Pradeesh.K.R vs The Kerala Agricultural ...
2021 Latest Caselaw 20649 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE AMIT RAWAL
         TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                         WP(C) NO. 13827 OF 2013
PETITIONER/S:

             PRADEESH.K.R.
             SENIOR GRADE ASSISTANT, KERALA AGRICULTURAL UNIVERSITY,
             VELLANIKARA HEAD QUARTERS,THRISSUR(NOW UNDER ORDER OF
             REVERSION AS ASSISTANT)

             BY ADV SRI.P.C.SASIDHARAN



RESPONDENT/S:

     1       THE KERALA AGRICULTURAL UNIVERSITY
             UNIVERSITY , REP BY ITS REGISTRAR, VELLANIKKARA,THRISSUR

     2       THE VICE CHANCELLOR
             KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA THRISSUR

             BY ADVS.
             SRI.BABU JOSEPH KURUVATHAZHA,SC,KERALA AGRICULTURAL
             UNIVERSI
             SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL UNIVERSITY
             SRI.AJITH KRISHNAN, SC, KERALA AGRICULTURAL UNIVERSITY




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.09.2021, THE COURT ON 5.10.2021 DELIVERED THE FOLLOWING:
 WP(C) NO. 13827 OF 2013
                                    2



                           JUDGMENT

Reversion of the petitioner vide Ext.P5 has been challenged

in this Court with a further prayer to declare that since the

petitioner has cleared test in the 4 th chance within the three year

period, and entitled for the benefit of Rule 13 A of the KS & SSR.

2. In support of the aforementioned prayer, it is pleaded

that the petitioner a member of the Scheduled Caste was

appointed as Assistant Grade-II in Kerala Agricultural University

on 31.1.2007. On account of adoption of the staff pattern of the

Secretariat, the post of Assistant Grade -II and Assistant Grade-I

merged as Assistant as per the proceedings dated 3.1.2008. In

the cadre of Assistant, with effect from 25.3.2006, there are

three grades ie., Assistant, Senior Grade Assistant and Selection

Grade Assistant in the ratio of 1:1:1.

3. Counsel for the petitioner submitted that subsequent

promotion were ordered either as Assistant Selection Grade or to

higher posts. Vide order dated 5.5.2009, petitioner was

promoted to the post of Assistant Senior Grade, Ext.P2 wherein it WP(C) NO. 13827 OF 2013

was stated that since the vacancy arose on 29.2.2008, the date of

notional promotion of the petitioner would be with reference to

that date. The provisions of the KS & SSR are applicable to the

employees of the University also.

4. It was,next, submitted that for promotion to the post of

Assistant Senior Grade, it is mandatory to pass departmental test

of Account Test (Lower) and also pass in Manual of Office

Procedure during probation in the cadre of Assistant Grade -II.

Petitioner had passed the Account Test Examination in July 2011,

Ext.P3 and appeared for next examination, after promotion, as

notified by the Kerala Public Service Commission. As per the

rules, a candidate will get six (6) chances and by availing only

four(4) chances he cleared the test. Without even issuing a

notice to the petitioner or hearing, the 1st respondent issued an

order reverting the petitioner to the post of Assistant with effect

from 29.2.2008, Ext.P5. The actual date of promotion of the

petitioner was on 5.5.2009 and the first examination attended by

him was in the year 2010 and passed the examination availing 4

chances within the three year period time. But the stand of the WP(C) NO. 13827 OF 2013

respondent is that the petitioner is not entitled for the relief

under Rule 13A (4) of the KS&SSR as he has got two chances to

appear for the departmental test for each year of examination (a

total of 6 chances during the period of three years), which is not

at all maintainable. In fact, the crucial date to be taken into

account was 5.5.2009 and not 29.2.2008.

5. On the other hand, learned counsel appearing for the

respondents opposed the aforementioned contentions and

submitted that the petitioner was given promotion to the post of

Senior Grade Assistant on 29.2.2008 and was drawing the salary

and allowances attached to the post of Senior Grade Assistant

with effect from 29.2.2008 as evidenced from the order

Ext.R1(a). This fact was reiterated by the University as per the

order dated 29.1.2009. Since 29.2.2008, petitioner was

discharging the duties and responsibilities attached to the post of

Senior Grade Assistant in the scale of pay of Rs.9190-15510 and

he was drawing the salary attached to the post of Senior Grade

Assistant with effect from 29.2.2008, thus, the contention of the

petitioner that he was not given promotion to the post of Senior WP(C) NO. 13827 OF 2013

Grade Assistant with effect from 29.2.2008 is absolutely false and

erroneous. Petitioner failed to pass departmental test upto

29.2.2011 and was accordingly reverted from the post of Senior

Grade Assistant with effect from the date of his promotion to the

post of Senior Grade Assistant, ie., 29.2.2008. Order Ext.P5, was

thus strictly in accordance with law and there is no illegality or

arbitrariness.

6. I have heard the learned counsel for the parties and

appraised the paper book. It would be apt to reproduce the

relevant portion of the order Ext.P5 pertaining to the petitioner.

