Muraleedharan v. Guruvayoor Devaswom — 1989 DIGILAW 258 (KER)

Judgment :- 1. These writ petitions raise a common question, and are therefore disposed of by a common judgment. The question is whether the Guruvayoor Devaswom Employees Regulations, 1983 (hereinafter called "The Regulations") can be applied retrospectively in the case of petitioners. 2. Petitioner in OP 2897/86 joined service as a Lower Division Clerk and in due course was promoted as an Upper Division Clerk on 15-6-1983. He holds a M.com. Degree and a Diploma in Accountancy. Petitioner in OP 2928/86 was appointed as Public Relations Officer in 1979 on contract basis. Thereafter, by Ext.P1 order he was appointed to the same post on 15-10-1982, on a regular basis. At the time of appointment of petitioners, the only condition stipulated was, satisfactory completion of probation for a period of two years, within a period of three years. 3. The Regulations came into force on 3-12-1983. Test qualifications were prescribed by Regulation.9. Petitioners did not qualify in the test. Then, a notice was issued to show cause why their probation should not be terminated, as they had not acquired the said qualification. Petitioners showed cause. That was not accepted, and by Ext.P4 (in both cases) probation of petitioners was terminated in April, 1986 with retrospective effect. 4. Learned counsel for petitioners would submit that the regulation prescribing test qualifications cannot be enforced retrospectively, that at the end of the period of probation petitioners should be deemed to have been confirmed, and that Regulation.9 itself does not prescribe test qualification for the categories to which petitioners belong. 5. Counsel for Guruvayur Devaswom and counsel for 4th respondent in O.P. 2802/86 heard along with these petitions, would submit that the Regulations are not operated retrospectively, and that petitioners are bound to acquire test qualifications during the period of probation. Counsel for 4th respondent in O.P. 2802/86 raised a further contention that the Regulations came into force sometime in 1981, and that there was no question of retroactivity. According to him the Regulations were made in 1981, though approval was granted only in 1983. Counsel would submit that there is difference between approval and assent, and that unless disapproved, approval should be deemed to have been given from the date when the regulations were made. It is not stated, when the Regulations were made. That apart, I do not understand making of Regulations, as synonymous with writing it down. Incidentally, the Guruvayur. Counsel would submit that there is difference between approval and assent, and that unless disapproved, approval should be deemed to have been given from the date when the regulations were made. It is not stated, when the Regulations were made. That apart, I do not understand making of Regulations, as synonymous with writing it down. Incidentally, the Guruvayur. Devaswom has no case, that the Regulations came into force on any day prior to 3-12-1983, the date of approval. The specific stand in Para.10 of the counter affidavit in O.P.2897/86, is that the Regulations came into force on 3-12-1983. I am unable to accept the submission that the Regulations breathed into life, at any time prior to 3-12-1983. 6. Then the question is whether the Regulations have retrospective operation. There is clear indication in Regulation.9, that it applies prospectively, and not retrospectively. Clauses (a) (b) & (c) of the regulation refers to persons "appointed" and not to those in position. The proviso to Regulation.9 grants temporary exemption'on promotion'. It reads: "provided that a person who is employed on a regular basis in the Guruvayur Devaswom service on the date of approval of these Regulations by the Kerala Government shall be granted a temporary exemption for a period of two years from that date from passing the tests mentioned above and may be promoted to the higher post temporarily, if he is otherwise qualified. If the person so promoted does not pass the test prescribed within the period of temporary exemption, he shall be reverted to the post from which he was promoted and shall not be eligible for re-promotion unless he has passed the tests" (emphasis supplied) 7. Application of regulation is on 'promotion' and the requirement of test qualifications also arises, only 'on promotion'. The proviso further states that if a person "so promoted" does not pass the test within the period, he shall be reverted. Further and perhaps clear indication is available. Proviso further states that when regular employees who have completed twenty five years of service or who have attained the age of fifty: "are to be promoted to higher post, test qualification shall not be applicable". The eventuality is promotion being made or to be made. The expression is futuristic. Test qualifications and exemption therefrom apply to those "promoted" and "so promoted", and not to those in position. 8. The eventuality is promotion being made or to be made. The expression is futuristic. Test qualifications and exemption therefrom apply to those "promoted" and "so promoted", and not to those in position. 8. The next question is whether the Regulations have been applied retrospectively. According to petitioners, they have been. On the contrary, respondents would submit that the Regulations have not been applied retrospectively, and that they impinge themselves on petitioners, as they went forward in their service. Whether the Regulations have been projected back, or whether petitioners moved onward and met the Regulations, must be ascertained. There are two points of time. One is the point of 'appointment' and the other is the point when the Regulations or Rules came into force. Both points cannot be aided on the scale of time. The point of time when petitioners were appointed in the point of time, with reference to which the question of retrospectively is to be determined. The position is well settled by decisions of this court. In James Thomas v. Chief Justice (1977 KLT 622 FB) it is stated as follows:- "We think the general rule to be that promotion should be made vis-a-vis the date of occurrence of the vacancy and not the date of making the appointment". This view was reiterated in Varghese v. State of Kerala (1981 KLT 458 FB). The Full Bench held that the relevant point of time is when the vacancy arises. The Full Bench observed that: "promotions are to be decided with reference to the time of occurrence of vacancies.... that it is the time of vacancy that should be relevant for determining the question of promotion" 9. In the cases on hand, vacancies arose prior to 15-10-1982 and 15-6-1983, long before the Regulations came into force. Appointments were also made before coming into force of the Regulations. Petitioner in O.P. 2897/86 having been promoted to a regular vacancy on 15-6-1983, and petitioner in O.P.2928/86 having been promoted to a regular vacancy on 15-10-1982. If the Regulations had not come into force, petitioners should have been confirmed, as there is no case that they had not completed probation satisfactorily. 10. Unless the rules are retrospectively applied, to those dates, it would not be necessary for the petitioners to acquire test qualifications. If the Regulations had not come into force, petitioners should have been confirmed, as there is no case that they had not completed probation satisfactorily. 10. Unless the rules are retrospectively applied, to those dates, it would not be necessary for the petitioners to acquire test qualifications. In T.R. Kapur v. State of Haryana (AIR 1987 SC 415) the Supreme Court held: "The power to amend retrospectively is available. The power to change conditions of eligibility is also available". The Supreme Court further observed: "This rule is however subject to a well recognised principle, that benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect. The employees who are already promoted before the amendment of the rules cannot be reverted, and their promotions cannot be recalled". That, precisely is what the Guruvayur Devaswom did. In the state of Rules that prevailed on 15-6-1983 and 15-10-1982, petitioners had acquired a right, without passing test qualifications. This right cannot be taken away, as that would be violative of Art.14 & 16 (1), as laid down in Kapur's case (paragraph 16). 11. The principle in Kapur's cases was reiterated in P.D. Agarwal v. State of U.P. (AIR 1987 SC 1976). Earlier, in V.V.Rangayya v. J. Sreenivasa Rao (AIR 1983 SC 852) the court observed: "The vacancies which accrued prior to the amended Rules would be governed by the old Rules and not by the amended Rules We have not the slightest doubt that the post which fell vacant prior to the amended Rules would be governed by the old rules and not the new Rules". (emphasis supplied) Thus, appointments to regular vacancies that arose prior to 3-12-1983, namely on 15-6-1983 and 15-10-1982, would be governed by the rules then in force. The Regulations cannot be retrospectively applied, by sliding it backward on the scale of time. 12. Counsel for fourth respondent made an attempt to suggest that probationers like petitioners have no right to be enforced. Decisions in Sukhbans Singh v. State of Punjab (AIR 1962 SC 1711), Ramaswamy v. I.G. of Police (AIR 1966 SC 175), State of U.P. v. Akbar Ali (AIR 1966 SC 1842), Kedar Nath v. State of Punjab (AIR 1972 SC 873) and State of Maharashtra v. V.R. Sabaji (AIR 1980 SC 42) were relied on to sustain this contention. Decisions in Sukhbans Singh v. State of Punjab (AIR 1962 SC 1711), Ramaswamy v. I.G. of Police (AIR 1966 SC 175), State of U.P. v. Akbar Ali (AIR 1966 SC 1842), Kedar Nath v. State of Punjab (AIR 1972 SC 873) and State of Maharashtra v. V.R. Sabaji (AIR 1980 SC 42) were relied on to sustain this contention. In all these cases the Supreme Court considered the question in the context of Art.311. The question in these cases, must be viewed in the different fact situation and in the context of Art.14 & 16(1), as indicated in T.R. Kapur v. State of Haryana (AIR 1987 SC 415). 13. Counsel for petitioners further urged that petitioners must be deemed to have been confirmed in the light of the principles laid down in Pharam Singh's case (AIR 1968 SC 1210) and Paramjit Singh & others v. Ram Lakkan (AIR 1979 SC 1073). It was also submitted that since the petitioners had continuously held the post, at this distance of time they cannot be reverted. Reliance was placed on the decision of the Supreme Court in Harendra Chada & Ors. v. Union of India (AIR 1986 SC 638). It is well settled that confirmation is not gained by more passage of time. But, it would be deemed to have been made when the employee overstays the outer limit of probation. It is unnecessary to decide this question, in the view I have taken in the preceding paragraph. 14. There is another aspect to the matter, to be noticed. Petitioner in O.P.2928/86 occupies a post to which there is no rival claimant. He was regularly appointed on 15-10-1982 and he completed the period of probation on 15-10-1984. Probation was not extended. True, there was a general circular that all employees should acquire test qualifications. But, this cannot be understood as an extension of probation. Petitioner in O.P. 2897/86 was reverted only on 19-4-1986, long after the three year outer limit. Considerations of equity lean in his favour. 15. Since the Regulations have been applied retrospectively taking away benefits acquired by petitioners, Ext.P4 order in both petitions, have to be quashed and are accordingly quashed. It is declared that petitioners are eligible to be confirmed, in terms of their orders of appointment. Writ petitions are allowed. There will be no order as to costs.