State of Kerala vs M. Peermohammed and Others

Gopalan Nambiyar, C.J.—The question in all these writ appeals concerns the interpretation of Rule 13A(1)(b) of the Kerala State and Subordinate Services Rules (K.S.S.S.R. for short) and the scope of the expression ''test is newly prescribed by the Special Rules'' occurring therein. The appeals have been preferred by the State against the judgment of a learned single Judge allowing the writ petitions preferred by the Respondents in these writ appeals challenging the orders of reversion passed, or sought to be passed, against them, on the ground that they had not passed the requisite test prescribed for the purpose of promotion under the Special Rules. Rule 13A(1)(b) of the Kerala State and Subordinate Services Rules reads as follows:

Where a pass in a special or departmental test is newly 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 who has not passed the said test but is otherwise qualified and suitable for appointment to such class, category grade or post may, within two years of the introduction of the test, be appointed thereto temporarily.

The Special Rules in respect of the posts of Upper Division Clerks and Lower Division Clerks of the Land Revenue Department were promulgated on 14th May 1975 and published in the Kerala Gazette dated 15th May 1975. Rule 8 lays down special qualifications for the purpose of promotion. It reads as follows:

Special qualifications.--No candidate shall be eligible for appointment to any of the categories specified in column (1) of the table below unless he possesses the qualifications specified in the corresponding entry in column (2) thereof.

Note.--The qualifications referred to as (4) and (5) under item (ii) shall cease to exist with effect from 15th June 1966:

Provided that allotted officers who have completed 45 years of age on 14th January 1963 shall be exempted from passing the tests mentioned as (2) and (3) under item (ii) above:

Provided further that in the case of those who have passed Revenue Test Part I (Madras) which includes Test in District Office Manual also, the requirement of a pass in Secretariat Manual Test or District Office Manual Test referred to as (3) under item (ii) shall not be insisted on:

Provided further that in the case of those to whom probation rules are applicable in the Lower Division Cadre, a pass in District Office Manual Test shall be insisted on for declaration of satisfactory completion of probation in the Lower Division Cadre:

Provided further that the qualifications referred to as (4) and (5) under item (ii) above shall not be applicable in the case of officers to whom Madras Ministerial Service Rules were not applicable:

Provided also that the qualifications prescribed as item (i) shall not apply to the case of Upper Division Typists and Stenographers for appointment by transfer.

The contention of the Government Pleader is that the tests prescribed by the above Rule were not ''new tests'' within the meaning of Rule 13A(1)(b) of the Kerala Stale and Subordinate Services Rules but were already in vogue under a Government Order, dated 14th January 1963. We shall be noticing in due course, the nature and content of the tests introduced by the Government Order.

The reversions were ordered or threatened, because, the writ Petitioners have not passed one or other of the tests prescribed for promotion under the Special Rules. Their contention was that on the language of Rule 13A(1)(b) the tests in which they were found to be deficient were ''new tests'' introduced by the Special Rules and therefore they had two years'' time from the date of introduction of the test to pass the same, and therefore the reversions ordered or threatened were premature. The learned Judge took the view that it was not necessary to consider the question whether a test introduced by the Special Rules was a ''new test'' for a promotion. The Special Rules were introduced with retrospective effect from 1st November 1956 (vide Rule 1 of the Rules). Therefore, even if prior to these Rules, the same tests were in existence under an executive order--as contended by the State--the same must be deemed to have been swept off by the Special Rules passed with retrospective effect so as to wipe the slate clean; and therefore the Petitioners could no longer claim the benefit of two years from the introduction of the tests for passing the same. We cannot accept this reasoning of the learned Judge. In the first glace, merely because an executive order under which certain tests were in operation prior to the Special Rules were replaced or obliterated with retrospective effect by the Rules, the factual existence and operation of the tests cannot be regarded as non est. Again, it has been recently decided that a special rule framed under the Public Services Act--as in the instant case--cannot be in operation prior to the commencement of the Act. That is the effect of two recent judgments of this Court, one, in State of Kerala v. Haridas 1978 KLT 238 and the other, the Full Bench judgment in O.P. No. 5300 of 1975 etc. That is to say, if the Rules were merely framed under the Public Services Act, they cannot have an origin earlier than the Act itself. But if any Rule or Order prior to the Act is taken over under the Act, it is possible to project back the Rule or the Order to the date of its promulgation. The latter contingency has not happened here, and the former alone applies. The rule therefore cannot go back prior to the commencement of the Public Services Act in 1968. In the light of these decisions, even if there has been a supersession or wiping out of the Rules or Orders under which the tests were previously in operation, the same would be effective only from 17th September 1968 and not earlier so that, for the period prior to the said date, the prior Government-order would be in operation. The question would still survive. Were the tests introduced by the Special Rules, which can take effect only from 1968, ''new test'' within Rule 13A(1)(b) of the Kerala State and Subordinate Services Rules.

