Kerala High Court
Sarojini Amma vs State Of Kerala on 7 March, 2002
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, M. Ramachandran
JUDGMENT K.S. Radhakrishnan, J.
1. Learned Single Judge of this Court referred all these cases to a Bench for an authoritative pronouncement on the scope and ambit of Rule 13B of the Kerala State and Subordinate Services Rules. Scope of the said rule earlier came up for consideration before a Single Judge of this Court in K.A. Mathew v. State of Kerala and Ors. (ILR 1985 (1) Kerala 657). Learned Judge who referred the matter felt that some of the contentions raised by the petitioners were not considered by the learned Single Judge in Mathew's case. Consequently it was felt that an authoritative pronouncement on those aspects is necessary. Hence these cases are before us.
2. When the matter came up for hearing, we heard Senior Counsel Sri. N. Dharmadan, Sri. K.P. Dandapani, Sri. K.Rule B. Kaimal, Sri. V.A. Mohammed, Sri. B. Reghunathan and Smt. I. Sheela Devi and also learned Government Pleader appearing for the respondents.
3. Before we deal with the rival contentions raised by the counsel on either side, we may refer to the facts in O.P. No. 18062 of 2000 which is taken as the leading case. Petitioners herein are Head Draftsman in the Survey and Land Records Wing of the Revenue Department. They completed 50 years of age in 1992 and had also put in 25 years of service and were given higher pay on completion of 25 years of service. They were all aspiring for promotion to the post of Technical Assistant.
4. There are also persons holding the posts of Head Surveyor who are aspiring for promotion to the post of Superintendent. Post of Technical Assistant and Superintendent fall within the State Service while the post of Head Surveyor falls within the Subordinate Service. Rule 4(b) of the Survey and Land Records Subordinate Service states that no person shall be eligible for appointment to the posts specified in column (1) of the table below and by the method specified in column (2) unless he possesses the qualification or has passed the test specified in the corresponding entry in column (3) thereof. Posts of Head Surveyor and Head Draftsman are all included in the table. Contention was raised by the petitioners that they had possessed the necessary qualification but some of them have not acquired pass in the necessary departmental tests. According to them since they attained 50 years of age and had completed 25 years of service, under Rule 13B of the General Rules Government exempted them from passing the obligatory departmental tests for promotion or appointment as full member of the service. Petitioners submit this is the practice followed by the Department for several years and persons similarly placed were given due promotion in the State service on permanent exemption from departmental tests.
5. Petitioners submit that respondents did not put forward their claim for promotion to the post of Technical Assistants in the D.P.C. which met on 30.3.2000 and were not shown in the list of officers qualified. DPC did not call for the records of the petitioners. On enquiry it was understood that respondents 1 and 2 had relied on a letter of clarification issued by the Government Secretary on 7.3.2000 to the Director of Survey. Reference was also made to the clarification letter dated 9.12.1987 which states that tests such as Account Test Higher etc. prescribed under the head "qualifications" are basic qualifications like educational qualification for appointment/promotion to the post whereas "tests" prescribed in the Special Rules are obligatory departmental tests. Person attaining the age of 50 years shall get exemption under Rule 13B, Kerala State and Subordinate Services Rules Part II only from passing the obligatory departmental tests prescribed in the Special Rules and he shall not be exempted from the tests prescribed under "qualifications" for appointment/promotion to the post. Departmental Promotion Committee later prepared list for filing up the existing vacancies of Technical Assistants without considering the claims of the petitioners and similarly placed persons. Some of the petitioners had already retired from service and some of them are aspiring for further promotion. The abovementioned clarificatory letter is also under challenge in some of the Writ Petitions.
6. Counsel appearing for some of the contesting respondents who had passed the departmental tests took up the stand that persons like the petitioner could aspire for exemption under Rule 13B only from tests which are included in the Subordinate Service and not in the State service. Appointment to the State service is by way of direct recruitment or appointment by transfer. Consequently only those persons who possess the qualification prescribed in the Special Rules for State service alone be appointed to State service in the event of which Rule 13B has no application. Counsel reiterated that this position has been settled by learned single Judge of this Court in Mathew's case, supra (ILR 1985 (1) Kerala 657). In the wake of the aforementioned contentions taken by the respective counsel we may examine the legal issues raised in these Writ Petitions.
