High Court of KeralaSingle Judge2022-10-17Writ petition allowed; Ext P6 set aside; Govern...

Nizamuddeen I. v. State of Kerala and others

Case / Petition Number:WP(C) NO. 6885 OF 2022

Neutral Citation:.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2022-10-17
Court Decision / Holding: Writ petition allowed; Ext P6 set aside; a consequential direction to the competent Government authority to reconsider Ext. P5 representation, adverting to Rule 28(a) of KS&SSR, after affording him and the 4th respondent an opportunity of hearing; to culminate in an appropriate order as expeditiously as possible but not later than two months from the receipt of a copy of the judgment. The fresh decision will be independent of Ext. P4. Ext. P4 is not set aside, but a fresh decision will be based on Ext. P5 after due process.
Final Disposition: Writ petition allowed; Ext P6 set aside; Government to reconsider Ext P5 after hearing within two months, independently of Ext P4; fresh decision to follow KS&SSR Rule 28(a).

Parties to the Case

Appellants / Petitioners

Nizamuddeen I.

Respondents

State of Kerala
Director of Collegiate Education
Deputy Director of Collegiate Education, South Zone
Manager cum Secretary, Milad-E-Sherief Memorial College

Legal Representation & Advocates

Counsels for Petitioners

• K. Jaju Babu (Sr.)
• M. U. Vijayalakshmi Brijesh Mohan

Counsels for Respondents

• Babu Varghese (Sr.)
• C. V. Alexander
• Abhay Ferdinand
• Resmi Thomas (GP)

Case Synopsis & Summary

The petitioner, Nizamuddeen I., a retired Senior Superintendent seeking to progress within the government college system, challenged Exts. P4 and P6, communications which rejected his request for a declaration of probation in the post of Head Accountant so as to enable promotion to the post of Senior Superintendent in Milad-E-Sherief Memorial College, Kayamkulam. He contends that the rejection rested on an erroneous premise that he had not completed sufficient tenure in Head Accountant, which would block the promotion; he relies on Rule 28(a) of the Kerala State and Subordinate Services Rules, 1958 (KS&SSR) to argue that celebration of a probation is not a prerequisite for promotion after promotion to Head Accountant, provided there is no allegation of lack of educational qualification or failure in tests. He also cites a past instance (through Ext. P1(a) and the case Devaki v. State of Kerala, ILR 2006 (3) Kerala 825) to substantiate his position, and points to Ext. P3 as the valid Promotion Order. The respondents insist Ext. P3 and the chain of decisions conform to the statutory regime and that without declared probation the promotion cannot proceed. The High Court ultimately emphasizes that Rule 28(a) must be examined before adverse action and that the petitioner must be heard. It sets aside Ext. P6 and directs the Government to reconsider Ext. P5 after due hearing within two months, with the fresh decision to be independent of Ext. P4.

Provisions of Law Cited

Kerala State and Subordinate Services Rules, 1958 - Rule 28(a)

Legal Doctrines & Maxims

de hors

Submissions & Arguments

Contentions of Appellants / Petitioners

Exts. P4 and P6 were issued on the untenable premise that the petitioner had not completed sufficient tenure in the Head Accountant post to justify probation before promotion. Under Rule 28(a) of KS&SSR, after promotion to Head Accountant, a candidate can be promoted to Senior Superintendent even if probation in the former post has not been declared, provided there is no adverse educational qualification or failure to pass tests. The government ignored Rule 28(a) and proceeded to deny promotion solely on the basis of not declaring probation, contrary to the statutory scheme. The petitioner relies on Ext. P1(a) showing a similar benefit granted in the past to Sri O. Kassim Koya (2001). He contends that Ext. P3, the Promotion Order, was issued in compliance with the statutory entitlement; no valid grounds to withhold the promotion were articulated in Ext. P4 or P6. The government should have afforded an opportunity of hearing before adverse action and should have considered the provisions of KS&SSR. The court should declare Exts. P4 and P6 illegal and direct competent authority to grant approval for promotion pursuant to Ext. P3 within a time frame.

