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1977 DIGILAW 211 (KER)

kamalakshi v. director of s. 1. records

1977-08-02

K.K.NARENDRAN, V.P.GOPALAN NAMBIYAR

body1977
Judgment :- 1. These writ petitions were heard together and can be disposed of by a common judgment as they raise the same question regarding the scope and interpretation of R.13A sub-rule (3) (iii) of the Kerala State & Subordinate Service Rules. Briefly put, the question raised is whether the age limit of 45 years and above, fixed by the said sub-rule has got to be reckoned from the date of the introduction or the rescription of the test concerned, or the date on which the test is actually held or taken by the person concerned. 2. The position may be illustrated with reference to the facts in O. P-No. 467 1975. The three petitioners therein are Head Draftsman, Petitioners 1 and 2 having been so appointed in 1970 and the 3rd petitioner in 1969. Ex. P1 G O. dated 30 61965 prescribed certain new departmental tests for regulating promotions to the post of 1st Grade Draftsman and Head-Draftsmen in the Survey and Land Records Department. It provided inter alia that a period of four years for passing the test from the date of its introduction will be given to the existing staff, and they will be given provisional promotion during the said period. It further provided that those not below the age of 50 and who had put in not less than 25 years of total service shall be permanently exempted from passing the test. T e syllabi for the test prescribed by Ext. P1 was formulated only in December 1966 and the test itself was held only in 1967 (vide Ext. R2). The Special Rules for the post were formulated on 30th of September 1966. The same mentioned the test as obligatory On the date of filing the writ petition, the 1st petitioner was above 49 years of age, the 2nd petitioner above 50 years of age, and the 3rd petitioner above 53 years of age. R.13A of the Kerala State & Subordinate Service Rules was amended with effect from 16 31966. The same mentioned the test as obligatory On the date of filing the writ petition, the 1st petitioner was above 49 years of age, the 2nd petitioner above 50 years of age, and the 3rd petitioner above 53 years of age. R.13A of the Kerala State & Subordinate Service Rules was amended with effect from 16 31966. Sub-rule (3) of the said Rule with which alone we are concerned in these cases reads: 13A (3) If it is proposed to introduce any new test or tests of a higher standard the passing of which may be a condition precedent for benefits like increments, promotion, completion of probation etc., such test or tests shall be introduced only subject to the following conditions, namely: (i) additional time, which shall be double that of the ordinarily permissible time for passing the test shall be allowed to as allotted employee, in cases where tests of a higher standard are prescribed or where no tests are prescribed in the parent State; (ii) notwithstanding anything contained in sub-rule (b) of R.37-B Part I, KSR. and R.21 of these Rules penalties for not passing the test such as denial of benefits like increments, promotion etc., shall be held in abeyance till the expiry of the time given for passing the prescribed test under clause (i) and the officer shall continue to be on probation till the expiry of the above period, if he has not passed the prescribed test by that time. If a member of the service promoted under this clause does not pass the prescribed test within the time given under clause (i), he shall be reverted to the class, category, grade or post from which he was promoted and shall not again be eligible for promotion under this clause; (iii) allotted employees of and above the age of 45 years shall not be required to pass the tests and they shall be eligible for all benefits as if they had passed the tests", 3. The question for our consideration is whether the exemption or the immunity provided by sub-rule 3 (iii) of R.13A is to be reckoned with respect to the date of the introduction of the test, or irrespective of the said date, and with respect to the time as and when the persons concerned attain the age of 45 years and above. The question for our consideration is whether the exemption or the immunity provided by sub-rule 3 (iii) of R.13A is to be reckoned with respect to the date of the introduction of the test, or irrespective of the said date, and with respect to the time as and when the persons concerned attain the age of 45 years and above. On the language of the rule it appears to us certainly a very safe and reasonable interpretation (to put it no higher than that) to hold (hat the condition as to age stipulated in sub rule (3) must be geared to the date of the introduction of the test. The Rule says the test shall be introduced, subject to the condition inter alia, as to age. That has the advantage of allowing the persons concerned additional time equal to double the ordinarily permissible period for passing the test, and of providing that indolence in writing the test during this additional time, or inability to pass the test during that period, would render the persons concerned ineligible for promotion on the ground of their being unqualified In such cases they must necessarily await the further point of time for earning a comprehensive exemption on the ground of their having attained 50 years of age provided for under R.13 B of the Kerala State & Subordinate Service Rules which is as follows: "13B. Notwithstanding anything contained in these rules or in the special rules, persons in Govt. Service who attain the age of 50 years and who have put in in 25 years of service shall be eligible for permanent exemption from passing the obligatory departmental tests for all purposes such as promotion appointment as full member of a service etc. Provided that persons belonging to scheduled castes and scheduled Tribes shall be eligible for permanent exemption when they attain the age of 50 years." We are also somewhat struck by the difference in language between the sub-rule (iii) of R.13A, (3) and of R.13B. While the former seems to gear the age limit indicated more directly and proximately to the date of the introduction of the test, the latter seems to leave the position in a more elastic stage and to render the persons eligible for exemption as and when they attain 50 years of age. While the former seems to gear the age limit indicated more directly and proximately to the date of the introduction of the test, the latter seems to leave the position in a more elastic stage and to render the persons eligible for exemption as and when they attain 50 years of age. On these considerations we are of the opinion that the reasonable and plausible view to take of R.13A(3)(iii) is that the age limit indicated therein has to be satisfied vis a vis the date of the prescription or introduction of the test and not on any subsequent occasion as and when the persons concerned attain the relevant age limit The history and the background leading to the introduction of the rule only affirms this impression. We have already referred to Ext. P1. Clause.4 therein is clear and specific that a period of four years for passing the test from the date of its introduction would be given to the existing staff of the Department and they would be given provisional promotions during the said period. Having regard to the general tenor and purport of Ext. P1 G. O., the interpretation that we are inclined to accept seems to be more in consonance with the purpose and the object sought to be achieved by the said G. O. introducing the new test and the subsequent statutory amendment effected to the Rule. We are also fortified in this view that we take by the recent decision of a Division Bench of this Court in O P. No. 4344 of 1975. In that case the learned judges stated that the stand taken by the Government was that R.13A (3) (iii) may apply only to persons who are of the age of 45 on the date of introduction of the test. The learned judges further observed that they cannot find that the interpretation of the rule in the manner indicated by the State was in any way wrong, and that it was not open to this Court to give it a different meaning in proceedings under Art.226. We are in agreement with the view thus expressed by the Division Bench As the interpretation of the rule commended for acceptance, is a plausible and reasonable interpretation, we do not think that there is any scope for us to interfere in these proceedings. We are in agreement with the view thus expressed by the Division Bench As the interpretation of the rule commended for acceptance, is a plausible and reasonable interpretation, we do not think that there is any scope for us to interfere in these proceedings. In that view, we dismiss the writ petitions with no order as to costs. 4. The petitioners in O. P. 467 of 1975 wish that we should make it clear that nothing contained in this judgment would preclude their chances from claiming the benefits of R.13B of the Kerala State and Subordinate Service Rules. We do not think that there should be any ground for them for any such apprehension and see no need for making any reservations in regard to that position which should be obvious, that they are entitled to claim the benefit of the said Rule if they are able to satisfy the conditions laid down therein. Dismissed.