OP(KAT) No. 361 of 2017

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 5TH DAY OF OCTOBER 2017/13TH ASWINA, 1939 ## **OP(KAT).No. 361 of 2017 () ---------------------------** AGAINST THE ORDER IN OA 964/2013 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 26.05.2017 PETITIONERS/RESPONDENTS 4 & 5: ------------- 1. M.S.SALIM AGED 53 YEARS, S/O. SAYED MOHAMMED, SPECIAL TAHISILDAR LA (NH), PONKUNNAM, KOTTAYAM, KERALA 686 506, RESIDING AT MANGASSERIL HOUSE, KANJIRAPPALLY P.O, KOTTAYAM DISTRICT, PIN 686 507 2. LILLY C AGED 53 YEARS, W/O. P.V VINODKUMAR, TAHSILDAR, SPECIAL TAHSILDAR LA(NH) NO.1, PALAKKAD,KERALA 678 001 RESIDING AT RIGHT RESIDENCY, CHULLIYODE ROAD P.O, CIVIL STATION, KOZHIKODE BY ADV. SMT.I.SHEELA DEVI RESPONDENTS/APPLICANTS 1 TO 3 & RESPONDENTS 1 TO 3 & 6 IN O.A.: -------------- 1. M.SREEKUMAR S/O.V. MADHAVA KURUP, DEPUTY TAHSILDAR, TALUK OFFICE, THIRUVALLA 689 622 RESIDING AT DREEPADAM, MANNAR P.O, ALAPPUZHA, KERALA 689 622 2. T.P RADHAKRISHNAN NAIR S/O. PARAMESWARAN NAIR, DEPUTY TAHSILDAR, OFFICE OF SPECIAL TAHSILDAR LA NH NO.2 ALUVA 683102, RESIDING AT PRIYADARSINI HOUSE, EAST KADUNGALLOOR, ALUVA, KERALA 682 102 ## **OP(KAT).No. 361 of 2017 ()** 3. P.R RADHIKA D/O. RAMAN MENON, DEPUTY TAHSILDAR,'OFFICE OF SPECIAL TAHSILDAR LA(GEN.) KAKKANAD, ERNAKULAM 682 030, RESIDING AT 30/11,SARIKA, POONITHURA P.O, ERNAKULAM 682 038 4. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE(C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA 695 001 5. THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM, KERALA 695 033 6. THE DEPARTMENTAL PROMOTION COMMITTEE (LOWER) FOR REVENUE DEPARTMENT, REPRESENTED BY ITS CONVENOR/COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM, KERALA 695 033 7. SHAJI P.K S/O.LATE KUMARAN, JUNIOR SUPERINTENDANT, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM, NOW RESIDING AT PLAPPILLIL HOUSE, KEECHERY,ARYANKAVU, PIN 682 315(ADDITIONAL R6 IMPLEADED AS PER ORDER DATED 06-03-2014 IN MA NO 587/14 R3 BY ADV. SRI.P.NANDAKUMAR R3 BY ADV. SRI.S.ANEESH R4 TO R6 BY GOVERNMENT PLEADER MR. ANTONY MUKKATH THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP FOR ADMISSION ON 05-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 361 of 2017 () --------------------------- ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ----------------------- EXHIBIT P1 TRUE COPY OF THE O.A NO 964/2013 FILED ON 20-05-2013 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM BENCH BY THE RESPONDENTS 1 TO 3 EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT IN O.A NO 964/2013 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM EXHIBIT P3 TRUE COPY OF THE ORDER IN O.A NO 964/2013 DATED 26-05-2017 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM EXHIBIT P4 TRUE COPY OF THE ORDER NO GO(P) NO 62/92/P&ARD DATED 16-12-1992 ISSUED BY THE GOVERNMENT OF KERALA RESPONDENT(S)' EXHIBITS NIL. ----------------------- /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON** ## **& SHIRCY V, JJ.** .............................................................................. **O.P(KAT)No.361 OF 2017** ......................................................................... **Dated this the 5[th] October, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Ext.P3 verdict passed by the Tribunal in O.A. 964 of 2013 is put to challenge by the respondents 4 and 5 in the O.A., who were in fact impleaded in a representative capacity. 2. The sum and substance of the contention is that the Tribunal has unfortunately omitted to consider the scope of amendment to Rule 21 of Part II, KS & SSR, but for placing reliance on the verdict passed in _**Appukuttan Nair vs. State of Kerala**_ [1990 (2) KLT 806], which was prior to the amendment brought into force from 16.12.1992. 3. Heard the learned counsel for the petitioners, the learned counsel, who entered appearance on behalf of the third respondent herein and also the learned Government Pleader appearing for the State/Department. 4. The factual matrix revealed from the proceedings is that the applicants were working as Deputy Tahsildars and they **O.P(KAT)No.361 OF 2017** **2** became aggrieved of Annexures A7 and A8 orders issued by the Government, whereby 'en bloc' extension of probation was ordered by the Government in the case of unqualified seniors, who had not cleared the mandatory test/departmental test. Annexures A2 and A4 select lists were published giving placement to such unqualified seniors over and above the applicants, inspite of the fact that the applicants were available as qualified hands, to be promoted to the posts in question. 5. The stand of the Department was sought to be justified by the Government and it was supported by the petitioners herein . The facts and figures were analysed by the Tribunal and applying the law declared in _**Appukuttan Nair's case**_ and also with reference to the relevant rules, in particular, Rule 21 of Part II KS & SSR, the Tribunal held that it was already made clear that the Government would not be justified in making 'en bloc' extension of probation, applying Rule 21 of the Rules and that the reason for pursuing such exercise was necessarily to be given. It was accordingly, that Annexure A2/A4 select lists were set aside, besides setting aside Annexures A7 and A8, directing the Government to pass fresh orders, after hearing the parties, in **3** ## **O.P(KAT)No.361 OF 2017** the light of the observations made therein, within the time stipulated therein. This in turn is under challenge in this Original Petition, at the instance of the respondents 4 and 5 in the O.A. 6. As pointed out already, the case projected by the petitioners is that the Government is having sufficient power