Vijayakumar S and others v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 6TH DAY OF JUNE 2016/16TH JYAISHTA, 1938 OP(KAT).No. 353 of 2015 (Z) ---------------------------AGAINST THE ORDER IN TA 7437/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 31.7.2015 PETITIONERS: --------------------- 1. VIJAYAKUMAR S - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, TDB AUDIT, NANTHANCODE, THIRUVANANTHAPURAM (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, MUNICIPAL AUDIT OFFICE, MUNICIPAL OFFICE BUILDING, ALAPPUZHA-688 001.) 2. SHYJU S - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, KOLLAM (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CIVIL STATION, COLLECTORATE.P.O., KOTTAYAM-686 001). 3. VIKRAM SINGH C - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, KOLLAM (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, GCDA AUDIT OFFICE, KADAVANTHRA, KOCHI-682 020). 4. BINDU G.S - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, THIRUVANANTHAPURAM (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, O/O THE DIRECTOR OF KERALA STATE AUDIT, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033). 5. ## M.MOHAMMED SALIM - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, TRIVANDRUM DEVELOPMENT AUTHORITY AUDIT, JAYA MANSION, VAZHUTHACAUD, THIRUVANANTHAPURAM (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, HOUSING BOARD BUILDING, SANTHINAGAR, THIRUVANANTHAPURAM-695 001). BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.G.RENJITH RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF FINANCE, SECRETARIAT, THIRUVANANTHAPURAM-695 001. OP(KAT).No. 353 of 2015 (Z) 2. THE DIRECTOR OF LOCAL FUND AUDIT VIKAS BHAVAN, THIRUVANANTHAPURAM-695 003. 3. BINUKUMAR G AUDIT OFFICER, OFFICE OF THE DIRECTOR OF LOCAL FUND AUDIT, VIKHAS BHAVAN, THIRUVANANTHAPURAM-695 033 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, WELFARE FUND AUDIT OFFICE, KOLLAM-691 001). 4. SABU JOSEPH - SELECTION GRADE AUDITOR, OFFICE OF THE DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE) DISTRICT OFFICE, MUNICIPAL BUILDING, OPPOSITE BUS STAND, THODUPUZHA-685 584 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, MINI CIVIL STATION, THODUPUZHA685 584). 5. SUDHADAS - SELECTION GRADE AUDITOR, OFFICE OF THE DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), GURUVAYOOR DEVASWOM AUDIT, GURUVAYOOR, THRISSUR DISTRICT-680 101 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CHEMPOOKAVU.P.O., THRISSUR-680 020). 6. SAHEER A - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), KHRWS AUDIT, RED CROSS ROAD, VANCHIYOOR.P.O., THIRUVANANTHAPURAM-698 037 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, HOUSING BOARD AUDIT OFFICE, HOUSING BOARD BUILDINGS, SANTHINAGAR, THIRUVANANTHAPURAM-695 001. 7. CHAKRESHWARA R - SELECTION GRADE AUDITOR, OFFICE OF THE AUDIT OFFICER, MUNICIPAL AUDIT, MUNICIPAL OFFICE, KASARAGODE DISTRICT-671121 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, MUNICIPAL AUDIT OFFICE, MUNICIPALITY, KASARAGOD-671 121). 8. SANTHOSH B - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), DISTRICT OFFICE, K M COMPLEX, NEAR MUNICIPAL BUS STAND, KANNUR-670 001 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CIVIL STATION, E BLOCK, VIDYA NAGAR.P.O., KASARAGOD-671 123) 9. SHAJAHAN A.S - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), DISTRICT OFFICE, CIVIL STATION, NEW BLOCK, MALAPPURAM-676 505 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CIVIL STATION, NEW BLOCK, MALAPPURAM-676 505). 10. HABEEB MUHAMMED - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), DISTRICT OFFICE, MINI CIVIL STATION, PATHANAMTHITTA-689 645 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, MINI CIVIL STATION, PATHANAMTHITTA-689 645). ## OP(KAT).No. 353 of 2015 (Z) 11. SINI M.V SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), DISTRICT OFFICE, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT-682 030 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CIVIL STATION, KAKKANAD.P.O., ERNAKULAM-682 030). 12. JALEEL K SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), DISTRICT OFFICE, CIVIL STATION, NEW BLOCK MALAPPURAM-676 501 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CIVIL STATION, NEW BLOCK, MALAPPURAM-676 505). 