JOSE Vs. VELAYUDHAN

JUDGEMENT

(1.) S. S. L. C. or equivalent examination.

(2.) PASS in the Manual of Office Procedure.

(3.) THE method of appointment prescribed by Statute 66 which is required to be followed is to fill up the vacancies by promotion if qualified persons are available according to seniority in the case of non-selection posts and according to merit and seniority in the case of selection posts. It is only if there are no candidates available for promotion that the posts can be filled up by direct recruitment. Though the statutes in express terms prescribe minimum qualifications for several posts, Statutes 66 provides that the posts shall be filled up subject to the rules in force in similar Government institutions regarding qualifications and method of appointment. Having regard to the expression "subject to the rules in force in similar Government institutions regarding qualifications and method of appointment" the view taken by the learned single judge is that R. 13a of the K. S. & S. S. R. governs the filling up of the posts of U. D. Clerks in the private colleges. As R. 13a governs the employees in similar Government institutions namely Government Colleges, it is held that the said provision equally regulates the appointment of the non-teaching staff of the private colleges. THE principal contention of Sri. M. I. Joseph, learned counsel for the appellant, is that R. 13a of the KS. & S. S. R. cannot come to the aid of the first respondent in claiming exemption from passing the Account Test (Lower) for earning promotion to the post of U. D. Clerks, even assuming for the sake of argument that it being a rule in force in similar Government institutions, the same governs the filling up of the posts of U. D. Clerks in the college in question. R. 13a of the K. S. & S. S. R. to the extent it is relevant and has been relied upon, may be extracted as follows: "13a. Special and Department Tests-Temporary exemption for promotion.- (1) Notwithstanding anything contained in R. 13: (a) Where a pass in a special or departmental test is newly prescribed by the Special Rules of a service for any category, grade or post therein or in any class thereof, a member of a service belonging to any of the scheduled castes or scheduled tribes who has not passed the said test but is otherwise qualified and suitable for appointment to such class, category, grade or post may be appointed thereto temporarily. (b) Where a pass in a special or departmental test is newly prescribed by the Special Rules of a service for any category, grade or post therein or in any class thereof, a member of service who has not passed the said test but is otherwise qualified and suitable for appointment to such class, category, grade or post may, within two years of the introduction of the test, be appointed thereto temporarily. (2) If a member of a service appointed under clause (a)of sub-rule (1) does not pass the test within three years from the date of such appointment or when the said test also involves practical training, within three years after the first chance to undergo such training after such appointment, or if a member of service appointed under clause (b) of sub-rule (1)does not pass the test within two years from the date of introduction of the said test or if the said test also involves practical training, within two years after the first chance to undergo such training after the introduction of the said lest, he shall be reverted to the class, category, grade or post from which he was appointed and shall not again be eligible for appointment under clause (a) or (b) as the case may be, of sub-rule (1): Provided that the period of temporary exemption allowed under clause (b) of sub-rule (1) shall be extended by three years in case of a person belonging to any of the scheduled castes or scheduled tribes. What is relied upon by the learned counsel for the first respondent is clause (a) of sub-rule (1) of R. 13a in support of his contention that the first respondent being a member of the Scheduled Caste, he was entitled to be appointed temporarily to the post of U. D. Clerk, notwithstanding the fact that he had not passed the Account Test (Lower), one of the qualifications prescribed for the said post by Statute 41. THE first respondent would be entitled to claim the benefit of R. 13a (1) (a) only if the conditions specified therein under the said provisions are the following: (1) That a special or departmental test should be newly prescribed (2) that such prescription should be by special rules. (3) that the member of the service must belong to any of the Scheduled Castes or Scheduled Tribes. (4) that he should not have passed the test newly prescribed and (5) that he should be otherwise qualified and suitable for appointment. THE question for consideration in this case is as to whether all these conditions are satisfied in order to claim exemption from passing the Account Test (Lower ). We shall first examine as to whether the account Test (Lower) is a test which has been prescribed newly, inorder to claim the benefit of exemption from passing the same. R. 13a speaks of granting of temporary exemption, notwithstanding anything contained in R. 13. R. 13 interalia provides that no person shall be eligible for appointment to any service, class, category or grade or any post borne on the cadre thereof unless he possesses such special qualifications and has passed such special tests as may be prescribed in that behalf in the Special Rules or possesses equivalent qualifications. THE expression "special rules" has been defined in r. 2 (16) to mean rules in Part III applicable to each service or class of service. A combined reading of R. 13 and 13a makes it clear that no person can be appointed to any post unless he possesses the qualifications prescribed in the special rules. What R. 13a deals with is not the special rules which are required to be complied with by R. 13. R. 13a speaks of granting exemption for promotion from passing a special or departmental tests which are newly prescribed by the special rules. THE rule making authority has granted temporary exemption from passing the test newly prescribed by the special rules. No attempt is made by R. 13a to grant exemption from passing the test which are not newly prescribed by the special rules. A clear distinction is made between special or departmental test prescribed by the rule and special or departmental tests newly prescribed by the special rules special or departmental test newly prescribed by the special rules contemplated by R. 13a are those which are added after the rules came into force. This was done with a view to give reasonable time to the employees to acquire newly prescribed qualifications. In our opinion the expression "newly prescribed" used in R. 13a does not take in the qualifications prescribed by the very same rules, but takes in only those qualifications which are subsequently added or introduced, learned counsel for the first respondent however contended that we should understand the expression "newly prescribed" as conveying that it is the test which a person already in service who does not possess that qualification is required to acquire. It is difficult to accept this argument. What is contemplated by R. 13a (1) (a) is the prescription of the new qualifications meaning thereby prescribing certain qualifications in addition to or other than those that were already in force. As already stated the distinction is between the existing qualifications prescribed by the rules themselves and those qualifications which are newly added thereafter. We have therefore no hesitation in taking the view that the exemption contemplated by r. 13a (1) (a) is only in respect of qualifications which are added subsequent to the coming into force of R. 13a (1) (a) by means of special rules. If by virtue of statute 66, R. 13a of the K. S. & S. S. R. gets attracted, it become part of the statute and comes into force on the same date along with the statutes. THErefore R. 13a can be invoked only in respect of qualifications prescribed after the statutes came into force. THE qualification of Account Test (Lower)is prescribed by statute 41 of the First Statutes. Account Test (Lower)qualification not having been prescribed after the statute came into force, as the benefit of temporary exemption can be claimed under R. 13a (l) only respect of the newly prescribed rules, respondent No. l cannot claim exemption from acquiring the qualifications prescribed by statute 41. Even assuming for the sake of arguments that R. 13a (l) gets attracted by virtue of statute 67, as one of the essential conditions prescribed in R. 13a (l) is not satisfied, respondent no. l cannot claim temporary exemption under the said provision.