7. Petitioners in O.P. No. 18062 of 2000 are persons governed by the Kerala Survey and Land Records Subordinate Service. We have indicated that some of them are Head Surveyors and some of them are Head Draftsman. Post of Head Draftsman comes under category I of Class II of the service. Post of Head Surveyor is a promotion post of Surveyor Grade I category and Head Draftsman is by promotion from Draftsman Grade I etc. Rule 4(b) of the table referred to therein deals with eligibility for appointment to the post of Head Surveyor, Head Draftsman etc. We may refer to the relevant portion of the rule, which is as under:
(b) Other qualifications. No persons shall be eligible for appointment to the posts specified in column (I) of the table below and by the method specified in column (2) unless he possesses the qualification or has passed the test specified in the corresponding entry in column (3) thereof:
Post Method Qualification or test CLASS I Head Surveyor Direct Recruitment Must possess the B.A., B.Sc. or B.Com degree of any recognised University. Preference shall be given to persons who have taken Mathematics for the degree course.
Promotion Must have passed-
1. Head Surveyor' s Selective Test (Travancore) or Theodolite Survey Test and Mapping Test (Cochin) or Head Surveyor's and Sub Assistant's Test (Madras)
2. Account Test (Lower) or Account Test or Executive Test for Executive Officers CLASS II Head Draftsman Promotion Must have passed the Head Draftsman's Test Rule 6 deals with tests which reads as follows:
"(1) A probationer in the post of Head Surveyor shall, within the period of probation, pass the tests specified below unless he has passed tests previously.
1. (i) Head Surveyors Selective Test (Travancore) or
(ii) Theodolite Survey Test and Mapping Test (Cochin) or
(iii) Head Surveyors and Sub Assistants Test (Madras)
2. Account Test (Lower)
3. Revenue Test Provided that a person who has passed the Head Surveyors and Sub Assistants Tests of Madras shall not be required to pass the Revenue Test."
It is evident from the table referred to in 4(b) that column No. 3 deals with 'qualification or test'. Under the heading 'qualification or test' we have seen that for appointment by direct recruitment and person must possess B.A., B.Sc. or B.Com degree of any recognised University. For promotion a person must have passed Head Surveyor's Selective Test (Travancore) or Theodolite Survey Test and Mapping Test (Cochin) or Head Surveyor's and Sub Assistant's Test (Madras) and Account Test (Lower) or Account Test for Executive Officers. Therefore for Promotion to the post of Head Surveyor it is necessary that they should pass the departmental tests while Rule 13B of the general Rules permanently exempts certain category of persons from passing departmental tests for promotion to the post of Head Surveyor etc. In this connection we may refer to relevant portion of Rule 13B, which 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 also that persons in Government service who attain the age of 50 years on or after the 26th day of August 1981 shall be eligible for permanent exemption from passing theobligatory departmental tests for all purposes such as promotion, appointment as full member of a service etc. irrespective of their total period of service.
Aforementioned provision would show that persons in Government service who attained the age of 50 years and who have completed 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 service etc. We have indicated that in column 3 of the table contained in Rule 4(b) for the purpose of promotion departmental test has been prescribed. Therefore, applying Rule 13B those persons who are otherwise eligible for promotion to the post of Head Surveyor on satisfying the condition laid down in Rule 13B would get permanent exemption from passing the departmental tests. Admittedly there may not be any quarrel regarding this legal position. But the question posed for consideration before us is whether the same yardstick could be applied in the matter of recruitment by transfer to the State service.
8. Since we are dealing with O.P. No. 18062 of 2000, we will deal with the Special Rules for the Kerala Survey and Land Record Service. Posts of Superintendent of Survey and Land Records and Technical Assistant are included in Category Nos. 3 and 4 respectively in the Special Rules. Rule 2(a) deals with appointment to the various categories of posts. We may extract the same for easy reference.
2(a). Appointment. Appointment to the various categories shall be made as follows:
Category Method of appointment
3. Superintendents of Survey and Land Records Recruitment by transfer from Head Sur veyors, or Direct Recruitment. Direct recruitment shall be for two posts in the first instance and thereafter 25% of the substantive vacancies in the cadre of Superintendent of Survey and Land Records shall be filled or reserved to be filled by direct recruitment.