13. MATHEW ROY K.P SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), HOUSING BOARD AUDIT, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM695 001 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, OLD MUNICIPAL BUILDING, NEAR OVER-BRIDGE, CHINNAKADA, KOLLAM691 001). 14. GOPAKUMAR B SELECTION GRADE AUDITOR, ACCOUNTS RECONCILIATION WING, DEPUTATION STAFF, OFFICE OF THE TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-695 003 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, AGRICULTURAL COLLEGE AUDIT OFFICE, COLLEGE OF AGRICULTURE, VELLAYANI, THIRUVANANTHAPURAM-695 522). 15. HARIKUMAR G SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), DISTRICT OFFICE, NEAR KSRTC BUS STAND, ALAPPUZHA-688 011 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, MINI CIVIL STATION, THODUPUZHA-685 584). 16. MAHESHA B SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), DISTRICT OFFICE, CIVIL STATION, KASARAGODE-671 123 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, CALICUT UNIVERSITY AUDIT OFFICE, CALICUT UNIVERSITY.P.O., MALAPPURAM-673 635). 17. AJITH R - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT (HIGHER GRADE), DISTRICT OFFICE, CIVIL STATION, NEW BLOCK, MALAPPURAM-676 505 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CIVIL STATION, NEW BLOCK, MALAPPURAM-676 505). 18. SUNILDAS S - SELECTION GRADE AUDITOR, OFFICE OF THE DIRECTOR OF LOCAL FUND AUDIT, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, KERALA UNIVERSITY AUDIT OFFICE, KERALA UNIVERSITY.P.O., THIRUVANANTHAPURAM-695 034). OP(KAT).No. 353 of 2015 (Z) 19. SATHEESH MAVELI PUTHEN VEEDU SELECTION GRADE AUDITOR, OFFICE OF THE LOCAL FUND AUDIT, DISTRICT OFFICE, CIVIL STATION, NEW BLOCK, MALAPPURAM-676 505 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, NEAR M1 TOWN HALL, PALAKKAD-678 001). 20. JAYARAJAN K SELECTION GRADE AUDITOR, OFFICE OF THE LOCAL FUND AUDIT, DISTRICT OFFICE, K M COMPLEX, NEAR MUNICIPAL BUS STAND, KANNUR-670 001 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, KANNUR UNIVERSITY AUDIT, KANNUR UNIVERSITY, MANGATTU PARAMBA, KANNUR). 21. ARAVINDAKSHAN P - SELECTION GRADE AUDITOR, OFFICE OF THE LOCAL FUND AUDIT, MUNICIPAL AUDIT, MUNICIPAL OFFICE, PALAKKAD-678 001 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, HRE AUDIT, NEAR MI TOWN HALL, PALAKKAD-678 001). 22. SAJI K SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, WELFARE FUND AUDIT, OPPOSITE PENTECOSTAL MISSION, PLAMOODU, CHARACHIRA ROAD, KOWDIAR.P.O., THIRUVANANTHAPURAM-695 003 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, HOUSING BOARD AUDIT, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001). 23. SASIKUMAR M.P - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, K M COMPLEX, NEAR MUNICIPAL BUS STAND, KANNUR-670 001 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, K M COMPLEX, NEAR M1 BUS STAND, KANNUR-670 001). 24. SABU C GEORGE - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, CIVIL STATION, COLLECTORATE P.O., KOTTAYAM-686 002 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, CHANGANASSERY MI AUDIT, MI OFFICE, CHANGANASSERY-686 101). 25. SUNILKUMAR K.V - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, CORPORATION AUDIT, CORPORATION OFFICE, KOZHIKODE-673 032 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CIVIL STATION, KOZHIKODE-673 020). 26. BABY SANOOJA SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, IDUKKI DISTRICT OFFICE, MUNICIPAL BUILDING, OPPOSITE OLD BUS STAND, THODUPUZHA-685 584, (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, MINI CIVIL STATION, THODUPUZHA, IDUKKI-685 584). 27. JAYA C.R SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, CIVIL STATION, OP(KAT).No. 353 of 2015 (Z) KAKKANADU.P.O., ERNAKULAM-682 030 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CIVIL STATION, KAKKANAD.P.O., ERNAKULAM-682 030). 28. HARIKUMAR T.K - SELECTION GRADE AUDITOR, OFFICE OF THE AUDIT OFFICER, SIL AUDIT, STATE INSTITUTE OF LANGUAGES, NALANDA, THIRUVANANTHAPURAM-695 003 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033). 