The learned Government Pleader contended that these tests were not ''new'' ones, but were prescribed by the Government Order, dated 14th January 1963; so that, according to him, it was only a case of the old tests being given a statutory garb. The Government Order, dated 14th January 1963 lays clown that the question of prescribing unified tests in Office Procedure and Account Test (Lower) for the Ministerial staff of the different offices had been under the consideration of the Government, and, after detailed consideration the Government passed the following Orders. It was laid down that (1) Account Test (Lower) and (2) Test in Office Procedure, had to be passed by the Lower Division Clerks in all offices except the High Court. This was in the light of the problems that arose and the situation that confronted the Government after the reorganisation of States. In Somasekharan Nair v. The Director of Employment ILR 1978 (1) Ker 175 a Division Bench of this Court had to consider the question whether the Government Order, dated 14th January 1963 can be said to have ''prescribed'' new tests or whether the prescription could be said to have been effected only by a subsequent Government Order, dated 23rd October, 1963. It was ruled that the ''prescription'' of two tests was made only under the later G.O. (P) No. 455 PD., dated 23rd October 1963, when the syllabus and the modus operandi for passing the tests were announced. It was not necessary in that decision to consider whether the tests prescribed were ''new tests'' or not. The decision could be rested on the ground that, assuming the tests were new, the prescription was only on 23rd December 1963, and the two years'' period for passing the same from the date of prescription had not expired.

The learned Government Pleader contended that out of the tests introduced by the Special Rules, the Account Test and Test in Office Procedure cannot be regarded as ''new tests'' introduced for the first time by the Special Rules of 1975, but were in existence even under the Government Order, and therefore, in respect of these tests at least the period of two years for exemption from passing the tests will not count from the date of the Special Rules. The Respondents (writ Petitioners) answered that the scope and the content of the tests introduced by the Special Rules were different from the scope and content of the tests in Government Order, dated 14th January 1963 and therefore tests under the Special Rules were tests ''newly prescribed''. We have not been shown that this is so. The Account Test and Test in Office Procedure were simple tests which were in existence even in the Government Order, dated 14th January 1963. These cannot be said to be a ''new tests'' ''prescribed'' by the Special Rules, within the meaning of Rules 13A(1)(b) of the Kerala State and Subordinate Services Rules. As far as revenue test is concerned, Rule 8 of the Special Rules itself contains indication that the revenue tests, of Travancore-Cochin and Madras were in existence even prior to the Special Rules. Therefore, these again, cannot be regarded as ''new'' tests introduced by the Special Rules. All the Respondents-writ Petitioners were found to be deficient in either one or the other of these tests. None of them could be regarded as ''new tests''. And we have not been shown anything with respect to their content or otherwise, to show that the tests prescribed by the Special Rules were "new".

We are of the view that in respect of Account Test it cannot be said to be a new test introduced by the Special Rules. It was there even in the Government Order, dated 14th January 1963. The period of two years granted under Rule 13A(1)(b) of the Kerala State and Subordinate Services Rules will not be available to the Respondents-writ Petitioners. Hence the reversion and threat of reversion of the writ Petitioners was justified and proper.

The Revenue Test again is not a ''new'' test in respect of persons who are allotted personnel from Madras, as such test was in operation in the Madras State as it stood prior to the introduction of the Special Rules, but in respect of persons who were recruited in Kerala State after 1st November 1956 and till 14th January 1963, the Revenue Test will be a ''new'' test, and as such, in respect of such test the period of exemption of two years provided under Rule 13A(1)(b) will be available to such persons. This, we have already stated previously.

In the result we partially allow the writ appeals and modify the judgment of the learned Judge. The complaint of the writ Petitioners will be re-examined by the Collectors'' in the light of the observations contained in this judgment and fresh orders passed accordingly. We make no order as to costs.