MARTIN K MATHEW Vs. N S VIJAYAN

JUDGEMENT

(1.) The question involved in these two Writ Appeals is with regard to the application of 2nd Proviso to Rule 13B of the General Rules in K.S. & S.S.Rules, 1958 (hereinafter referred to as the Rules). The appellant as well as the writ petitioners, who are the respondents herein, belongs to the category of Deputy Superintendent of Police, Category 1A in the Kerala Police Service. The appellant, who is also Addl.3rd respondent in O.P.No.23598 of 2000 has passed the Account test for the Executive Officers of Kerala prescribed Under clause (e) of R.8 of the Special Rules for Kerala Police Service, to be passed during the period of probation, by one appointed to the category of Deputy Superintendent of Police. The writ petitioners-respondents did not pass that test. They applied for exemption in terms of Rule 13B of the Rules from passing the said obligatory test prescribed for declaration of probation. The Government declined their request as per Ext.P3 marked in O.P.No.23598 of 2000, on the ground that going by the 2nd proviso to the said Rules so far as Executive staff belonging to Police Department are concerned, Rule 13B did not have any application.

(2.) Rule 13B deals with the test prescribed for the purpose of promotion, appointment of full membership etc. One is entitled for promotion only after successful completion of the probation which is essential for appointment as full member of the service. The test prescribed under Rule 8(e) of the Special Rules being one for successful completion of probation, the Government took the view that it is a pre-requisite for promotion. Therefore, going by the 2nd proviso, they were not entitled to the exemption provided in Rule 13B. Consequently, their promotion to the higher category was also declined. This resulted in O.P.No.3451 of 2000 to which the appellant is not a party.

(3.) The learned Single Judge took the view that 2nd proviso refers to only promotion and not probation. The Executive Staff belonging to Police Department covered by the 2nd proviso are entitled far exemption from the test prescribed for appointment as a full member, but not from that prescribed for promotion. Therefore, they were entitled to declaration of probation on exemption provided under Rule 13B, which they are entitled to. In other words, the learned single Judge was of the view that inapplicability of the Rule 13B by reason of 2nd proviso thereto, is confined to the test prescribed for promotion alone. The learned single Judge, therefore, held that they were entitled to exemption and consequently to declaration of probation. The learned single Judge also found that the Special Rules relating to the Kerala Police Service do not prescribe any obligatory Departmental Test as a pre-condition for promotion. Once they are entitled for exemption from passing the test prescribed for probation, they are entitled for satisfactory completion of probation without insisting for any test. There was nothing disentitling them for being promoted. So, the denial of promotion was also interfered with. Both the Original Petitions were thus allowed. Therefore, these appeals by the appellant. W.A.No.563 of 2002 is filed against the judgment in O.P.No.23598 of 2000 and W.A.No.612 of 2002 is against the judgment in O.P.No.34514 of 2000.