Judgment :- 1. These appeals are against the judgment of a learned judge in O.P. No. 4299 of 1969 and O.P. 3743 of 1969 respectively, preferred by two different petitioners. The main judgment was in O. P. 3743 of 1969, quashing Exts. P2, P4 and P5 orders therein. In consequence, Exts. P2 and P4 orders in O.P. No. 4299 of 1969 were also quashed, these being the same as Exts. P2 and P5 in O.P. No. 3743 of 1969. The common 3rd respondent in both the O.Ps. is the appellant in these writ appeals. Ext. P4 order in O.P. 3743 of 1969 is only a consequential order of reversion of the petitioner therein; and Ext. P5 therein is the copy of a similar order as Ext. P2, in favour of the 4th respondent in the two writ petitions. As the said respondent has not preferred any appeal against the said judgment, nothing herein will affect the judgment of the learned judge in so far as it quashed Ext. P5 in O.P. No. 3743 of 1969 (same as Ext. P4 in the other O. P.). For the sake of convenience, we shall refer to the exhibits, where possible, as in O.P. 3743 of 1969. 2. The appellant in these writ appeals was appointed District Statistical Officer on 20 31964. He had not passed the test qualification during the two years' period of probation, which ended on 20 31966, nor within the twice-extended period, which ended on 20 31968. Thereupon Ext. P2 order was passed. The relevant portion of the said order is as follows: "Government are advised that if probation is continued beyond the normal period, without either extending or terminating the probation, the officer has to be treated as an approved probationer holding a substantive appointment. The rules require that Shri. Padmanabha Iyer should pass the account test (lower) during the period of probation. Only persons who have passed the test will be declared as approved probationer. In this case Shri. Padmanabha Iyer will have to be treated as an approved probationer in the post of District Statistical Officer inspite of his not having the test qualification. So long as there is no provision in the Rules which insist on the passing of the test by an approved probationer also, Shri. Padmanabha Iyer has to be treated as having been permanently exempted from test qualifications and government order accordingly. 3. So long as there is no provision in the Rules which insist on the passing of the test by an approved probationer also, Shri. Padmanabha Iyer has to be treated as having been permanently exempted from test qualifications and government order accordingly. 3. Government also declare that Shri. H. Padmanabha Iyer has successfully completed the probation in the category of District Statistical Officer of the Department of Bureau of Economics and Statistics on 19 3 1968." 3. The learned judge was of the view that R.19 (b)(i) and (b) (ii), Para.2, of the Kerala State and Subordinate Service R.1958 made it obligatory on the part of the authority to discharge a person who had not passed the prescribed test qualification before the prescribed or extended period of probation; and that by reason of R.19(b) (iii), 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, the learned judge was of the view that there was no scope for applying the legal fiction applied by the Supreme Court in Dharam Singh's case (AIR. 1968 SC. 1210) to the case of a probationer overstaying the maximum term prescribed for probation by the Rules. 4. Before we consider the above reasoning of the learned judge, we should point out that before us the appellant filed C. M. P. No. 124 of 1972 in Writ Appeal No.1 of 1972 to receive Exts. A to D as additional documents. C. M. P. 64 of 1972 was filed in Writ Appeal No. 2 of 1972 to receive the identical documents. These were not opposed, and were allowed on 25 71973. Ex. A dated 14th September 1960 is a copy of the Special Rules of the Kerala Statistics and Economics Service; Ext. B is the G. O. dated 12 21963 issued by the Government, integrating the existing Bureau of Economic Studies and the Department of Statistics; Ext. C is a copy of the G. O. M. S.284/68 dated 11th September 1968; and Ext. D is copy of a circular memo dated 31-8-1970 regarding declaration of probation of Officers. 5. The additional documents filed by the appellant places his case on a completely new footing. C is a copy of the G. O. M. S.284/68 dated 11th September 1968; and Ext. D is copy of a circular memo dated 31-8-1970 regarding declaration of probation of Officers. 5. The additional documents filed by the appellant places his case on a completely new footing. The Department of Statistics and the Bureau of Economic Studies were integrated to form a combined unit of the Bureau of Economics and Statistics only by Ext. B, G. O. dated 12 71963. The said G. O. by Para.2, sub paragraph (xii) provided: "Regarding the qualification and mode of recruitment to the various categories of posts in the Bureau of Economics and Statistics, orders will issue separately." The Special Rules for the Department of Statistics alone is Ex. A, dated 14th September 1960. The Special Rules for the integrated Department were framed only in 1967. The appellant was appointed as District Statistical Officer on 20-3-1964. Therefore, it was contended and we think rightly that neither Ext. A nor the Special Rules of 1967 will apply to him; the former because, it applied only to the Department of Statistics, and only to the five categories of Officers mentioned therein, among which the appellant, who was only an Analyst prior to his promotion, was not one; and the latter, because, having been passed only in 1967, it had no retrospective operation so as to affect the appellant. And while Para.2 (xii) of Ext. P3 G. 0. dated 12-7-1963 envisaged issuance of separate orders regarding qualifications and mode of recruitment, no such orders prior to the 1967 Rules were brought to our notice. The result is, that there are no 'Rules' which prescribed test qualification for the appellant. Nor could it be said that any executive order had done that. To further strengthen the argument, the appellant relied on Ext. C, a copy of G. O. MS./285/68/PD dated 11th September 1968. The relevant portion of