P S SUBRAMANIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE dispute in this case is, we should think, concluded by the decision of tins Court in O. P. Nos. 1715 and 1716 of 1963, two writ petitions raising the same question and disposed of by a common judgment by a Division Bench-the decision is reported in R. Ezhuthachan v. State of Kerala (1965) K. L. T. 485. That was a decision inter parties?the petitioners here were, respondents 30 and 23 respectively in each of those petitions, while, of the present contesting respondents, the 1st respondent Side of Kerala was the 1st respondent in each of those petitions and the present 3rd respondent, the petitioner in O. P. No. 1715 of 1963, and the present 4th respondent, the petitioner in O. P. No. 1716 of 1963. There the Division Bench held-and, with great respect, we think rightly-that the effect of the Government orders, Exts. P-4 (a), P-4 (b), P-4 (c) and P-4 (d)-the last mentioned is only a memorandum and not an order properly speaking-dated 7. 3. 1958, 19. 3. 1958, 9. 6. 1959 and 24. 10. 1959 respectively, was that audit clerks like the present petitioners allotted from the Madras service to the Kerala service on reorganisation of the States in the department of the Examiner of Local Fund Accounts were exempt from posing the obligatory departmental tests for promotion to the higher post of Inspector "from 1st November, 1956 till they get two chances beginning from the first examination conducted by the Kerala Public Service Commission on the basis of the Madras Rules. " During the period of the exemption they were to be provisionally promoted to the higher post in the ordinary course as if they were qualified. If they passed the test within the period of exemption, the provisional promotion was to be affirmed, whereas, if they did not pass it within the period of exemption they were to be reverted and their promotions were to be of no account. This apparent concession was given because, while until the framing of the unified rules governing the integrated Kerala service, the personnel allotted from Madras were to pass the Madras Departmental tests and those allotted from Travancore-Cochin the Travancore-Cochin departmental tests. No Madras tests had been held for the Madras personnel whereas, at the same time, two tests were being held every year for the Travancore-Cochin personnel. This meant that by the time the orders Exts. P-4 (a) and P-4 (b) were issued, the Travancore-Cochin personnel had had four opportunities for qualifying themselves for promotion whereas the Madras personnel, for no fault of theirs, had none. The result was that persons like the 3rd and 4th respondents who were juniors to the petitioners in the integrated category of audit clerks of Madras and upper division auditors of Travancore-Cochin were able to qualify themselves for promotion while the petitioners could not; and, consequently, they secured the vacancies that occurred superseding the petitioners. Such persons, who thus stole a march over their senior Madras competitors during the period of exemption, were to be reverted and the seniors provisionally promoted pending the acquisition of the requisite qualifications by them during the period of exemption. Now, the first order, Ext. P-4 (a), was made, not in respect of audit clerks of Madras and upper division auditors of Travancore-Cochin, but in respect of lower division clerks of both services who had to pass the respective departmental tests for promotion to the upper division of the Kerala service. These departmental tests were being held both in Madras and in Travancore-Cochin twice a year; but, while the Kerala Government continued to hold the Travancore-Cochin tests which the Travancore Cochin personnel could take, no arrangements were made for holding the Madras test for the Madras personnel allotted to Kerala until March 1958 when the first examination was held. Exhibit P-4 (a) expressly states?the operative portion of that order has already been quoted?that the exemption was from the 1st November, 1956 until the Madras personnel got two chances beginning from the first examination conducted by the Kerala Public Service Commission on the basis of the Madras rules. By Ext. P-4 (b), the so-called concession given to the lower division clerks allotted from Madras by Ext. P-4 (a) was extended to all personnel allotted from Madras who had to pass the Madras departmental tests for securing promotion to a higher post but who had been deprived of the opportunity of qualifying themselves by reason of the Kerala Government's failure to hold tests for them while at the same time holding qualifying tests for their Travancore-Cochin competitors. The operative portion of Ext. P-4 (b) reads thus: The concessions granted in the above G. O. should apply not only to the promotion of lower division clerks to upper division clerks but also to all other posts for which tests have been prescribed for promotions and where such tests were conducted by the Madras Public Service Commission. Clearly this means that the audit clerks allotted from Madras were to be exempted from the 1st November, 1956, until they got two chances beginning from the first examination conducted by the Kerala Public Service Commission on the basis of the Madras rules. Exhibit P-4 (c) was issued because it was discovered that some of the personnel allotted from Madras had had an opportunity of sitting for an examination conducted by the Madras Public Service Commission in November, 1956. Therefore it was ordered that since those persons had a chance to sit for the Madras test in November 1956 such of them who did not get themselves qualified then would be ineligible for any concession till the 15th May, 1957, the latter apparently being the date on