IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI SATURDAY, THE 1ST DECEMBER 2007 / 10TH AGRAHAYANA 1929 WP(C).No. 19533 of 2007(A) -------------------------------------- PETITIONER: ----------------- SURESH JOSEPH, JUNIOR SUPERINTENDENT (RR) TALUK OFFICE, MUVATTUPUZHA. BY ADV. SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU) RESPONDENTS: ---------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM. 3. THE ADDITIONAL COMMISSIONER OF LAND REVENUE & CONVENER, DEPARTMENTAL PROMOTION COMMITTEE (LOWER) FOR REVENUE DEPARTMENT, LAND REVENUE COMMISSIONERATE, THIRUVANANTHAPURAM. *4. K.NALINAKSHAN, S/O. KUNHIRAMAN (LATE), AGED 49 YRS, U.D CLERK TALUK OFFICE, UDUMBANCHOLA, IDUKKI DIST., RESIDING AT THANNIYOOR MEENATHATHIL, SREE GEETHANJALI, MLAMALA, THENGAKKAL P.O., VANDIPERIYAR, IDUKKI DIST. *ADDL. R4 IS IMPLEADED AS PER ORDER DATED 01/12/2007 IN IA NO. 15631/2007. BY GOVERNMENT PLEADER SRI. P.NANDAKUMAR ADV. SRI.P.P.JNANASEKHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2007, ALONG WITH WPC NO. 19981/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 19533/2007 A APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE PROCEEDINGS NO. LR(T1) 45825/07 DT. 2/6/07. EXT.P1A. COPY OF THE EXTRACT OF THE FINAL SENIORITY LIST OF DEPUTY TAHSILDARS. EXT.P2. COPY OF THE PROCEEDINGS NO. LRT1-23000/07 DT. 12/06/07. EXT.P2A. COPY OF THE PAGES 1 AND 4 OF THE SENIORITY LIST OF THE APPROVED PROBATIONERS IN THE CATEGORY OF D.T. EXT.P3. COPY OF THE LETTER NO. 70219/C1/06/REV. DT. 21/4/2007. EXT.P4. COPY OF THE REPRESENTATION DT. 19/6/07 TO THE R2. EXT.P5. COPY OF THE GO P NO. 460/96/RD DT. 12/08/96. EXT.P6. COPY OF THE CERTIFICATE DATED 1/11/2007 BY THE DIRECTOR OF SURVEY. RESPONDENT'S EXHIBITS EXT.R4A. COPY OF THE PROCEEDINGS OF THE R2 DT. 3/2/2007. EXT.R4B. COPY OF THE GO MS NO. 12/2001/RD DT. 17/1/2001. EXT.R4C. COPY OF THE GO RT NO. 6019/2004/GAD DT. 19/08/2004. EXT.R4D. COPY OF THE RELEVANT PORTION OF THE NOTIFICATION UNDER THE BOARD OF REVENUE ABOLITION ACT, 1996. EXT.R4E. COPY OF THE GO P NO. 164/2007/RD DT. 11/5/2007. True copy tga V.GIRI, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos. 19533 ,19981 ,23636, 28302, 29684, 29711, 29718,31571, 32611, 30620, 33531, 33869, 33870, 34227 and 34625 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day December 2007 JUDGMENT Common issues have arisen for consideration in these batch of writ petitions. Therefore they have been heard together and are being disposed of by this common judgment. Writ Petition No.19533/2007 is taken as the leading case. Copy of a statement which has been filed by the Government in Writ Petition No.19533/2007 was served on the learned counsel for the petitioners in the other cases and the Government has adopted the contentions taken up in W.P.(C)19533/2007 in the other writ petitions also. 2. The petitioner in Writ Petition No.19533/2007 entered service in the Land Revenue Department on 14.10.1983. He passed the District Office Manual Test in September 1986. In 1986, probation was declared in the W.P.(C)19533/2007& con.cases -2- post of L.D.Clerk. On 30.11.1988 he was promoted as U.D.Clerk and thereafter as Head Clerk on 28.2.2001. Later he was promoted as a Deputy Tahsildar on 7.7.2006. Departmental Promotion Commitee is to be convened for promotion to the post of Tahsildar. Apparently, his name is not considered by the DPC because an objection has been taken by the respondents on the basis of Ext.P3 which is a communication to the Land Revenue Commissioner by the Principal Secretary, Land Revenue Department, stating that a vigilance enquiry has been ordered by the Special Judge and Enquiry Commissioner in CMP 91/2007 and therefore persons without the qualification of chain survey test should not be promoted to the post of UDC/SVO. On this basis, the petitioner in W.P.(C)19533/2007 contended that he is not being considered for promotion to the post of Tahsildar. The writ petition is therefore filed seeking a direction to respondents 2 and 3 to consider the petitioner’s claim for promotion to the category of Tahsildar in the next meeting of the DPC and to include him in the select list for W.P.