K.A. Mathew vs State of Kerala and Others

K.P. Radhakrishna Menon J.

In this Original Petition the petitioner seeks to quash Ext P2 by which the 2nd respondent was promoted provisionally as Accounts Officer on Rs. 750-1450 under Rule 31 (a) (1) of the General Rules and posted to Medical College, Trichur. He has also prayed for the issue of a Writ of Mandamus directing the 1st respondent to promote the petitioner to the cadre of Accounts Officer, Grade I, (Rs. 750-1450) in preference to his juniors in service including respondents 2 and 3. The petitioner has been working as Senior Superintendent/Accounts Officer, Grade II, with effect from 7-11-1975, The 2nd respondent was promoted as Senior Superintendent and has been working as such since 1-4-1978, while the 3rd respondent was promoted as Senior Superintendent with effect from 30-11-1979. The petitioner thus is the seniormost hand in the cadre of Senior Superintendent Accounts officer.

The petitioner contends that he does not possess the "Account Test (Higher)" qualification. However, according to him, he is duly qualified to hold the post of Accounts Officer, Grade I, because he is entitled to the benefit of exemption envisaged under Rule 13B of the Kerala State and Subordinate Services Rules. In other words, though he does not possess the special qualification of "Account Test (Higher)" prescribed by the Special Rules notified by G.O. (P) No. 464 dated 28-11-1966, he is eligible for permanent exemption from acquiring the said qualification as he has attained the age of 52 years and has also put in more than 25 years of service as envisaged under Rule 13B of the Kerala State and Subordinate Services Rules. The petitioner, in these circumstances, should have been promoted as Accounts Officer, Grade I, in the place of the 3rd respondent who is junior in service to the petitioner.

The learned counsel appearing for the 3rd respondent as also the learned Government Pleader however submitted that "Account Test (Higher)" is a qualification prescribed by Rule 5 of the Special Rules, unlike a pass in the Account Test (Lower) which is a "Test" within the meaning of Rule 6 thereof. They further submitted that Rule 13B of the K.S. & S.S.R. is attracted only to cases where the requirement is that the person concerned should have a pass in the "obligatory departmental tests" prescribed for promotion. The "Tests" prescribed by Rule 6 of the Special Rules alone is dealt with by Rule 13B and not the qualification prescribed under Rule 5 thereof. For the post of Accounts Officer, Grade I, in the Medical Colleges it is mandatory that the aspirant for the said post should possess the qualification of Account Test (Higher) which is a basic qualification and not an obligatory test.

Rule 10(a) of the K.S. & S.S.R. provides that the educational or other qualifications, if any, required for a post shall be as specified in the Special Rules applicable to the service in which that post is included. So far as the case on hand is concerned Rule 5 of the Special Rules prescribes that no person shall be eligible for appointment to the post of Accounts Officers, Medical Colleges, unless he possesses inter alia the qualification namely Account Test (Higher). Rule 6 of the General Rules pertains to "Tests". This Rule provides that notwithstanding anything contained in Rule 5, no person shall be eligible for appointment to categories made mention of therein unless he has passed the Account Test (Lower). There is a provision to this Rule. The con tent of the proviso is that requirement of a pass in the Account Test (Lower) is not necessary in the case of a person who is to be appointed to those categories for which Account Test (Higher) is Prescribed as a qualification. In other words, this proviso exempts persons who possess the qualification of Account Test (Higher) from passing Account Test (Lower), in order to make him eligible fur appointment to the categories of posts mentioned therein.

Now the question that arises for consideration is whether Rule 13B confers any benefit on an employee enabling him to claim an appointment to a higher category although he does not possess the basic qualification. Rule 13B is very limited in scope. It exempts a person in Government service who has attained the age of 50 years and who have put in 25 years of service from passing the "obligatory departmental tests" without which he will not be eligible for promotion, appointment as full member of the service etc.

In K.S. & S.S.R. there is no definition of the expression "obligatory departmental tests" although in the Kerala Service Rules the term "obligatory departmental examination" has been defined. Counsel on both sides made reference to this definition in the K.S.R. to sustain their respective pleas. The learned counsel for the petitioner Submitted that Account Test (Higher), though prescribed as a qualification making one eligible for appointment to the post of Accounts Officers, Medical Colleges, mentioned in the Special Rules, must be treated only as a "Test" within the meaning of Rule 6 of the Special Rules, in this connection, he made particular reference to clause (iii) of the definition of the expression "the obligatory departmental examination" which reads:

any test a pass in which is prescribed for promotion to any higher post coming in the line of promotion in the department concerned.

