M SOMARAJAN DEPUTY DIRECTOR Vs. STATE OF KERALA

JUDGEMENT

(1.) Whether the exemption granted by Government to the members of Scheduled Castes/Scheduled Tribes in service by appropriate orders passed, as empowered by Rule 13AA of the General Rules' in the Kerala State and Subordinate Services Rules, 1958 (for short 'the Rules') is applicable to the special tests prescribed as essential requirement as per the special rules for appointment to the post of Superintendent of Survey and Records, is the moot question debated in these appeals. The learned single Judge, as per the impugned judgment, held that the orders issued by Government granting test exemption in terms of Rule 13AA to the members of Scheduled Castes/Scheduled Tribes, will be applicable in respect of the special tests prescribed as well. Therefore, this appeal.

(2.) It is contended by the appellants that, as per the special rules for the Kerala Survey and Land Records service (Special Rules), no person shall be eligible for appointment as Superintendent of Survey by appointment by transfer, unless he possesses the required test qualification like the Head Surveyor's test, Account Test Lower and Revenue Test or other equivalent test. Therefore, these are special tests prescribed as essential qualifications for the post. The exemption in terms of the orders issued under Rule 13AA read with Rule 13AB and 13B shall be applicable only to departmental tests and not to the tests which are made essential for a particular post as per the Special Rules. It is further submitted that these tests are essential qualifications even for the post of Head Surveyor, the feeder category to the post of Superintendent of Survey and Land Records. The writ petitioners, who belong to the Scheduled Castes/Scheduled Tribes, became Head Surveyors enjoying the exemption. Thereafter, they cannot, again seek exemption from the very same test which are prescribed as essential for the promotion post. It is further contended that Government is issuing orders as empowered under Rule 13AA successively from 1972 onwards, granting temporary exemption to members of Scheduled Castes/Scheduled Tribes in service. The exemption consecutively granted from 1972 for decades together is a permanent exemption. Therefore, it runs contra to the intention granting temporary exemption under Rule 13A. Relying on the decision reported in State of Kerala v. N.M. Thomas , it is submitted that while upholding the temporary exemption, the Supreme Court did not envisage it as a permanent affair. By reason of the orders passed successively in terms of Rule 13AA, this exemption is now being used as a permanent feature. Ultimately majority of the persons holding the post of Superintendent of Survey and Land Records, are incumbents without Head Surveyor's test and hence, the efficiency of the Department of Survey and Land Records is adversely affected. It is further submitted that as under-qualified hands are promoted, the morale of qualified hands is eroded. Therefore, the appeals are to be allowed, setting aside the judgment impugned, the appellants submit.

(3.) The stand taken by Government is that exemption is not available in respect of the special tests. It is further contended by the appellants, including the State, that the duties and functions enjoined on the persons holding such posts require passing of these special tests. It is in consonance with Rule 13 and Rule 28(b) of the Rules, which provide that no one shall be eligible for appointment by transfer or promotion, without the essential qualification prescribed as per the Special Rules.