Balakrisna Eredi, J.:— The petitioner is a Senior Grade Assistant in the administrative Secretariate of the Kerala Government at Trivandrum. He had entered in service as lower division clerk in the Secretariat of 9th September, 1957. Subsequently, he was promoted as Assistant Grade I on 25th February, 1963 and as Senior Grade Assistant with effect from 3rd July, 1970 The next higher post to which personnel in the category of Senior Grade Assistants can aspire for promotion is that of Section Officer. Appoint meats to that category are to be made by selection by the departmental promotion committee on the basis of merit and ability, seniority being taken into account only when merit and ability are approximately equal.
2. On 3rd June, 1974, the Government issued the notification Ext. P. 1 publishing the select list of officers for appointment to the catogory of Section Officers in the promotion committee and approved by the Government. The petitioners name was included as item No. 11 in the said list which contained in all 30 names. The select list was published in the Kerala Gazettes dated 4th June, 1974. On 15th November, 1974, the Government issued another notification publishing a revised select list of officers selected for appointment to the category of Section Officers. That list also contained 30 names, but the petitioner's name had been omitted and the name of one Smt. I.M Mariamma had been added in the list. The petitioner's grievance is that before proceeding to revise the original select list by removing his name therefrom no notice was given to him by the State Government nor was he afforded any opportunity to state his case and that action had been taken by the 1st respondent in gross violation of the principles of natural justice. It is further contend by the petitioner that he has a record of unblemished service and that there is no justifiable reason for overlooking his claim based on seniority and for preferring his juniors for inclusion in the list for promotion as Section Officer. In arbitrarily removing the petitioner's name from the select list the petitioner's fundamental rights under Articles 14 and 16 of the Constitution are alleged to have been seriously infringed. The petitioner has therefore come up to this court with this writ petition praying that Ex. P.2 should be quashed and that a writ of mandamus should be issued to the State Government to appoint the petitioner as a Section Officer before appointing respondents 2 to 19 all of whom are said to be juniors in service in relation to the petitioner. In the counter-affidavit filed on behalf of the State Government it is stated that subsequent to the publication of the select list Ext. P. 1 one Sri K.I Joseph, a Senior grade Assistant, filed a petition before the Convener of the departmental promotion committee complaining against the inclusion of the petitioner's name in the select list on the ground that the petitioner had been no longer periods of leave prior to 1st April, 1974, that those periods would not count far probationers or seniority under stupe 27 of the Kerala State and Subordinate Service Rules and that hence the petitioner could not be treated as Senior in relation to himself (K.J Joseph). The counter-affidavit prosseds to state that the said representation was considered by the departmental promotion committee at its meeting held on 10th October, 1974, that the committee felt that the inclusion of the petitioner's name in the select list Ext. P. 1 had been wrongly made without the knowledge of the facts stated in Mr. Joseph's representation, and that consequently the departmental promotion committee decided to drop the petitioner's name from the select list. The reasons which weighed with the departmental promotion committee for considering the petitioner ass ineligible for being included in the select list have been set out in paragraphs 3 to 5 of the counter-affidavit. In paragraph 3 it is stated that according to rule 10 of the Special Rules for the Kerala Secretariat Subordinate Service every person appointed to the said service has to be on probation for a total period of one year on duty within a continuous period of two years. It is then pointed out that the petitioner was on leave at the time of his promotion as Senior Grade Assistant and that the period spent by him under leave would not count for probation. Based on the fact of the petitioner's probation having been declared by the Government only with effect from 31st March, 1973 a contention has been put forward in paragraph 4 of the counter-affidavit that the petitioner's seniority in the category of Senior Grade Assistant ??? be counted only from the date on which he rejoined duty and commenced his probation in the category of Senior Grade Assistant. It is averred in paragraph 5 of the counter-affidavit that when the departmental promotion committee met on 6th and 7th May, 1974 and prepared the select list Ext. P. 1 the fast that the petitioner had commenced probation as Senior Grade Assistant only subsequent to the commencement of the probation of Sri K.J Joseph had not been brought to the notice of the departmental promotion committee. It was only when the representation filed by Sri K.J Joseph was considered by the departmental promotion committee that they came to know of the aforesaid fact. Thereafter the committee is said to have considered the matter again at its meeting head on 10th October, 1974 and decided to drop the petitioner's name from the select list on the ground that it was wrong inclusion.