According to him, Account Test (Higher) though a qualification prescribed for the post aforesaid, can be acquired while in service as in the case of obligatory test envisaged under Rule 6 of the Special Rules. At the first blush, the argument is attractive. But on a deep probe into the matter it can be seen that "Special Rules" has drawn a distinction between the "qualifications" prescribed under Rule 5 and ''"Tests" mentioned in Rule 6. The "qualifications" prescribed under Rule 5 are basic qualifications like the educational qualifications prescribed for appointment/promotion to a post. That the qualifications" prescribed under Rule 5 and the "Tests" mentioned in Rule 6 are not one and the same, can be seen if a reference is made to the definition of "obligatory departmental examination" in K.S.R. In all the five shades of meaning except item (iv) given in the above definition, the "test, a pass in which is prescribed" is referable to the "Tests" mentioned in Rule 6 of the Special Rules whereas in item (iv), it is relatable to "qualifications" prescribed under Rule 5. If "qualifications" prescribed under Rule 5 and "Tests" mentioned in Rule 6 are one and the same there was no need to draw a distinction between the two in the above definition in K.S.R. Even otherwise if an extended meaning is given to the expression "obligatory departmental tests" so that qualifications" prescribed under the Special Rules also are covered by that expression, an anomalous situation would arise where employees, though they have not acquired the basic qualifications, would be treated on a par with persons who possess the qualifications prescribed by Rule 5 of the Special Rules. I am of the view, that this was not contemplated by the framers of the K.S. & S.S.R. when they introduced Rule 13 B therein. What is sought to be exempted under Rule 13 B is the obligatory departmental tests, provided the Government employee who is bound to pass the said tests, has attained the age of 50 years and put in 25 years'' service and not the "qualification" prescribed by Rule 5 of the Special Rules. I am therefore of the opinion that the "obligatory departmental tests" mentioned in Rule 13 B relates only to "Tests" mentioned in Rule 6 of the Special Rules and not to the "qualifications" prescribed under Rule 5 thereof. The petitioner raised a further argument that the Government while considering the scope of a provision similar to Rule 13 B of the K S. & S.S.R. had opined that the exemption envisaged in the said provision was an exemption from possessing Account Test (Higher) qualification. In proof of this contention, the petitioner relied on the counter-affidavit filed by the Government in O.P. No. 309 of 1977 wherein it has been averred as follows:

Government in G.O.R. Dis. 8207/50/CS dated, 7-5-1951 have given Permanent exemption to those who have put in a total of 20 years or more and who are not below 45 years of age. Subsequently in amendment to Part II of Kerala State and Subordinate Service Rules 1958 Rule 13-A Government have made a statutory provision to all allotted officers to Kerala Service in regard to permanent exemption from passing test qualification of a new test or test of a higher standard vide G.O. (P) 208/74/PD dated 28-8-1974. Sri George has passed 45 years of age his date of birth being 18-3-1105 M.E. (3-11-1929 A.D.).He is therefore eligible for the exemption as per G.O. (P) 208/74 PD dated 28-8-1974 and for promotion as Accounts Officer Grade I and he is senior Sri Abdulla Kutty, the petitioner. Hence the promotion of Sri M. George is in order.

It is true that the Government have in the said counter-affidavit, stated thus. It is not however clear whether the Government made these statements after considering the scope of legal provisions like Rules 5 and 6 of the Special Rules mentioned above. Whatever that be, since the question whether a Government servant who has attained the age of 50 years and also has put in 25 years'' service and therefore is entitled to the exemption envisaged under Rule 13B of the K.S & S.S.R, is a judicial question to be decided in a Court of law and as such the view expressed by the Government as to the legal effect of the rule cannot be conclusive on the point. In this view of the matter, I reject this contention.

For the reasons stated above, the contentions of the learned counsel for the petitioner that the petitioner is entitled to the benefits of Rule 13B although he does not possess the qualification of Account Test (Higher), is not sustainable. The Original Petition is without merits. Accordingly I dismiss the Original Petition. No order as to costs.