High Court of KeralaDivision Bench2020-02-20The Tribunal’s order is affirmed; original peti...

OP(KAT) Nos. 83/14 & 214/15(Z) - Saju P. v State of Kerala and Others; P.V. Satheesh Kumar v State of Kerala and Others

Case / Petition Number:OP(KAT) No.83/2014 (Z); OP(KAT) No.214/2015 (Z)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran, J.
P. V. Kunhikrishnan, J.
Judgment Date: 2020-02-20
Court Decision / Holding: The High Court affirmed the Kerala Administrative Tribunal’s order and rejected the original petitions, holding that probation must be completed before promotion and that retrospective seniority/fixation cannot substitute for probation; the court concluded that the petitioners are not entitled to promotion based on the asserted retroactive seniority. There is no order as to costs.
Final Disposition: The Tribunal’s order is affirmed; original petitions are rejected; no costs.

Parties to the Case

Appellants / Petitioners

Saju P., Senior Grade Printer, Government Central Press, Thiruvananthapuram
Biju P.A., Senior Grade Printer, Government Press, Ernakulam
P.V. Satheesh Kumar, Printer Senior Grade, Government Press, Kannur
M.C. Rajan, Printer Senior Grade, Government Press, Kannur

Respondents

State of Kerala represented by the Secretary to Government, Higher Education Department
Director of Printing, Government Central Press, Thiruvananthapuram
The Deputy Superintendent, Government Central Press, Thiruvananthapuram
The Deputy Superintendent, Government Press, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Elvin Peter P.J.
• K.R. Ganesh
• T.G. Sunil (Pranavam)

Counsels for Respondents

• Sri.P.N. Santhosh, Senior Government Pleader

Case Synopsis & Summary

This judgment arises from two Kerala Administrative Tribunal (KAT) original petitions, OP(KAT) Nos. 83/14 and 214/15, challenging retrospective seniority fixation and promotions in Government Central Press undertakings. The petitioners, Saju P. and Biju P.A. (OP 83/14) and P.V. Satheesh Kumar and M.C. Rajan (OP 214/15), had been promoted to Printer Grade-I from Grade-II or lower categories with retrospective seniority dates assigned to reflect vacancies. The Tribunal upheld Ext. P12 (reversal of retrospective seniority/fixation) and dismissed Exts. P10 & P11 as inapplicable. The High Court, in its consideration, examined whether retroactive promotion could be triggered without declaration of probation and whether Rule 23(c) of Part-I KSR (promotions from vacancy dates without change of duties) could apply. It held that Rule 28(a) of Part-II KS&SSR requires probation for promotion, and Rule 28(a)(2) applies to feeders from lower categories. The court distinguished enabling provisions like Rule 4(2) and clarified that retroactive seniority cannot substitute for probation. While Rafiq Masih’s principle on refunds was discussed, the court ultimately aligned with Jagdev Singh (AIR 2016 SC 3523) and affirmed the Tribunal’s order, rejecting the petitions and ordering no costs. The matter thus clarifies that probation completion is essential for promotion and that retrospective seniority/fixation cannot by itself authorize promotion without probation implications.

Provisions of Law Cited

Rule 28(a) of Part-II Kerala State and Subordinate Service Rules (KS&SSR)Rule 28(a)(2) of KS&SSRRule 23(c) of Part-I Kerala Service Rules (KSR)Rule 4(2) of Special Rules

Legal Doctrines & Maxims

Rafiq Masih White Washer principle (State of Punjab & Others v. Rafiq Masih) regarding excess pay/recovery; distinguished in this judgment.
Promotion requires declaration of probation in the feeder or higher category; retroactive promotions absent probation are not allowed.
Jagdev Singh (AIR 2016 SC 3523) as the controlling authority for the present case, overruling the Rafiq Masih-based approach for this scenario.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that Special Rules allow promotion to Printer Grade-I from Grade-II based on seniority with retrospective dates, and that even without declaration of probation they could be promoted. They rely on Rule 28(a) of KS&SSR and Rule 4(2) to justify temporary promotions and seek relief from erroneous seniority fixation (Ext.P12).

