Kerala High Court
K.P.Ashok Kumar vs The State Of Kerala on 15 November, 2006
Author: K.K.Denesan
Bench: K.K.Denesan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 5880 of 2006(Y)
1. K.P.ASHOK KUMAR, SPECIAL VILLAGE OFFICER
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE LAND REVENUE,
3. K.S.ANIL KUMAR, VILLAGE OFFICER,
4. M.K.KISHORE, VILLAGE OFFICER,
5. K.T.JINANA, U.D.CLERK, OFFICE OF THE
6. HARIDASAN E.V.SPECIAL VILLAGE OFFICER,
7. C.R.JAYANTHI, VILLAGE OFFICER,
8. K.K.KANNAN, VILLAGE OFFICER,
For Petitioner :SRI.K.DIVAKARAN NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.K.DENESAN
Dated :15/11/2006
O R D E R
K.K.DENESAN, J
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W.P.(C)NO. 5880 of 2006
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Dated this the 15th day of November, 2006
JUDGMENT
The petitioner and the respondents 3 to 8 commenced service as Lower Division Clerks/Village Assistants in the Revenue Department. Respondents 3 to 8 are seniors to the petitioner in that category. The next higher post is that of Upper Division Clerk/Special Village Officer. A pass in the special and departmental test made mention in Rule 13 of KS & SSR and as prescribed therefor is pre-requisite for promotion to the post of UDC/Special Village Officer. The petitioner acquired the requisite qualifications earlier than the party respondents. As on the date of the occurrence of vacancies, the respondents 3 to 8 did not possess the test qualifications.
2. In the normal course, the petitioner is entitled to supersede respondents 3 to 8 in the matter of promotion to the post of UDC/Special Village Officer. But the official respondents promoted the party respondents, though not test qualified, when their turn according to seniority reached. Respondents 3 to 8 belong to the scheduled caste community. As such they are entitled to avail the benefit of W.P.(C)No.5880/2006 2 temporary exemption in terms of Rule 13A(1)(a) of Part II of KS&SSR. This is the stand taken by the respondents in order to justify the promotions of respondents 3 to 8 notwithstanding their failure to get test qualified before the date of occurrence of the vacancies.
3. Learned counsel for the petitioner contends that the respondents 3 to 8 commenced their service only after 31.12.1985, and therefore, they are ineligible to claim the benefit of exemption under Rule 13A(1)(a) of KS&SSR in the same manner they are not entitled to enjoy the benefit of Rule 13AA of KS&SSR. The aforesaid provisions are extracted below for easy reference:-
Rule 13A(1)(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"
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Rule 13AA "Notwithstanding anything contained in these rules, the Government may, by order, exempt for a specified period, any member 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".
It is contended that Rule 13AA will over shadow the provisions of Rule 13A(1) and therefore whatever conditions are to be fulfilled by a member of the scheduled caste to claim the benefit of the Government orders issued as per contemplated in Rule 13AA shall apply to Rule 13A(1)(a) of KS&SSR as well, because Rule 13AA opens with a non-substantive clause.
4. Learned Government Pleader appearing for respondents 1 and 2 and the learned counsel appearing for respondents 3 to 8 contend for the position that the benefit contemplated under Rule 13AA of KS&SSR is larger in content and application when compared to that of Rule 13A(1) which operates in a limited but distinct sphere, and therefore, the contention that these two provisions have got correlation and shall be applied as though they W.P.(C)No.5880/2006 4 are composite provisions is untenable. According to the respondents, the aforesaid provisions are intended to operate independently. The conditions that are required to be fulfilled to avail exemption from test qualification in their entirety need not be fulfilled by a member of the scheduled caste who invokes Rule 13A(1)(a) to enjoy the limited exemption and the temporary promotion available under that provision. To buttress the above submission , the respondents would place reliance on the decisions of this Court in Antony v State of Kerala (1989(1) KLT 374 (DB) and State of Kerala v Chathan (2005(1) KLT 75). The decisions have been cited in support of the contention that Rule 13AA unlike Rule 13(A)(1) of the Rules enables the Government to exempt a scheduled caste or scheduled Tribe from the requisite qualification and to grant them promotion for such periods as the Government would consider fit and proper, by issuing orders from time to time.
5. I have heard Sri.K.Divakaran Nair, learned counsel for the petitioner Sri.C.Harikumar learned counsel for respondents 3,4, 6 to 8, Sri.S.P.Aravindakshnan Pillai, learned counsel for the 5th respondent and Sri.N.Nandakumar, learned Government Pleader for respondents 1 and 2.
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6. Having heard the submissions of the learned counsel for the parties and having perused the materials on record, I find no error in Exts.P3 or P6 which are under challenge in this writ petition.
7. A distinction between the above two provisions is well discernible from the words used which bring out the object and the purpose of the two rules. Rule 13A(1)(a) does not dependent on any order of the Government to become operative. The said rule has the inbuilt potentiality to operate itself without the support of any other provision and has laid down the conditions required therefor, while specifying the period of exemption. The word `temporarily' used in Rule 13A(1)(a) is only to convey that those promoted by virtue of the exemption are likely to lose the right to hold the post in the event of their not passing the prescribed tests within the prescribed time limit. The latter Division Bench decision, cited supra, has held that as per sub rule (1) of Rule 13A of KS&SSR, what is exempted is special or departmental test prescribed by the special rules of a service for appointment to any class, category, grade or posts. In paragraph 4 of the said judgment the distinction to be drawn based on the language of W.P.(C)No.5880/2006 6 Rule 13AA and Rule 13A(1)(a) as also the intention sought to be conveyed have been referred to.
