C.R. JOSE Vs. BOARD OF REVENUE

JUDGEMENT

(1.) 37 connected cases were posted for hearing as involving the consideration of common questions in the matter of selection and promotion of Excise Inspectors.Out of them,it was agreed at the Bar that item Nos.23,24 and 31,O.P.Nos.9257 of 1984,9227 of 1984 and 9393 of 1984 will not be covered by the common questions posed for consideration in O.P.5733 of 1985 and other cases.So,the Judgment in these group of cases will not cover those original petitions.So also,it was submitted that item No.30,O.P.No.7793 of 1984 and item No.21,O.P.9036 of 1984 involves other questions and on that basis those two cases are also deleted.So,this Judgment will cover only the balance 32 cases in the list.A common counter -affidavit has been filed in O.P.No.5733 of 1985.There was a prayer to accept the counter -affidavit in O.P.5733 of 1985 dated 31st January 1986 as the counter -affidavit in all the other cases.That was granted.

(2.) BOTH sides agreed that O.P.5733 of 1985 can be taken up as a representative case and if the controversy therein is adjudicated,the said decision shall govern the entire batch of 32 cases.On the basis of this representation,we took up O.P.5733 of 1985 and heard counsel.We heard counsel for the petitioners in O.P.5733 of 1985,Mr.M.M.Cherian as also counsel for the respondents,the learned Government Pleader,Mr.Cyriac Joseph,who appeared for the State and the Board of Revenue,Mr.O.V.Radhakrishnan,Advocate who supported the Government Pleader on many issues and Mr.T.P.Kelu Nambiar who appeared for respondents 4 and 5 in O.P.Nos.9797 of 1985,2240 of 1979 and 947 of 1980.We also heard Mr.Pirappancode V.Sreedharan Nair who appeared for the petitioners in some of the original petitions and M/s Chandrasekharan and Chandrasekhara Menon who appeared for some other petitioners in the original petitions.They largely supported the arguments of Shri M.M.Cherian,Advocate.Coming to the facts in O.P.5733 of 1985,there are 5 petitioners in this original petition.They are Preventive Officers in the Excise Department.They state that they are qualified for promotion to the next higher category of Excise Inspectors having passed all obligatory tests.The prayer in the original petition is to quash Ext.P -6 proceedings of the Board of Revenue dated 14th May 1985 and to implement Ext.P -2 and Ext.P -3 judgments of this Court rendered in.O.P.7103 of 1984 and O.P.Nos.6730 of 1984 and 7988 of 1984 respectively.They also pray for the issue of a writ of mandamus to promote the qualified persons with effect,from 13th May 1984 when the vacancies arose,as a result of the reversion of unqualified Excise Inspectors.They have prayed for reverting all unqualified Excise Inspectors provisionally promoted prior to 14th May 1982 or after that date.The Special Rules for the Kerala Excise and Prohibition Subordinate Service was published by G.O.( P)112/74/TD,dated 9th September 1974,in the Kerala Gazette dated 24th September 1974,S.R.O.No.689/74.We are concerned herewith the appointment of Excise Inspectors.Clause 2 deals with the appointment to the various categories of posts.For the purpose of resolving the controversy in these original petitions,it is sufficient to state that the method of appointment to the category of Excise Inspectors is either by "direct recruitment or promotion from category(2 )(Excise Preventive Officers)" ;.Clause 5 contained the qualifications for the post.Clause 6 provided,that every person appointed to the post of Excise Inspector either by direct recruitment or by transfer or promotion shall pass two tests:( 1)Account Test(Lower)and(2)Excise Tests "Parts A and B.It is common ground that the post of Excise Inspector was a selection post at all material times. By G.O.( Ms.) 62/77/TD,dated 10th June 1977,published in Kerala Gazette dated 28th June 1977,Note 2 was inserted in rule 2 to the effect that "for the purpose of appointments by promotion and by transfer the category of Excise Inspectors shall be a selection category."The Explanatory Note to Notification,G.O.( Ms.) 62/77/TD,dated 10th June 1977 stated that "the post of Excise Inspector was a selection post prior to the issue of the Special Rules,but this aspect was overlooked when the Special Rules were issued.Since it is necessary to confine the post of Excise Inspector as a selection post,the Notification was being issued."By G.O.