3. It is thus dear from the statements contained in the counter-affidavit filed on behalf of the State Government shag the only reason which weighed with the committee for revising the select list Ext. P. 1 by dropping the petitioner name from the said list is that the petitioner was considered by the committee to be junior in service in relation to Sri K.J Joseph, on the basis that the period during which the petitioner was on leave would not count for seniority under rule 27 of the Kerala State and Subordinate Services Roles.
4. Before I proceed to examine the legality and correctness of the said view taken by the departmental promotion committee which has also been sough to be sustained by the 1st respondent; in the counter-affidavit, it will be convenient to deal with the argument advanced by the petitioner that the action taken by the 1st respondent in revising the original select list Ext. P. 1 by dropping the petitioners name there from and publishing a revised select list as per Ext. P.2 without affording any opportunity to the petitioner to make his representations concerning the matter was violative of the principles of natural justice. Ordinarily no person can claim a right to be heard before a departmental promotion committee takes a decision as to whether or not his name should be included in the list of officers selected for promotion to a higher category on the basis of merit and ability. But, when ones such a list has been duly drawn up and published is the Gazetts any action for the removal of the name of any person from such a list, particularly when it is taken on the basis of a representation made by a rival candidate, who puts forward a preferential, claim for inclusion his the list on the bask of alleged seniority over the person whose name was originally included, would undoubtedly attract the applicability of the principles of natural justice in a result of she proposed action the person, whose name is soughs to be deleted from the list wherein it was originally included, will undoubtedly be visited with serious adverse civil consequences. Further, when any adjudication regarding the inter se seniority as between two Government servants is conducted pursuant to the representation made by one of them complaining that he was being regarded as the junior amongst the two, the principles of elementary justice and ??? require that a final decision should be taken in the matter only after affording a hearing to the party whose seniority is being challenged.
5. There is no case for the 1st respondent that before the impugned action for revising the select list by omitting the petitioner's name therefrom was taken as per ext. P.2 the petitioner had been given any notice or opportunity to state his esse. In the circumstances I have no hesitation to hold that the departmental promotion committee feed the State Government have acted in violation of the principles of natural justice in deleting the petitioners name from the select list Ext. P. 1 which was originally published in the Gazette and in publishing a revised select list as per Ext. P.2
6. At the time of passing of the order Ext. P. 3 promoting the petitioner to the category of Senior Grade Assistant with effect from 3rd July 1970 the petitioner was of study leave. This fact was duly taken note of in Ext. P. 3 itself because it is seen therefrom that after granting the petitioner the promotion as Senior Grade Assistant with effect from 3rd July, 1970, one Sri Jossy Abraham was also promoted under the same order as Senior Grade Assistant in the leave vacancy of the petitioner which necessarily implies that the petitioner was treated as the regular incumbent of the said post of Senior Grade Assistant with effect from the aforesaid date. Reference has also to be made in this connection to rule 8 of the General Rules of the Kerala State and Subordinate Service Rules where in it is laid done that the absence of a member of a service from duty such service on leave shall not render him ineligible in his turn for promotion from a lower to a higher category in such service. The proviso to the said rule states that such member shall satisfactorily complete the period of probation or him return. In other ??? the position which obtains under this rule is that when a vacancy arises in a post in a higher ??? in a ??? turn fine ??? into that vacancy is of a matter of fiat service ??? is absent from duty ??? leave, he is entitled to be granted promotion in his turn ??? the fact of his being on leave. The effect of the proviso is only to clarify that even though the promotion given to the person who is on leave will be effective from the date of the older itself, the person ??? will have to undergo the full period of probation after his retrun The matter is made even more dear in relation to the specific subject of study leave by rule 99 of Part I of the Kerala Service Rules read with rule 19 of Appendix VI. That rule lays down that leave may be granted to officers to enable them to study scientific, technical or similar problems or to undergo special courses of instruction on such terms as the Government may by general order prescribe and that the detailed rules framed for the said purpose are contained in Appendix VI. When we turn to Appendix VI of the Kerala Service Rules which contains the rules for the grant of study leave to officers, we find it specifically stated in rule 19 that the period of study leave shall count as service for promotion; pension and seniority.
