Jawahar Lal Gupta, C.J.
1. Can the period of training, which does not count for probation or grant of increment, be treated as qualifying service for the purpose of promotion of a Technical Assistant to the post of Assistant Geologist? The learned Single Judge has answered this question in the affirmative and allowed the Writ Petition filed by the first respondent. Aggrieved by the order, respondent Nos. 5 and 7 in the Writ Petition have filed these two appeals. The facts may be briefly noticed.
2. The first respondent was selected for appointment as a Technical Assistant by the Public Service Commission. On August 8, 1991 he was advised by the Commission to join as a Technical Assistant in the Office of the Director, Mining and Geology. He had reported for duty on September 23, 1991. However, he had to undergo training for a period of six months. On completion, the probation had commenced on March 23, 1992. It was declared that he had completed the period of probation satisfactorily on May 25, 1994.
3. In the year 1995, vacancies in the cadre of Assistant Geologist became available. Three years of service as a Technical Assistant was an essential qualification for promotion to the post of Assistant Geologist. The Department took the view that the first respondent had not completed the requisite period of service. Thus, all the available vacancies were filled up by direct recruitment. Five persons including the appellants in these two appeals were appointed by direct recruitment. The first respondent submitted a representation. Vide letter dated April 6, 1995 he was, informed that his regular service had commenced on March 23, 1992. Thus, he had become eligible to be considered for promotion only from March 23, 1995. A copy of this order is on record as Ext. P3. The representation was accordingly rejected. He submitted another representation on July 4, 1995. It was rejected vide order dated September 1, 1995. A copy is on record as Ext.P4. Undaunted, the first respondent submitted a representation dated December 23, 1995 to the Government. It was rejected vide order dated June 10, 1997. A copy is on record as Ext.P5. Ultimately, the first respondent was promoted as an Assistant Geologist on September 3, 1997. A copy of this order is on record as Ext,P6.
4. The respondent felt aggrieved by the action of the Department in not granting him promotion with effect from February 6, 1995. Thus, he approached this Court through a petition under Article 226 of the Constitution. He inter alia prayed that the orders rejecting his representations, copies of which had been produced as Exts.P3 to P5, be quashed. He further prayed that an appropriate order be issued declaring that he was eligible to be promoted with effect from September 23, 1994 and should have been actually granted promotion on February 6, 1995 when the fifth respondent was appointed. He also claimed the consequential benefits.
5. The claim as made in the Writ Petition was contested. A counter affidavit was filed on behalf of the State Government by the Deputy Secretary. The respondent-writ petitioner had filed a reply affidavit with which three additional documents were produced as Exts.P7 to P9. The document at Ext.P7 was a letter dated August 8, 1991 issued by the Kerala Public Service Commission. A copy of the order dated February 20, 1992 by which the respondent's services were regularised after police verification report was produced as Ext.P8. By letter dated March 29, 1999 issued by the Director of Mining and Geology, the requirement regarding 'training' as prescribed in the rules was deleted in so far as the post of Assistant Geologist was concerned. A copy of this letter was produced as Ext.P9.
6. The matter was considered by the learned Single Judge. On an examination of the Rules etc., it was held that the respondent-writ petitioner's service had to be reckoned from September 23, 1991 as 'qualifying service for the purpose of promotion, thus including the period of training, that he had undergone.' With this finding, the Writ Petition was allowed. Hence, these appeals.
7. On behalf of the appellants, M/s. K.R.B. Kaimal and V. Giri have contended that the view taken by the learned Single Judge is not in conformity with the rules. The period of training does not count for probation. It cannot be counted as a part of the service. Thus, they submit that the Writ Petition deserved to be dismissed.
8. On the other hand, Mr. Nandakumara Menon, learned counsel for the respondent-writ petitioner contended that there was no infirmity in the decision of the learned Single Judge so as to call for any interference in the matter.