Contentions of Respondents

Ext P3 is in accordance with the KS&SSR; The petitioner was promoted to Senior Superintendent within one month after promotion to Head Accountant; Without declared probation in the Head Accountant post, the government cannot proceed with promotion under Rule 28(a) because the probation requirement is a condition for further promotion; Ext P4 contains the reasoning for rejecting the proposal but is not erroneous; The government followed due process; The petitioner has not succeeded to show any illegality in Ext P3; The Government pleads that the promotion is to be regulated by the statutory scheme, and a probation in Head Accountant must be declared.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Devaki v. State of Kerala	ILR 2006 (3) Kerala 825	Mentioned Only	Court references Devaki for substantiation by the petitioner but does not explicitly adopt or distinguish its ratio in delivering the present judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944** **WP(C) NO. 6885 OF 2022** ## **PETITIONER:** **NIZAMUDDEEN I., AGED 58 YEARS,** **S/O.IBRAHIM KUTTY, SENIOR SUPERINTENDENT (RETIRED), MILAMD-E-SHERIEF MEMORIAL COLLEGE, KAYAMKULAM-690502, RESIDING AT VELICKAKATHU BUILDING, NEAR FIRE STATION, KAYAMKULAM P.O., ALAPPUZHA-690502.** **BY ADVS.K.JAJU BABU (SR.) M.U.VIJAYALAKSHMI BRIJESH MOHAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.** - **3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, SOUTH ZONE, ASP TOWER, KOLLAM-691 009.** - **4 THE MANAGER CUM SECRETARY, MILAD-E-SHERIEF MEMORIAL COLLEGE, KAYAMAKULAM-690502.** **BY ADVS.BABU VARGHESE (SR.) C.V.ALEXANDER ABHAY FERDINAND SMT.RESMI THOMAS-GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 6885 OF 2022** **-2-** ## **JUDGMENT** The petitioner impugns Exts.P4 and P6 orders of respondents 2 and 1 respectively, through which, the request made by his employer - namely the 4th respondent – Manager-cum-Secretary, 'Milad-E-Sherief Memorial College', Kayamkulam - for declaration of probation in the post of Head Accountant, so as to obtain to him approval of his subsequent promotion to the post of Senior Superintendent, has been rejected. 2. Sri.Brijesh Mohan – learned counsel for the petitioner, points out that both Exts.P4 and P6 proceeded on the incorrect assumption that petitioner did not complete sufficient time in the post of Head Accountant, so as to grant him the benefit of declaration of probation in the said post; and therefore, that his subsequent promotion to the post of Senior Superintendent **WP(C) NO. 6885 OF 2022** **-3-** is in error. 3. Sri.Brijesh Mohan argued that this is completely untenable because, going by Rule 28(a) of the Kerala State and Subordinate Services Rules, 1958 ('KS & SSR', for short), as long as there is no allegation against his client that he is not educationally qualified or that he has not passed the requisite tests, he was fully entitled to be promoted as Senior Superintendent, after being promoted as Head Accountant; and that the question of him having to occupy the former post for a particular period of time would not apply. 4. Sri.Brijesh Mohan alleged that, however, the afore provision has been completely disregarded by the Government while issuing the impugned orders; and that his client also relies on the judgment of this Court in _**Devaki v. State of Kerala** [ILR 2006 (3) Kerala 825]_ in ## **WP(C) NO. 6885 OF 2022** **-4-** substantiation. He thus prayed that Exts.P4 and P6 be declared to be illegal; and consequentially, that competent Authority be directed to grant his client approval for his promotion pursuant to Ext.P3, within a time frame to be fixed by this Court. 