29. MARY HONEY JOSEPH - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, AGRICULTURAL UNIVERSITY AUDIT, VELLANIKKARA, THRISSUR-680 654 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CHEMPOOKAVU.P.O., THRISSUR-680 020). 30. GINI ROY - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, CORPORATION AUDIT, CORPORATION OFFICE, KOCHI-682 011, (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, KOCHI CORPORATION AUDIT, CORPORATION OFFICE, KOCHI-682 011). 31. VINOD K.K - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, IDUKKI DISTRICT OFFICE, MUNICIPAL BUILDING, OPP OLD BUS STAND, THODUPUZHA-685 584 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, MINI CIVIL STATION, THODUPUZHA, IDUKKI-685 584). 32. DAVID K.JOHN - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, CORPORATION AUDIT, CORPORATION OFFICE, THRISSUR-680 011 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, CHEMPOOKAVU.P.O., THRISSUR-680 020). 33. MERLIN SAM SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, CORPORATION OFFICE, KOLLAM-691 001 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM682 020). 34. SIMON K - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, MUNICIPAL BUILDING, CHINNAKKADA, KOLLAM-691 001 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, OLD MUNICIPAL BUILDING, NEAR OVER-BRIDGE, CHINNAKKADA, KOLLAM-691 001. 35. NARAYANA KAMMATH - SELECTION GRADE AUDITOR, ACCOUTNS RECONCILIATION WING (AUDITOR), OFFICE OF THE TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-695 003 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, TDB AUDIT, NANTHANCODE, THIRUVANANTHAPURAM695 003). ## OP(KAT).No. 353 of 2015 (Z) 36. VIJAYALAKSHMI P.K - SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, ALAPPUZHA, NEAR KSRTC BUS STAND, ALAPPUZHA-688 001 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, DISTRICT OFFICE, NEAR KSRTC BUS STAND, IRON BRIDGE P.O., ALAPPUZHA-688 001). 37. RADHAKRISHNAN M.N SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, KOTTAYAM, CIVIL STATION, COLLECTORATE P.O., KOTTAYAM-686 002 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, M G UNIVERSITY AUDIT, PRIYADARSINI HILLS.P.O., ATHIRAMPUZHA, KOTTAYAM-686 560. 38. JOSE A.NADAKKAL SELECTION GRADE AUDITOR (ON LONG LEAVE), T C 3/39, KESAVADASAPURAM, THIRUVANANTHAPURAM-695 004 [(ON LEAVE) TC 3/39, KESAVADASAPURAM, THIRUVANANTHAPURAM-695 004] 39. LATHA M.N SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, COCHIN DEVASWOM AUDIT, COCHIN DEVASWOM OFFICE, THRISSUR-680 001 (PRESENTLY WORKING AS AUDIT OFFICER (HIGHER GRADE), KERALA STATE AUDIT DEPARTMENT, AGRICULTURAL UNIVERSITY AUDIT, VELLANIKARA.P.O., THRISSUR-680 654). R1,R 2 BY SR. GOVERNMENT PLEADER SIR K.C.VINCENT THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 06-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 353 of 2015 (Z) ---------------------------- ## **APPENDIX** ## PETITIONER(S)' EXHIBITS ----------------------- - ANNX.1: TRUE COPY OF TRANSFER PETITION NO.7437/12 (W.P.(C)No. 14372/09) ALONG WITH EXTS.) - P1TRUE COPY OF THE ORDER NO.LF.3/ESTT.1/98(XII) DATED 26.8.1998 OF THE 2ND RESPONDENT (IN T A NO.7437 OF 2012). - P2TRUE COPY OF THE ORDER NO.LF.3329/ESTT.3/01(1) DATED 4.9.2004 OF THE 2ND RESPONDENTS (IN T A NO.7437 OF 2012). - P2(A)- TRUE COPY OF THE APPENDED PROVISIONAL SENIORITY LIST. (IN T A NO.7437 OF 2012). - P3TRUE COPY OF THE ORDER NO.LF.3329/ESTT.3/01(1) DATED 16.4.2007 OF THE 2ND RESPONDENTS (IN T A NO.7437 OF 2012). - P3(A)- TRUE COPY OF THE APPENDED SENIORITY LIST OF GRADE-I AUDITORS (IN T A NO.7437 OF 2012). - P4TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.12.2007 (IN T A NO.7437 OF 2012). - P5TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.12.2007 (IN T A NO.7437 OF 2012). - P6TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.12.2007 (IN T A NO.7437 OF 2012). - P7TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 4TH PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.12.2007 (IN T A NO.7437 OF 2012). - P8TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 5TH PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.12.2007 (IN T A NO.7437 OF 2012). - P9TRUE COPY OF THE JUDGMENT IN W.P[C]NO.8002 OF 2008-C DATED 10.03.2008 (IN T A NO.7437 OF 