4. Technical Assistant Recruitment by transfer from Head Draftsman or Head Computers, or if no qualified and suitable candidate is available among Head Draftsman or Head Computers, from among Draftsman Grade I Rule 3 of the Special Rules deals with qualification. Rule 3(b) deals with method of appointment and qualifications. We may extract the relevant rule for our purpose.
3. Qualification.
No person shall be eligible for appointment to any category by direct recruitment if he has completed or will complete 30 years of age in the 1st day of July of the year in which applications for appointment are invited:
.............................................................................................
(b) No person shall be eligible for appointment to any of the categories in Column (1) of the table given below and by the method specified in column (2) unless he possesses the qualifications specified in the corresponding entry in column (3) thereof.
Category Method of recruitment Qualifications Superintendent of Survey and Land Records Direct Recruitment A first or second class degree of a recognised University with Mathematics as the main sub ject. Provided that in the case of a person employed in the Survey and Land Records Department who has put in not less than five years service in that department, a degree of a recognised University with Mathematics as the main subject shall be sufficient.
Provided that in the case of direct recruitment to a post in the category reserved to be filled by direct recruitment exclusively from among members of the Scheduled Castes and Scheduled Tribes a member of Scheduled Caste or Scheduled Tribe possessing a degree with Mathematics as the main subject shall be eligible for appointment.
Recruitment by transfer
(i) Must possess the minimum general educational qualifi cation of SSLC standard
(ii) Pass in the Head Surveyors and Sub Assistants Test of Madras or the Head Surveyors' Test of Travancore, or the Theodolite Test and Mapping test of Cochin
(iii) Pass in the Account Test of Madras, Travancore or Cochin or Account Test for Executive Officers of Kerala State and pass in the Revenue Test of Madras Travancore or Cochin provided that a person who has passed the Head Surveyors' and Sub Assistants' Test of Madras shall not be required to pass the Revenue test.
4. Technical Assistant Recruitment by transfer
(i) Must possess the minimum general educational qualifica tion of SSLC standard.
(ii) Pass in the Head Draftsman's test or the Head Computer's Test
(iii) Pass in the Account Test of Madras, Travancore or Cochin or Account Test for Executive Officers of Kerala State and in the Revenue Test of Madras, Travancore or Cochin. Provided that the Head Draftsman and First Grade Draftsmen who were in service on 2.4.1964 and the Head Com puters who were in the Service on 23.4. 1965 shall be given exemption for a period of two years from the said dates from acquiring the said dates from acquiring the Account Test for Executive Officers and the Revenue Test of Madras, Travancore or Cochin with the usual concession to members of the Scheduled Castes and Scheduled Tribes.
Aforementioned rule would show that appointments to the post of Superintendent of Survey and Land Records be made by direct recruitment and also by recruitment transfer. For the post of Technical Assistant appointments can be made by recruitment by transfer. Rule 4 deals with probation. We may extract the provision for easy reference.
4. Probation. Any person appointed to a category shall from the date on which he joins duty, be on probation for a total period of one year on duty within a continuous period of two years when appointment is made by promotion and for a total period of two years on duty within a continuous period of three years when the appointment is made by direct recruitment or by transfer.
For appointment made to the post of Superintendent of Survey and Land Records they need only possess the qualification laid down therein. However, a probationer Superintendent of Survey and Land Records recruited direct shall be within the prescribed period has to pass departmental tests such as Selective Test for Head Surveyors, Account Test for Executive officers of the Kerala State, Revenue Test etc. Tests' are dealt with in Rule 6 which is extracted for easy reference.
