BY AD v. RAJU JOSEPH

Judgment

1. KSEB is in intra court appeal against the judgment of the learned Single Bench dated 18.3.2019 rendered WP(C) No.5129 of 2013. Respondent Nos. 1 to 3 were the petitioners in the aforementioned petition and sought quashing of stipulation in paragraph (ii) of 'Fundamental Eligibility Criteria' in Ext.P2 dated 18.2.2012 on the premise that it would have no applicability of fulfilling the condition of 3 years of continuous service in the feeder category for eligibility for promotion to higher category.

2. Petitioners entered into the service of the respondent as Divisional Accountants in the year 2004 and 2005 and were accorded promotion to Assistant Finance Officers as per the seniority. The period of probation to the Assistant Finance Officer was one year on duty within a continuous period of two years. All the petitioners completed their probation between the dates

29.7.2010 and 31.7.2011. Expecting consideration of promotion being eligible against the six vacancies of Finance Officers subject to completion of promotion and selection by the Departmental Promotion Committee (Higher) for Ministerial Officers, were flabbergasted that the Board while promulgating fundamental WA NO. 2353 OF 2019 3 eligibility criteria Ext.P2 which were applicable to the Engineering wing and part of it was made applicable to the Ministerial post which was in defiance to the provisions of Rule 28 of Part II of the KS&SSR. In other-words, it was stated that a condition of three year was imposed for making eligible as Finance Officers, for, Rule 28 of Part II KS&SSR does not contain any such conditions. No doubt the Board had already adopted KS&SSR Rules and are also governed by the Kerala Engineering (Civil and General) Branch fixing the minimum salary prescribed in the feeder category for promotion to the higher post as three years was applicable only to the Engineering Wing and not to the Ministerial Officers. Appellant Board did not deny the applicability of the Rule 28 of the KS&SSR but clarified that the Board will have to regulate the promotions strictly in accordance with Rule 28 where every Officer has to complete a prescribed period of service in 'lower post' for consideration of promotion and after promotion, the Officer has to complete prescribed period of service in higher post for declaration of probation in that post, thus, the stipulation of three years for promotion, mandatory in Ext.P2, was strictly in accordance with the provisions of Rule 28 of the Part of KS&SSR.

3. Petitioners countered the aforementioned submissions by placing on record reply affidavit stating that no special Rules or Regulations have been framed by the Board in respect of a category WA NO. 2353 OF 2019 of Finance Officer. 4

4. Learned Single Bench noticing the stipulation contained in Ext.P2 and Rule 28 of the Part II of KS&SSR Rules allowed the writ petition and quashed the condition No.2.

Learned counsel representing the appellant in support of the intra court appeal assailed the judgment of the Single Bench on the following grounds: a. Order Ext.P2 was a comprehensive order dealing with constitution and functioning of the Departmental Promotion Committee and also deals with the minimum qualification for promotion to a higher post. Ext.P2 is the Special Rule for promotion to higher category. As regards the promotion of Ministerial Officers, it was stipulated that they have to complete three years of continuous service in the Feeder Category for the purpose of consideration for promotion to the higher post. b. The condition imposed vide Ext.P2 is neither discriminatory nor unreasonable and special Rules can always be introduced as per Rule 2A of Part II KS&SSR. In the absence of any period making an employee eligible for higher promotion, Special Rules were carved out vide Ext.P2.

6. On the other hand, learned counsel appearing for the respondent, writ petitioners countered the aforementioned argument and submitted that Ext.P2 is not a special Rule but an WA NO. 2353 OF 2019 5 order. The order cannot have any applicability as the rules are framed by the Government and adopted by the KSEB. There is no quarrel to the adoption of the Rules or Special Rules but have to be promulgated by an appropriate Government. Therefore on completion of the probation period, Assistant Finance Officers are eligible for promotion as per the seniority to the post of Finance Officers. There were six vacancies where the petitioners were most eligible but owing to the condition No. (ii) in Ext.P2, the said benefit was denied, though it has been granted now after the petitioners had rendered the service of three years. It is in that background, the Single Bench set aside the condition and directed the appellant Board to revise the promotion of the petitioners to the post of Finance Officers and pass appropriate orders.