2012). - P10TRUE COPY OF THE GOVERNMENT LETTER NO.33943/ESTT/D1/08/FIN. DATED 7.3.2009 ADDRESSED TO THE ADVOCATE GENERAL, ERNAKULAM (IN T A NO.7437 OF 2012). - P11TRUE COPY OF THE GOVERNMENT LETTER NO.33943/ESTT/D1/08/FIN DATED 12.3.2009 (IN T A NO.7437 OF 2012). - P12TRUE COPY OF THE LETTER NO.LF 4590/ESTT.3/09 DATED 18.3.2009 (IN T A NO.7437 OF 2012). - P13TRUE COPY OF THE G O(RT)NO.3297/2004/FIN DATED 3.5.2004 (IN T A NO.7437 OF 2012). - P14TRUE COPY OF THE G O (MS) 431/63/FIN DATED 12.7.1963 (IN T A NO.7437 OF 2012). - P15TRUE COPY OF THE CERTIFICATE DATED 2.11.2000 ISSUED BY THE PSC TO THE 4TH PETITIONER (IN T A NO.7437 OF 2012). - P16TRUE COPY OF THE CERTIFICATE DATED 2.11.2000 ISSUED BY THE PSC TO THE 5TH PETITIONER (IN T A NO.7437 OF 2012). ## **OP(KAT).No. 353 of 2015 (Z)** P17- COPY OF ORDER DT.23.4.2001 ISSUED BY THE 2ND RESPONDENT, EXCLUDING THE SENIORITY LIST. ANNX.2- COPY OF COUNTER AFFIDAVIT FILED BY RESPONDENT NOS.3,6,14,22,28 & 35 DT.18.11.09. - ANNX.3: COPY OF COUNTER AFFIDAVIT FILED BY RESPONDENTS NOS.3,6,14,22,28 & 35 DT.MARCH, 2010. - ANNX.4. COPY OF REPLY STATEMENT FILED BY RESPONDENT NOS.3,6,14,22,28 & 35 DT.28.7.15. ANNX.5. COPY OF REPLY STATEMENT FILED BY THE 2ND RESPONDENT DT.11.11.2013. ANNX.6- COPY OF ORDER OF THE TRIBUNAL DT.31.7.15. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S.TO JUDGE dsn **“CR”** **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -------------------------------------------------OP(KAT)No.353 OF 2015 -------------------------------------------------DATED THIS THE 6[th] DAY OF JUNE, 2016** ## **JUDGMENT** ## **P.R.RAMACHANDRA MENON, J** ## . Whether the petitioners who are now continuing in probation in the post of Selection Grade Auditor are entitled to the benefit of the 1[st] proviso to Rule 28(a)(i) of Part II KS & SSR and get a declaration that they could not have been superseded by their juniors who had cleared both the Departmental 'Test for declaration of probation' and the 'Test for getting promotion' in the lower post of 'Auditor Gr.I', thus tilting the seniority, is the basic question to be answered in this case. 2. The essential facts revealed from the pleadings and proceedings are that, the petitioners on coming out successful in the process of selection to the post of Auditor Gr.II were appointed assigning the rank based on the date of advice given by the Public Service Commission. Subsequently, on occurrence of vacancies due to cadre restructuring in Auditor Gr.I, the petitioners as well as the contesting respondents were given provisional promotion as per OP(KAT)No.353/2015 -2- Ext.P1, in terms of Rule 31(a)(i) of the Kerala State and Subordinate Services Rules. Admittedly, no person was duly qualified at the time of granting the provisional promotion. Later, the seniority came to be re-arranged (as per order dated 23.4.2001 produced along with the additional reply affidavit filed before this Court today) with reference to the date of declaration of probation. By virtue of the said exercise, many of the juniors to the petitioners, whose probation was declared earlier came to be ranked above the petitioners, despite the fact that the petitioners were occupying the higher position at the time of recruitment to the post of Auditor Gr.II, based on the date of advice given by the PSC and their position in the ranked list. This resulted in much grievance to the petitioners, who approached the Tribunal contending that they were entitled to have the two years probation completed within a span of three years and this being the position, they were having sufficient time to clear Departmental Test as well. As such, no junior who had completed the probation on an earlier date could have been given a higher placement, particularly by virtue of the 1[st] proviso to OP(KAT)No.353/2015 -3- Rule 28(a)(i) of Part II of KS & SSR. It was also stated as contrary to Rules 6 & 7 of the Kerala Local Fund Audit Special Rules. 