M. MOHAMMED ABDULLA versus STATE OF KERALA AND ORS.

Citation: [2007] 10 S.C.R. 619 · Decided: 25-09-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

r 
M. MOHAMMED ABDULLA 
A 
v. 
STATE OF KERALA AND ORS. 
SEPTEMBER 25 , 2007 
B 
[S.B. SINHA AND H.S. BEDI, JJ.] 
'..! 
Service Law: 
Kera/a State Service Rules: 
c 
r. 28, Appendix XllA, paragraphs 4 and 5-Seniority-Audit 
officer during period of probation granted leave without allowance 
in terms of para 4 to take employment abroad-After his rejoining 
duty but before completion of period of probation by him, his junior 
D 
promoted to higher post ignoring him-HELD: Audit Officer 
'-< 
concerned was a permanent Government servant and therefore, in his 
case para 4 was applicable and not para 5 and the question as to 
whether employee had completed his period of probation or not may 
not be a relevant criterion-Kera/a State and Subordinare Service 
Rules-r.27(c)-Kerala Local Fund Audit Service Special Rules-r.3. E 
The appellant, while holding the post of Audit Officer und.er the 
Kerala Local Fund Audit Service, applied for and was, in terms of 
~ paragraph 4 of Appendix XII-A of the Kerala Service Rules, granted 
leave without allowances for a period of 5 years, for taking F 
employment abroad. He rejoined his duties as Audit Officer on 
8.11.2001. Respondent no. 3 who was junior to the appellant, was 
promoted as Deputy Director of Local Fund Audit on 5.8.2002. The 
appellant was declared to have completed his period of probation 
~~ 
as Audit Officer with effect from 6.3.2003. By an order dated 3.1.2004 G 
the original seniority assigned to the appellant in the category of 
Audit Officer, as was published on 18.5.1998, was restored. 
Respondent no. 3 challenged this by filing a writ petition before the 
High Court, which by an interim order cancelled the order dated 
619 
H 
620 
SUPREME COURT REPORTS 
[2007] 10 S.C.R. 
I 
A 3.1.2004. Though, on the basis of a revised select list and the 
~ 
recommendation of the Departmental Promotion Committee the 
appellant was promoted to the post of Deputy Director of Local 
Fund Audit by order dated 27.5.2004, the said order was reviewed 
by the Government by an order dated 26.8.2004 on the ground that 
B while passing the same the interim order passed in the writ petition 
of respondent no. 3 was not taken into account. The appellant also 
filed a writ petition before the High Court which, ultimately, allowed 
~-
the writ petition filed by respondent no. 3 and dismissed that of the 
appellant, holding that in the instant case paragraph 5 of Appendix 
c XII-A of the Kerala Service Rule would apply. 
In the instant appeal filed by the appellant, it was contended 
for the respondent-State Government that there were two services 
in the State of Kerala governed by the Kerala State and 
D Subordinate Service Rules and the Kerala Service Rules; that 
though the appellant initially joined under the Subordinate Service 
of the State, but later having been appointed by transfer to the State 
Service he would be deemed to have entered the State Service as 
Audit Officer on 8.11.2001 and since before completion of his period 
E 
of probation as such, respondent no. 3 had already been promoted 
to the post of Deputy Director of Local Fund Audit, the case of the 
appellant would be governed by paragraph 5 and not paragraph 4 
of Appendix XIIA to the State Se..Vice Rules. 
Allowing the appeal, the Court 
>-" 
F 
HELD: 1.L The a1Jpellant availed the leave without allowance 
i~ terms of para~raph 4 of the Kerala Service Rules while he was 
working as Audit Officer of Local Fund Accounts. But prior thereto 
he had already entered the cadre of Grade II Auditor and completed 
his period of probation. He was a permanent Government servant. 
~-, 
G Once he became permanent Government servant, the question of 
his availing leave in terms of paragraph 5 of Appendix XIIA of the 
rules would not arise. [Para 16] [627-D-E] 
.. , 
1.2. Distinction between paragraphs 4 and 5 is apparent. 
H Paragaph 4 deals with the cases of permanent officers who have 
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M. MOHAMMED ABDULLA v. STATE 
621 
completed the period of probation in their entry cadre in the regular A 
service, whereas paragraph 5 speaks of non-permanent officers in . 
regular service who have not completed probation in their entry 
grade. The condition precedent for denying the officer concerned 
i.e governed by para 4, the benefit of his seniority is that his junior 
in the meantime must obtain a senior grade before he rejoins his B 
duty. Paragraph 4 speaks of the entry in the regular service of the 
Government, wh

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