which the first test was held in Kerala for the allotted personnel after November 1956. This would give them the two chances contemplated by Ext. P-4 (a); else they would have three. Although both Exts. P-4 (a) and P-4 (b) are read in this G. O. , Ext. P-4 (c), it seems to us that it is actually a qualification only to Ext. P-4 (a) and not to Ext. P-4 (b), at any rate not so far as audit clerks are concerned, since it is the admitted case that no departmental test was held in Madras for audit clerks in November 1956 which the personnel allotted to Kerala had an opportunity of taking. However that might be, that is of little consequence since the vacancies which the 3rd and 4th respondents claim in the higher post of Inspector occurred after the 15th May 1957, during the period when, even if Ext. P-4 (c) applied, the exemption in favour of the Madras personnel was in force if, as Exts. P-4 (a) and P-4 (b) so unequivocally state, the exemption was until they had had two opportunities of taking the test after November 1956. Exhibit P-4 (d), which as we have mentioned is only a memorandum and cannot override or qualify Ext. P-4 (a) or Ext. P-4 (b), merely explains the position under Exts. P-4 (a), P-4 (b), and P-4 (c), and, in doing so, states that the period of exemption granted under Ext. P-4 (a) and Ext. P-4 (b) commenced from the 15th May 1957 and was in force till the publication of the results of the examination held in November 1958 by the Kerala Public Service Commission in accordance with the Madras rules. Obviously this statement does not apply to the case of audit clerks allotted from Madras since admittedly there was no examination held for them by the Kerala Public Service Commission in November 1958 in accordance with the Madras rules. The statement is clearly limited to lower division clerks with regard to their promotion to the upper division. But, even if it is not to be read as so limited that is of little consequence, since, as we have already said, this statement in a mere memorandum cannot qualify or override the orders passed in Exts. P-4 (a) and P-4 (b ).

(2.) IN the integrated seniority list for the category of audit clerks, Madras/upper division auditors, Travancore-Cochin, as on I-1. 11. 1956 published on 13. 10. 1962, the petitioners are admittedly senior to respondents 3 and 4, The first qualifying examination held in Kerala for which the petitioners could have appeared was held in March 1958 The second examination was held in April 1959 and both the petitioners passed in the second examination held in April 1959. Respondents 3 and 4 had passed the Travancore-Cochin qualifying test in the second examination held after November 1956, namely, the examination held in November 1957 and had been promoted as Inspectors in December 1957 superseding the petitioners who were not qualified for promotion and had had no opportunity of qualifying themselves after November 1956, indeed, after April 1956 when they could have taken the examination held in Madras, It is the common case that, if under Ext. P-4 (b) read with Ext. P-4 (a), the petitioners were exempt from passing the test until the second test held in April 1959 at which they actually passed the test, then the petitioners were entitled to the promotion in preference to respondents 3 and 4. But, while it is the case of the petitioners that the exemption extended until such time as they had had two chances to appear for the test, namely, up to the test which they passed in April 1959, it is the case of respondents 3 and 4 supported by the State that the exemption granted was only for one year, namely, the year 1958. That latter contention found favour with the learned single Judge who dismissed the writ petition brought by the petitioners for securing promotion to the higher post of Inspector in preference to respondents 3 and 4 with the result that the 1st petitioner has brought this appeal.

(3.) AS we have already said more than once it seems to us quite clear that, as the Division Bench held in R. Ezhuthachin v. State of Kerala (1965) K. L. T. 485, the exemption granted by Ext. P-4 (b) read with Ext. P-4 (a) is from November 1956 until such time as the Madras personnel had had two chances to appear for the test conducted by the Kerala Public Service Commission in accordance with the Madras rules. In the case of lower division clerks, Madras was conducting two tests every year whereas for audit clerks, Madras was conducting only one test a year. The Travancore-Cochin tests were held both by Travancore-Cochin and by Kerala twice a year for both lower division clerks and upper division auditors?the latter as we have seen were equated with the audit clerks of Madras. The argument advanced on behalf of respondents 1, 3 and 4 in so far as we have been able to understand it, is that, because Ext. P-4 (a) said that the allotted Madras lower division clerks should have exemption till they got two chances to appear for the test and there were two tests held per year, the exemption was really not until two chances were given but until the expiry of one year from the time the examinations were first held and that therefore the exemption extended to audit clerks by Ext. P-4 (b) is not what Exts. P-4 (a) and P-4 (b) say, namely, exemption until two chances are afforded, but exemption until the expiry of one year which, seeing that only one examination was being conducted per year in Madras for audit clerks would work no injustice even if it meant that only one chance was afforded. This contention seems to us quite contrary, not merely to the express wording of Exts. P-4 (a) and P-4 (b) but to their underlying purpose, and, notwithstanding the stand which the 1st respondent State Government has chosen to take, altogether unacceptable.