M.V.Dines vs State Of Kerala

P.B.Suresh Kumar, J.

The first respondent in the writ appeal, who was the petitioner in the writ petition seeks review of the judgment in the writ appeal. Parties and documents are referred to in this order for convenience, as they appear in the writ petition.

The petitioner who was working as Peon in Sree Krishna College, Guruvayoor (the College) since 07.03.2000 was promoted as Lower Division Typist on 16.10.2007 and later as Lower Division Clerk on 01.09.2010. He was promoted thereafter as Upper Division Clerk on 01.03.2013. The next grade to which the petitioner was entitled to be considered for promotion was the grade of Head Accountant. The grade next higher to the grade of Head Accountant is Junior Superintendent. A vacancy in the grade of Head Accountant and in the grade of Junior Superintendent arose in the College on 01.06.2017. Since there was no incumbent entitled to be considered for promotion to the grade of Junior Superintendent, the management promoted the petitioner directly to the said grade with effect from 01.06.2017. The Director of Collegiate Education who is empowered to approve the said appointment by promotion, entertained a doubt as to whether such a promotion could be made at all, and consequently, referred the matter to the Government. In terms of Ext.P4 order, the Government clarified that the feeder category for promotion to the grade of Junior Superintendent being the grade Head Accountant, the petitioner is not entitled to be promoted straight away to the grade of Junior Superintendent, without completing probation in the category of Head Accountant. In the light of Ext.P4 clarification, the Director declined approval to the appointment of the petitioner by promotion to the grade of Junior Superintendent. Ext.P5 is the communication issued by the Director to the Principal of the College in this regard. Exts.P4 and P5 orders were under challenge in the writ petition.

The learned Single Judge allowed the writ petition at the admission stage itself taking the view that Statute 66 of the Calicut University (Conditions of Service of the Teachers and Members of Non-Teaching Staff) First Statutes, 1979 (the Statutes) creates an exception to the normal rule that promotion to higher grades shall only be from the immediate lower category. The said view has been taken by the learned Single Judge having regard to the fact that promotion is provided for in terms of Statute 66 not from the immediate lower category, but from the other lower categories. The said decision of the learned Single Judge was challenged by the State and the official respondents in appeal and this Court, in terms of the judgment sought to be reviewed, allowed the appeal and dismissed the writ petition. As noted, the petitioner seeks review of the said judgment.

It is seen that the question which arose for consideration in the writ appeal, in the light of the view taken by the learned Single Judge was as to whether Statute 66 creates an exception to the normal rule that promotion to higher grades shall be only from the immediate lower category. This Court, having regard to the provision contained in Statute 66 held that Statute 66 is a general provision dealing with the manner in which vacancies in all higher grades sanctioned to private colleges are to be filled up, in contradistinction to the vacancies in a particular grade sanctioned to private colleges and merely for the reason that promotion is provided for in terms of the said provision from the lower categories, it cannot be said that such promotion need not be from the immediate next lower category. This Court has also given in the judgment adequate reasons in support of the said conclusion. The relevant portion of the judgment reads thus:

“This view of ours is fortified by the use of the word “next” prefixed to the expression “lower categories” in the provision. We take this view also for the reason that if Statute 66 is interpreted as put forward by the petitioner, one would be enabled not only to claim promotion to a grade next to the immediate next grade in which he is substantively appointed as in the case on hand, but also claim promotion to still higher grades, if there are no eligible incumbents entitled to be considered for promotion. Such a course cannot be said to be one contemplated by the framers of the Statutes, for in the absence of a specific enabling provision, when promotions are effected to non-selection posts solely based on seniority, the expectation is that having regard to the experience in the lower category, one would acquire the suitability to discharge the duties and functions attached to the higher grade, and if a person who had not worked in the immediate lower category is promoted to a higher grade, he may not have the suitability to discharge the duties and functions attached to the grade to which he is promoted. That apart, in terms of Statute 46, every person appointed in a private college shall be on probation for a period of one year, within a period of two years. No one can dispute the fact that the purpose of the requirement of probation is to enable an assessment to be made as to whether the appointee is suitable for being retained in service. In other words, the scheme of the Statutes is that an appointee will be considered as duly appointed in a category only on completion of probation. If a person is given promotion as claimed by the petitioner without completing probation in the immediate next lower grade, in the event of abolition of the promoted grade, he can be reverted only to the category in which he was substantively appointed after the completion of probation and if in the meanwhile, a junior of the person is promoted to the immediate next grade and if he has completed probation in that category, that person will be able to claim seniority over his former senior. Such promotions would, therefore, result in anomalous situations as well. It is therefore, evident that when promotion is provided for under the rules to non-selection posts solely based on seniority, the same can be claimed only to the immediate next higher grade and he/she can be promoted further to the next higher grade only after completion of probation in that grade. Needless to say, Statute 66 enables an incumbent in a lower category to claim promotion only to the immediate next higher grade.” (emphasis supplied)

The learned counsel for the petitioner raised two contentions to bring home the point that the judgment sought to be reviewed is vitiated by errors apparent on the face of the record, to justify the review petition. The first contention was that this Court has omitted to take note of the significance of the expression “vacancies in higher grades” used in Statute 66. The second contention was that the only reason stated by the Director of Collegiate Education in rejecting the proposal for approval of the appointment of the petitioner as Junior Superintendent is non-compliance of Rule 28(a)(i) of Part II of the Kerala State and Subordinate Service Rules and this Court has not dealt with the same in the judgment.

We do not find any merit in the arguments advanced by the learned counsel for the petitioner. The contention that this Court has omitted to take note of the significance of the expression “vacancies in higher grades” used in Statute 66, is not correct. This Court has elaborately considered the scope of Statute 66, and it is having regard to the provision therein that this Court has arrived at the conclusion that the same does not contemplate promotion to any grade other than from the immediate lower grade. In the light of the view aforesaid, the expression “vacancies in higher grades”, according to us, is totally irrelevant. The contention that this Court has not taken note of the reason, on the basis of which the Director of Collegiate Education rejected the proposal for approval of the appointment of the petitioner as Junior Superintendent, is also not of any significance, as this Court has otherwise found on merits that the petitioner is not entitled to be promoted to the grade of Junior Superintendent directly from the grade of Upper Division Clerk, without being promoted to the category of Head Accountant and without completing the probation in that category.

The review petition, in the circumstances, is without merits and is, accordingly, dismissed.