(C)19533/2007& con.cases -3- promotion to the post of Tahsildar, without insisting on the qualification of chain survey test. This Court, had, by an interim order dtd.26.6.2007 directed "respondents 2 and 3 to consider the claim of the petitioners for promotion to the category of Tahsildar, ignoring the fact that he had not passed the chain survey test provided he is otherwise eligible. In case he is found eligible to be included in the DPC list, he shall be assigned a rank notionally. But promotion need be affected only after getting further orders of this Court". 3. Orders which are similar in nature have been passed in other writ petitions also. In some cases, the petitioners aspire for promotion to the post of Deputy Tahsildar. In few other cases, they aspire for promotion to the post of Tahsildar. But the Common issue is whether the petitioners can be considered for promotion to the next higher post without them possessing a pass in the chain survey test. 4. The Land Revenue Commissioner has filed a W.P.(C)19533/2007& con.cases -4- statement inter alia contending that the chain survey test was originally prescribed as a special qualification for the post of L.D.Clerk. Later it was changed into a qualification which has to be acquired during the period of probation. The petitioners could have been considered for promotion to the post of UD Clerk/Head Clerk, only if they had passed the chain survey test which they could have done during the period of probation. Since the said part of qualification is prescribed for the post of L.D.Clerk in the Land Revenue Department, the respondents are entitled to verify whether the petitioners possess these qualifications and also refuse to consider them for promotions if they do not possess the qualification. The petitioner has filed a reply affidavit also. An impleading petition has been filed in this writ petition. A member of the former village staff contends that since chain survey test is a part of the said qualification prescribed for the post, necessary qualifications have to be acquired by all the members of the Land Revenue Department. It cannot be dispensed with. The fact that the W.P.(C)19533/2007& con.cases -5- petitioners were promoted without verifying whether they possessed these qualifications, cannot further enable them to be considered for promotion as Deputy Tahsildar or Tahsildar, as the case may be. 5. I have heard the learned counsel for the petitioners Mr.N.Sugathan, Mr.V.Rajendran, learned senior government Pleader Mr.Nandakumar and Mr.Jnana Sekharan - learned counsel for the additional respondent in Writ Petition No.19533/2007. 6. Reference to the statutory rules prescribing the general qualifications or special qualifications for the various posts in the Kerala Revenue Ministerial Subordinate service would be appropriate in this context. The Kerala Revenue Ministerial Subordinate Service Rules (hereinafter referred to as the Ministerial Rules) applies to four categories of posts, namely the following: 1) Head Clerk/Head Accountant. 2) Firka Revenue Inspector/Special Revenue Inspector. W.P.(C)19533/2007& con.cases -6- 3) Upper Division Clerk/village Officer including Special Village Officer. 3a) Additional Village Officer. 4) Lower Division Clerk/Village Assistant including Special Village Assistant. 4a) Additional Village Assistant. 7. Appointment to the post of an LD Clerk which is included in category 4 is by direct recruitment as well as by transfer from among Copyists, Lower Division Typists, Villageman and Last Grade servants. The ratio for direct recruitment and recruitment by transfer from among the last mentioned categories is not relevant in the present context and therefore reference is not being made to the same. Rule-8 of the Ministerial Rules states that no person shall be eligible for appointment to any category unless he possesses the minimum general educational qualification of the SSLC standard or a pass in the SSLC Standard Test conducted by the Kerala Public Service commission for appointment as a Clerk. Rule-9 deals with the special qualifications. When the Ministerial Rules were enacted, no W.P.