PASUPALAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is aggrieved with the reversion effected by Exhibit P2, which he claims to be not permissible by reason of the exemption available under Rule 13B of the Kerala State and Subordinate Services Rules, 1958 [for brevity "K.S. & S.S.R."]. The petitioner's first appointment in the Kerala Toddy Workers' Welfare Fund Board [for brevity "the Board"] was as a Peon on 20.10.1973 and then was promoted as a Lower Division Clerk [for brevity "LDC"] as per order dated 26.06.2000. By Exhibit P1, the petitioner having crossed 50 years, was promoted as an Upper Division Clerk [for brevity "UDC"], granting exemption allegedly under Rule 13B. Immediately thereafter, on a complaint raised by certain employees, the petitioner's promotion was cancelled and he was reverted back to the post of LDC. The petitioner was before this Court for consideration of his representation, as is evidenced by Exhibit P3, which was declined by the Board as per Exhibit P4, which is challenged herein. The petitioner's contention is that, the Special Rules existing as on the date of the petitioner's promotion was Exhibit P8, wherein the mode of appointment to the cadre of UDC is prescribed as, promotion from the cadre of LDC and the qualifications prescribed were:

(2.) The learned Sr. Government Pleader and the learned Standing Counsel for the respondent -Board, however, would contend that the test prescribed under the Special Rules for the Board is an essential qualification for promotion and not an obligatory departmental test. The learned Sr. Government Pleader also would specifically refer to the decision cited and the Special Rules considered thereunder, wherein prescription of "qualification and test" was under such specific heading. The learned Standing Counsel for the Board also refutes the ground of discrimination urged on the basis of Exhibit P9; a similar promotion granted just one month before; with the contention that all such promotions granted have been reviewed as has been stated in the counter affidavit.

(3.) The question that assumes significance is as to whether the test prescribed under the Special Rules is an essential qualification for promotion or a mere obligatory departmental test. In this context, it is to be specifically noticed that Rule 13B draws a distinction between an obligatory departmental test and those prescribed as essential qualification in the Special Rules. Sarojini Amma (supra) was a case in which the ambit and scope of Rule 13B was examined in the context of promotion in the subordinate service and whether it would be applicable for promotion to State service. The promotions which were the subject matter of the above case was to the post of Head Surveyor and Superintendent, both of which fall within the State service. While considering the said issue, the Division Bench considered the aspect of promotion within the subordinate services itself and specifically noticed the prescription of eligibility for promotion to the post of Head Surveyor. There, the qualification and test were specifically provided under the heading "qualification or test". The Division Bench noticed the said heading and found that the graduate qualification prescribed would be the essential qualification for the post and the test prescribed would be one which could be exempted under Rule 13B, since it can be only taken as an obligatory departmental test.