A KANNAN Vs. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT

JUDGEMENT

(1.) This original petition carries challenge against the order dated 29.10.2012 passed by the Kerala Administrative Tribunal, Thiruvananthapuram Bench in OA No.1865/2012. The unsuccessful applicant is the petitioner herein. He was then working as a Peon in the Forest Department. Admittedly he is a commerce graduate. His claim for appointment by transfer to the post of Forest Guard was rejected as per Annexure A3 order dated 18.2.2012 on the ground of non-possession of the prescribed qualification, in terms of Annexure A4 Rules. Aggrieved by the same he preferred Annexure A9 representation before the Government. The inaction on the part of the first respondent in considering Annexure A9 representation constrained the petitioner to approach the Tribunal by filing O.A No.1865/2012. In the original application he sought for setting aside Annexure A3 and as an alternative prayer he prayed for a direction to consider Annexure A9 representation. The rival contentions were considered by the Tribunal and ultimately such consideration culminated in the impugned order whereby the original application was dismissed. It is in the said circumstances that the captioned original petition has been filed.

(2.) We heard the learned counsel for the petitioner and also the learned Government Pleader.

(3.) The petitioner commenced his service as a watcher in the last grade service on 31.5.2006. His contention is that in the light of the rules in vogue at the time of his entry in service on completion of 5 years in last grade service an incumbent was entitled to be considered for promotion to the post of Forest Guard by transfer. Admittedly he completed 5 years service only on 1.6.2011 and admittedly, much earlier Annexure A4 came into force. It came into force with effect from 30.8.2010. Going by Annexure A4 he is ineligible to be considered for promotion. There can be little doubt with respect to the position that an employee can aspire promotion only in accordance with the rules in force at the relevant point of time. Even after the coming into force of Annexure A4 rules, persons in last grade service like the petitioners are entitled to be considered for appointment to the post of Forest Guard and method of appointment in such circumstances is by transfer. Annexure A4 would reveal that it prescribes qualification for by transfer appointment. A pass in Plus two examination conducted by the Board of Higher Secondary Education, Government of Kerala with science or mathematics as optional subjects or equivalent examination and certain other qualifications have been prescribed. Admittedly the petitioner did not possess pass in Plus two examination conducted by the Board of Higher Secondary Education, Government of Kerala with science or mathematics as optional subjects. He does not possess equivalent qualification. Essentially it is giving the said reason that his request for by transfer appointment was rejected. As noticed hereinbefore his contention is that since Government had now, granted exemption from the rigour of the rules and thereby exempted persons like the petitioners who entered in service prior to the come into force of Annexure A4 from possessing the prescribed qualification he is entitled to get its benefits from 1.6.2011, the date on which he completed five years service. But it is to be noted that the relevance of completion of five years service was only under the erstwhile special rules. In Annexure A4 rules no minimum period of service is insisted and what is stated is that for being considered for appointment by transfer one should be an approved probationer. Though the petitioner was an approved probationer he was lacking the prescribed qualification under Annexure-A4 and he had completed five years in the Last Grade Service only after Annexure A4 came into force. True that the said qualification was relaxed rather exemption from possessing such qualification was given only as per G.O (MS) No.115/2013/F & WLD dated 30.12.201