to extend the probation even beyond one year, by virtue of the amendment brought about to Rule 21 of the Rules. Though the power of the Government stood curtailed or restricted to extend probation only for a period of one year, no such hurdle is there after amendment, which was omitted to be taken note of by the Tribunal. The Rule as it existed earlier has undergone a vast change after the amendment and the same reads as follows: _“21. Extension of probation: In the case of any probation falling under sub-rule (b) of rule 19 or subrule © of rule 20, the appointing authority may extend his probation for a maximum period of one year to enable him to acquire special qualifications or pass the prescribed tests, as the case may be, or to enable the appointing authority to decide whether the probationer is suitable for full membership or not. Extension of probation beyond one year may, however, be ordered by Government if found necessary. In cases where the probation of a probationer is extended a condition shall, unless there are special reasons to the contrary, be_ **O.P(KAT)No.361 OF 2017** **4** _attached to the order of extension of probation that the probationer's increment shall be stopped until he is declared to have satisfactorily completed his probation. Such stoppage of increment shall not be treated as a penalty but only as a condition of extension of probation and shall not have the effect of postponing future increments after he has passed the prescribed tests or examinations or after he is declared to have satisfactorily completed his probation.”_ 7. The basic question to be considered is whether the Government is justified in passing an order whereby 'en bloc' extension of probation was ordered in the case of persons like the petitioners herein. Obviously, as per Annexure A7 order dated 26.12.2012, extension of probation was ordered in the case of 109 incumbents invoking the power under Rule 21 of the Rules; whereas similar exercise was pursued in respect of 13 incumbents, as per Annexure A8 order dated 03.01.2013. 8. Amendment to Rule 21 of course gives power to the Government to extend the term of probation beyond one year. But the said addition is specifically qualified by a rider -” **if found necessary** ”. By virtue of the conscious attempt in stipulating such a rider, it is quite evident that the necessity to have such extension (by arriving at a finding) should be reflected in the **O.P(KAT)No.361 OF 2017** **5** order. So also, when such power is exercised and extension is ordered, it is also necessary on the part of the Government to stipulate that there will be stoppage of increment in respect of such extension. Going by the undisputed facts and figures, it can be seen that extension was ordered by the Government whereby persons like the petitioners herein, who were stated as seniors, were permitted to have the benefit till they cleared the test or they completed the age of 50 years. The case was never considered on a 'fact to fact basis' with reference to each case and the necessity to have extended probation. 9. When the matter came up for consideration before this Court on earlier occasion, the learned counsel was required to address the Court with reference to the order passed by the Government, whereby probation was extended. It was accordingly that reference was made to Annexure A8 order. Though the said order runs to pages, it only refers to the sequence of events as to the passing of various orders, interference made and the subsequent exercise, ultimately holding that the probation was to be extended in all the cases. 10. It is quite relevant to note that the basic aspect dealing **6** ## **O.P(KAT)No.361 OF 2017** with the mandate of the rule is not specifically stated in Annexure A8 order. To put it more clear, the said order does not say that extension of probation was essential or that there was no qualified person to be promoted to the post in question, while considering the extension of probation in the case of unqualified seniors. 11. That apart, the rule also casts an obligation on the part of the Government to cause the increments to be stopped. Annexure A8 order does not say anything with regard to stoppage of increments despite the extension of probation beyond one year. This being the position, the basic requirement under the Rule is not seen satisfied while passing Annexure A8 order. The reasoning given by the Tribunal to sustain the finding as per Ext.P3, has to be read and understood in the above background. It will be worthwhile to make a reference to paragraphs 31 and 32 in this regard, which are extracted below: “ _31. Therefore, as already seen from Annexures A7 and A8 orders, the justification sought for granting blanket extension is that regularisation of temporary appointments/promotions is required. Otherwise, it will affect the seniority of persons. It can be seen that by_ **7** ## **O.P(KAT)No.361 OF 2017** _Annexures A7 and A8 orders the period of probation has been extended upto the next date of passing the tests/date of completion of 50 years. Such an exercise will clearly go against the principles stated in Appukuttan Nair's case (supra) and as already declared in Annexures A5 and A6 orders of this Tribunal. In Annexure A5 order, as already noticed, it has been clearly directed that cases of individuals concerned should be considered independently. It cannot be a mechanical extension of the period of probation till the date they passed the required tests or till they attained the age of 50 years. It was held that by passing such an order, the Government is encouraging inefficiency and lethargy at the cost of administrative efficiency, importantly it was further held as follows:_ _“The honest and efficient officers will have to work under such inefficient hands though as per the rules they are entitled to supersede such persons.”