Tests, A probationary Deputy Director of Survey and Land Records, a Probationary Assistant Director of Survey and Land Records and a Probationary Superintendent of Survey and Land Records recruited direct shall within the prescribed period of probation pass -
(i) Selective Test for Head Surveyors
(ii) Account Test for Executive Officers of the Kerala State
(iii) Revenue Test We may indicate in the table referred to earlier, Column 3 deals with only qualifications and not tests as provided in the subordinate service. In other words, either by direct recruitment or recruitment by transfer qualification prescribed in the rules states that one should possess the qualification prescribed for such service. We have seen that for appointment by recruitment by transfer one should possess the minimum general educational qualification of SSLC standard, pass in the Head Surveyors and Sub Assistants Test of Madras or the Head Surveyors' Test of Travancore or the Theodolite Test and Mapping test of Cochin, pass in the Account Test of Madras, Travancore or Cochin or Account Test for Executive Officers of Kerala State and pass in the Revenue Test of Madras, Travancore or Cochin provided that a person who has passed the Head Surveyors' and Sub-Assistants' test of Madras shall not be required to pass the Revenue test. So also for the post of Technical Assistant some of the tests are prescribed as essential qualifications. Those qualifications are to be acquired after joining the State service. In other words, only those persons who possess the qualifications alone can aspire for appointment by transfer to the post of Superintendent of Survey and Land Records or to the post of Technical Assistant. Rule 13B cannot be imported to get permanent exemption from essential qualification prescribed for respective posts in Rules. Those qualification cannot be characterised as obligatory departmental tests. They are basic essential qualification for direct recruitment and for recruitment by transfer. Rule 6 refers to tests in the case of those persons who are recruited directly and not relating to persons who were appointed to the post of Superintendent or Technical Assistant etc. by transfer.
Rule 10(a)(i) of the Kerala State and Subordinate Services Rules states that educational or other qualification, if any, required for a post shall be as specified in the Special Rules applicable to the service in which that post is included. The said rule is also extracted for easy reference.
10. Qualifications (a)(i). 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 or as specified in the executive orders of Government in cases where Special Rules have not been issued for the post/service.
In the Kerala State and Subordinate Services Rules, there is no definition of the expression 'obligatory departmental tests'. We may search and find the meaning of those words from the Kerala Service Rules. Explanation to Note 2 of Rule 12(7) of Part I of the Kerala Service Rules explains the term "obligatory departmental examination" as follows:
(i) any test a pass in which is prescribed for the successful completion of probation or training of an officer, whether recruited direct or by transfer;
(ii) any test a pass in which is prescribed for the purpose of making an officer eligible for increment or for confirmation in any post;
(iii) any test a pass in which is prescribed for promotion to any higher post coming in the line of promotion in the department concerned;
(iv) .................................................
(v) ........................................
Contention was raised by the writ petitioners that in view of Clause (iii) to the Explanation 'tests' specified in the State service are only obligatory departmental tests. Rule 2(13) of the Kerala State and Subordinate Services Rules would indicate that a candidate is said to be recruited by transfer to a service, if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service. We may extract the said rule for easy reference.
(13) A candidate is said to be "recruited by transfer" to a service-
(i) if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service; and (ii) if at the time of his first appointment thereto- (a) he is either a full member or an approved probationer in any other service, the rules for which prescribed a period of probation for members thereof. (b) he is the holder of a post in any other service for which no probation has been prescribed, and has put in satisfactory service in that post for period of two years on duly within a continuous period of three years.
Aforementioned provisions and the Explanation to Rule and the Explanation to Note 2 would positively show that recruitment to the post of Superintendent of Survey and Land Records etc. are to be made by transfer from the subordinate service. Petitioners are admittedly in the subordinate service. They can aspire for appointment to the post of Superintendent of Survey and Land Records only by recruitment by transfer. We may indicate that the tests indicated are qualifications and not departmental tests within the meaning of Rule 2(13). Consequently there is no question of any permanent exemption. Same is the position as far as the last proviso to Rule 13B as well which states that 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. We have found various tests have been prescribed for posts in the State service. Passing of those tests is essential for appointment by transfer. Those tests are not to be treated as departmental tests so as to get exemption under Rule 13B of the K.S. & S.S.R.
10. We are therefore in agreement with the decision of the learned Single Judge in Mathew's case, supra. Principles we have laid down in this case would apply all other Writ Petitions as well. Rights of the parties will be regulated accordingly. We also indicate that in view of the wrong interpretation, any monetary benefit has already been conferred, the same shall not be recovered. The Departmental Promotion Committee would finalise the select list on the basis of the principles laid down by us. All the Writ Petitions are disposed of as above.