State of Kerala represented by the Secretary, General Education Department, Government Secretariat, Thiruvananthapuram v A.O Jayakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 OP(KAT) NO. 74 OF 2022** **AGAINST THE ORDER/JUDGMENTOA (EKM) 963/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVAATHAPURAM,KERALA, PIN - 695001 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THYCAUD P.O,THIRUVANANTHAPURAM , PIN - 695014 BY ADVS. GOVERNMENT PLEADER SRI. UNNIKRISHNA KAIMAL ## **RESPONDENT/S:** A.O JAYAKUMAR A.O JAYAKUMAR, S/O.ANTONY NADAR, RETIRED ACCOUNTS OFFICER, SARVA SHIKSHA ABHIYAN (SSA), (RESIDING AT GOVINDAN, AMRA 61, NAMBAVANKAVU, VATTIYOORKAVU P.O, THIRUVNANTHAPURAM) PHONE:- 960589089, PIN - 695013 BY ADVS. K.P.SATHEESAN (SR.), SRI.P.MOHANDAS P.MOHANDAS(ERNAKULAM) P.K.SUDHINKUMAR(K/572/2014) S.K.ADHITHYAN(K/681/2016),SABU PULLAN(K/35/2001) GOKUL D. SUDHAKARAN(K/000886/2016) THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- O.P. (KAT) 74 of 2022 ## **A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ** **…...............................................................** O.P. (KAT) 74 of 2022 ..................................................................... Dated this the 3[rd] day of August, 2022 ## **JUDGMENT** ## A.K. Jayasankaran Nambiar, J. The State of Kerala represented by the Secretary, General Education Department and the Director of Public Instructions, is the petitioner in this OP (KAT) that impugns the order dated 4-2-2021 of the Kerala Administrative Tribunal in O.A. No. 963 of 2017. The brief facts necessary for disposal of the OP (KAT) are as follows: 2. The applicant before the Tribunal was a retired Accounts Officer of the Education Department having retired on 30-09-2015. While in service, pursuant to a promotion he had assumed charge as Administrative Assistant in the Education Department, with effect from 10-11-2009. As per the provisions of Part II KS & SSR, he was to undergo a period of probation in the promoted post and it is not in dispute that the said period expired on 18-5-2010. Immediately thereafter, the head of the department forwarded a recommendation for declaration of probation to the Director of Public Instruction (“DPI” for short) on 3-3-2012. The DPI, however, did not forward -3- ## O.P. (KAT) 74 of 2022 the said proposal to the government till 16-2-2015. In the interregnum, the applicant was served with charge memos in relation to five disciplinary proceedings initiated against him in the year 2013. Taking note of the said aspect, the Government, by its order dated 12-11-2015, refused to declare the probation of the applicant in the post of Administrative Assistant. 3. As already noticed, by the time the Government passed the said order, the applicant had already retired from service on 30-09-2015. The applicant, however, preferred a Review Petition before the Government and with a view to seeking an expeditious consideration of the said petition moved the Tribunal through an OA that was disposed with a direction to the Government to consider and pass orders on the Review Application. By Annexure-A15 order dated 17-1-2017, the Government once again rejected the request of the applicant for declaration of his probation in the post of Administrative Assistant. The reason discernible from Annexure-A15 order of the Government for rejecting the request of the applicant for declaration of his probation was that the work and conduct of the applicant was found to be not satisfactory during the period from the date of his entry in the post of Administrative Assistant till the date when the Government eventually took the decision on his request for declaration of probation. Reliance was placed by the government on Explanation 1 to Sub Rule (c) of Rule 20 of Part II of KS & SSR for the said purpose. 