_ _Therefore, the Government cannot have passed an order to extend the period of probation till the date on which the beneficiaries of the order passed the test or till they attained the age of 50 years._ _32. Then the question is whether the Government is justified in relying upon Rule 31(e) of the KS & SSR and the retrospective promotion granted. The same stand taken in the earlier round of litigation has not been accepted as evident from para 5 of Annexure A6 order. This Tribunal has clearly found that such a reason cannot be accepted at all. The view taken is that such a reason cannot be accepted at all. The view taken is that all the members of_ **8** ## **O.P(KAT)No.361 OF 2017** _the Ministerial Subordinate Service, i.e. from Head Clerk to Lower Division Clerk are in the feeder category for promotion as Deputy Tahsildar. The Special Rules provide for clearing the requisite tests for declaration of probation in the cadre of Deputy Tahsildar. Therefore, from time to time, any person in the Subordinate Service can appear and clear those tests. Therefore, this is not a case where only on being regularly promoted to the cadre of Deputy Tahsildar, namely that after he commenced probation in that cadre he is liable to clear the obligatory tests. It was held that such a stand is plainly perverse. Therefore, the view taken in Annexures A7 and A8 orders by relying upon the requirement to grant retrospective promotion also falls to the ground. The impugned orders therefore cannot be supported at all.”_ 12. With regard to the submission made by the learned counsel that the scope of amendment was never considered by the Tribunal, this Court finds that the said contention is also not correct or palatable to this Court. The amendment brought about to Rule 21 of Rules was considered earlier by a Division Bench of this Court in W.A. No.691 of 1990 **(** a verdict passed by this Court with reference to the said amended rule), wherein the necessity to examine the facts and circumstances of each case, to form the opinion as to whether the extra ordinary power of **O.P(KAT)No.361 OF 2017** **9** relaxation should be exercised and the obligation cast upon the Government to record the reasons to sustain the rider ”if found necessary” were adverted to. This aspect was specifically noted by the Tribunal, as discernible from paragraph 27 of Ext.P3, which is extracted below: _“27. In W.A.No.691 of 1990 and connected cases the Division Bench specifically noted that “this is not a case in which adequate number of persons who had satisfactorily passed the tests and completed the period of probation were not available for consideration to the next higher cadre of Tahsildars”. The said view taken by the Division Bench is also important. The Division Bench while upholding the view taken by the learned Single Judge, in para 4, specifically held that the impugned order does not indicate that it has examined the facts and circumstances of each case to form the opinion as to whether the extra ordinary power of relaxation should be exercised in their favour, instead a blanket order is made in favour of the 124 persons giving extension of the period of probation till the date each one of them was able to pass the prescribed tests”. Of course in that case Rule 39 of the General Rules was invoked while relaxing Rule 21, but herein Rule 21 of Part II of the KS & SSR after the amendment requires the Government to pass an order, if found necessary. Therefore, the relevant principles discussed in the Writ Appeal judgment also show that the Government has to examine the circumstances of each case_ **10** ## **O.P(KAT)No.361 OF 2017** _and cannot pass a blanket order of extension. The said principles are relevant while considering the power conferred under the amended Rule 21 also. “_ 13. It was accordingly that the matter was finalised, interdicting the orders under challenge, virtually allowing the O.A. to the said extent and directing the Government to have the matter considered, after affording an opportunity of hearing to all concerned. The operative portion of the verdict as contained in Ext.P3 is in the following terms: _“Accordingly the Original Application is allowed and Annexures A7 and A8 are set a side. The Government will therefore pass a fresh order after hearing the parties in the light of the findings rendered above as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this order. The promotions made based on Annexures A2 and A4 select lists will be subject to the orders to be passed. We further reiterate that while passing orders the Government should clearly bear in mind the principles stated in the judgment of the Hon'ble High Court in_ _**Appukuttan Nair's** case (supra), the Division Bench decision in W.A.No.691 of 1990 and connected cases,_ _**Vijayakumar's** case (supra) as well as Annexures A5 and A6 orders of this Tribunal and in the light of the findings rendered above.”_ It is brought to the notice of this Court that pursuant to Ext.P3 **11** ## **O.P(KAT)No.361 OF 2017** judgment, the matter was finally heard by the Government on 22.08.2017 and orders are awaited. 14. After hearing, this Court finds that the petitioners have not succeeded in establishing any tenable ground to call for interference. The finding and observations made by the Tribunal with reference to the amended Rule position are not assailable under any circumstance. Interference is declined and the O.P stands dismissed. **P.R. RAMACHANDRA MENON, JUDGE** **JUDGE** lk