7. We have heard the learned counsel for the parties and appraised the paper book. Rule 28 of Part II of KS&SSR Rules and condition No.ii of 'Fundamental Eligibility Criteria' in the order dated 18.2.2012 are extracted herein below: Rule 28 of Part II of KS&SSR Rules

28. (a) Promotion (1) (Except in the case of appointment posts of Heads of Departments] no member of a service or class of a service to the 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, WA NO. 2353 OF 2019 6 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 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.] (ii) Where the Special Rules for a service provide for appointment by promotion to any class or category from a specified class or category of such service, no member shall be eligible for such appointment unless he is a full member or an approved probationer in the class or category so specified: Provided that if he is the holder of a post in any service for which no probation has been prescribed, he shall not be eligible for promotion unless he has put in satisfactory service in that post for a period of one year on duty within a continuous period of two years.] [(iii) Notwithstanding anything contained in these Rules or in the Special Rules/Executive Orders, the period of probation for persons appointed by direct recruitment or recruitment by transfer through Public Service Commission shall be two years on duty within a continuous WA NO. 2353 OF 2019 7 period of three years and for persons appointed in a post or category from another post or category in the same service or appointed by transfer from one service to another within the same Department or in another department (where direct recruitment is not resorted to) shall be one year on duty within a continuous period of two years.] Condition No.ii of 'Fundamental Eligibility Criteria' : The officer has completed the minimum service prescribed in the feeder category as per the special rules or orders for promotion to higher post. As per the Kerala Engineering Service Rules the minimum service prescribed in the feeder category for promotion to higher post is as follows: For promotion of Graduate Assistant Engineer to the post of Assistant Executive Engineer : Three years For promotion of Diploma holding Assistant Engineer to the post of Assistant Executive Engineer: Seven years For Assistant Executive Engineer to the post of Executive Engineer : Three years As per the Rule 28 of Kerala State and Subordinate Service Rules every officer has to complete the prescribed period of service in the lower post for considering for promotion and after promotion the officer has to complete the prescribed period of service in the higher post for declaration of probation in that post. Accordingly, the ministerial officers have to complete three year of continuous service in the feeder category for considering for promotion to higher post. The period spent on LWA of any kind will not count for calculating this minimum period of service in the feeder category.

8. No doubt, by looking at the Ext.P2, it is an order but not a special Rule which has fixed the minimum Kerala Engineering Service and not of Ministerial staff and also clarified that Rule 28 of the KS&SSR prescribes a period to be fulfilled for the purpose of promotion and keeping in view that background, Ministerial Officers have also been made to complete three years. It is WA NO. 2353 OF 2019 8 unfathomable as to how and under what manner Board while referring to the Rule 28 imposed the condition of "three years" of continuous service in the feeder category for the purpose of consideration for promotion to the higher post ie., from Assistant Finance Officer to Finance Officer. Rule 28 reveals that the person has to render only one year on duty within a continuous period of two years of service and not three years. Once the respondent in Ext.P2 qualified the applicability of Rule 28 for Ministerial posts could not have volte faced and fixed "three years" of continuous service for making person eligible for purpose of promotion. All the petitioners had completed the probation period between

29.7.2010 and 31.7.2011. They were qualified for promotion to the Finance Officers. The stand of the Electricity Board is silent as to how and under what manner condition of three years had been imposed on the Ministerial staff, as Rule 28 does not contain any such provision. The order of the Single Bench contained in paragraph 9 directing the Electricity Board, appellant to take a call is extracted herein below, in our view do not suffer from any illegality or infirmity.

9. The prescription contained in Exhibit P2 to the effect that ministerial officers have to complete three years of continuous service in the feeder category for considering for promotion to higher post is therefore not supported by any provision as contained in Rule 28. In the above view of the matter, the said prescription is set aside. It is directed that the dates of promotion of the petitioners to the post of WA NO. 2353 OF 2019 9 Finance Officers shall be revised accordingly by the Board. Appropriate orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. Writ appeal sans merit. Accordingly, dismissed. SD/- AMIT RAWAL JUDGE SD/- C.S. SUDHA JUDGE