Kerala High Court
K.Nalinakshan vs State Of Kerala Represented By Its on 11 June, 2007
Author: C.N.Ramachandran Nair
Bench: C.N.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR
&
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
WEDNESDAY, THE 23RD DAY OF MAY 2012/2ND JYAISHTA 1934
WA.No. 2719 of 2007 (B) IN WPC. NO. 12736/2007
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AGAINST THE JUDGMENT IN WPC. NO. 12736/2007 DATED 11-06-2007
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APPELLANT/PETITIONER:
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K.NALINAKSHAN ,AGED 49 YEARS,
UPPER DIVISION CLERK, SPECIAL VILLAGE OFFICER
VILLAGE OFFICE, ANAKKARA, PUTTADY P.O.
VADAMEDU, (VIA) IDUKKI DISTRICT
PRESENTLY WORKING AS UDC, TALUK OFFICE
UDUMBANCHOLA.
BY ADVS.SRI.MOHAN JACOB GEORGE
SMT.P.V.PARVATHI
SMT.REENA THOMAS
SRI.L.RAM MOHAN
RESPONDENT(S):
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1. STATE OF KERALA REPRESENTED BY ITS
PRINCIPAL SECRETARY, REVENUE DEPARTMENT
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. PRINCIPAL SECRETARY, P & ARD DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM.
3. COMMISSIONER OF LAND REVENUE
THIRUVANANTHAPURAM.
4. DISTRICT COLLECTOR,
IDUKKI.
BY GOVERNMENT PLEADER SRI. LIJU STEPHEN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DCS
WA.No. 2719 of 2007 (B)
APPENDIX
PETITIONER(S) ANNEXURE :-
ANNEXURE A1: COPY OF THE ORDER NO. 56/03/GAD DATED 26.06.2003 OF THE IST
RESPONDENT
ANNEXURE A2: COPY OF THE ORDER NO. A3.27/06 DATED 14/08/2006 OF THE
TAHSILDAR, UDUMBANCHOLA
ANNEXURE A3: COPY OF THE G.O. (MS) NO. 12/2001/RD DATED 17/01/01
ANNEXURE A4: COPY OF THE GUIDELINES ISSUED BY THE GOVERNMENT FOR
RELAXATION OF SERVICE RULES INVOKING RULE 39
RESPONDENTS' ANNEXURE :- NIL
ANNEXURE R3: COPY OF THE DETAILS OF THE DEPARTMENTAL TEST
CONDUCTED BY THE PUBLIC SERVICE COMMISSION DURING
THE PERIOD FROM 1986 TO 2004
/TRUE COPY/
P.A. TO JUDGE
DCS
C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM,JJ.
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WA.NO. 2719 of 2007
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Dated this the 23rd day of May, 2012
JUDGMENT
Ramachandran Nair, J.
Appeal is filed against the judgment of the learned Single Judge upholding Ext.P15 whereunder the appellant's promotion as U.D.Clerk is approved only with effect from 20.10.2004 as against the appellant's claim for retrospective promotion by virtue of the exemption available under Rule 13 A(1) of Part II of the KS and SSR. We heard counsel appearing for the appellant and the senior Government Pleader for respondents.
2. Appellant a member of the scheduled caste community joined the service of the State as Village Assistant on 2.2.1987 and on completion of two years his probation was declared on 2.2.1989. For promotion as UD Clerk appellant ought to have passed department test which he passed only on 20.10.2004. However in between the appellant's claim for promotion without test qualification based on Rule 13 A(1) of the KS and SSR was considered pursuant to the direction issued by this court in Ext.P7 WA.2719 /2007 2 judgment dated 27.2.2003. In principle Government vide Ext.P8 order dt. 14.7.2003 stated that a qualified member of the scheduled caste community is entitled to get exemption for promotion without passing department test on condition that he will pass the test within 3 years of promotion and on failure he will face reversion. Going by rule 13 A (1) the appellant should have been promoted against any vacancy of UD Clerk that arose after 1.2.1989 without his passing the test. However such promotion would have been only with an exemption for 3 years and if the appellant failed he would have been reverted. However based on Exts.P7 and P8 appellant was in fact promoted by granting exemption from test qualification on 5.9.2003. The matter was again considered based on appellant's claim for retrospective promotion vide Ext.P13 (a) wherein the appellant is given notional promotion on 20.10.2001, three years prior to his acquiring qualification. Not being contended with Ext.P13(a) the appellant again approached this court and based on the direction Government issued Ext.P15 order wherein the appellant suffered a further set back by getting his promotion approved only with WA.2719 /2007 3 effect from 20.10.2004 which was challenged in WP(C). No.12736/2007. Learned Single Judge held that Rule 13 A (1) of KS and SSR is not an absolute rule and only a provision that entitled persons to get promotion in advance without passing the department test, but on the specific condition that he should pass the test within 3 years of promotion and failing which he will face reversion. It is seen from Ext.P15 which is confirmed by the learned Single Judge that promotion was notionally declared from 12.6.89 onwards. However such notional promotions were declared forfeited by the appellant on account of his failure to pass the test within 3 years from the said date. Learned Single Judge upholding the logic applied by the Government in Ext.P15 and declared appellant's eligibility for promotion as UDC only with effect from 20.10.2004.
3. After hearing both sides we are of the view that there is no case for notional retrospective promotion based on Rule 13 A(1) above stated because the rule is applicable only as an exemption clause. Automatically there would have been notional withdrawal within 3 years of such promotion because WA.2719 /2007 4 the person is granted promotion without passing test on specific condition that test qualification should be acquired within 3 years of the promotion. Therefore if notional promotion is given he is not entitled to continue beyond 3 years based on Rule 13 A (1). So much so we feel in fact based on Ext.P7 judgment and P8 order appellant was promoted as UDC on 5.9.2003 and within 3 years time there from he should have passed the test on 20.10.2004. However we feel the leniency shown by the Government in Ext.P8 that is the period of exemptions is perfectly in order because within 3 years from 20.10.2004 the appellant passed the test qualification. We therefore feel the appellant is entitled to the relief granted by the Government vide Ext.P13 (a) declaring eligibility for notional promotion as UDC from 20.10.2001, that is the period of 3 years prior to the actual passing of the test which will be in compliance with the order. We are also of the view that a person who was not denied the benefit of Rule 13A(1) cannot claim retrospective promotion except for 3 years prior to the actual passing of the test for promotion provided there is a vacancy as on that date or any WA.2719 /2007 5 date prior to that. WA is allowed in part limiting the relief to the above extent.
C.N.RAMACHANDRAN NAIR, JUDGE
C.K.ABDUL REHIM, JUDGE
pmn/
WA.2719 /2007 6