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PETITIONER: R. SUSEELA DEVI

       Vs.

RESPONDENT: KERALA PUBLIC SERVICE COMMISSION & ORS.

DATE OF JUDGMENT:       12/02/1998

BENCH: SUJATA V.MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The appellant  was appointed  as Assistant  Grade-II in the General  Secretariat Service  with  the  Public  Service Commission by  an advice  dated 29.6.71.  The Public Service Commission thereafter  issued two further advice lists dated 4.7.71  and   14.7.71.  Pursuant   to  these  advice  lists, respondents  2  to  9  were  also  appointed  as  Assistants Grade-II. The  dates of  actual joining  of various  persons shown in these advice lists varied depending upon exigencies of  the   situation.  However,  in  the  seniority  list  of Assistants Grade-II, admittedly, the appellant was senior to respondents 2 to 9.      The next  promotional post  for Assistant  Grade-II  is Assistant Grade-I.  The promotion  is  purely  by  seniority subject to  fitness. To  qualify for  promotion,  Assistants Grade-II are required to have completed satisfactorily their two years’  period of probation. On 3.7.73 a number of posts of Assistants  Grade  I  were  vacant.  Since  none  of  the Assistants  Grade   II  were  qualified  on  that  date  for promotion  because   they  had   not  then  completed  their probation period,  they were given provisional promotions by an order  of that date. The appellant as well as respondents 2 to  9 were thus provisionally promoted as Assistants Grade I by the order of 3.7.73. In this list also the appellant is shown senior  to  respondents  2  to  9.  On  29.12.73,  the respondent -  Kerala Public  Service Commission,  issued  an order giving  regular promotion to 45 Assistants Grade II as Assistants Grade  I. In  the order of 29.12.73 respondents 2 to 9  are given  the date of promotion which is prior to the date of  promotion given  to the  appellant, thus making the appellant was  junior to respondents 2 to 9. The respondents contend that  this was  done because  although the appellant was senior to respondents 2 to 9 in the cadre of  Assistants Grade II,  her actual  date of  joining that cadre was later than the  actual date of joining of respondents 2 to 9. As a result,  respondents  2  to  9  completed  their  period  of probation earlier  than the  appellant and hence they became eligible for  promotion earlier  than the appellant. That is why the  appellant is  shown as junior to respondents 2 to 9 in the cadre of Assistants Grade I.

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    This contention  of the  respondents has been upheld by the High  Court relying  upon a  full bench decision of that Court in  the case  of Verghese v. State of Kerala (1981 KLT 458).      The  promotion   in  the  present  case  was  dependant entirely upon  the seniority  of the person concerned in the cadre of  Assistants Grade II. The seniority in the cadre of Assistants Grade  II was  dependant upon  the date of advice received  from   the  Public   Service   Commission,   since candidates were  directly recruited  as Assistants Grade II. This seniority did not depend upon the date of completion of probation of  the direct  recruits  so  appointed.  This  is because the date of completion of probation will depend upon other fortuitous circumstances. The date of joining may also depend upon various fortuitous circumstances. Seniority does not depend upon these fortuitous circumstances.      Therefore, when  promotions are made to the next higher post, the  seniormost in  the lower  cadre will  normally be promoted,  when  promotions  are  by  seniority  subject  to fitness. In  the present  casae, however, when the vacancies were first sought to be filled in the higher post on the 3rd July, 1973, nobody was eligible because nobody had completed the period  of probation.  We do not know when the vacancies actually arose.  We only have the first date when promotions were made  to the existing vacancies provisionally  which is 3rd of  July, 1973.  In the provisional promotion list inter se seniority of Assistants Grade II was preserved.      The  order   for  regular   promotions  was  issued  on 29.12.73. By  this date  all eligible  persons  holding  the substantive post  of Assistants  Grade II were qualified for promotion and were actually provisionally promoted on 3rd of July, 1973.  Therefore, their inter se seniority on the date of regular  promotion was  required to be preserved in order to give  effect to  the principle  of  seniority  being  the criterion for promotion to Assistants Grade I when seniority was the only criterion for such promotion.      We are  concerned with  the case  where  an  order  for regular promotion  was issued  at a  time when  appellant as well as  respondents 2  to 9  were qualified  for promotion. Therefore, in  making such  a promotion,  the  principle  of seniority should  not have  been departed  from when  it had been adhered  to up  to that  date.  We  may  add  that  the respondents  had  very  fairly  waited  till  all  concerned Assistants Grade  II had  completed their  probation  period before issuing  the order  of regular  appointment. This was correctly done  so as  to give  effect to  the principle  of seniority in  granting  promotion  to  Assistants  Grade  I. Subsequently, by  amendment of Rule 28(a) this principle has been clarified  by providing  that a  probationer in a grade shall not  be superseded  for promotion to a higher grade by his junior  if the  vacancy  arises  within  the  period  of completion of  probation and  if he  has passed  the test or tests prescribed  for successful completion of probation and is otherwise  eligible and  suitable for  promotion; but his promotion  shall   be  subject  to  the  condition  that  he satisfactorily completes  the probation  in the  grade  from which he  was promoted  within the  period as prescribed and for this  purpose the period of service put in by him in the higher grade  shall be  reckoned towards  probation  in  the grade from which she was promoted.      The appeal  is, therefore,  allowed  and  the  impugned judgment and  order of the High Court is set aside. The writ petition filed  by  the  appellant  in  the  High  Court  is allowed. There will, however, be no order as to costs.

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