Contentions of Respondents

The State argues that promotion hinges on probation, per Rule 28(a) and 28(a)(2) of KS&SSR, and that retrospective seniority alone cannot create a right to promotion. They rely on Rule 23(c) of Part-I KSR and argue that the promotion concept used to fix seniority did not involve a change of duties, thus being misapplied. They reference government orders amending rules (Exhibits P10-P12).

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State of Punjab & Others v. Rafiq Masih White Washer	[(2015) 4 SCC 334]	Distinguished	Cited as a guiding principle but distinguished in the present case; not applied in preference to Jagdev Singh.
High Court of Punjab and Haryana & Others v. Jagdev Singh	[(AIR) 2016 SC 3523]	Positive	Applied as the controlling doctrine for the present case; the court aligned with Jagdev Singh.
Sasi P.K. and Others v. State of Kerala and Others	[2020 (1) KHC 531 (FB)]	Mentioned Only	Cited to indicate that a Full Bench followed the Rafiq Masih principle elsewhere; not adopted here.

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Extracted Judgment Text

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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941** ## **OP(KAT).No.83 OF 2014(Z)** **AGAINST THE ORDER IN TA NO.208/2013 IN WP(C) NO.9661 OF 2011 DATED 16-01-2014 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/APPLICANTS:** **1 SAJU.P., SENIOR GRADE PRINTER, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM-695 001.** **2 BIJU P.A. SENIOR GRADE PRINTER, GOVERNMENT PRESS, ERNAKULAM.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SRI.T.G.SUNIL (PRANAVAM)** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2 THE DIRECTOR OF PRINTING, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM-695 001.** - **3 THE DEPUTY SUPERINTENDENT, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM-695 001.** - **4 THE DEPUTY SUPERINTENDENT GOVERNMENT PRESS, ERNAKULAM-682 030.** ## **R1-4 BY SENIOR GOVERNMENT PLEADER SRI.P.N. SANTHOSH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 20.02.2020, ALONG WITH OP(KAT).214/2015(Z), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT).Nos.83/14 & 214/15(Z) 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941** **OP(KAT).No.214 OF 2015** **AGAINST THE ORDER IN OA NO.1074/2013 DATED 27-03-2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/PETITIONERS:** - **1 P.V.SATHEESH KUMAR, AGED 42 YEARS PRINTER SENIOR GRADE, GOVERNMENT PRESS, KANNUR-670 004.** - **2 M.C.RAJAN, PRINTER SENIOR GRADE, GOVERNMENT PRESS, KANNUR-670 004.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SRI.T.G.SUNIL (PRANAVAM)** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF PRINTING, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM-695 001.** - **3 THE DEPUTY SUPERINTENDENT GOVERNMENT PRESS, KANNUR-670 004.** OP(KAT).Nos.83/14 & 214/15(Z) 3 **4 THE ASSISTANT SUPERINTENDENT GOVERNMENT PRESS, KANNUR-670 004.** **R1-4 BY SENIOR GOVERNMENT PLEADER SRI.P.N. SANTHOSH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 20.02.2020, ALONG WITH OP(KAT).83/2014(Z), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT).Nos.83/14 & 214/15(Z) 4 _**C.R.**_ ## **JUDGMENT** **K. Vinod Chandran, J.** **Petitioners in both the above cases are** **persons, who were promoted as Printer Grade-I on the date of declaration of probation or later to that date. When the seniority list of Printers Grade-I and Grade-II in the Government Presses were published, they were granted seniority with a retrospective date, the date on which the vacancy arose. The petitioners were also granted fixation on the basis of the retrospective dates assigned in the seniority list. Later, the same was withdrawn as per Ext.P12 produced in T.A. No.208 of 2013.