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1971 DIGILAW 276 (KER)

S. R. Selvaraj v. The State Of Kerala

1971-11-04

P.GOVINDAN NAIR

body1971
JUDGMENT P. Govindan Nair, J. 1. The petitioner who was working as a District Statistical Officer in Cannanore impugns the order Ex. P4 reverting him from that post to that of a Research Assistant. He has also challenged the orders Exs. P2 and P5 passed by the 1st respondent, the State of Kerala declaring that the 3rd and 4th respondents respectively have satisfactorily completed their probation and further exempting them from the test qualifications that is made obligatory for holding the Post of District Statistical Officers by the Special Rules applicable to the Kerala Statistics and Economics Service. The facts are these: 2. The petitioner as well as respondents 3 and 4 Were appointed to the category of District Statistical officers/Senior Research Assistants/Special Officers mentioned in R.1 of the Special Rules applicable to the Kerala Statistics and Economics Service. The petitioner passed the test prescribed for the category of officers mentioned by me above by R.6 of the above rules and he also satisfactorily completed his probation. The 3rd and 4th respondents however admittedly did not pass the above test Within the prescribed period of probation which is two years (vide R.4 of the Special Rules). Their periods of probation Were extended and before the expiry of the extended period, respondents 3 and 4 did not acquire the test qualifications. The Government however passed the order Ex. P2 as far as the 3rd respondent is concerned and applied the same order by Ex. P5 to the 4th respondent. The order Ex. P2 states that since the 3rd respondent was allowed to continue in the post of a Special Officer coming within the category mentioned above after the expiry of the extended period, it has to be deemed that there has been an order declaring that the 3rd respondent had satisfactorily completed his probation. Having come to this conclusion, the order proceeded to state that the position being as stated above, the 3rd respondent Who had not passed the test qualification on the date or Ex. P2 is exempted from possessing the test qualification. The same order has been made applicable, as I said, to the 4th respondent. 3. Reliance has been placed on the ruling of the Supreme Court in the State of Punjab v. Dharam Singh reported in AIR 1968 SC 1210 by counsel on behalf of the respondents in support of the orders passed by the 1st respondent. The same order has been made applicable, as I said, to the 4th respondent. 3. Reliance has been placed on the ruling of the Supreme Court in the State of Punjab v. Dharam Singh reported in AIR 1968 SC 1210 by counsel on behalf of the respondents in support of the orders passed by the 1st respondent. I don't think this decision has any application. The rules applicable are the Kerala State and Subordinate Service Rules, 1958 subject of course to the Special Rules already referred to. As I read R.19(b)(i) and 19(b)(ii), Para.2, of the Kerala State and Subordinate Services Rules, 1958, it is obligatory on the part of the authority to discharge a person who had not passed the prescribed test qualification before the completion of the prescribed period of probation or the extended period of probation. R.19(b)(i) and 19 (b)(ii) are in these terms: -- "(b) (i). If within the period of probation a probationer fails to acquire the special qualifications or to pass the special tests, if any, prescribed in the Special Rules, or to acquire such other qualifications as may be declared by the State Government or by the appointing authority with the approval of the State Government to be equivalent to the said special qualifications or special tests, the appointing authority shall, by order, discharge him from the service unless the period of probation is extended under R.21. (ii) If within the period of probation prescribed in the Special Rules for the service or within the extended period of probation, as the case may be, a probationer has appeared for any such tests or for any examinations in connection with the acquisition of any such qualifications and the results of the tests or examinations for which he has so appeared are not known before the expiry of such period, he shall continue to be on probation until the publication of the results of the tests or examinations for which he has appeared or the first of them in which he fails to pass, as the case may be. In case the probationer fails to pass any of the tests or examinations for which he has so appeared, the appointing authority shall by order discharge him from the service." 4. The 3rd and 4th respondents admittedly had not passed the tests required Within the extended period. In case the probationer fails to pass any of the tests or examinations for which he has so appeared, the appointing authority shall by order discharge him from the service." 4. The 3rd and 4th respondents admittedly had not passed the tests required Within the extended period. So they were bound to be discharged under R.19(b)(ii) If R.19(b)(ii) applied, R.19(b)(iii) is attracted Which is in these terms: "Any delay in the issue of an order discharging a probationer under clause (i) or clause (ii) shall not entitle him to be deemed to have satisfactorily completed his probation." In view of this specific provision, there is no Scope for applying the legal fiction that has been applied by the Supreme Court in The State of Punjab v. Dharam Singh. 5. Even assuming that the extension of the period of probation was solely to enable the 3rd and 4th respondents to pass the prescribed tests the proviso to R.20(b) will apply and the petitioner shall be deemed to have satisfactorily completed his probation only on the date following the last date of the examination or ' test in which the probationer has passed the prescribed test and that only if such date is earlier than the date of expiry of the extended period of probation. Respondents 3 and 4 not having passed the test before the extended period of probation even the proviso to R.20(b) has no application. The orders Exs. P2 and P5 declaring the probation of respondents 3 and 4 as having been satisfactorily completed and granting them exemption from the tests prescribed by the rules, cannot therefore be supported under the rules. In fact they seem to be to be against the rules, and it is well established that by executive orders statutory rules cannot be changed or altered or ignored. No rule has been brought to my notice enabling the Government to exempt an employee from the qualifications prescribed by the general or special rules. The exemption granted therefore also is not justified as it amounts to abrogation of a statutory provision that test must be passed. 6. The order Ex. P4 is the direct result of Exs. P 2 and P 5 and has to fall with the orders Exs. P2 and P5. I therefore set aside the orders Exs. P2, P4 and P 5. 7. 6. The order Ex. P4 is the direct result of Exs. P 2 and P 5 and has to fall with the orders Exs. P2 and P5. I therefore set aside the orders Exs. P2, P4 and P 5. 7. The petitioner, it appears, has been continuing as a Special Officer in the category referred to earlier in view of the stay order passed by this Court and it is stated by counsel for the 4th respondent that subsequent to the passing of the order Ex. P4, vacancies have arisen in the category mentioned above and that all the three, the petitioner and the 3rd and 4th respondents can now continue to function in the post to which they were originally appointed. It is also stated that the 4th respondent has passed the test and that by virtue of the proviso to R.27(a) and (b) of the Kerala State and Subordinate Services Rules, 1958, the 4th respondent will be entitled to seniority over the petitioner and in case any question of reversion arises the petitioner will have to be reverted and not the 4th respondent. These are all matters that do not arise for consideration in this Original Petition and I do not express any opinion regarding these matters. The authority empowered to decide the questions will decide them according to the rules and after affording an opportunity to the persons concerned to make their representations. 8. This Original Petition is ordered on the above terms. There will be no direction regarding costs.