Ammini, K. vs State of Kerala and Others

M.R. Hariharan Nair, J.—The writ appeal aforementioned filed by one Ammini arises from the decision of a learned Single Judge of this Court dismissing O.P. No. 14114 of 1997. The question is basically one of seniority in the Grade of Section Officer in the Finance Secretariat of the Government of Kerala as between the Appellant and the 2nd Respondent herein (Kamalam), both of whom joined Kerala Secretariat service as Confidential Assistants Grade II in the year 1975. The 2nd Respondent joined service on 16th January 1975 as a non-graduate whereas the Appellant joined Government Service as graduate C.A. on 1st November 1975. Going by the date of entry into Government Service, the Appellant was thus junior to the 2nd Respondent.

The 2nd Respondent was promoted as Confidential Assistant Grade I on 1st October 1982 and the Appellant got such promotion in the year 1986. In 1983., the 2nd Respondent got her degree also.

Even though the normal channel of promotion to the post of Section Officer in the Secretariat was from Assistant Grade I, there is a Government Order dated 17th June 1988 which enables promotion of Confidential Assistant Grade I also to that post. However, for being considered for such promotion, Confidential Assistants will have to undergo a training as Assistant Grade I for a period of one year. G.O. (MS.) No. 228/85, dated 26th June 1985, however provided that only those with test qualification will be sent for training. Such trained and qualified Confidential Assistants Grade I could aspire to become Section Officers by application of the formula mentioned in Ext. P-13 G.O. whereunder the proportion for promotion between Assistant, Typists and Confidential Assistants Grade I will be in the ratio of 15:1:1.

The practice followed in the Secretariat in the matter of deputation for the said training appears to be the option of the candidate himself. There was no system of calling for options from the senior hands. In such circumstances, the Appellant who was junior to the 2nd Respondent in the cadre of C.A. got an opportunity to undergo the training from 25th September 1988 and she completed it on 30th October 1989. The 2nd Respondent was on deputation to the Trichur Urban Development Authority from 28th October 1978 onwards. Based on a representation made by her she was sent for training only as per Ext. P-5 order on 27th November 1990. Ext. P-6 G.O. provides that she has completed the training successfully on 11th December 1991.

The bone of contention in this case is the right of promotion to the post of Section Officer in the quota of Confidential Assistants that arose on 8th July 1991. Because of the benefit of earlier deputation for training the Appellant, though junior to the 2nd Respondent was qualified for consideration to the said promotion post on the date of occurrence of the vacancy namely, on 8th July 1991, but the senior 2nd Respondent had not become qualified for want of completion of the training period as on that day. The proposal to promote the Appellant was challenged by the 2nd Respondent by filing O.P. No. 10504/90. O.P. No. 7868/89 was also pending at the time wherein the quota allowed for Typists was under challenge. In the circumstances, taking into account the interim orders in those cases also the Government passed orders provisionally promoting the Appellant to the post of Section Officer subject to the results of O.P. Nos. 7868/89 and 10504/90. When subsequently the Government tried to give relief based on representation of the 2nd Respondent, the Appellant filed O.P. No. 11723/91 seeking direction not to revert her from the post of Section Officer. Based on court orders she has been continuing in the said post ever since then.

Ext. P-3 Notification placing the Appellant in the select list for 1990-91 as above was modified by the Government as per Ext. P-8 notification in favour of the 2nd Respondent presumably based on the seniority claim raised by the 2nd Respondent. Based on Ext. P-8 notification the Government directed that the Appellant be reverted and that post given to the 2nd Respondent. O.P. No. 2843/93 aforementioned was then filed by the Appellant to cancel Ext. P-8 notification placing the 2nd Respondent in the select list for 1990-91 on the ground that the Government have no power to pass such an order especially when as on the date of occurrence of vacancy namely, on 8th July 1991 the 2nd Respondent was not qualified for want of the training qualification. Following O.P. No. 10504/90 filed by the 2nd Respondent seeking a direction to promote her as Section Officer in preference to the Appellant in the vacancy that arose on 8th July 1991, she also filed O.P. No. 5266/97 seeking to quash order dated 25th February 1997 granting higher grade to the Appellant in the post of Section Officer with effect from 21st January 1997.