the G. O. is as follows: "The question whether probation can be made obligatory with retrospective effect in view of the protection contemplated in R.35 (a) of the General Rules has been engaging the attention of Government. Government have carefully considered the various aspects of the question with reference to the provisions contained in the General Rules. Government have carefully considered the various aspects of the question with reference to the provisions contained in the General Rules. They are advised that probation prescribed will be obligatory only from the date of the orders/rules prescribing such probation unless otherwise stipulated in the appointment order. The condition regarding probation will not therefore be applicable to an officer in respect of the post (or category of posts) to which he was appointed by direct recruitment or by transfer from any other service before the issue of the orders or rules prescribing the period of probation." In the face of these, we asked the learned Government Pleader and Counsel for the contesting respondents in these appeals, who were the writ petitioners in the writ petitions, how it could be shown that the appellant is one on whom probation or test qualification had been enjoined either by the statutory rules or by executive orders. Despite time granted for the purpose, this was not explained. If that be so, the basis of the learned judge's order that the appellant is a person for whom test qualification during the prescribed or extended period of probation was obligatory, cannot be sustained. Therefore he was not liable to be discharged for not having passed the test qualification during the prescribed or extended period of probation. No test qualification having been shown to be prescribed, the principle of the decision in Dharam Singh's case (AIR. 1968 S.C.1210) is squarely attracted. In view of R.21 of the Kerala State and Subordinate Service Rules, there is an upper-most limit placed for probation, (one year of duty after the period prescribed for probation), and as the appellant had overstayed the said limit, Ext. P2 order to the extent to which it declared him an'approved probationer' seems to be right; and the learned judge was wrong in quashing the same to that extent. By Ext. P5 order the benefit of Ext. P2 was extended to the 4th respondent in both the writ petitions. As the said respondent has not appealed against the decision, we are not interfering with the judgment to the extent to which it quashed Ext. P5 in O.P. No. 3743 of 1969 and Ext. P. 4 in O.P. 4299 of 1969. 6. We would like to state that we are unable to accept the reasoning in Ext. As the said respondent has not appealed against the decision, we are not interfering with the judgment to the extent to which it quashed Ext. P5 in O.P. No. 3743 of 1969 and Ext. P. 4 in O.P. 4299 of 1969. 6. We would like to state that we are unable to accept the reasoning in Ext. P2 that the appellant had to be "treated as having been permanently exempted" from test-qualification. We see no warrant for this 'treatment of fiction. It is doubtful if the Government was the proper authority to exercise the power of exemption at the relevant time. If they were, whether the manner of exercise of the power has conformed to what was laid down recently by a Full Bench of this Court, is again doubtful. To the extent to which the learned judge quashed this portion of Ext. P2 order, therefore, we would have sustained the same. But as we have not been shown any rule or G.O. prescribing test qualification for a person like the appellant, the question of exemption or of quashing an order of exemption does not appear to arise. 7. This aspect apart, we cannot agree with the learned judge that R.19 (b) (iii) is attracted, and that therefore any delay in discharging a probationer under R.19(b) (i) or (ii) shall not entitle him to regard himself as having satisfactorily completed his probation. R.19(b) (i) does not apply, as there was an extension of the period of probation under R.21; and the contingency mentioned in R.19(b) (ii), of the probationer having appeared for the test etc. has not happened, and therefore that part of the Rule again has no application. The result is, action under R.19 (b) (iii) which is only for delay to act under clause (i) or clause (ii), has to be ruled out. That being so, as R.21 fixes a maximum limit for probation, which, in this case has been exceeded, we see no ground to exclude the principle in Dharam Singh's case (AIR. 1968 S. C. 1210). 8. But we were pressed with the contention that to declare the appellant in these appeals to have satisfactorily completed the period of probation when he has not acquired the test qualification, would be to do violence to the scheme of the provisions in the State and Subordinate Service Rules. For the one thing, in the light of Exts. 8. But we were pressed with the contention that to declare the appellant in these appeals to have satisfactorily completed the period of probation when he has not acquired the test qualification, would be to do violence to the scheme of the provisions in the State and Subordinate Service Rules. For the one thing, in the light of Exts. A and B and the 1967 Rules, we are not satisfied, as stated, that any test qualification had been validly prescribed for the appellant by statutory Rules or executive orders. For another, assuming it has been, it is open to the requisite authority to exempt from the need for the said qualification; and it would have been only necessary to direct a re-examination if the appellant would be entitled to exemption, and if so, whether a case for exemption by the proper authority had been made out. 9. But is the contention valid, that a probationer who has not acquired the test qualification cannot be declared to have satisfactorily completed his period of probation and to have become an "approved probationer", and cannot be declared as such, as done by Ext. P2? We find some difficulty on the point, on the Rules, as they stand. We shall briefly state the position. From R.2 of Part I of the General Rules as the State and Subordinate Service Rules are called we see a hierarchy constituted, of a "Probationer", "Approved Probationer", and "Full Member". The definition of "Approved Probationer" shows that he should; (1) have satisfactorily completed his probation, and (2) await appointment as Full Member. 