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K. CHATHAN versus THE STATE OF KERALA

High Court of Kerala

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K. CHATHAN v. THE STATE OF KERALA - WP(C) No. 19803 of 2005(G) [2006] RD-KL 1011 (9 October 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 19803 of 2005(G)

1. K. CHATHAN, VALUATION ASSISTANT
... Petitioner

2. M. KANDAMUTHU, JUNIOR SUPERINTENDENT

Vs

1. THE STATE OF KERALA, REPRESENTED BY
... Respondent

2. THE COMMISSIONER OF LAND REVENUE,

For Petitioner :SRI.N.SUGATHAN

For Respondent :GOVERNMENT PLEADER

The Hon'ble MR. Justice K.K.DENESAN

Dated :09/10/2006

O R D E R

K.K. DENESAN, J.

= = = = = = = = = = = = = = = = = = W.P.(C) Nos.19803 & 25902 OF 2005 = = = = = = = = = = = = = = = = = =

Dated this the 9th October, 2006



J U D G M E N T

The petitioners have sought for directions to the respondents to consider them for promotion to the post of Tahsildar as fully qualified persons based on the exemption granted in terms of Rule 13A of the Kerala State & Subordinate Service Rules. The petitioners, admittedly, are members belonging to Scheduled Caste community. The respondents would point out that the qualifications prescribed for the post of Tahsildar include acquisition of a degree in Law or in the alternative a pass in Criminal Judicial Test conducted by the Public Service Commission. A distinction is sought to be placed between the qualifications prescribed for various posts by classifying them as qualifications which come within the purview of departmental tests and qualifications which come within the purview of academic qualifications. Such a contention is taken based on the language of the provisions contained in Rule 13 of Part II, K.S. & S.S.R. The petitioners in W.P. (C) No. 19803 of 2005 had approached this Court earlier WPC Nos.19803 & 25902/05 -2- when they were denied promotion to the post of Deputy Tahsildar which also required acquisition of departmental tests like District Office Manual, Revenue Test and Account Test (Lower). The respondents took up similar contentions in that writ petition also.

2. A Division Bench of this Court settled the issue indicating the interpretation to be placed on Rule 13A of K.S. & S.S.R. and allowed that writ petition holding that Account Test (Lower), Revenue Test and District Office Manual come within the purview of departmental tests and exemption from such qualifications are available to members belonging to Scheduled Castes and Scheduled Tribes. In paragraph 5 of the aforesaid decision, viz., State of Kerala v. Chathan {2005 (1) K.L.T. 75} the Division Bench has considered the contentions and has held as follows:

"In sub-r.1(a) of R. 13A of the K.S.S.S.R. what is exempted is special or departmental tests prescribed by the Special Rules of a service for appointment to any class, category or grade or post. Therefore, R.13A, unlike R.138, deals with the case of appointment by transfer, not mere promotion. In other words, even tested in common parlance, appointment by transfer and promotion are more or less the same. Appointment by transfer is to another service as it is a selection as held by the Division Bench in Kerala Water Authority v. Augustin (2001 (3) KLT 746) and one must acquire the prescribed qualifications. R. 13A gives an exemption to the WPC Nos.19803 & 25902/05 -3- general rule. Pass in departmental test which is prescribed as qualification in the Special Rules for appointment to such category of post is specifically exempted under S. 13A and the wordings used in R.13A and R.138 are entirely different. Unlike R.13B, R.13A is applicable not only in normal promotions, but also for appointments by transfer to a higher post. Therefore, we agree with the learned Single Judge that as far as the petitioners who are members of the scheduled castes/scheduled tribes are concerned, they are entitled to the benefit of R.13A. In 1985(1)ILR Kerala 657 and 2002 (3) KLT 573, the effect of R.13A was not considered but only R.13B was considered and the wordings in R.13A and R.13B are entirely different. We see no ground to differ from the findings of the learned Single Judge. Claim for promotion shall be considered by the appellant in accordance with law and they shall be promoted, if they are otherwise eligible notionally with effect from the date their immediate juniors were promoted as directed by the learned Single Judge with consequential reliefs and the judgment should be implemented within three months from the date of receipt of a copy of this judgment." Subsequently, a similar issue arose before another Division

Bench (K.A. Abdul Gafoor & K.P. Balachandran, JJ.) in W.A.

No. 1138 of 2006. The decision in Chathan's case (supra) was also considered by the above Division Bench and after referring to the relevant provisions in the Kerala State & Subordinate Service Rules as also the Kerala Service Rules, particularly Rule 12(7), Part I, K.S.R., that Division Bench also rejected the contention of the respondents and WPC Nos.19803 & 25902/05 -4- held that the survey test prescribed for the members of the Survey Department would come within the purview of the term 'special test'.

3. Learned counsel for the petitioners submits that based on the above decisions, the Criminal Judicial Test is a special test and the view that it is one of the tests coming within the purview of the term 'special test' stands strengthened by the fact that all these tests are notified, conducted and results published by the Kerala Public Service Commission.

4. In the light of the above decisions of the Division Bench, the objections raised by the respondents will not hold water. The petitioners in these writ petitions are entitled to succeed. The impugned orders are liable to be set aside. There shall be a declaration that the petitioners who are entitled to exemption in terms of Rule 13A are duly qualified for appointment to the post of Tahsildar. Their claim for promotion shall be considered with effect from the date on which their juniors was promoted subject to selection by the Departmental Promotion Committee. Orders shall be passed with two months on the petitioners producing a copy of this judgment. WPC Nos.19803 & 25902/05 -5- The writ petitions are disposed of as above. K.K. DENESAN

JUDGE

jan/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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