O.P. No. 14114/97 was filed seeking to cancel Ext. P-10 notification placing the Appellant in the select list for 1992-93 for appointment as Section Officer and Ext. P-13 order which is consequential. The thrust of argument of the learned Counsel for the Appellant is that right of promotion has to be considered based on the date of occurrence of vacancy and if the case is decided on that basis, the Appellant alone would be entitled to get promotion as Section Officer in so far as the 2nd Respondent was still undergoing training as on that day and as such had not become qualified. On the other hand, the case of the 2nd Respondent is that the fact that the Appellant could complete the training earlier does not affect the inter se seniority in so far as the Appellant, who was the junior was deputed for training by the Government illegally without any choice, being given to the 2nd Respondent who was the senior to undergo the training. According to her, in view of the illegality involved, the 2nd Respondent''s right of promotion to the vacancy which arose in July, 1991 remains unaffected. The prayer in O.P. No. 14114/97 includes a prayer to quash Ext. P-10 notification dated 9th February 1995 to the extent it directs inclusion of the name of the Appellant as Section Officer in the select list for the year 1992-93 only instead of for 1990-91 as also Ext. P-13 order whereby the 2nd Respondent has been found entitled to get promotion to the post which fell vacant on 8th July 1991 and also for grade benefit with effect from 23rd January 1997.

According to the learned Counsel for the Appellant, the Government has no power to issue an order like Ext. P-13 since the entry in a selection list by the D.P.C. cannot be cancelled by the Government except by recourse to Section 39 of the Kerala State and Subordinate Services Rules. It is pointed out that there was no proceeding taken by the Government under Rule 39 of the Kerala State and Subordinate Services Rules with notice to the Appellant.

The learned Single Judge, after hearing both sides, found that the Appellant''s earlier completion of the training would not stand in the way of the rights of the 2nd Respondent to get promotion and that though she had not completed the training as on the date of occurrence of the vacancy, her right for promotion based on seniority should not be affected. The court also noticed the observation in Ext. P-13 Government Order that the 2nd Respondent was not sent for training earlier not due to any fault of hers. It was also, noticed that Ext. P-10 notification dated 9th February 1995 had not been challenged by the Appellant in due time and that as such she cannot successfully challenge the consequential order Ext. P-13 dated 31st July 1997 also.

It is clear from the interim order of this Court passed in O.P. No. 10504/90 and from the Government Order concerned that the inclusion of the name of the Appellant in the select list prepared for the year 1991 was only provisional and subject to the result of the said Original Petition. Merely because she got a provisional promotion based on such orders it does not confer on her any vested right to the post. The D.P.C. which met on 30th January 1993 considered the rival contentions and found that it was the 2nd Respondent who was legitimately entitled to get the post. The Appellant could not produce before the court any Government Order or Rule which specifies that deputation of officers for training will be based on their own application or option. She could also not point out any material to show that the 2nd Respondent was offered the choice of undergoing training or that she declined the same and it was in such circumstances that the Appellant who was the junior was sent for training on 25th September 1988.

This Court had occasion to go into similar questions in Writ Appeal No. 155/1988 and Writ Appeal No. 374/1988. In the former case, the question was one of promotion to the post of Tahsildar from that of Deputy Tahsildar. The Survey test qualification which was one of the qualifications for promotion to the post could be acquired only when the candidates were deputed to undergo Survey training. The candidate had no opportunity or occasion to attend the training on his own. It was submitted in the O.P. concerned that in the matter of sending candidates for training mistakes arose and consequently juniors became qualified earlier than the seniors as far as the Survey training qualification is concerned. It was found by the Division Bench based on the decision in Writ Appeal Nos. 374/88, 609/88 and 861/88 that even in the absence of any order of exemption passed invoking Rule 39 of the K.S. and S.S.R. persons who have been denied opportunity for undergoing training cannot be deprived of their right for promotion solely on the ground that they have not acquired the training qualification. The reason is that such late acquisition of qualification is not attributable to any fault on the part of the candidate; but it is only on account of the mistake committed by the Department in not sending them for training at the relevant point of time. It was further found that even without an order invoking power under Rule 39 of the K.S. and S.S.R. the seniors could enforce their right.

In Writ Appeal No. 374/88, the question was one of promotion to the cadre of Assistant Directors in the Department of Animal Husbandry. The Appellants therein were juniors to Respondents 6 to 9 therein; but they could undergo the training required for promotion namely, training in swine husbandry and pork processing or poultry husbandry earlier. With respect to the date of occurrence of the vacancy, the Appellants therein were qualified persons, but Respondents 6 to 9 had not become qualified as they were sent for training only subsequently. Rule 9 of the special rules concerned provided that selection of candidates for training necessary for holding any particular post should be made on the basis of the seniority and that junior should be selected only in case the senior expressed his unwillingness in writing to undergo such training. It was without obtaining any such statement of unwillingness from Respondents 6 to 9 in Writ Appeal No. 374/88 that the Appellants therein were sent for training. It was found that the promotion post could not be filled merely based on the want of test qualification of Respondents 6 to 9 as on the date of occurrence of the vacancy. They cannot be denied promotion when it became due to them according to their seniority merely on the ground that their juniors had completed the training as on the date of occurrence of the vacancy.