( P)36/82/TD,dated 14th May 1982 published in Kerala Gazette dated 6th July 1982,clause 6 of the Special Rules originally published on 9th September 1974 specifying the tests,was amended.The notification dated 14th May 1982 specified an additional test,by clause(2)of the amendment effected.By G.O.( P)36/82/TD,dated 14th May 1982,clause 6(1)in column(2)and clause 6(2)in column(2)were amended to include for both direct recruits and promotees,a pass in an additional test ,namely,District Office Manual or Manual of Office Procedure.The Note to the said amendment provided that two years or four chances shall b e given to the Officers to pass the Departmental Tests, that is,Manual of Office Procedure or District Office Manual from the date of the orders(14th May 1982 ).The Explanatory Note to the amendment dated 14th May 1982 made it clear,that,it is to make the Excise Personnel to acquire experience in office work and to make them proficient therein,the additional test was prescribed.The petitioners state that the two years period fixed by G.O.( P)36/82/TD,dated 14th May 1982 expired on 14th May 1984 and four chances were,also given by or before 8th May 1984.It is their further case that from 9th September 1974,the Departmental Promotion Committee never met for selection of Excise Inspectors(officers)and all promotions were made only provisionally.By Ext.P -1 order of Government dated 24th October 1984,the Board of Revenue was informed that in view of G.O.( P)36/82/TD dated 14th May 1982,the period for passing the tests expired on 13th May 1984 and persons who did not pass the tests within the above period should be reverted ,except those who are eligible for general exemption as per General Rule 13B.Rejecting the proposal of the Board to grant extension of time for one year from 13th May 1984,for passing the tests,the Government also rejected the request of Mr.V.M.George and others in that regard.Mr.V.M.George and others filed O.P.7103 of 1984 and assailed G.O.( P)36/82/TD,dated 14th May 1982 and prayed for the issue of writ of mandamus to compel the State to permit the petitioners to continue in the post of Excise Inspectors and for further reliefs.Sivaraman Nair,J.by Judgment dated 5th November 1984 held that the rights of the petitioners therein are to be regulated by the terms of their promotions which admittedly were only provisional promotions and also subject to an obligation to give place to qualified candidates. Since the provisional promotions were not regularised,the petitioners were disentitled to any relief and dismissed the original petition.This decision was affirmed in Writ Appeal 16 of 1985.Subsequently,one G.Raveendran Pillay and C.R.Jose and others filed O.P.6730 of 1984 and 7988 of 1984 and complained that even after the period of exemption provided by G.O.( P)36/82/TD,dated 14th May 1982,unqualified persons are allowed to continue as Excise Inspectors on provisional basis ,preventing the chances of the petitioners who were fully qualified for promotion to the higher category and in effect a writ of mandamus was prayed for,to enforce Ext.P -1 order of the Government dated 24th October 1984.Balakrishna Menon,J.by Judgment dated 7th February1985 directed implementation of the Government order dated 24th October 1984,Ext.P -1,in this case(Ext.P -9 in the said O.P.).The Government took up the matter in Writ Appeal 209 of 1985,feeling aggrieved by the judgment in O.P.7988 of 1984.In the Writ Appeal memorandum in paragraph 2,it was contended by the State as follows: "The learned Single Judge while holding that requirement of rule 13A(2)of the State and Subordinate Service Rules is mandatory and those who have failed to secure the obligatory test qualification during the period of exemption while holding the post of Excise Inspectors on a provisional basis are liable to be reverted as Preventive Officers failed to take into consideration whether the Excise Preventive Officers who were promoted as the Excise Inspectors prior to the coming into force of Ext.P -1 notification that are also liable to be reverted. It