STATE OF KERALA Vs. KERALA PANCHAYAT EMPLOYEES ORGANISATION

JUDGEMENT

(1.) THE first two appeals are by the State Government challenging the common judgment in O.P.No.3510/86 and 4657/86 rendered by a learned Single Judge and the third appeal is by respondent No.14 in.O.P.No.4657/86.As all these appeals arise out of the common judgment of the learned Single Judge and as common questions of law and facts arise for consideration they were heard together,they are being disposed of by this common judgment.

(2.) THE Panchayats in the State of Kerala,which are local bodies,are governed by the Kerala Panchayats Act,1960(hereinafter referred to as the Act ).Each Panchayat was entitled to appoint its own employees,subject to the provisions of the Act and the Rules.In exercise of the power conferred by the provisions in sub -s.( 1)of S.129 read with sub -s.( 2)of S.39 of the Act,the Government of Kerala promulgated the Kerala Panchayats(Common Service)Rules,1977(hereinafter referred to as the Common Service Rules ).These Rules came into force from Ist April 1977,R.3 of the Common Service Rules provides for constitution of the common service for the Panchayats in the State,with effect from 1st April 1977 and the said provisions reads:

(3.) PASS in Account Test(Lower) 2. Panchayat Assistant By promotion from qualified Bill Collectors or appointment from among qualified Yogic Instructors S.S.L.C or equivalent There were no posts of Managers in any of the Panchayats until such posts were created by notification.dated 16th March 1977 in respect of about 350 Special Grade Panchayats in the State.Though the new posts were created by the said notification it was declared that the qualifications for the said posts will be prescribed by appropriate rules made in this behalf and that pending promulgation of the Rules appointments can be made to the posts of Manager subject to the rules to be framed by the government prescribing qualifications for the said posts.Qualifications were actually prescribed by amending Annexure to the Common Service Rules by notification dated 24th January 1984 as stated above.The qualifications as extracted above for the post of Manager are(1)SSLC or its equivalent qualification(2)Account Test Lower and(3)Panchayat Executive Officer Training or Panchayat Test.The same are also the qualifications prescribed for the post of Head Clerks.There is one more qualification which is required to be satisfied for Head Clerks,that is,10 years 'service as regular employee of the Panchayat.As the notification creating the new post of Managers in Special Grade Panchayats was issued only a few days before the coming into force of the Common Service Rules appointments to the posts of Managers could be made only after the Common Service Rules came into force.So far as the posts of Head Clerks in the several Panchayats in the State are concerned,they were filled up in accordance with the existing provisions regulating recruitment with the result several Head Clerks who were appointed before 1st April 1977 and had put in several years of service did not possess the qualifications prescribed for holding the post of Head Clerks by the Common Service Rules.But such of the persons who were holding the posts of Head Clerks became part of the Common Service Rules with effect from 1st April 1977. 3.This Court has held in W.A.No.6870 of 1981 that persons who were holding the posts of Head Clerks before 1st April 1977 and came to the Common Service under the Common Service Rules are not required to possess qualifications prescribed for the posts of Head Clerks in the Annexure to the Common Service Rules.The clear effect of R.3,sub -rale(3)of the Common Service Rules is to bring the Panchayat Assistants Grade I,Grade II and Head Clerks as falling under one cadre and their relative seniority being determined taking into consideration the length of continuous service in the post of Panchayat Assistants Grade I,Grade II and Head Clerks.When such was the position,several appointment were made to fill up newly sanctioned posts of Managers immediately after the common service rules came into force in the year 1977.The appointments made until the qualifications for the post of Managers were prescribed by notification,dated 24th January 1984 were held as temporary appointments by the judgments rendered in O.P.No.7595/83 and 2533/84 and connected cases by this Court,decided on 12th April,1985.The said judgment which has become final and conclusive also declares the correct legal position flowing from the promulgation of the Common Service Rules,sanction of the new posts of Managers,prescribing of the qualifications for the said posts and the effect of the relevant provisions in the Kerala State and Subordinate Services Rules(for short,K.S.