7. Rule 27(a) of the General Rules of the Kerala State and Subordinate Services Rules lays down that seniority of a perron in a service, class, category or grade shall be determined by the date of the order of his first appointment to such service, class, category or grade and that if any portion of service of such persons does not count towards probation under the rules his seniority should be determined by the date of commencement of his service which counts towards probation. Relying on the last portion of this rule it is contended on behalf of the respondents that the period between 3rd July, 1970, and 1st April, 1972, during which he was continuing on leave after his promotion to the category of Senior Grade Assistant became the said period is not liable to be treated as time spent on duty for purposes of probation. I see no merit in this argument. The latter part of rule 27(a) relied on by the respondents will get attracted only if any portion of the service of such person does not count towards probation under the Rules. The period spent by an officer on leave will not fall within the description of service not counting for probation. The types of service which will not count for probation have been mentioned in the General Rules of the Kerala State and Subordinate Services Rules—See for example rules 9(a)(iv) and 31(d). In my opinion the last part of rule 29(a) is intended to cover only cases of this kind where the nature of the service put in by the person in the particular category is such as would not entitle him to be regarded as a probationer in that category. When a person is regularly promoted from a lower category to a higher category for which probation is prescribed by the special rules he becomes a probationer in the higher category from the date of grant of the promotion and even though he is absent from duty on leave at the time of grant of the promotion. His service in the higher category from that date is one which counts for probation. The fact that under the special rules the employee has to be on probation for a total period of one year on duty within a continuous period of two years does not at all warrant any inference that the periods spent by an employee on leave are to be treated as “a portion of the service which does not count towards probation under the Rules” for the purposes of rule 27(a). The service put in by a person from the date of his regular appointment or promotion to a post which will ordinarily count for probation under the Rules will not thereafter become “service not counting for probation” for the purposes of rule 27(a), merely because of the person being absent from duty on leave etc. It is onething to say that the period ??? on leave will not be taken into account for counting the total period of one year on duty required for the declaration of probation. The very fact that the special rules mention that the period of probation shall be a total period of one year on duty “within a continuous period of two years” clearly shows that the totality of the period of two years within which the employee must put a period of one year on duty is to be regarded as service counting for the purposes of probation end that the rule-making authority had realistically taken note of the possibility of the employee being not on duty during parts of this period by reason of his absence on leave etc. The view taken by the departmental promotion committee and the first respondent that the period during which the petitioner was absent from duty on “study leave” subsequent to the date of his promotion as Senior Grade Assistant cannot be taken into account for reckoning the petitioner's seniority in the said higher category cannot therefore be sustained. That being the only basis on which the departmental promotion committee as well be the State Government have considered the petitioner as ineligible for inclusion. In the sect list, it must be held that the action taken by them for dropping the petitioner's name from the select list Ext. P. 1 was totally without any legal justification.
8. In the result, the deletion of the petitioner's name from the select list will stand quashed. There will be a direction to the first respondent to restore the petitioner's name in the select list of officers for appointment to the category of Section Officers in the Administrative ??? by ??? to him his original seniority and place in the select list.
9. The petitioner should be given the legitimate promotion, if any, which would have been due to him by reason of his inclusion in the select list as originally published as per Ext. P. 1 after reviewing the promotions, if any, that may have been given to the petitioner's juniors pursuant to Ext. P.2 Such action should be completed by respondents 1 and 2 within a period of six weeks from today.
10. The writ petition is allowed to the extent indicated above. The parties will bear their respective costs.
11. Petition allowed.