is submitted that the Preventive Officers who were promoted prior to coming into force of Ext.P -1 Notification dated 14th May 1982 and who have not acquired the qualifications prescribed by the said Notification within the period of exemption are not liable to be reverted in terms of rule 13A(2)of the State and Subordinate Service Rules.This important aspect of the matter was lost sight of by the Single Judge in the judgment under challenge." Writ Appeal 209 of 1985 was dismissed by a Division Bench by Judgment dated 12th April 1985.Even then,by Ext.P -6 proceedings,dated 14th May 1985 the Board of Revenue held that the test was introduced on 14th May 1982,and those persons who were otherwise qualified and who were promoted before 14th May 1982 will not be affected by the introduction of the test and they do not have to be reverted.But those persons who were promoted after 14th May 1982 and who have not passed the test during the period of exemption,will be reverted and in their places qualified persons will have to be promoted.The petitioners attack Ext.P -6 order as illegal and contrary to the judgments of this Court in Ext.P -2 as affirmed in Writ Appeal 16 of 1985,and Ext.P -3 as affirmed by Ext.P -5 and Ext.P -1 order of the Government itself.The petitioners state that the view of the 1st respondent in Ext.P -6 order that those persons who were otherwise qualified and who were promoted provisionally as Excise Inspectors before 14th May 1982 will not be affected by the introduction of the test and they do not have to be reverted is clearly illegal.It is also against the tenor of Ext.P -2 and P -3 judgments and the judgments rendered in the Writ.Appeals therefrom as also Ext.P -1.They pray for quashing the said direction and further pray for reverting all unqualified Excise Inspectors provisionally promoted whether prior to 14th May 1982 or after that date.Counsel contended that once such Special Rules have been promulgated by G.O.( P)36/82/TD,dated 14th May 1982,the vacancies, whether they arose before or after the date,of the Special Rules ,are to be filled up only as per the Special Rules.Counsel laid stress on rule 6(2)of the Special Rules which provided that "no person shall be eligible for appoint -ment ¦ ;.. unless he has passed the tests specified ¦&hellip ;.. Reference was also made to definitions contained in Kerala State and Subordinate Services Rules,1958,rule 2(1)specifying 'appointment to a service ' ;,rule 2(9)'member of a service 'as also to rule 9 clause(iv)and rule 31(c) to show that any person provisionally or temporarily appointed is not a member of the service. In view of the amendment contained in rule 6(2)of the Special Rules,when the question of filling up of a vacancy to the post of an Excise Inspector is taken up,the qualifications,contained in the Special Rules should be applied for filling up the vacancy,whether it is one which arose before the Special Rules were promulgated or after it.On these premises,the conclusion in Ext.P -6 that persons who were otherwise qualified and who were promoted before 14th May 1982 will not be affected by the introduction of the test by the Special Rules in G.O.( P)36/82/TD,dated 14th May 1982 and they do not have to be reverted was attacked as arbitrary,unfair and unjustified.

(3.) MR .O.V.Radhakrishnan,Counsel who appeared for the three petitioners in O.P.4312 of 1985 submitted the following points: (i)Petitioner No.1 was provisionally promoted as per Ext.P -1,dated 12th June 1980,petitioner No.2 was provisionally promoted on 15th October 1981 and petitioner No.3 was provisionally promoted as per Ext.P -2 by order dated 5th June 1982.The amend­ment to the Special Rules effected by G.O.( P)36/82/TD,dated 14th May 1982 was published in the Gazette only on 6th July 1982 and it will apply only from that date. (ii)The Special Rules promulgated by G.O.( P)36/82/TD.dated 14th May 1982,will apply to the vacancies which arose only after that date and will not be applicable to the vacancies which occurred or arose before that date.In other words,the Special Rules aforesaid have no retrospective effect.Rule 28(iA)is relevant. M/s.Chandrasekharan and Chandrasekhara Menon also supported Mr.Radhakrishnan in this regard.