8. Admittedly, the factual position is that though respondents 3 to 8 did not possess the requisite qualification as on the date of the occurrence of vacancies, they did acquire the qualification within three years from the date of their promotion. Therefore, their right to be promoted temporarily in terms of Rule 13A(1)(a) of KS&SSR will crystalise into an entitlement to continue to hold the higher post on regular basis.
9. It is trite that when a member of the service is entitled to get the benefit of exemption from qualification, he shall be deemed to be qualified during the period of such exemption. In other words, as far as the member of the service entitled to the exemption is concerned, law does not require him to acquire that qualification. Rule 13A(1)(a) as well as Rule 13AA are provisions which are intended to confer the benefit of exemption from qualification to the members of the service who belong to scheduled Castes and scheduled Tribes. The very fact that two separate provisions differently worded have been incorporated in KS&SSR itself is indicative of the distinct but specific purpose W.P.(C)No.5880/2006 7 sought to be achieved by those provisions. According to the rules of construction and interpretation of statutory provisions, Courts are entitled to presume that the Legislature will not incorporate in a statute provisions which are superfluous. This presumption gets strengthened on a reading of the language used in the aforesaid provisions.
10. No doubt, Rule 13A(1)(a) as well as Rule 13AA refers to Rule 13, because the departmental or the special test to be passed are those which would be prescribed by the special rules as mandated therein. Exemption guaranteed under Rule 13A(1)
(a) can be availed only for a limited period of three years. Unless the qualifications as mandated in Rule 13 are acquired within the prescribed period of three years from the date of temporary promotion, the benefit of the exemption will no more be available and the member of the service who got the benefit of Rule 13A (1)(a) cannot claim any special privilege thereafter. He will be considered just like any other member of the service who is bound to acquire the qualification. On the contrary, Rule 13AA is an enabling provision which vests in the Government a discretionary power to come out with a general order whereby W.P.(C)No.5880/2006 8 exemption can be granted for such periods as the Government would consider fit and proper. Government has the power to lay down necessary conditions not inconsistent with the purpose of that rule. Such an order was passed by the Government for the first time on 13.1.1972. The period of exemption available as per G.O. dated 13.1.1972 was extended from time to time. Subsequently, Government took the view that the benefit of exemption under Rule 13AA need not be extended to those who would enter the service after 31.12.1985. Naturally, those in service as on 31.12.1985 are eligible to enjoy the benefit of exemption until the Government decide otherwise. The period of exemption has since been extended from time to time and remains in force. This is the state of affairs prevailing in the various departments under the State of Kerala for the last more than three decades.
11. It is true that Rule 13AA opens with the words notwithstanding anything contained in any of the rules in KS&SSR. The intention of the rule making authority while framing Rule 13AA is demonstrably clear, viz. that the exemption from qualification will be available to those class of persons for whom W.P.(C)No.5880/2006 9 it is intended, whether or not such qualifications are made mandatory by any other provisions in KS&SSR and whatever is provided in those provisions. Interestingly, Rule 13A(1)(a) also opens with the words `notwithstanding anything contained in Rule 13'. Therefore, whoever is entitled to the benefit of Rule13A (1)(a) shall not be denied the benefit of promotion or completion of probation solely on the ground that he/she has not acquired the qualifications prescribed in Rule 13. As far as other members of the service are concerned, that is to say, who are neither scheduled castes nor scheduled tribes, unless they acquire the tests referred to in Rule 13 of KS&SSR, they cannot, as of right, claim promotion. Scheduled Castes and Scheduled Tribes are entitled, by virtue of Rule 13A(1)(a) to avail the benefit of promotion according their seniority and officiate in the higher post for three years without acquiring the test qualification. If they pass the test or examination in the meantime, they will continue to hold the post. By incorporating the non obstante clause, what is intended is that Rule 13AA is a benefit that can be enjoyed irrespective of the prescriptions in Rule 13 as far as the acquisition of the qualifications are concerned and whatever has W.P.(C)No.5880/2006 10 been stated in Rule 13A(1)(a) which provides that the benefit of the exemption will be available only for the maximum period of three years or any other provisions in KS & SSR. Benefit under Rule 13AA can be enjoyed as long as the Government in exercise of the power conferred on it otherwise decides. The cut off date, namely, 31.12.1985, has absolutely no application in the case of those entitled to enjoy the benefit of Rule 13A(1)(a).
12. The respondents are right in contending that they are entitled to avail the benefit of the test exemption to the extent guaranteed under Rule 13A(1)(a) of KS&SSR. The respondents 3 to 8 were promoted by virtue of their seniority though they were not having the requisite qualification for promotion as on the date of occurrence of the vacancy. While enjoying that benefit and before crossing the maximum period prescribed therein they have acquired the requisite qualifications. Therefore, as laid down in Antony v State of Kerala (1989(1) KLT 374), the word `temporary promotion' used in Rule 13A(1)(a) shall not stand in their way to continue to enjoy the benefits attached to the post of UD Clerk/Special Village Officer. It follows, the challenge to the seniority assigned W.P.(C)No.5880/2006 11 to the respondents 3 to 8 in the U.D. cadre and the promotions granted to them fails. The writ Petition is, accordingly, dismissed.
K.K.DENESAN, JUDGE css/ W.P.(C)No.5880/2006 12