M K KOCHURAMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is a peon in the Mezhuveli Panchayat. He belongs to a Scheduled Caste community. For the purpose of getting increments, he was expected to pass the obligatory departmental tests. But the Public Service Commission did not conduct the same. THErefore, by Ext.P3 order in accordance with the Government Order dated 28.2.1986, wherein the Government had stipulated that peons, who have not passed SSLC and have completed 100% collection for five years, would be entitled to promotion as Panchayat Assistant Grade II/Bill Collector. By Ext.P3 order, the petitioner was temporarily promoted as Lower Division Clerk subject to the condition that he would be entitled to increment only after passing the obligatory departmental special test conducted by the Kerala Public Service Commission. However, by Ext.P4 order, the petitioner was in fact given the first time bound higher grade for 10 years. Since even thereafter the PSC did not conduct the test, which the petitioner was expected to pass for getting increments, considering the fact that the petitioner is employed in a vanishing category of posts, the Government permitted the petitioner to draw increments till the PSC conducts the special test. THEreafter, by Ext.P6 the petitioner was directed by the PSC to appear for special test to be conducted by the PSC on 22.11.2003. But by that time, the petitioner had already completed 50 years of age. THE petitioner contends that since he has completed 50 years of age, by virtue of Rule 13(b) of the Kerala State & Subordinate Service Rules, the petitioner is exempted from the requirement of passing obligatory departmental tests and, therefore, the petitioner is entitled to all service benefits, without having to appear or pass the special test to be conducted by the PSC. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: (i) to call for the records relating to Exts.P1 to P6 and to issue a writ of mandamus declaring that the petitioner who obtained promotion in the year 1988 in the cadre of Lower Division Clerk is not bound to appear for the test going to be conducted as per Ext.P6 call letter and also to declare that petitioner having completed 50 years is having exemption from appearing test for getting second increment as per the Special Rules; (ii) to issue a writ of mandamus declaring that the petitioner having appointed as per Ext.P4 in the year 1988 is a regular appointee in the cadre of Lower Division Clerk and that he is entitled to get all service benefits and the relevant provision in the Special Rule for passing the test is not applicable to those persons who were appointed prior to 1990 since the Special Rule is having no retrospective effect. iii) to issue a writ of mandamus commanding the respondents not to recover any portion of salary or increment already given to the petitioner as per the orders passed by the Government evidenced by Ext.P5 and also to fix his grade promotion benefits taking that he is in continuous service from 1963 and a regular Lower Division Clerk from 1988. THE 2nd respondent has filed a counter affidavit practically admitting the case of the petitioner. THEy admit that as the petitioner belongs to the Scheduled Caste and comes within the purview of Rule 13(b) and that he is entitled to get further increments in the post of LDC. In the above circumstances, the writ petition is allowed and it is declared that for further service benefits like increment, promotion, etc. the petitioner is not obliged to pass the obligatory departmental test in view of the fact that the petitioner has already completed 50 years of age and Rule 13(b) permits the petitioner to draw service benefits without having to pass the obligatory departmental test. THE petitioner would also be entitled to all consequential benefits including monetary benefits. Orders in this regard shall be passed within two months from the date of receipt of a copy of this judgment.