3. The relief sought for was resisted from the part of the State/Department pointing out that the idea and understanding of the petitioners was quite wrong and unfounded. The 1[st] proviso was actually intended only to serve the deserving lot to a minimal extent; i.e, in respect of such seniors, who are already qualified by passing the Departmental Test, with reference to the date of occurrence of the vacancy. It is true that the petitioners could complete the two years' probation within a span of three years. The non-completion of the probation may be due to various reasons. If it is not with reference to the absence of the test qualification, such seniors who had already cleared the test as on the date of occurrence of the vacancies, but still to have the probation declared, are to be protected ensuring that their juniors do not get a march over them. 4. The version of the respondents was accepted and the Tribunal declined interference placing reliance on the verdict OP(KAT)No.353/2015 -4- already passed in this regard as in T.A.No.6118 of 2012 and also on the judgment rendered by a learned Single Judge of this Court in **Ajas** v. **Registrar (2006 (4) KLT 819)** and that of a Division Bench in **P.Devaki** v. **State of Kerala (ILR 2006 (3) Ker. 825)** . This is per se wrong and unsustainable in all respects according to the petitioners, who hence have moved this Court seeking for getting a correct interpretation of the provision of law and to protect their rights and interests over the juniors. 5. Heard the learned counsel appearing for the petitioners at length and the learned Senior Government Pleader. 6. There is no dispute with regard to the factual sequence, that the petitioners were ranked above the party respondents when appointments were made to the post of Auditor Gr.II. There is also no dispute as to the fact that nobody was qualified at the time of granting provisional promotion as per Ext.P1 order dated 26.8.1998. The heart-burn started thereafter, when seniority was assigned to the juniors who had completed the probation earlier than the petitioners herein. To what extent the relief, if any, is extendable to the persons like the petitioners OP(KAT)No.353/2015 -5- with reference to the proviso to Rule 28(a)(i) is the point to be looked into, for which purpose a scrutiny of the said Rule is essential. 7. Rule 28(a)(i) reads as follows: “28. (a) **Promotion** .- (i) ( Except in the case of appointment to the posts of 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. Provided that a probationer in a class, category or grade shall not be superseded for promotion to a higher class, category or grade by his junior, if the vacancy in the higher class, category or grade arises within the period specified in the Special Rules for completion of probation in the class, category or grade in which he is probationer and if he has passed the test or tests prescribed for successful completion of probation and is otherwise eligible and suitable for such promotion; but his promotion shall be subject to the condition that he satisfactorily completes the probation in the class, category or grade from which he was promoted within the period prescribed therefor, and for this purpose the period OP(KAT)No.353/2015 -6- of service put in by him in the higher class, category or grade shall be reckoned towards probation in the class, category or grade from which he was promoted and also in the class, category or grade to which he was promoted.” On going through the first proviso to Rule 28(a)(i), it of course protects the interest of seniors to some extent. But the fact remains that, so as to attract this proviso, three requirements are to be satisfied. Firstly, that the vacancy should have arisen during the period of probation. Secondly, that the senior should be having the relevant Test qualifications prescribed for declaration of probation and thirdly, that he should be otherwise eligible and suitable for such promotion. 