Rule 28(b)(i) of the K.S. and S.S.R. provides that appointments to posts in a selection category or grade in a service or class, other than Heads of Departments which shall be made under Rule 28A shall be made from a select list prepared from among the members eligible for appointment to such category or grade in accordance with these rules and the special rules on the basis of merit and ability, seniority being considered only when merit and ability are approximately equal. Rule 28(ii) provides that all other promotions or appointments by transfer to higher posts shall, subject to the provisions of the K.S. and S.S.R. and the special rules, be made in accordance with seniority subject to the person being considered suitable for the post. Rule 28(ii)(bb) provides that promotion in a service or examination (General or Departmental) shall ordinarily be made with reference to the conditions existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up. Rule 29 enables the Government to revise any order appointing a member of a service or class to a selection category or grade by promotion or by transfer either suo motu at any time or on a petition submitted by any aggrieved member within six months from the date of passing of the order. The special power under Rule 39 is in addition to all these. It is obvious, therefore, that Goverment has got powers to revise orders for sufficient reasons. In the instant case, the Government has noticed the defect in the earlier order of promotion given to Appellant and noticed that the D.P.C. had decided to promote the 2nd Respondent instead to the vacancy of Section Officer which arose on 8th July 1991 and accordingly passed necessary orders. However, it was passed without notice to the Appellant.

Rule 39 of the Kerala State and Subordinate Services Rules provides as follows:

Notwithstanding anything contained in these rules or in the Special Rules or in any other Rules or Government Orders the Government shall have power to deal with the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may appear to the Government to be just and equitable.

In view of the above provision, the State Government certainly has the authority to pass just and equitable orders. However, that power has to be exercised bearing in mind the principles of natural justice.

The Appellant has a case that the reasons for upsetting the list prepared by the D.P.C. for the relevant year has not been let known to her. Normally a selection made by the D.P.C. can be modified only with notice to the affected parties. The question therefore arises as to whether Exts. P-10 and P-13 orders have to be struck down merely for the reason that they were passed without affording an opportunity to the Appellant. We are of the view that it is unnecessary to do so for the following reasons:

(i) No straight jacket formula can be applied in the matter of observance and applicability of principles of natural justice. Necessity for its observance will vary from case to case and depending upon facts. Here is a case where the Appellant has obtained ample opportunities to ventilate her grievances regarding right of promotion in the Original Petitions being considered in this judgment and in her various representations sent to the Government. The right of the parties have been considered not only by the learned Single Judge but also by the Division Bench.

(ii) In the interim order dated 16th December 1991 in C.M.P. No. 20403/91 which was passed after hearing both sides in O.P. No. 11723/91, it was made clear by this Court that it is open to the Government to take a decision in the controversy in question. No further hearing of parties was directed therein. That order was not challenged in Appeal in due time. There was hence no limitation or want of power for the Government to pass appropriate orders even without hearing the parties. Nor can it be said that the Appellant is prejudiced for want of fresh opportunity in the circumstances.

(iii) Even the original order of promotion dated 8th July 1991 (Ext. P-4) had made it clear that the promotion was only provisional and subject to the decision in O.P. Nos. 7868/89 and 10504/90. That implies that the Government reserved its right to pass appropriate orders after considering the merits of the matter in due course. That is what has been done now.

(iv) The defects in orders of provisional promotion can be set right even without an order under Rule 39 of the K.S. and S.S.R. as held in W.A. No. 155/98 (Johnson''s case) and W.A. No. 374/88 (Dr. P. Sreedharan Nair and Anr. v. Director, Animal Husbandry Dept. and Ors.) mentioned supra. No opportunity of being heard is essential in passing administrative orders.

(v) Exts. P-10 and P-13 orders advance the cause of justice in so far as they are passed in order to set right a mistake committed which had resulted in unjust promotion to a junior usurping the legitimate rights of the senior who was denied opportunity for essential training for no fault of hers.

In the circumstances, we art of the view that Exts. P-10 and P-13 orders referred to in O.P. No. 14114/97 do not justify any interference from this Court. Consequently the following orders are passed:

(1) W.A. No. 1547/97 is dismissed.

(2) O.P. No. 10504/90 is allowed. Right of the Petitioner therein (Kamalam) to get promotion as Section Officer in preference to Respondents 2 and 3 therein who are her juniors is declared. She will also get all consequential benefits.

(3) O.P. Nos. 11723/91 and 2843/93 filed by Ammini are dismissed.

(4) O.P. No. 5266/97 filed by Kamalam is allowed and the portion of Ext. P-4 order therein granting Grade Promotion to Smt. Ammini with effect from 21st January 1997 is set aside. Smt. Kamalam will be given Grade Promotion in the cadre of Section Officer on the due date in accordance with Ext. P-3 order marked therein.

The parties will suffer their costs in these proceedings.