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2004 DIGILAW 563 (KER)

The State of Kerala v. C. Chathan

2004-11-17

J.B.KOSHY, K.P.BALACHANDRAN

body2004
Judgment :- Koshy, J. Petitioners were working in the cadre of Head Clerks/Revenue Inspectors. When juniors of the petitioners were promoted as Deputy Tahsildars by Ext.P2, petitioners approached this court. They were not given appointment by transfer as Deputy Tahsildars because, according to the Government, they were not having the required essential qualification for the above post. Petitioners are members of the scheduled caste community and the learned single Judge was of the opinion that in view of rule 13A of Part II of the Kerala State and Subordinate Services Rules (hereinafter referred to as ‘the KSSSR’), they were exempted from passing the required tests as provided under the Kerala Revenue Subordinate Service Special Rules (hereinafter referred to as ‘the Special Rules’) and, therefore, petitioners are entitled to get promotion and directed the Government to grant promotion to them, if they are otherwise qualified. 2. Appointment of Deputy Tahsildars can be made by direct recruitment or by recruitment by transfer as provided under the Special Rules. Rule 7 of the Special Rules prescribes qualification for appointment of Deputy Tahsildars. It is as follows: “7. qualifications No person shall be eligible for appointment to the service, by method specified in column (1) of the Table below unless he possesses the qualifications prescribed in the corresponding entry in column (2) thereof: Since petitioner have not passed the Revenue Test as well as Account Test (Lower). Petitioners were not possessing the minimum qualification for appointment by transfer and that is the reason alleged for denying their promotion. 3. It is contended by the learned Government Pleader that the Special Rules specifically mentions about the minimum qualifications for appointment by transfer. A person cannot be given appointment by transfer without the minimum qualification. It is the contention of the Government that rule 13A of the KSSSR which grants temporary exemption for promotion to persons belonging to the scheduled castes/tribes is applicable only to promotions and not for appointment by transfer and relied on the decision of this court reported in K.A.Mathew v. State of Kerala and others (1985 (1) ILR Kerala 657). There, the learned single Judge was considering rule 13B of the KSSSR. According to the learned single Judge, rule 13B is only giving exemption with regard to passing of obligatory tests for normal promotion or completion of probation to all persons who have completed 50 years of age. There, the learned single Judge was considering rule 13B of the KSSSR. According to the learned single Judge, rule 13B is only giving exemption with regard to passing of obligatory tests for normal promotion or completion of probation to all persons who have completed 50 years of age. The above view was upheld rightly in Sarojini Amma v. State of Kerala (2002 (3) KLT 573) by a Division Bench of this court. On a reading of rule 13B, no other view is possible. That only gives exemption to obligatory tests for normal promotion and appointment of full member of service. Only those persons who possess the qualification alone can ask appointment by transfer. Pass in certain tests were mentioned as essential qualification for appointment by transfer. Merely because one has completed 50 Years of age will not entitle him to get eligibility for appointment by transfer. That is an essential qualification prescribed for appointment to that post. Rule 13B of the KSSSR reads as follows: “13B. Notwithstanding anything contained in these rules or in the Special Rules, persons in Government service who attain the age of 50 Years and who have put 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 the permanent exemption when they attain the age of 50 Years. Provided further that this rule shall not be applicable to tests prescribed for purposes of promotion of the executive staff belonging to the Police Department. Provided also that ex-servicemen employees of the Rajya Sainik Board Department who attain the age of 45 years and who have successfully completed probation shall be permanently exempted from passing the tests prescribed for promotion irrespective of the period of their service.” Therefore, we agree with the contention of the learned Government Pleader that as decided by the Division Bench in Sarojini Amma’s case rule 13B exemption has no application in the case of appointment by transfer. 4. The wordings in rule 13A is entirely different from rule 13B. Rule 13A is an exemption given to the candidates in rule 13. 4. The wordings in rule 13A is entirely different from rule 13B. Rule 13A is an exemption given to the candidates in rule 13. Rule 13 provides that no person shall be eligible for appointment to any service, class, category or grade or any post borne on the cadre thereof unless he possesses the special qualifications and has passed the special tests prescribed in that behalf in the special Rules. Thereafter, exemption is provided under rule 13A. Rule 13A(1) of the KSSSR is as follows: “13A Special and Departmental Tests Temporary exemption for promotion:­- (1) Notwithstanding anything contained in rule 13 (a) where a pass in a special or departmental test is prescribed by the Special Rules of a service for any category, grade or post therein or in any class thereof, a member of a service belonging to any of the scheduled castes or scheduled tribes who has not passed the said test but is otherwise qualified and suitable for appointment to such class, category, grade or post may be appointed thereto temporarily.” Sub-rule (2) of rule 13A of the KSSSR provides that one has to pass the test within the prescribed number of years of the temporary appointment. Rule 13AA of the KSSSR gives power to the Government to grant exemption from passing test referred to in rule 13 or rule 13A. Rule 13 AA of the KSSSR provides as follows: “13AA. Notwithstanding anything contained in these rules, the Government may, by order exempt for a specified period, any members or members, belonging to a scheduled caste or a scheduled tribe and already in service, from passing the tests referred to in rule 13 or rule 13A of the said Rules.” Constitutional validity of rule 13AA was upheld and orders issued under rule 13AA extending the period of exemption were upheld by a seven-member Bench in the decision in State of Kerala and another v. N.M. Thomas and others (AIR 1976 SC 490), even though one of the Judges differed from the majority view. While exercising the powers vested under Section 13AA, a clarification was also issued by Ext.P3 where it is made clear that the exemption is applicable to all promotions, that is, in selection as well as in non-selection categories. It also further clarified that the above benefits are not available to those employees who entered service on or after 1-1-1986. 5. While exercising the powers vested under Section 13AA, a clarification was also issued by Ext.P3 where it is made clear that the exemption is applicable to all promotions, that is, in selection as well as in non-selection categories. It also further clarified that the above benefits are not available to those employees who entered service on or after 1-1-1986. 5. In sub-rule 1(a) of rule 13A of the KSSSR what is exempted is special or departmental tests prescribed by the Special Rules of a service for appointment to any class. Category or grade or post. Therefore, rule 13A, unlike rule 13B, deals with the case of appointment by transfer, not mere promotion. In other words, even tested in common parlance, appointment by transfer and promotion are more or less the same. Appointment by transfer is to another service as it is a selection as held by the Division Bench in Kerala Water Authority v. Augustin (2001 (3) KLT 746) and one must acquire the prescribed qualifications. Rule 13A gives an exemption to the general rule. Pass in departmental test which is prescribed as qualification in the special Rules for appointment to such category of post is specifically exempted under section 13A and the wordings used in rule 13A and rule 13B are entirely different. Unlike rule 13B, rule 13A is applicable not only in normal promotions, but also for appointments by transfer to a higher post. Therefore, we agree with the learned single Judge that as far as the petitioners who are members of the scheduled castes/schedule tribes are concerned, they are entitled to the benefit of rule 13A. In 1985 (1) ILR Kerala 657 and 2002 (3) KLT 573, the effect of rule 13A was not considered but only rule 13B was considered and the wordings in rule 13A and rule 13B are entirely different. We see no ground to differ from the findings of the learned single Judge. Claim for promotion shall be considered by the appellant in accordance with law and they shall be promoted, if they are otherwise eligible notionally with effect from the date their immediate juniors were promoted as directed by the learned single Judge with consequential reliefs and the judgment should be implemented within three months from the date of receipt of a copy of this judgment. The writ appeal is dismissed.