** **2. The petitioners challenged Ext.P12 as also Exts.P10 & P11. The Tribunal found that Exts.P10 & P11 have no application to the petitioners, but upheld the revision carried out in Ext.P12. The** OP(KAT).Nos.83/14 & 214/15(Z) 5 **petitioners rely on the Special Rules to contend that even without declaration of probation, they could have been promoted to the higher post. It is also contended that they were promoted as Printer Grade-I from Grade-II and there is no change of duties. Rule 23(c) of Part-I Kerala Service Rules, 1959 would be squarely applicable to them, is the contention.** **3. The learned Government Pleader relies on the very same Special Rules to contend that only after the declaration of probation, a promotion could be reckoned. It is also submitted that they had not discharged their duties in the higher post and only for the purpose of seniority, the retrospective date was assigned. The learned Counsel for the petitioners, as an alternative argument, also contend that even if the petitioners' claim is rejected, the petitioners are entitled to claim that the refund be not ordered as has been held in** _**State of Punjab & Others v. Rafiq Masih White Washer [(2015) 4 SCC**_ OP(KAT).Nos.83/14 & 214/15(Z) 6 _**334]**_ **, which principle has been followed by a Full Bench of this Court in** _**Sasi P.K. and Others v. State of Kerala and Others [2020 (1) KHC 531 (FB)].**_ **4. We see from the Rule 28(a) of Part-II of the Kerala State and Subordinate Service Rules [for brevity, 'the KS&SSR'], that except Heads of Departments, no member of a service or Class of a service shall be eligible for promotion, from the category in which he was appointed to the service, unless he has satisfactorily completed his probation in that category. The 1[st] petitioners in both the original petitions joined service as Printer GradeII. Hence declaration of probation is necessarily required for further promotion from the entry cadre, as per Rule 28(a) of the KSSSR.** **5. However, 2[nd] petitioners in both the original petitions entered service in a Lower Grade and were then promoted to the post to the post of Printer Grade-II. For them Rule 28(a) is not** OP(KAT).Nos.83/14 & 214/15(Z) 7 **applicable, however Rule 28(a)(2) squarely applies. Rule 28(a)(2) provides that where the Special Rules provide for appointment by promotion to any Class or category from a specified Class or category, no member in the lower category can seek for promotion unless the probation is declared in that category. The Special Rules in this case provides for promotion to the post of Printers Upper Division from Printers Lower Division. Hence necessarily any person in the feeder category will have to complete probation before promotion is granted.** **6. The learned Counsel for the petitioners specifically referred to Rule 4(2) of the special Rules, which reads as under:** _**“(2) In cases where the methods of appointment to any Category provide for promotion from still lower category in the absence of qualified persons in the immediate lower category, the condition regarding the completion of probation in the immediate lower category need not always be insisted on,**_ OP(KAT).Nos.83/14 & 214/15(Z) 8 _**provided the candidates in the immediate lower category and the still lower category are approved probationers in the still lower category. In such cases persons who are technically qualified but who are only probationers in the immediate lower category may temporarily be promoted till their completion of probation in the immediate lower category instead of preferring those who are approved probationers in the still lower category.”