9. The claim as made on behalf of the appellants was supported by Mr. Roy Chacko, Senior Government Pleader.
10. In view of the contentions as raised by the learned counsel for the parties, the question that arises for consideration is - Can the period of training be treated as qualifying service for promotion to the post of Assistant Geologist?
11. A brief reference to the rules is necessary. There are three sets of rules. The first set of rules is called the Kerala Geology Subordinate Service Rules. These were published in the Government Gazette on November 24, 1964. These rules govern appointment to the eleven categories of posts including the Assistant Geologist and Technical Assistant. Under Rule 2, the post of Technical Assistant can be filled up by promotion of Field Assistants. The post of Assistant Geologists can be filled up by promotion of Technical Assistants as well as by direct recruitment. In case qualified Technical Assistants are not available, the qualified Field Assistants can also be promoted. If no suitable candidates are available for appointment by promotion, the 50% quota allotted to the promotees can also be filled up by direct recruitment. The qualifications for appointment are laid down in Rule 4(b). For the post of Technical Assistant, the qualification is B.Sc. degree in Geology. In case of Assistant Geologist to be appointed by promotion, the following qualification had been laid down:-
'B.Sc. degree in Geology with a minimum of three years service in the Department as Field Assistant and/or Technical Assistant.'
When does the period of three years commence? On joining for training or on completion thereof? This is the core of the controversy.
12. To answer the query, we have to look the second set of rules, which provide for training. These are called the 'Special Rules for Special Recruitment of Scheduled Castes/Scheduied Tribes Candidates in the Kerala Geology Subordinate Service Rules, 1987'. These rules were promulgated in exercise of the power under Section 2(1) of the Kerala Public Services Act, 1968 'for special recruitment from candidates belonging to the Scheduled Castes/Scheduled Tribes against posts in the Kerala Geology Subordinate Service.' These rules relate to five categories of posts including Assistant Geologists and Technical Assistants. Rule 3 prescribes that appointments to different categories of posts shall be by direct recruitment from candidates belonging to the Scheduled Castes/Scheduled Tribes. Rule 5 lays down the qualifications. For the post of Technical Assistant, a Degree of B.Sc. in Geology or an equivalent qualification has been prescribed. Rule 6 provides that the candidates selected for the different categories of posts 'have to undergo training for the period noted against each category.' For the post of Technical Assistant, the prescribed period was six months. A further stipulation in the rule was as under:-
'During the period of training, they shall be paid the minimum of the scale of pay and allowances attached to the post. The period of training shall not count for probation.'
R.7, which deals with probation, provides as under:-
'Every person appointed to any of the categories shall, from the date on which he joins duty after completing the training period, be on probation for total period of two years of duty within a continuous period of three years.'
The respondent was admittedly appointed under these Rules.
13. The main controversy in this case hinges on the interpretation of the above noted two provisions. The claim of the appellants is that the period of training does not count for probation. In fact, the probation commences after completion of training. Thus, the period of training cannot be treated as qualifying service for the purpose of promotion from the post of Technical Assistant to that of Assistant Geologist. On the other hand, learned counsel for the first respondent has relied upon the provision in the 'Kerala State and Subordinate Services Rules, 1958' to contend that even the period of training counts as service. Thus, it has to be taken into consideration while determining qualifying service. The provisions of these rules shall be presently noticed.
14. On a perusal of the rules, it appears that the posts of Assistant Geologists and Technical Assistants are borne on the Subordinate Service of the Department of Geology. Under the rules notified in the year 1964, the post of Technical Assistant could only be filled up by promotion of Field Assistants. The post of Field Assistant has to be filled up by direct recruitment. A person with a Degree in Geology is eligible. Thus, in the normal course, he would get sufficient experience as a Field Assistant before getting promoted to the post of Technical Assistant.