'Full Member' is one substantively appointed to a permanent post. Neither definition expressly incorporates test qualification as a necessary ingredient. Is it a necessary ingredient of 'satisfactory' completion of probation, or is it otherwise provided for? as contended by Counsel for the respondents (writ petitioners) We find it difficult to accept that test qualification is a necessary ingredient of satisfactory completion of probation. We note that R.19(b) (i) and (ii) provide for discharge of a probationer who has not acquired the test qualification; and R.19(b) (iii) provides that delay in discharging shall not entitle the probationer to deem himself to have satisfactorily completed his probation. This would indicate that test qualification is to be considered before declaring satisfactory completion of probation. But then we come to R.20, the relevant portion of which, we may extract: "20. This would indicate that test qualification is to be considered before declaring satisfactory completion of probation. But then we come to R.20, the relevant portion of which, we may extract: "20. Probationer's suitability for full membership (a) At the end of the prescribed or extended period of probation as the case may be, the appointing authority shall consider the probationer's suitability for full membership of the service, class or category for which he was selected: Provided that in case the probation was extended under R.21, solely to enable the probationer to acquire the special qualifications or to pass the prescribed tests, the appointing authority shall consider the probationer's suitability for full membership of the service, class or category as soon as the probationer has acquired the special qualifications or has passed the prescribed tests. (b) If the appointing authority decides that a probationer is suitable for such membership, it shall as soon as possible issue an order declaring the probationer to have satisfactorily completed his probation. On the issue of such order, the probationer shall be deemed to have satisfactorily completed his probation on the date of the expiry of the prescribed or extended period of probation: Provided that in cases to which the proviso to sub-rule (a) applies the probationer shall be deemed to have satisfactorily completed his probation on the date following the last date of the examinations or test in which the probationer has acquired the special qualification or has passed the prescribed tests, if such date is earlier than the date of the expiry of the extended period of probation. (c) If the appointing authority decides that the probationer is not suitable for such. (c) If the appointing authority decides that the probationer is not suitable for such. membership, it shall unless the period of probation is extended, under R.19 by order discharge him after giving him a reasonable opportunity of showing cause against the action proposed to be taken in regard to him: Provided that where a probationer has been given a reasonable opportunity of showing cause against the imposition on him of any of the penalties specified in items (iv), (vii), (viii) and (ix) of R.11 of the Kerala Civil Services (Classification, Control and Appeal) Rules and at the conclusion of the disciplinary proceedings, a tentative conclusion is arrived at to discharge him, a further opportunity of showing cause specifically against such discharge need not be given to him." The Rule opens with clause (a) by directing consideration of a probationer's suitability for "full membership". If considered suitable, clause (b) directs, somewhat strangely, we should think not that he be declared a 'Full Member', but as a Probationer who had satisfactorily completed his probation; and clause (c) provides again rather illogically, we should think for an order of discharge, if he be found unsuitable for "such" membership, viz., Full Membership. Why a probationer considered unsuitable for full membership, should, be discharged even as a probationer, passes comprehension. As the Rules stand, therefore, although by definition, an "Approved Probationer" is one who "awaits" appointment as "Full Member", and R.20 ordains consideration of a Probationer's eligibility for Full Membership, it seems to stop short of a declaration of satisfactory 6onclusion of probation, and proceed no further. Although the wording of the Rule is rather unhappy, and seems to require amendment, we are inclined to think although we express no final opinion that consideration of eligibility for Full Membership, directed by R.20, is still open, even after declaration of satisfactory completion of probation. And R.24, which only directs that an 'Approved Probationer' shall be appointed to be a 'Full Member' at the earliest possible opportunity, does not appear to stand in the way of such consideration. In this view again, we should have maintained Ext. P2 order in both the writ petitions leaving it to the Government to consider the appellant's eligibility for full membership of the service in accordance with law. But in the view that we take, having regard to Exts. In this view again, we should have maintained Ext. P2 order in both the writ petitions leaving it to the Government to consider the appellant's eligibility for full membership of the service in accordance with law. But in the view that we take, having regard to Exts. A and B produced in the appeal, it is unnecessary for us to rest our conclusion or to venture our final opinion on this ground. 10. In the result, we allow these appeals and set aside the judgment of the learned judge in so far as it quashed Ex. P2 in both the writ petitions, and the consequential order, (Ext. P4) in O. P. 3743 of 1969. The result is, that O. P. Nos. 3743 and 4299 of 1969 will stand dismissed as far as the 3rd respondent in these 0. Ps. (the appellant in these appeals) is concerned. We make no order as to costs.