8. The learned counsel for the petitioners submits that the petitioners had cleared the Test for declaration of probation (Local Fund Department Test) within a span of three years, though the Account Test, which is a must for promotion had been cleared within a span of two years. Similarly, the factual position in respect of the party respondents that the juniors had cleared both the above tests within two years or at least before the OP(KAT)No.353/2015 -7- acquisition of the said test qualification by the petitioners is also not a matter of dispute. The contention of the petitioners is that, since the petitioners as well as the juniors were taken together and were given provisional promotion as per Ext.P1, there could not have been any further segregation, as it was quite legally permitted to have the two years' probation declared within a span of three years. The learned counsel made a reference to the judgment rendered by a Division Bench of this Court in W.A.No.880/1998 and contended that the petitioners are also entitled to have the benefits flowing from the said verdict, a copy of which, dated 5.1.2000, is made available before this Court. 9. On going through the above judgment, it is seen that the declaration was made by the Court with regard to the eligibility to get the probation declared and the rights flowing therefrom. To ascertain the scope, the “explanation” in the notification was adverted to, which is reproduced below for easy reference: ............. The purpose of insertion/amendment has been detailed in the Explanatory Note, which is not part of the OP(KAT)No.353/2015 -8- ## Notification but is intended to indicate its general purport and reads as follows: 'There is at present no provision in the Kerala State and Subordinate Service Rules, 1958 to protect seniors against being superseded by juniors who complete probation earlier, when, owing to reasons beyond their control such as illness, delay in transit or delay to get relief from any service, the seniors are able to join duty only later than the juniors. It is now proposed to incorporate suitable provisions in the Rules with a a view to affording protection to such seniors. This Notification is intended to achieve the above object.” When the object for which the proviso was inserted is taken into consideration, the inevitable conclusion was that the period prescribed for completion of probation has to be reckoned to be three continuous years as provided in Rule 10 of the Special Rules. ...........” 10. From the above, it is clear that, the proviso was incorporated only to protect those who happen to be unfortunate to join the service on the due date because of various circumstances as stipulated therein, such as sickness, missing of conveyance, etc. and it was never with reference to the clearance in the concerned Test for declaration of probation. In other OP(KAT)No.353/2015 -9- words, the acquisition of Test qualification was never a subject matter decided in the said case. Subsequently, it has come to the notice of this Court that the State had moved the Bench by filing a Review petition as R.P.No.383/2002 referring to the facts, circumstances and relevant provisions of law. After hearing, it was observed that no interference was being made in the review petition (presumably for the reason that the judgment had already worked out, as pointed out across the Bar). However, it was made clear that the judgment therein should not be having any precedential value and will remain only for the purpose of the said case, i.e., as an 'inter parte judgment', which does not help to advance the case of the petitioners. 11. Coming to the decision rendered by a learned Single Judge of this Court in **Ajas** v. **Registrar (2006 (4) KLT 819)** (cited supra), which has been relied on by the Tribunal, the issue was almost similar and the learned Judge made it clear that the scope of the first proviso to Rule 28(a)(i) was only to protect the 'Test qualified seniors' whose probation was still to be declared within the permitted time of three years. On going OP(KAT)No.353/2015 -10- through the Rule extracted above and from the discussions already made, we affirm the said finding and that the challenge raised from the part of the petitioners shall necessarily fail. We also find support from the ruling already rendered by another Bench of this Court in **P.Devaki v. State of Kerala (ILR 2006 (3) Ker 825)** , paragraphs 7 and 8 of which are to the following effect. - “ 7. R.28(a)(i) of the General Rules in Part II of the Kerala State and Subordinate Services Rules, 1958 provides that "except in