15. It appears that a sufficient number of Field Assistants belonging to the category of Scheduled Castes was not available for promotion to the posts of Technical Assistants. Thus, the Government had decided to make Special Rules as permissible under the Act for recruitment to the various categories of posts including those of Field Assistants. Since it was considered that raw graduates who were directly appointed as Technical Assistants shall not be able to discharge the duties of the post, the rule making authority had provided that they shall have to undergo training for the prescribed period for six months. It was also specifically provided that the period of training 'shall not count for probation.' Under Rule 7, it was stipulated that the period of probation shall commence only 'after completing the training period.' It is true that during the period of training, the incumbent was to get the minimum of the scale of pay of the post of Technical Assistant along with the allowances attached to the post. However, it was clearly conceded by Mr. Menon, learned counsel for the first respondent-writ petitioner, that factually the period was not counted for the grant of increment. It is an admitted position that the increment becomes due on completion of one year of service. Since it has been conceded that the period of training was not counted for the purpose of increment, it is manifest that in case of the respondent, the period of service for the purpose of increment as well as probation had commenced on the date he had completed the training, viz., March 23, 1992. Can we still say that the first respondent shall be deemed to have joined service on September 23, 1991 when he was deputed for training?
16. Faced with this query, Mr. Menon invoked the provisions of the Kerala State and Subordinate Services Rules, 1958. These rules had been promulgated under Article 309 and were published in the Government Gazette on December 23, 1958; These rules embody general provisions governing different aspects of service. These are primarily applicable in cases where Special Rules do not exist and cover matters relating to the general conditions of service.
17. Mr. Menon referred to the definitions contained in Rule 2. In particular, he referred to Clauses 1, 6 and 15. Under Rule 2(1), it has been inter alia provided that 'a person is said to be 'appointed to a service' when in accordance with these rules or in accordance with the rules applicable at the time, as the case may be, he discharges for the first time duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof.' Under Rule 2(6)(a), 'a person is said to be 'on duty' as a member of a service when he is performing duties of a post borne on the cadre of such service or is undergoing the probation, instruction or training prescribed for such service.' Under Rule 2(15), service means 'a group of person classified by the State Government as a State or a Subordinate Service, as the case may be.' Mr. Menon referred to these provisions to contend that even when a person is undergoing the prescribed training, he is deemed to be appointed to the service and performing the duties thereof. Is it so?
18. A fact, which deserves to be noticed at the outset, is that the 1958 rules are of a totally general nature. These govern such conditions of service for which no Special Rules have been framed. The rule embody broad parameters. Otherwise, the Special Rules over-ride these general provisions. Thus, wherever specific provisions exist, the provisions of these rules cannot be invoked. In the present case, we find, on a consideration of rules 6 and 7 of the 1987 rules that the service of an employee commences on completion of training. Till then he is merely a trainee and not a member of the service. In this context, it deserves notice that the period of training does not count for probation. In fact, the period of probation commences only when he is allowed to join duty after completing the training. This specific provision militates against the plea that a person is deemed to be appointed as a Technical Assistant even when he is sent on training. The provision of Rule 7 clearly shows that a person can join duty only after completing the training. Then the period of probation commences. Thus, when the provisions of Rr.6 and 7 of the 1987 rules are read along with the provision contained in Rule 2(1) and (6), it is clear that a person is to be treated as appointed to the service and performing the duties thereof when he actually 'discharges for the first time the duties of a post borne on the cadre of such service or commences the probation.'