&S.S.R.),which are made applicable by R.12 of the Common Service Rules.For the sake of convenience,the final directions issued in the said judgment are extracted as follows: "42.The above original petitions are disposed of as follows: (1)The impugned reversions of Managers as Head Clerks and Head Clerks as Panchayat Assistants and Panchayat Assistants as Bill Collectors etc.ordered before 1st April 1984 on the ground of want of test qualification and as consequential arrangements can take effect only with effect from 1st April 1984,subject to the other directions in this judgment.Consequently the promotions effected in the light of such reversions also can take effect only from 1st April 1984,subject to the other directions in this judgment. All the reversions and promotions relating to the parties to the various original petitions shall be reviewed by the respective District Panchayat Officers within three months from to -day,in the light of the principles laid down in this judgment and fresh orders passed in accordance with law.Till such orders are passed,status quo as on to -day shall be maintained with reference to the parties to the original petitions, (2)The benefit of R.35 clause(a )(ii)will not be available in regard to the test qualification prescribed for the post of Manager by the amendment to the special rules. (3)In regard to the promotion to the post of Manager,two years exemption regarding,possession of test qualification under R.13A(1 )(b)of the General Rules shall be available from 24th January 1984 to all persons who were occupying the post of Head Clerk prior to 1st April 1977,if they were otherwise qualified.Such persons shall not be reverted from the post of Manager,except for want of vacancy,during the period of temporary exemption.This benefit will not be available to persons who became Head Clerks on or after 1st April 1984 (4)District Panchayat Officers shall examine claims for benefit of R.13A(1 )(a ),13A(3 )(3)and 13(b)of the General Rules before passing fresh orders in pursuance of this judgment. (5)Reversion can be ordered from the post of Manager or Head Clerk on the ground that the incumbents do not possess the requisite test qualification only if fully qualified persons are available to be promoted to such posts. (6)The District Panchayat Officers shall take note of G.O.L.A.14/6735/57/ED,dated 3rd December 1957 in regard to persons in Service on 1st September 1957 who do not have the general educational qualification.Such persons will be eligible to occupy the post of Head Clerk and Manager without the general educational qualification." It was pointed out in the said judgment that those who came to the Common Service with effect from 1st April 1977 as Head Clerks though they could continue as Head Clerks in spite of the fact that they do not possess the qualifications prescribed by the Common Service Rules for the said posts,they cannot be considered for promotion to the post of Managers unless they acquired the qualifications prescribed for the said posts in the Common Service Rules.The said qualifications have been prescribed for the said posts on 24th January 1984.As the qualifications came to be prescribed only on 24th January 1984 such of the Head Clerks who came to the common service and who had not acquired the qualifications,it is declared that they have the right to acquire the said qualifications within a period of two years from the date of prescription of the rules,namely 24th January 1984,having regard to the provisions of R.13A(1 )(b)of the K.S.&S.S.R.The question of acquisition of such qualifications for those who became Head Clerks after 1st April 1977 will not obviously arise as they are required to possess all the three qualifications prescribed for the post of Manager for earning eligibility for promotion to the cadre of Head Clerks.The State was therefore required to review the previous promotions and accord deemed dates of promotion to the cadre of Managers in the light of the law declared by this Court in O.P.Nos.7595/83,2533/84 and connected cases.One of the likely consequences of complying with these directions would be the reversion of some of the persons who held the posts of Head Clerks and were promoted temporarily as Managers if they had not acquired the qualifications prescribed for the posts of managers before 24th January 1986.To avert such possible reversions,persons likely to be reverted appear to have moved the authorities to persuade them to relax the qualifications prescribed for the post of Managers in their favour,in exercise of the powers conferred on the State under,sub -rule(3)of R.9 of the Common Service Rules,which empowers the Government to relax age and qualifications prescribed under sub -rules(1)and(2 ),if in respect of any candidate the Government is satisfied of the existence of sufficient reasons for doing so,on consideration of the recommendations of the appointing authority in that behalf.The Government in exercise of the powers conferred by sub -rule(3)of R.9 of the Common Service Rules passed the impugned order Ext.P -5 dated 18th April 1986,the operative portion of which reads as follows: "After having examined the matter in detail Government are pleased to grant permanent exemption to the Managers who were continuing as Head Clerks prior to 1st April 1977,from possessing the test qualifications prescribed for the post of Manager as per the Government order read as 2nd paper above,in relaxation of R.9(2)of the Kerala Panchayat(Common Service)Rules,1977 by invoking the provision under R.9(3)of the said rules." It is the said order of the Government that was challenged by persons likely to be affected by the said order in the two writ petitions out of which these appeals have arisen. 4.The learned Single Judge by a common judgment dated 27th January 1987 has allowed both the writ petitions and quashed the impugned order Ext.P -5 dated 18th April 1986.The learned Single Judge further declared that the petitioners who had acquired the qualifications prescribed for the post of Managers are entitled to function as Managers from 24th January 1986,the last date for acquisition of qualifications for those who were holding the post of Head Clerks prior to 1st April 1977 and came to be temporarily promoted as Managers.It is the said judgment that is assailed in all these three appeals.