the case of appointment to the posts of 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 ". Therefore, probation is an essential requirement for promotion. The only exception is that provided in the proviso which reads as under: Provided that a probationer in a class, category or grade shall not be superseded for promotion to a higher class, category or grade by his junior, if the vacancy in the higher class, category or grade arises within the period specified in the Special Rules for completion of probation in the class, category or grade in which he is probationer and if he has passed OP(KAT)No.353/2015 -11- the test or tests prescribed for successful completion of probation and is otherwise eligible and suitable for such promotion; but his promotion shall be subject to the condition that he satisfactorily completes the probation in the class, category or grade from which he was promoted within the period prescribed therefor, and for this purpose the period of service put in by him in the higher class, category or grade shall be reckoned towards probation in the class, category or grade from which he was promoted and also in the class, category or grade to which he was promoted: Provided further that if a probationer promoted in pursuance of the above proviso fails to complete his probation in the class, category or grade from which he was promoted within the period prescribed therefor, his probation in the higher class, category or grade shall be terminated and he shall be reverted to the class, category or grade from which he was promoted, and any subsequent promotion of such person to the higher class, category or grade shall not also entitle such person to claim seniority in the higher class, category or grade by reason only of his previous promotion in pursuance of the preceding proviso and he shall commence probation afresh in that class, category or grade from the date of such subsequent promotion. OP(KAT)No.353/2015 -12- 8. The first among these provisos can be pressed into service only by a person who had not completed the period of probation only if two conditions are satisfied namely; - (a) that the occasion for promotion arises during the period of probation and - (b) that the incumbent had passed obligatory test.” 12. It is relevant to make a reference to a similar issue, which came up for consideration before the Apex Court, involving the scope of the first proviso to Rule 28(a)(i) in Part II of the KS & SSR. The observation made by the Apex Court in **Haridas v. High Court of Kerala** ( **2000 (3) KLT 430 (SC))** is to the following effect. “5. First proviso to R. 28(a) provides that a probationer shall not be superseded for promotion to a higher class or grade by a junior if the vacancy in the higher class category arises within a period specified in the Rules for completion of probation in the class. The period of probation being two years under R. 12 of the Judicial Service Rules and the appellant having not passed the examination within the probationary period of two years the proviso to R. 28(a) is not attracted in the present case. In the present case, the appellant passed the required examination during the extended period of probation and, OP(KAT)No.353/2015 -13- therefore, he was not entitled to the benefits arising out of the first proviso to R. 28(a) of the State Service Rules. On this short ground the argument of learned Counsel has to be rejected.” 13. There is a crystal-clear declaration of law by the Apex Court, on the point, to the effect that the benefit of the first proviso to Rule 28(a)(i) in Part II of the KS & SSR is available only in respect of 'Test qualified seniors', who cannot be superseded by juniors during the period of probation, which is not the position in the case of the petitioners. 14. The learned Government Pleader made a reference to the factual particulars given in the form of a table, in Paragraph ## No.2 of the statement, which is extracted below: |Sl.<br>No.