsel submitted that since the Board has reliable information that the petitioner is not attending his duties at ## **WP(C).No.35486 OF 2019 4** Varanasi diligently, they propose to take a decision to revert him to his parent post; and therefore, that no benefits, as prayed for by him, may be directed to be granted. Sri.G.Biju concluded his submissions by saying that since the petitioner's probation has not yet been declared, he is not entitled to any of the reliefs sought for in this writ petition and therefore, prayed that this matter be dismissed. 4. When I consider the aforesaid rival submissions, it is indubitable - it being admitted - that the petitioner was promoted temporarily as the Manager of “Varanasi Sathram”, which is in the same scale of a Lower Division Clerk/ Grade II Sub Group Officer and that he was ordered to be on probation for a period of one year. Obviously, therefore, after the said period, the petitioner either ought to have been confirmed in probation or ought to have been informed as to why the said benefit cannot be **WP(C).No.35486 OF 2019 5** granted to him. 5. However, what is relevant in this case is that until 2018, no steps were taken to declare his probation and the Secretary of the Devaswom Board appears to have issued a communication, dated 24.07.2018, to the Devaswaom Commissioner authorizing him to declare the probation of the petitioner, if his service for the first one year had been found satisfactory. 6. However, the counter pleadings show that no steps were taken thereafter to either evaluate his performance for the first one year or to grant him the benefit of declaration of probation; but it is now averred that his performance throughout has been unsatisfactory. Pertinently, no documents have been placed on record to show that there was any such evaluation of his performance or that he had been found ineligible for being granted probation after one year from the date on which he had been promoted as the “Sathram” ## **WP(C).No.35486 OF 2019 6** Manager at Varanasi. 7. Obviously, therefore, the averments in the counter affidavit are lacking substantiation and can only be seen to be a defence now impelled by the Board to resist the claims made by the petitioner, particularly when he has been continuing in the “Varanasi Sathram” for the last nearly five years without any steps being taken to remove him, though it is asserted that his performance has been below par. 8. I cannot understand how this was allowed to be done, particularly when stringent allegations are now made against the petitioner in the counter pleadings filed on behalf of the Board. 9. That apart, going by the well settled principles of law declared in _**S.N.Colleges v.**_ _**Raveendran**_ [2004 (1) KLT 971], _**N.Shamsul Hunda and Another v. State of Kerala and Others**_ [2007 (2) KHC 185] and _**Satheesh Kumar M. and Another v. Travancore Devaswom Board and**_ **WP(C).No.35486 OF 2019 7** _**Others**_ [2009 (2) KLT 828], the probation of an employee, be that in any service, cannot be extended indefinitely and without any discernible reason and that in such circumstances, the probation will have to be construed as having been deemed to be declared, especially when the applicable Rules provide for its maximum period of probation. 10. In fact, the principles as enunciated in the afore said judgments are guided by the judgment of the Hon'ble Supreme Court in _**State of Punjab v. Dharam Singh**_ [AIR 1968 SC 1210] which has lucidly declared that when the probation of an employee is refused to be declared for no cogent or reliable reason, it must be deemed that it has been confirmed with effect from the date on which the period expired; and these principles apply in all its force to the facts of this case more than any other, because, as I have already said above, though the petitioner was appointed in the year 2015, he has not been intimated nor been ## **WP(C).No.35486 OF 2019 8** told by any of the competent Authorities that his performance was found bad, thus not being eligible to his probation being declared. 11. This is crucial because, Ext.P4 clearly says that the petitioner's performance for the first one year ought to have been assessed and his probation declared by the Devaswom Commissioner, but no action thereto had also been taken by the said officer until now. **==> picture [358 x 12] intentionally omitted <==** counter affidavit can only be suspected to be an afterthought to defeat the legitimate claims of the petitioner, particularly when, as found by me earlier, he has been working in the promoted post without being shifted for the last more than five years. In the afore circumstances, guided by the afore precedents, I order this writ petition and direct the competent Authorities to deem that probation of the petitioner was declared with effect from the date on which he **WP(C).No.35486 OF 2019 9** completed one year in the post of Manager of the “Varanasi Sathram” at Uttar Pradesh and to consequently grant all the eligible benefits to him during the period he had worked in the said position. This shall be done at the earliest, but not later than two months from the date of receipt of a copy of this judgment. Needless to say, since I have not considered any other contentions of the rival parties, including as to whether the petitioner is liable to be reverted to his parent post, the Board will be at liberty to take any such decision, after following due procedure and affording necessary opportunity of being heard to the petitioner. ## **Sd/-** **DEVAN RAMACHANDRAN JUDGE** **MC/5.2.2021** **WP(C).No.35486 OF 2019 10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER BEARING NO.ROC 120/13/EST.1 DATED 25.07.2015 ISSUED BY RESPONDENT NO.1.** **EXHIBIT P2 TRUE COPY OF THE ORDER BEARING ROC NO.12821/06/EST. DATED 05.08.2015 ISSUED BY RESPONDENT NO.2.** **EXHIBIT P3 TRUE COPY OF THE ORDER BEARING ROC NO.1057/09/BUD DATED 20.08.2015 ISSUED BY RESPONDENT NO.4. EXHIBIT P4 TRUE COPY OF THE ORDER BEARING ROC NO.120/13/EST.1 DATED 24.07.2018 ISSUED BY RESPONDENT NO.1 BOARD TO RESPONDENT NO.2. EXHIBIT P5 TRUE COPY OF THE IDENTIFICATION CARD ISSUED BY RESPONDENT NO.1 BOARD TO THE PETITIONER. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 09.10.2019 IN WPC NO.18008/2019 (A) PASSED BY THIS HON'BLE COURT. EXHIBIT P7 TRUE COPY OF THE ORDER BEARING NO.20571/DEV.2/2014/RD DATED 19.08.2014 ISSUED BY RESPONDENT NO.3. RESPONDENT'S/S EXHIBITS: EXHIBIT R1(A) TRUE COPY OF ORDER DATED 7.8.2014 ISSUED BY FIRST RESPONDENT BOARD ASKING TO ASCERTAIN WHETHR PETITIONER ISWILLING TO WORK ON DUTY AGREEMENT BASIS. EXHIBIT R1(B) TRUE COPY OF ROC NO.1057/2009/LAND DATED 14.10.2019 ISUED BY TRAVANCORE DEVASWOM BOARD.**