"Read:    1) Rule 13A 1(a) of KS &SSR
          1.2)     University order No GA/A2/940/08 dated 05-05-2009
          1.3)     Rule 13A(2), 13A(4) of KS & SSR)

4) Certificate No 5321/12 dated 13-04-12 issued by the Under Secretary.

Departmental tests KPSC, Thiruvananthapuram

5) University order No GA/A2/940/08 dated 17-04-2012

6) Note to Rule 20(b) of KS & SSR

7) Rule 28(bbb) of KS & SSR) ORDER

As per Rule 13A(1)(a) of KS & SSR, employees belonging to scheduled Castes and Scheduled Tribes are eligible for three years extension from the date of promotion for passing the obligatory departmental tests. As per this office order read as 2 nd above, Sri Pradeesh K.R Assistant was promoted as Senior Grade assistant w.e.f 29-02-2008, as per provisions of the said Rule.

As per Rule 13 A(2) of KS & SSR, if a person promoted under Rule 13 A1(a) could not qualify the Departmental test within 3 WP(C) NO. 13827 OF 2013

years from the date of such motion, he shall be reverted to the grade from which he was promoted. As per the reference read as 4th above, Sri Pradeesh K.R had passed the departmental test only ring July 2011 i.e, after a clear period of 3 years from 29-02- 2008. Sri Pradeesh is not eligible for relief under Rule 13 A(4) of KS & SSR since he has got two chances to appear for the Departmental test for each year of exemption(a total of 6 chances during the period of three years).

As per the University order read as 5th above, Smt Yamuna K.B, Assistant was promoted to the cadre of Senior Grade Assistant w.e.f 07-07-2011, she having qualified the Departmental test during July 2011. But as per Note to Rule 20(b) and Rule 28(bbb) of KS & SSR, she will be eligible for promotion w.e.f 20- 07.2011, the last date of Account test(Higher) during July 2011 being on 19-07-2011.The same case applies in respect of Sri Pradeesh also

In the circumstances the following orders are issued:

Sri Pradeesh K.R, Sr Gr Assistant is reverted as Assistant w.e.f 29-02-2008 under Rule 13 A(2) and Rule 13 A(4) of KS & SSR and again promoted as Senior Grade Assistant w.e.f 20-07-2011 vide Note under Rule 20(b) and Rule 28(bbb) of KS & SSR

2) The date of promotion of Smt Yamuna K.B as Senior Grade Assistant is revised as 20-07-11 instead of 07-07-2011, in tune with the Note under Rule 20(b) and Rule 28(bbb) of KS & SSR.

3) The controlling officers will regulate the pay of the incumbents accordingly.

4) Sri Pradeesh K.R is placed just above Smt Yamuna K.B in the seniority list.

5) The AC (DD&A) will recover the excess salary disbursed to the incumbents

6) The University order read as 2nd and 5the above stands modified to this extent.

From the perusal of the same, it is evident that no

opportunity of hearing was given to the petitioner before

reverting him to Assistant with effect from 29.2.2008 under Rule WP(C) NO. 13827 OF 2013

13 A(2) and Rule 13 A(4) of KS & SSR and again promoted as

Senior Grade Assistant with effect from 20-07-2011 vide Note

under Rule 20(b) and Rule 28(bbb) of KS & SSR. I would be

refraining myself to comment further whether the promotion of

the petitioner would be from May 2009 or 29.2.2008, as per the

stand taken by the respondent. But the fact of the matter is

respondents ought to have given an opportunity to the petitioner

before passing the order of reversion. Thus the order Ext.P5 is

hereby quashed. However this will not preclude the respondent

to take a fresh call on the point aforementioned by giving

opportunity of hearing to the petitioner for the purpose of

reckoning the date of three years for passing the test whether it

should be from 29.2.2008 or 5.5.2009. Writ petition is allowed

in the aforementioned terms.

SD/-

sab                                      AMIT RAWAL

                                            JUDGE
 WP(C) NO. 13827 OF 2013


                    APPENDIX OF WP(C) 13827/2013

PETITIONER EXHIBITS

EXT.P1:-TRUE COPY OF THE ORDER DTD 5/11/2009

EXT.P2:-TRUE COPY OF THE ORDER DTD 5/5/2009 PROMOTING THE PETITIOERN AS ASSISTANT SENIOR GRADE

EXT.P3:-TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIOENR

EXT.P4:-TRUE COPY OFTHE HALL TICKET ISSUED TO THE PETITIOENR

EXT.P5:-TRUE COPY OF THE ORDER ISSUED BY THE IST RESPODNENT DTD 8/5/2012

RESPONDENT'S EXHIBITS

R1(a) TRUE PHOTOCOPY OF THE PROCEEDING ISSUED BY THE UNIVERSITY DETAILING THE FACT THAT PETITIONER WAS GIVEN PROMOTION FROM 29.2.2008 AND HE WAS DRAWING THE SCALE OF PAY OF SENIOR GRADE ASSISTANT WITH EFFECT FROM 29.2.2008

R1(b) TRUE COPY OF THE ORDER DATED 29.1.2009 ISSUED BY THE UNIVERSITY

R1(c) TRUE COPY OF THE ORDER DATED 19.2.2009 ISSUED BY THE UNIVERSITY