4. The Tribunal on a consideration of the issue found that it was on account of the delay occasioned by the DPI in forwarding the letter of -4- ## O.P. (KAT) 74 of 2022 recommendation for declaration of probation of the applicant that the Government came to consider the issue only in 2015. Taking note of the fact that the Government had not extended the period of probation of the applicant through any formal order passed in that regard, the Tribunal disposed the OA by directing the Government to pass fresh orders on the declaration of probation of the applicant, in the cadre of Administrative Assistant, based on the performance of the applicant during the period of probation that he had to undergo in the said post. The Government was also directed to finalise the disciplinary proceedings, if any, within two months from the date of receipt of the order and, thereafter, sanction to the applicant the revised pay and allowances and pensionary benefits on the basis of the said revised pay. 5. Before us, it is the submission of Sri. Unnikrishna Kaimal, the learned Government Pleader, appearing on behalf of the petitioner that the Rules clearly provide for the Government to consider the performance of the applicant from the date of his entry into the post in question till such time as the issue of declaration of probation is considered by the government. He relies on the judgment of this Court in T. Thankachan v. State of Kerala [2007 (2) KLT 296] to contend that the mere delay in the consideration of an application for declaration of probation cannot have the effect of automatically declaring the probation of the applicant on the expiry of the stipulated period of one year. The contention, in other words, is that merely because there was a delay between 2010 and 2015 in the consideration of the application for declaration of probation by the Government, it was not -5- ## O.P. (KAT) 74 of 2022 open to the applicant to contend that the disciplinary proceedings initiated against him in 2013 should not be reckoned for the purposes of declaration of his probation in the post of Administrative Assistant. 6. On a consideration of the said submission, we are of the view that while under normal circumstances, a mere delay on the part of the government without anything more cannot be seen as conferring on an employee a right to declaration of his probation, on the facts of the instant case, we notice that the recommendation for a declaration of probation of the applicant had been forwarded to the DPI by the head of the department as early as on 3-3-2012. It is not in dispute that up to the said date, there was no proceedings initiated against the applicant in service. Thereafter, it was during the period when the recommendation for declaration of probation was pending before the DPI, who was to forward the same to the Government, that the disciplinary proceedings were initiated against the applicant. That apart, even by 30-09-2015, the date on which the applicant retired from service, the government had not passed any order extending the period of probation of the applicant notwithstanding that they had the power to do so, even with retrospective effect. In our view, the latter inaction on the part of the government is telling, and would persuade us to accept the contention of the applicant that his probation ought to have been declared with effect from 18-5-2010, when the mandated period of probation under the Rules ended. This is more so, because, as already noted, the head of the department, who is the first authority to speak to the conduct of the applicant during the probation period, had unambiguously -6- ## O.P. (KAT) 74 of 2022 recommended the case of the applicant for a declaration of his probation, and it was only on account of the delay occasioned by the DPI that the issue came to be considered by the Government only by 2015. As rightly noticed by the Tribunal in the impugned order, the delay occasioned by the Government could not prejudice the applicant in any way, more so, when the government did not deem it necessary to extend the period of probation while the applicant was in service. In the result, we find no reason to interfere with the order impugned in this OP (KAT) and we dismiss the OP (KAT) with a direction to the Government to pass a formal order declaring the probation of the applicant in the cadre of Administrative Assistant with effect from 18-5-2010. The order as above shall be passed within six weeks from the date of receipt of a copy of the judgment. Needless to say, the consequential directions issued by the Tribunal in this regard shall also be complied with immediately thereafter. ## **Sd/-A.K.JAYASANKARAN NAMBIAR,** ## **JUDGE** ## **Sd/- MOHAMMED NIAS C.P., JUDGE** ani.4/8/22 /true copy/ -7- O.P. (KAT) 74 of 2022 ## **APPENDIX OF OP(KAT) 74/2022** |PETITIONER ANNEXURES|PETITIONER ANNEXURES| |---|---| |AnnexureA1|ANNEXURE A1:- TRUE COPY OF THE ORDER G.O.