19. Mr. Menon emphasised that the two clauses also include the expression 'instruction or training prescribed' for members thereof and for such service. It is undoubtedly so. This only means that while making Special Rules it may be possible for an Authority to declare that even the period of training shall be treated as a part of the service. In that case, a person shall be deemed to have been appointed to the service and performing the duties thereof when he is undergoing training. In this context, it may be mentioned that the concept of 'in-service training' is known to service jurisprudence. There can be rules when a person working on a particular post may be deputed for training so as to improve his efficiency. A Constable may be deputed for training in drill, parade or use of weapons. That period can be treated as duty. It depends on the provision in the special rules. When the provisions of various rules are read together, and in view of the specific words used in Rr.6 and 7 of the 1987 Rules, it is clear that in the case of persons working as Technical Assistants, the rule making authority had clearly intended that a person shall perform the duties of the post of a Technical Assistant only after completing the training. In view of this specific provision, it cannot be said that he shall be deemed to have been appointed to the service even when he is merely undergoing training. Still more, the fact that the period of training is not even counted for the grant of increment is clearly indicative of the true intent and understanding of the provision by the Department.
20. There is a clear rationale for this view. Under the rules governing appointment to the Subordinate Service, the post of Technical Assistant can be filled up only by promotion of a Field Assistant. By the Special Rules of 1987, a provision for direct recruitment was made. As already noticed, the purpose of providing for training in Rr.6 and 7 was to ensure that it was necessary to give him training before the person is called upon to discharge the duties of the post. Thus, the period of training was excluded from consideration for the purpose of probation. Can it still count for promotion? We think, not.
21. Mr. Menon contended that vide order dated February 20, 1992 the services of the respondent had been regularised. This was clearly indicative of the fact that he had already been appointed as aTechnical Assistant with effect from September 23, 1991. Thus, the qualifying service of three years must commence from the said date.
22. A perusal of the order dated February 20,1992 (Ext.PS) shows that it had been issued under the Note to Rule 10(b). This rule provides that the appointing authorities shall obtain reports regarding the character and antecedents of the candidates from the police. The obvious purpose is that persons with doubtful antecedents should not be appointed to the service. The issue of this certificate cannot be interpreted to mean that the respondent was actually discharging the duties of a Technical Assistant with effect from September 23, 1991. Still more, a fact, which deserves mention, is that the respondent has not produced a copy of the order of appointment. Why was it withheld? There is no answer.
23. Mr. Menon referred to the decisions of this Court in State of Kerala v. Mathu (1984 KLT 1014) and Haridasan v. State of Kerala (1987 (2) KLT 466). Both these cases lay down that under Rule 27(c) the relevant date for fixing the seniority is 'the date of effective advice' by the Public Service Commission. In the present case, the issue of seniority really does not arise. The real issue is regarding eligibility for promotion. Thus, the respondent can derive no advantage from these two decisions.
24. Mr. Menon also referred to the decision in Lakshmanan v. State of Kerala (1995 (1) KLT 115). In this case, it was found that ''training was not a condition or qualification, but a further situation thought necessary by the appointing authorities to make the candidates more suitable' for the service. Thus, the period had to be treated as duty. This decision clearly shows that in a case where training is not considered as a part of a qualification for appointment, it can count for service. However, in the present case, the rules specifically contemplate that training is a qualification before aperson can be permitted to assume the duties of the post. Thus, the period of training cannot be treated as duty or a part or a part of service so as to make the candidate eligible for promotion. The qualifying service commences only on completion of training.
25. Mr. Menon has also referred to the decision of their Lordships of the Supreme Court in R.S. Ajara v. State of Gujarat (1997) 3 SCC 641. In this case, regulation 12(c) as originally framed provided that the period of training will not count as service under the Government. In 1981 rules were framed. A similar provision excluding the period of training had not been made. Thus, their Lordships were pleased to observe inparagraph 13 that 'in the absence of a provision similar to regulation 12(c) in the 1981 rules, it is not possible to say that the 1981 rules postulate that the seniority of directly recruited Assistant Conservator of Forests must be counted only from the date of their appointment and the period of training undergone by them prior to the appointment must be ignored.' Clearly, it was a view taken on the specific language of the rule. The decision does not embody a general principle that the period of training shall count as service.
26 No other point has been raised.
In view of the above, these appeals are allowed. The decision of the learned Single Judge is set aside and the Writ Petition is dismissed. However, the parties are left to bear their own costs.