**_ **7. The above provision; in cases where the feeder category itself comprises two hierarchical categories, enables the Government to promote temporarily a probationer in the immediate lower category, instead of a person, whose probation is declared, from the still lower category. This is an enabling provision for the Government and it cannot confer any right on a probationer to claim promotion to the higher category before he completes probation in the lower category. Nor is there, in the instant case, promotion contemplated from two lower** OP(KAT).Nos.83/14 & 214/15(Z) 9 **categories, one of which is lower to the other. The provision hence has no application to the facts of the case.** **8. We also have to notice Rule 23(c) of Part-I KSR, which is no more in the Rule Book, but available at the time when the petitioners were eligible for consideration. Rule 23(c) provides so:** _**“(c) Promotions which do not involve a change of duties shall have effect from the date of the vacancy which occasions the promotion.”**_ **9. It is admitted that there is no change of duties insofar as the Printers Grade-I & II are considered. But as we noticed the right to claim promotion or to be considered for that post arises only after the probation is declared in the lower category, whether it be an entry post or a feeder category. Rule 23 (c) only enabled a retrospective effect in case of administrative delays. There can be no retrospective effect conferred for a promotion,** OP(KAT).Nos.83/14 & 214/15(Z) 10 **from a date in which the employee was not qualified to hold the higher post. Hence Rule 23(c) has no application, since the promotion had never occasioned and the fixation was only on the basis of a retrospective date granted for assignment of seniority; which was erroneous on the face of it.** **10. Now the question arises as to whether a recovery can be validly carried out. We notice that** _**Rafiq Masih**_ **considered Class III and Class IV employees and wherein there was an excess amount paid as pay and allowances for reason of a default committed by the Department itself. In the present case, it was a revision of fixation on which an undertaking is specifically taken from the employee as to any erroneous fixation being liable to be reviewed. We do not think that the decision of the Full Bench has any application, since therein the excess payment was only by reason of the Government having accepted the order of the Tribunal, which** OP(KAT).Nos.83/14 & 214/15(Z) 11 **stood reversed by the Full Bench. At that point, many** **of the persons aggrieved had also retired. It was in such circumstances that the Full Bench relied on** _**Rafiq Masih**_ **to reject the claim of refund by the Government. In the present case, we are of the opinion that, what applies is** _**High Court of Punjab and Haryana & Others v. Jagdev Singh [(AIR) 2016 SC 3523]**_ **.** **We hence affirm the order of the Tribunal and reject the original petitions. There is no order as to costs.** ## **Sd/-** **K. VINOD CHANDRAN, JUDGE.** ## **Sd/-** ## **P.V. KUNHIKRISHNAN, JUDGE.** **sp/20/02/2020** **//True Copy//** **P.A. To Judge** OP(KAT).Nos.83/14 & 214/15(Z) 12 ## **APPENDIX OF OP(KAT) 83/2014** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF T. A. NO.208/2013 IN WPC 9661/11 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. ANNEXURE B TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT.** **ANNEXURE C TRUE COPY OF THE ORDER DATED 16.1.2014 IN T.A.NO.208/2013 IN W.P.(C) NO.9661/2011 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P1 TRUE COPY OF THE ORDER DATED 20.7.1998 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 8.2.2001 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 28.5.2001 ISSUED BY THE 2ND RESPONDENT. RELEVANT PAGES EXHIBIT P4 TRUE COPY OF THE ORDER DATED 10.7.2000 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 5.4.2000 IN O.P.NO.6674/1991 OF THIS HON'BLE COURT. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 11.9.2002 IN W.A.NO.1504/2000 OF THIS HON'BLE COURT. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 23.8.2003 OF THE 2ND RESPONDENT. EXHIBIT P7(a) TRUE COPY OF THE RELEVANT EXTRACT OF THE SENIORITY LIST OF PRINTERS GR-II PUBLISHED AS PER EXT.P7. RELEVANT PAGES** OP(KAT).Nos.83/14 & 214/15(Z) 13 ## **EXHIBIT P7(b)** **TRUE COPY OF THE RELEVANT EXTRACT OF THE SENIORITY LIST OF PRINTERS GR-I PUBLISHED AS PER EXT.P7.** **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 25.9.2010 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 4.8.2009 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE AMENDMENT TO RULE 23(C) OF PART I KSR ISSUED BY THE GOVERNMENT AS PER G.O. DATED 1.3.2007. EXHIBIT P11 TRUE COPY OF THE ORDER G.O. DATED 19.10.2007 ISSUED BY THE GOVERNMENT. EXHIBIT P12 TRUE COPY OF THE ORDER NO.28560/H1/10/H.EDN DATED 7.2.2011 ISSUED BY THE IST RESPONDENT.** OP(KAT).Nos.83/14 & 214/15(Z) 14 ## **APPENDIX OF OP(KAT) 214/2015** **PETITIONER'S/S EXHIBITS:** **TRUE COPY OF ORDER NO.5350/97/E4 DATED 20.7.98 ISSUED BY TEH 2ND RESPONDENT.** **ANNEXURE A1 TRUE COPY OF ORDER NO.5350/97/E4 DATED 20.7.98 ISSUED BY TEH 2ND RESPONDENT. ANNEXURE A1(A) TRUE ENGLISH TRANSLATION OF ANNEXURE-A1. ANNEXURE A2 TRUE COPY OF ORDER NO.20371/99/E4 DATED 8.2.2001 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A2(A) TRUE ENGLISH TRANSLATION OF ANNEXURE-A2. ANNEXURE A3 TRUE COPY OF ORDER NO.22558/2000/E4 DATED 28.5.2001 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A3(A) TRUE ENGLISH TRANSLATION OF ANNEXURE-A3. ANNEXURE A4 TRUE COPY OF ORDER NO.22558/2000/E4 DATED 25.1.2002 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A4(A) TRUE ENGLISH TRANSLATION OF ANNEXURE-A4. ANNEXURE A5 TRUE COPY OF ORDER NO.8890/98/E4 DATED 1.4.98 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A5(A) TRUE ENGLISH TRANSLATION OF ANNEXURE-A5. ANNEXURE A6 TRUE COPY OF ORDER NO.11412/2000/E4 DATED 8.5.2000 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A6(A) TRUE ENGLISH TRANSLATION OF ANNEXURE-A6. ANNEXURE A7 TRUE COPY OF ORDER NO.43217/97/E4 DATED 10.7.2000 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A7(A) TRUE ENGLISH TRANSLATION OF ANNEXURE-A7. ANNEXURE A8 TRUE COPY OF JUDGMENT DATED 5.4.2000 IN O.P.NO.6674/1991 OF THIS HON'BLE COURT. ANNEXURE A9 TRUE COPY OF JUDGMENT DATED 11.9.2002 IN W.A.NO.1504/2000 OF THIS HON'BLE COURT.** OP(KAT).Nos.83/14 & 214/15(Z) 15 |**ANNEXURE A10**|**TRUE COPY OF PROCEEDINGS NO.28240/03/SPL.**| |---|---| ||**CELL DATED 23.8.2003 ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**ANNEXURE A10(A)**|**TRUE COPY OF RELEVANT EXTRACT OF SENIORITY**| ||**LIST OF PRINTED GRADE II.**| |**ANNEXURE A10(B)**|**TRUE COPY OF RELEVANT EXTRACT OF SENIORITY**| ||**LIST OF PRINTED GRADE I.**| |**ANNEXURE A11**|**TRUE COY OF ORDER DATED 10.4.2006 ISSUED BY**| ||**THE 2ND RESPONDENT.**| |**ANNEXURE A12**|**TRUE COPY OF ORDER DATED 17.5.2006 ISSUED**| ||**BY THE 2ND RESPONDENT.**| |**ANNEXURE A13**|**TRUE COPY OF G.O. DATED 1.3.2007 ISSUED BY**| ||**THE GOVERNMENT.**| |**ANNEXURE A14**|**TRUE COPY OF G.O. DATED 19.10.2007 ISSUED**| ||**BY THE GOVERNMENT.**| |**ANNEXURE A15**|**TRUE COPY OF ORDER DATED 7.2.2011 ISSUED BY**| ||**THE IST RESPONDENT.**| |**ANNEXURE A16**|**TRUE COPY OF ORDER DATED 28.3.2011 IN WPC**| ||**NO.9661/2011 OF THIS HON'BLE COURT.**| |**ANNEXURE A17**|**TRUE COPY OF ORDER DATED 6.5.2010 ISSUED BY**| ||**THE 4TH RESPONDENT.**| |**ANNEXURE A18**|**TRUE COPY OF ORDER DATED 19.5.2010 ISSUED**| ||**BY THE 4TH RESPONDENT.**| |**EXHIBIT P1**|**TRUE COPY OF THE O.A.1074/2013 FILED BY THE**| ||**PETITIONERS**<br>**BEFORE**<br>**THE**<br>**KERALA**| ||**ADMINISTRATIVE TRIBUNAL.**| |**EXHIBIT P2**|**TRUE COPY OF THE ORDER DATED 16.1.2014 IN**| ||**T.A.NO.208 OF 2013 OF THE KERALA**| ||**ADMINISTRATIVE TRIBUNAL.**| |**EXHIBIT P3**|**TRUE COPY OF ORDER DATED 27.3.2015 IN**| ||**O.A.NO.1074/13 OF THE KERALA ADMINISTRATIVE**| ||**TRIBUNAL.**| OP(KAT).Nos.83/14 & 214/15(Z) 16 **EXHIBIT P4** **TRUE COPY OF ORDER DATED 27.8.2014 IN O.P. (KAT) NO.83 OF THIS HON'BLE COURT.**