| ||(RT) NO.4656/2009/G.EDN DATED 10.11.2009.| |AnnexureA2|ANNEXURE A2:-TRUE COPY OF THE GOVERNMENT| ||ORDER<br>G.O.(P)<br>NO.42/2010/P&ARD<br>DATED| ||20.12.2010.| |AnnexureA3|ANNEXURE A3:- TRUE COPY OF THE LETTER| ||NO.D1/16684/2012/DPI<br>DATED<br>16.02.2015| ||FORWARDED BY THE 2ND RESPONDENT TO THE FIRST| ||RESPONDENT.| |AnnexureA4|ANNEXURE A4:- TRUE COPY OF THE ORDER| ||NO.V4/2662/2013/DPI DATED 23.10.2013 ISSUED| ||BY THE 2ND RESPONDENT.| |AnnexureA5|ANNEXURE A5:- TRUE COPY OF THE ORDER G.O.| ||(RT) NO.5436/2014/G.EDN. DATED 05.12.2014.| |AnnexureA6|ANNEXURE A6:- TRUE COPY OF THE LETTER| ||NO.D6/70201/2014 DATED 10.03.2015 ISSUED BY| ||THE 2ND RESPONDENT.| |AnnexureA7|ANNEXURE A7:- TRUE COPY OF THE ORDER G.O.| ||(RT) NO.1729/2015/G.EDN. DATED 08.05.2015.| |AnnexureA8|ANNEXURE A8:- TRUE COPY OF THE LETTER| ||NO.10215/C3/2015/G.EDN. DATED 18.03.2015| |AnnexureA9|ANNEXURE<br>A9:-<br>TRUE<br>COPY<br>OF<br>THE| ||REPRESENTATION FILED BY THE APPLICANT DATED| ||02.05.2015| |AnnexureA10|ANNEXURE A10:- TRUE COPY OF THE ORDER DATED| ||25.05.2015 IN O.A.NO.776/2015.| |AnnexureA11|ANNEXURE A11- TRUE COPY OF THE ORDER G.O.| ||(RT) NO.5319/2015/G.EDN DATED 12.11.2015| |AnnexureA12|ANNEXURE A12:- TRUE COPY OF THE CIRCULAR| ||NO.D2/7318/12/DPI DATED 03.04.2012.| |AnnexureA13|ANNEXURE A13:- TRUE COPY OF THE REVIEW| ||PETITION FILED BY THE APPLICANT DATED| ||25.11.2015.| |AnnexureA14|ANNEXURE A14:- TRUE COPY OF THE ORDER DATED| ||30.09.2016 IN O.A. NO.92/2016.| |AnnexureA15|ANNEXURE A15:- TRUE COPY OF THE ORDER G.O.| ||(RT) NO.93/2017/G.EDN. DATED 17.01.2017| -8- ## O.P. (KAT) 74 of 2022 |AnnexureA16|ANNEXURE A16:- TRUE COPY OF THE SHOW CAUSE| |---|---| ||NOTICE<br>NO.567222/C3/2015/G.EDN.<br>DATED| ||14.09.2017 GIVEN TO THE APPLICANT BY THE 1ST| ||RESPONDENT| |AnnexureA17|ANNEXURE A17:- TRUE COPY OF THE WRITTEN| ||STATEMENT OF DEFENCE FILED BY THE APPLICANT| ||BEFORE<br>THE<br>FIRST<br>RESPONDENT<br>DATED| ||13.12.2017.| |AnnexureA18|ANNEXURE A18:- TRUE COPY OF THE WORK AND| ||CONDUCT CERTIFICATE ISSUED BY THE DEPUTY| ||DIRECTOR OF EDUCATION DATED 03.02.2012.| |AnnexureA19|ANNEXURE A19:- TRUE COPY OF THE CIRCULAR| ||NO.D2/7318/12/DPI DATED 03.04.2012 ISSUED BY| ||THE 2ND RESPONDENT.| |AnnexureA20|ANNEXURE A20:- TRUE COPY OF THE RELEVANT| ||PAGES OF THE NOTE FILE IN CONNECTION WITH| ||THE DISCIPLINARY PROCEEDINGS INITIATED| ||PURSUANT TO THE SHOW CAUSE NOTICE| ||NO.43743/C3/2012/G.EDN. DATED 15.07.2013.| |Annexure R1(a)|ANNEXURE-R1(A):- TRUE COPY OF THE G.O.(RT)| ||NO.2801/2018/G.EDN DATED 24.07.2018.| |Annexure R1(b)|ANNEXURE-R1(B):- TRUE COPY OF THE LETTER| ||NO.PLI/51362/2011/DPI DATED 16.06.2018 OF| ||THE DIRECTOR OF PUBLIC INSTRUCTIONS TO THE| ||GOVERNMENT ALONG WITH THE NOTICE DATED| ||27.12.2017 ISSUED TO THE APPLICANT.| |Annexure R1(c)|ANNEXURE-R1(C):- TRUE COPY OF THE LETTER| ||NO.36249/C3/2015/G.EDN DATED 12/2017 FROM| ||GOVERNMENT SPECIAL SECRETARY TO THE| ||SECRETARY, KPSC| |AnnexureA21|ANNEXURE A21:- TRUE COPY OF THE ORDER G.O.| ||(P) NO.185/2002/FIN DATED 27.03.2002 WITH| ||PETITION| |Exhibit P1|EXHIBIT P1:- TRUE COPY OF THE OA (EKM)| ||NO.963/2017| |Exhibit P2|EXHIBIT P2:- TRUE COPY OF THE REPLY| ||STATEMENT FILED BY THE 1ST RESPONDENT.| |Exhibit P3|EXHIBIT P3:- TRUE COPY OF THE REJOINDER| ||FILED BY THE APPLICANT.| |Exhibit P4|EXHIBIT P4:- TRUE COPY OF THE M.A. 2018 IN| ||O.A(EKM) NO.963/2017.| |Exhibit P5|EXHIBIT P5:- TRUE COPY OF THE ADDITIONAL| ||REPLY STATEMENT FILED ON BEHALF OF THE 1ST| ||RESPONDENT.| |Exhibit P6|EXHIBIT P6:- TRUE COPY OF THE ADDITIONAL| ||REJOINDER.| -9- ## O.P. (KAT) 74 of 2022 Exhibit P7 EXHIBIT P7:- TRUE COPY OF THE ORDER DATED 04.02.2021 IN O.A.(EKM) 963/2017 RESPONDENT EXHIBITS Exhibit R1(a) True copy of the Order No. PB1/98543/2015/DPI dated 16-02-2019 issued by the 2nd petitioner Exhibit-R1(b) True copy of the letter No. GE09/E/J-70/2502 dated 11-03-2019 written by the Office of the Accountant General to the 2nd respondent