5. Sri.C.C.Alexander – learned counsel appearing for respondent No.4, made submissions in favour of the petitioner, saying that Ext.P3 Promotion Order is without error, since it subscribes to the provisions of the aforementioned Statutory Scheme. 6. Smt.Resmi Thomas – learned Government Pleader appearing for the official respondents, submitted that, as is luculent from Ext.P3 itself, the petitioner has been granted promotion as Senior Superintendent within a period of one month after he was promoted as the Head Accountant. She submitted that, obviously, ## **WP(C) NO. 6885 OF 2022** **-5-** unless the probation of the petitioner in the post of Head Accountant had been satisfactorily declared, he could not have been granted further promotion by the 4[th] respondent, as has been done through Ext.P3 order. She thus prayed that this writ petition be dismissed. 7. I am afraid that I cannot find favour with the afore submissions of Smt.Resmi Thomas, when I read Rule 28(a) of the 'KS & SSR'. As rightly argued by Sri.Brijesh Mohan, said Rule provides the manner in which a person like the petitioner can be given further promotion to the post of Senior Superintendent, after being afforded promotion to the post of Head Accountant, even though the probation in the latter post had not been completed. 8. In fact, I also notice that it is the specific case of the petitioner, relying on Ext.P1(a), that in the case of a person by name ## **WP(C) NO. 6885 OF 2022** **==> picture [22 x 9] intentionally omitted <==** Sri.O.Kassim Koya, similar benefit was issued and approval granted to an identical promotion of his, in the year 2001. 9. In this context, when one examines Exts.P4 and P6, it cites no reason why the proposal of the 4[th] respondent for approval of the promotion of the petitioner, as per Ext.P3, has been rejected, except saying that his probation in the post of Head Accountant had not been declared. 10. As I have already said above, Rule 28(a) of the 'KS & SSR' ought to have been looked into by the Government, before such a decision could have been taken and the petitioner also ought to have been heard, before any decision to his detriment could have been taken. In the afore circumstances, I order this writ petition and set aside Ext.P6; with a consequential direction to the competent ## **WP(C) NO. 6885 OF 2022** **-7-** Authority of the Government to reconsider Ext.P5 representation of the petitioner, adverting specially to Rule 28(a) of the 'KS & SSR', after affording him, as also the 4[th] respondent – Manager, an opportunity of being heard; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Even though I have not set aside Ext.P4, since it is for the Government to take a fresh decision based on Ext.P5, I make it clear that their decision will be completely independent and _de hors_ the said order. ## **Sd/DEVAN RAMACHANDRAN JUDGE** akv **WP(C) NO. 6885 OF 2022** **-8-** ## **APPENDIX OF WP(C) 6885/2022** ## **PETITIONER EXHIBITS** EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT VIDE NO. F1-55745/200/COLL. EDN. DATED 15/10/2001. - EXHIBIT P1(A) TRUE COPY OF THE ENTRIES OF SRI. O. KASSIM KOYA IN THE SERVICE BOOK OF MILAD-E-SHERIEF MEMORIAL COLLEGE, KAYAMKULAM. - EXHIBIT P2 TRUE COPY OF THE ORDER VIDE NO. G1/666/2019 DATED 03/05/2019 FORWARDED BY THE 4TH RESPONDENT TO THE PETITIONER. - EXHIBIT P3 TRUE COPY OF THE ORDER VIDE NO. G1/815/2019 DATED 01/06/2019 FORWARDED BY THE 4TH RESPONDENT TO THE PETITIONER. - EXHIBIT P4 TRUE COPY OF THE COMMUNICATION VIDE NO. F5/24716/19 DATED 15/10/2019 ISSUED BY THE 2ND RESPONDENT TO THE PRINCIPAL OF THE COLLEGE. - EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - EXHIBIT P6 TRUE COPY OF THE COMMUNICATION VIDE NO. D3/163/2021/H.EDN. DATED 08/02/2022 OF THE 1ST RESPONDENT. **RESPONDENT'S/S EXHIBITS : NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE**