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2005 DIGILAW 407 (KER)

Martin K. Mathew v. N. S. Vijayan

2005-06-24

K.A.ABDUL GAFOOR, K.HEMA

body2005
Judgment :- Abdul Gafoor, J. The question involved in these two Writ Appeals is with regard to the application of 2nd Proviso to Rule 13B of the General Rules in K.S. & S.S. Rules, 1958 (hereinafter referred to as the Rules). The appellant as well as the writ petitioners, who are the respondents herein, belongs to the category of Deputy Superintendent of Police, Category 1A in the Kerala Police Service. The appellant, who is also Addl. 3rd respondent in O.P.No.23598 of 2000 has passed the Account test for the Executive Officers of Kerala prescribed under Clause (e) of Rule 8 of the Special Rules for Kerala Police Service, to be passed during the period of probation, by one appointed to the category of Deputy Superintendent of Police. The writ petitioners-respondents did not pass that test. They applied for exemption in terms of Rule 13B of the Rules from passing the said obligatory test prescribed for declaration of probation. The Government declined their request as per Ext.P3 marked in O.P.No.23598 of 2000, on the ground that going by the 2nd proviso to the said Rules so far as Executive staff belonging to Police Department are concerned, Rule 13B did not have any application. 2. Rule 13B deals with the test prescribed for the purpose of promotion, appointment of full membership etc. one is entitled for promotion only after successful completion of the probation which is essential for appointments as full member of the service. The test prescribed under Rule 8(e) of the Special Rules being one for successful completion of probation, the Government took the view that it is a pre-requisite for promotion. Therefore, going by the 2nd proviso, they were not entitled to the exemption provided in Rule 13B. Consequently, their promotion to the higher category was also declined. This resulted in O.P.No.3451 of 2000 to which the appellant is not a party. 3. The learned single Judge took the view that 2nd proviso refers to only promotion and not probation. The Executive Staff belonging to Police Department covered by the 2nd proviso are entitled for exemption from the test prescribed for appointment as a full member, but not from that prescribed for promotion. Therefore, they were entitled to declaration of probation on exemption provided under Rule 13B, which they are entitled to. The Executive Staff belonging to Police Department covered by the 2nd proviso are entitled for exemption from the test prescribed for appointment as a full member, but not from that prescribed for promotion. Therefore, they were entitled to declaration of probation on exemption provided under Rule 13B, which they are entitled to. In other words, the learned single Judge was of the view that inapplicability of the Rule 13B by reason of 2nd proviso thereto, is confined to the test prescribed for promotion alone. The learned single Judge, therefore, held that they were entitled to exemption and consequently to declaration of probation. The learned single Judge also found that the Special Rules relating to the Kerala Police Service do not prescribe any obligatory Departmental Test as a pre-condition for promotion. Once they are entitled for exemption from passing the test prescribed for probation, they are entitled for satisfactory completion of probation without insisting for any test. There was nothing disentitling them for being promoted. So, the denial of promotion was also interfered with. Both the Original Petitions were thus allowed. Therefore, these appeals by the appellant. W.A.No.563 of 2002 is filed against the judgment in O.P.No.23598 of 2000 and W.A.No.612 of 2002 is against the judgment in O.P.No.34514 of 2000. 4. We are now called upon to examine the applicability of the 2nd proviso to Rule 13B, in relation to the declaration of probation of Executive Staff belonging to Police Department and promotion. It is admitted before us that the parties belong to Executive wing of police Department. The dispute is with regard to the applicability of 2nd proviso to Rule 13B, which deals with Executive Staff belonging to Police Department. 5. The main part of Rule 13B as well as the last proviso thereto really gives “exemption from passing the obligatory departmental test for all purposes such as promotion, appointment as full member of a service etc.” Appointment as a full member of a service pre-supposes successful completion of probation and consequently being declared as approved probationer. But the 2nd proviso very categorically says that “this rule shall not be applicable to tests prescribed for purposes of promotion of the Executive staff belonging to Police Department.” 6. Promotion and probation are different aspects in the service with distinct meanings. Second proviso covers only promotion. It does not cover probation. But the 2nd proviso very categorically says that “this rule shall not be applicable to tests prescribed for purposes of promotion of the Executive staff belonging to Police Department.” 6. Promotion and probation are different aspects in the service with distinct meanings. Second proviso covers only promotion. It does not cover probation. Necessarily, it does not take in probation which is an important stage in once service career. The main part of the rule deals with exemption covering not only promotion, but also appointment as full member for which declaration of probation is a pre-requisite. Inapplicability of the main part of Rule 13B by reason of second proviso thereto is confined only to promotion and not to probation. So, the exemption in terms of that main part will be available to test relating to probation even in the case of the Executive Staff of the Police Department. 7. The test prescribed under Rule 8(e) of the Special Rules is one to be passed during the period of probation. When, thus, one is entitled for the exemption provided in Rule 13B, necessarily he is eligible to be declared to have satisfactorily completed the probation without passing the test. Once a person has completed probation, he is entitled to be declared as an approved probationer and later as full member. If he is found suitable, he is also entitled for promotion as well. 8. If there was an obligatory test prescribed for promotion in the case of the writ petitioners who belong to the Executive Staff of Police Department, necessarily, the 2nd proviso will come into play. With regard to promotion of Deputy Superintendent of Police no special obligatory test is prescribed by the Special Rules. When no such test is prescribed, there arises no question of exemption under Rule 13B, much less the application of 2nd proviso thereto. The Writ Petitioners will be therefore entitled for promotion as well, if they are found suitable. 9. In such circumstances, the view taken by the learned single Judge in the two impugned judgments cannot be said to be faulty to invite interference from our hands. Writ Appeals are accordingly dismissed.