|Name|Date of<br>joining as<br>Grade II<br>Auditor|Date of<br>provisional<br>promotion as<br>Grade I<br>Auditor|Test qualifying for|Test qualifying for|Date of<br>declaration of<br>probation in<br>the category<br>of Grade II<br>Auditor| |---|---|---|---|---|---|---| |||||Probation<br>(LFAD<br>Lower)|Promotion<br>((Account<br>test (Lower)|| |1|Sri Binukumar G|05.07.1996|26.08.1998|12/1997|12/1997|05.07.1998| |2|Smt.Sudra Das|09.07.1996|26.08.1998|06/1997|06/1998|18.09.1998| |3|Sri Sabu Joseph|11.07.1996|26.08.1998|12/1997|12/1997<br>(Higher)|11.07.1998| |4|Sri Vikram Singh S.|08.07.1996|26.08.1998|06/1998|06/1998|09.08.1998| |5|Sri A. Saheer|11.07.1996|26.08.1998|06/1997|06/1997|20.07.1998| |6|Sri R.Chakreswara|15.07.1996|26.08.1998|06/1998|06/1998|20.07.1998| |7|Sri Santhosh B|28.12.1996|26.08.1998|06/1998|6/1998|28.12.1998| OP(KAT)No.353/2015 -14- |Sl.<br>No.|Name|Date of<br>joining as<br>Grade II<br>Auditor|Date of<br>provisional<br>promotion as<br>Grade I<br>Auditor|Test qualifying for|Test qualifying for|Date of<br>declaration of<br>probation in<br>the category<br>of Grade II<br>Auditor| |---|---|---|---|---|---|---| |||||Probation<br>(LFAD<br>Lower)|Promotion<br>((Account<br>test (Lower)|| |8|Sri Shajahan A.S.|24.12.1996|26.08.1998|6/1998|6/1997<br>(Higher)|24.12.1998| |9|Sri Habeeb Muhammed|23.12.1996|26.08.1998|6/1999|6/1997<br>(Higher)|24.12.1998| |10|Smt.Sini M.v.|19.12.1996|26.08.1998|06/1998|12/1997|19.12.1998| |11|Sri Jaleel K.|23.12.1996|26.08.1998|06/1992|12/1996|23.12.1998| |12|Sri Mathew Roy K.P.|16.12.1996|26.08.1998|06/1998|06/1997|16.12.1998| |13|Sri B.Gopakumar|19.12.1996|26.08.1998|06/1998|06/1998|01.01.1999| |14|Harikumar G.|19.12.1996|26.08.1998|06/1990|06/1990|19.12.1998| |15|Shyju S.|05.07.1996|26.08.1998|12/1998|12/1997|15.01.1999| |16|Bindu G.S.|05.07.1996|26.08.1998|12/1998|12/1997|15.01.1999| |17|Ajith R.|10.04.1997|26.08.1998|06/1997|06/1997|10.04.1999| |18|Vijayakumar S.|27.12.1996|26.08.1998|06/1999|06/1998|21.7.1999| |19|Sri Satheesh Maveli<br>Puthenveedu|03.09.1997|26.08.1998|12/1998|12/1998|03.09.1999| |20|Jayarajan K.|01.10.1997|26.08.1998|06/1998|12/1997|08.12.1999| |21|Aravindakshan P.|05.09.1997|26.08.1998|12/1998|06/1998|05.09.1999| |22|Saji K.|30.08.1997|26.08.1999|12/1998|12/1998|09.09.1999| |23|Sasikumar M.P.|05.01.1998|26.08.1998|12/1998|12/2006|05.01.2000| |24|Sabu C.George|08.01.1998|26.08.1998|06/1999|06/1997|30.01.2000| |25|Sunilkumar K.V.|02.01.1998|26.08.1998|12/1998|06/1998|02.01.2000| |26|Baby Sanooja|12.01.1998|26.08.1998|12/1998|12/1998|12.01.2000| |27|Jaya C.R.|05.01.1998|26.08.1998|06/1998|06/1998|09.01.2000| |28|Harikumar T.K.|02.01.1998|26.08.1998|06/1998|06/1998|03.01.2000| |29|David K.John|12.09.1997|26.08.1998|16/1999|12/1999|11.02.2000| |30|M.Muhammed Salim|03.09.1997|26.08.1998|06/2000|06/1999|22.07.2000| 15. The learned Government Pleader points out that seniority has been assigned only with reference to the basic OP(KAT)No.353/2015 -15- requirement of clearance of test for declaration of probation and for promotion as on the date of arising the vacancies. In the case of the first person by name Binukumar G., who has been assigned rank No.1, he joined the post of Auditor Grade II on 5.7.1996. The provisional date of promotion is the same, i.e., 26.8.1998. The said person had cleared both the Tests, i.e., for declaration of probation (LFAD Lower) in December 1997 and Account Test (Lower) in December 1997. Thus, his probation was declared immediately on completion of two years on 5.7.1998 and came to be ranked as the seniormost person. It was applying the very same principle, that one of the petitioners by name Vijayakumar S., who was rank No.41 in Ext.P1, came to be ranked on a higher position at Rank No.18, as evident from the said table. This being the position, there is absolutely nothing illegal or irregular with regard to the declaration of probation and fixation of seniority in the case of the petitioners and as such the verdict passed by the Tribunal is not assailable under any circumstance. In the above facts and circumstances, we find that the OP(KAT)No.353/2015 -16- petitioners are not entitled to have any reliefs. The challenge against the verdict passed by the Tribunal fails. The Original Petition stands dismissed accordingly. Sd/- **P.R.RAMACHANDRA MENON** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn True copy P.S.to Judge