STATE OF KERALA Vs. M. PEERMOHAMMED

JUDGEMENT

(1.) The question in all these writ appeals concerns the interpretation of R.13A(1)(b) of the Kerala State and Subordinate Services Rules (K.S.S.S.R. for short) and the scope of the expression 'test is newly prescribed by the Special Rules' occurring therein. The appeals have been preferred by the State against the Judgment of a learned single Judge allowing the writ petitions preferred by the respondents in these writ appeals challenging the orders of reversion passed, or sought to be passed, against them, on the ground that they had not passed the requisite test prescribed for the purpose of promotion under the Special Rules. R.13A(1)(b) of the Kerala State and Subordinate Services Rules reads as follows:

(2.) The reversions were ordered or threatened, because, the writ petitioners have not passed one or other of the tests prescribed for promotion under the Special Rules. Their contention was that on the language of R.13A(1)(b) the tests in which they were found to be deficient were 'new tests' introduced by the Special Rules and therefore they had two years' time from the date of introduction of the test to pass the same, and therefore the reversions ordered or threatened were premature. The learned Judge took the view that it was not necessary to consider the question whether a test introduced by the Special Rules was a 'new test' for a promotion. The Special Rules were introduced with retrospective effect from 1/11/1956 (vide R.1 of the Rules). Therefore, even if prior to these Rules, the same tests were in existence under an executive order as contended by the State the same must be deemed to have been swept off by the Special Rules passed with retrospective effect so as to wipe the slate clean; and therefore the petitioners could no longer claim the benefit of two years from the introduction of the tests for passing the same. We cannot accept this reasoning of the learned Judge. In the first glace, merely because an executive order under which certain tests were in operation prior to the Special Rules were replaced or obliterated with retrospective effect by the Rules, the factual existence and operation of the tests cannot be regarded as non est. Again, it has been recently decided that a special Rule framed under the Public Services Act as in the instant case cannot be in operation prior to the commencement of the Act, That is the effect of two recent Judgments of this Court, one, in State of Kerala v. Haridas (1978 KLT 238 (F.B.)) and the other, the Full Bench Judgment in O. P, No. 5300 of 1975 etc. That is to say, if the Rules were merely framed under the Public Services Act, they cannot have an origin earlier than the Act itself. But if any Rule or Order prior to the Act is taken over under the Act, it is possible to project back the Rule or the Order to the date of its promulgation. The latter contingency has not happened here, and the former alone applies. The Rule therefore cannot go back prior to the commencement of the Public Services Act in 1968. In the light of these decisions, even if there has been a supersession or wiping out of the Rules or Orders under which the tests were previously in operation, the same would be effective only from 17/9/1968 and not earlier so that, for the period prior to the said date, the prior Government order would be in operation. The question would still survive. Were the tests introduced by the Special Rules, which can take effect only from 1968, 'new test' within R.13A(1)(b) of the Kerala State and Subordinate Services Rules.

(3.) The learned Government Pleader contended that these tests were not 'new' ones, but were prescribed by the Government Order, dtd. 14/1/1963; so that, according to him, it was only a case of the old tests being given a statutory garb. The Government Order, dtd. 14/1/1963 lays down that the question of prescribing unified tests in Office Procedure and Account Test (Lower) for the Ministerial staff of the different offices had been under the consideration of the Government, and, after detailed consideration the Government passed the following Orders. It was laid down that (1) Account Test (Lower) and (2) Test in Office Procedure, had to be passed by the Lower Division Clerks in all offices except the High Court. This was in the light of the problems that arose and the situation that confronted the Government after the reorganisation of States. In Somasekharan Nair v. The Director of Employment (ILR 1978 (1) Kerala 175) a Division Bench of this Court had to consider the question whether the Government Order, dtd. 14/1/1963 can be said to have 'prescribed' new tests or whether the prescription could be said to have been effected only by a subsequent Government Order, dtd. 23/10/1963. It was ruled that the 'prescription' of two tests was made only under the later G.O. (P) No. 455 PD., dtd. 23/10/1963, when the syllabus and the modus operandi for passing the tests were announced. It was not necessary in that decision to consider whether the tests prescribed were 'new tests' or not. The decision could be rested on the ground that, assuming the tests were new, the prescription was only on 23/12/1963, and the two years' period for passing the same from the date of prescription had not expired.