& Ors Vs. The State of Kerala & Ors  INSC 201 (20 February 1997)
RAMASWAMY, S. SAGHIR AHAMD
W I T
H CIVIL APPEAL NOS. 167-68 OF 1985
O R D E R
hese appeals by special leave
arise from the judgment of the Division Bench of the Kerala High Court, made on
July 5, 1984 in OP No.3003/80. In the State of Kerala, Head Clerks/Head Accountants, U.D.Cs.
and L.D.Cs. - the ministerial staff consists of three groups of employees,
namely, those allotted from erstwhile composite Province, (b) those similarly
allotted from former Travancore-Cochin State and (c) those recruited to the
State Service on or after November 1, 1956 (Kerala recruits). The appellants
belong to the last category, vis., Kerala and recruits. For promotion from one
ladder to the higher echelons, i.e., from LDCs to UDSs and so on, the
Government in G.O. (P) No.851, dated June 16, 1980 issued in exercise of the
power under proviso to Article 309 of the Constitution, made the rules called
the Special Rules for the categories of Head Clerk/Head Accountant, Upper
Division Clerk and Lower Division Clerk of the Kerala Land Revenue Department
included in the Kerala Ministerial Subordinate Service.
rules came into force w.e.f. November 1, 1956.
Rule 9 of the Rules prescribes the special qualifications and provides that for
promotion to the category of Upper Division Clerk, a Lower Division Clerk shall
pass the (a) Revenue Test (Travancore, Cochin or Madras) provided that passing
this test shall be obligatory only from 14.1.1958;
Accounts Test (Lower) provided that passing the test will be obligatory only
from 1.1.64; and (c) Secretariat Manual Test upto 20.2.1958 and District
Officer Manual Test thereafter. All the employees from all three sources, who
did not pass the test, challenged the validity of the above rule. The Division
Bench had struck down the rule on the ground that since the rule issued on June 16, 1980 was given retrospective effect from
November 1, 1956 and they were asked to pass the
test w.e.f. January 14,
1963, it was an
impossible to give effect to the prescription of Rules 4 to
was also struck down on the ground that fixation of the date, i.e., January 14, 1963 is arbitrary being without any
nexus. It is not in dispute that after the rule was struck down, new rules came
to be made in compliance of the direction issued by the Division Bench on June 12, 1985. On its basis, seniority list was
prepared and promotions were given to those found in the order of seniority.
The latter rules are not subject matter of any attack nor has anyone questioned
the correctness thereof. The promotions have also become final. Under these
circumstances, the question arises: whether it is expedient at this distance of
time to go into the correctness of the judgment of the High Court? All the
Madras Allottees and Travancore-Cochin allottees have now retired from service.
Only Kerala recruits, perhaps some of them, recruited on or after November 1, 1956, may be in service.
E.M.S. Anam, learned counsel for the appellants, contends that the view
expressed by the High Court is not correct in law for the reason that in Travancore-Cochin State, there was a rule in operation obligating the allottees of
that State to pass the required test prescribed thereunder. Equally, the Madras allottees were required to pass the
test under the Madras Rules for promotion to the higher cadre/category of
posts. Therefore, mere making the rule on June 16, 1980 with effect from November 1, 1956 is consequential. It is not an
impossibility of performance provided the Madras or Travancore-Cochin a Alllottees had a will to appear for and pass the
examinations. The appellants having passed the examinations are entitled to be
considered and promoted to the higher posts in accordance with the rules as
against those who either had appeared but failed or those who did not appear at
all. Both of those unequals cannot be treated on par with equals for the
purpose of seniority and promotion. Though the argument is attractive, in
substance, we cannot give any relief to the appellants for two reasons, namely,
the subsequent rules, as stated earlier, are not the subject matter of
assailment of their validity and the seniority was prepared on the basis of the
new rules and promotions were also given accordingly. They became final and all
of the Madras Allottees and Travancore- Cochin allottees have since retired from
service; hence there is no need to go into the question in that behalf.
relating to promotion of those from among Kerala recruitees who had attempted
but failed or those who passed the test may be the relevant to be gone into.
But since the new rules have already been made and they are not being
challenged, the special rules have lost their relevance.
these circumstances, we decline to go into that question.
appeals are accordingly dismissed. No costs.