(C)19533/2007& con.cases -7- special qualification as such was prescribed for the post of Lower Division Clerk. Amendment to the Ministerial Rules was effected by GO(P) 567/1989 dtd.12.7.1989 and given retrospective effect from 10.9.1984. It then read as follows: Lower Division Clerk/ Village Assistant including shall pass Chain Survey Test Special Village Assistant. 8. Subsequently by SRO 614/1996 dtd.12.8.1996, the aforementioned provision providing for a pass in the chain survey test as a special qualification for appointment of Lower Division Clerks was deleted and instead, an amendment was made to Rule 11 of the Ministerial Rules providing that the persons in category No.4, namely, L.D. Clerks should acquire the qualification of a pass in the chain survey test during probation. This amendment brought about by the aforementioned notification (it is produced and marked as Ext.P5 in the writ petition) was also given retrospective effect from 10.9.1984. 9. Therefore the net result of the aforementioned W.P.(C)19533/2007& con.cases -8- amendments brought about in 1989 and 1996 to the Ministerial Rules, but given retrospective effect from 10.9.1984 is that a pass in the chain survey test is a qualification that has to be necessarily acquired for a probationer in the post of Lower Division Clerk in the Land Revenue Department. I should also note another aspect which has been highlighted by the learned Senior Government Pleader, in this regard. The Ministerial Rules which was enforced by GO(P) 601/85 dtd.12.6.1985 was in consequence of the integration of the village staff and revenue staff in the Land Revenue Department. Certain aspects regarding the integration was mentioned in the Appendix to GO(MS)911/84/RD dtd.10.9.1984 (which has always been referred to as the Integration Order). Clause 7 of the Appendix of the Integration order provides that "the future appointment to the post of Village Assistant/LD Clerk will be made from a common select list". It further provides that "new recruits will be send for survey training. They should acquire test qualifications for being promoted to the W.P.(C)19533/2007& con.cases -9- cadre of Village Officer/UD Clerk". Apparently clause-7 should have been taken note of correctly by the Rule making authority, while issuing GO(P) 601/1985 dtd.12.6.1985, which contains the Ministerial Rules and then appropriate provisions should have been made in the special rules, to provide for acquisition of the qualification of a pass in the chain survey test during the period of probation in the post of L.D. Clerk, even then. It ultimately came to be done only by Ext.P5 notification on 12.8.1996, and then given retrospective effect from 10.9.1984. The submission of Mr.Nandakumar is that the change brought about by Ext.P5 notification dtd.12.8.1996 should therefore be treated as one in consonance with the prescription contained in Appendix-2 of the Integration Order. 10. As stated above, the Ministerial Rules comprehends the post of Head Clerk/Head Accountant/Sarkar Revenue Inspector/Special Revenue Inspector, UDC/Village Officer, Additional Village Officer and LD Clerk/Village Assistant including Special Village Assistants as also an Additional Village Assistant. The W.P.(C)19533/2007& con.cases -10- promotion post of a Head Clerk is that of a Deputy Tahsildar which is provided under the Kerala Revenue Subordinate Service Rules comprehending only Deputy Tahsildars. Rule 4 of the Revenue Subordinate Service Rules provides that appointment of Deputy Tahsildar shall be made by transfer from among the members of the Ministerial Service employed in the Land Revenue Department and by direct recruitment. Qualifications for the post is given in Rule-7 of the Kerala Revenue Subordinate Service. The special qualifications are (1) Revenue Test (1) Account Test (Lower) and District Office Manual Test. Rule 10 of the Revenue Subordinate service rules further provides that a probationer, shall, within the prescribed period of his probation, undergo the training prescribed in the Annexure to these rules and pass the following tests if he has not already passed then. 1) District Office Manual Test W.P.(C)19533/2007& con.cases -11- 2) The Revenue test (Travancore) or Revenue Test (Cochin) or Revenue Test Madras. 3)Criminal Judicial Test 4) Accountant Test(lower) or Account Test for Subordinate Officers, Part I (Madras) 5) Survey Test (higher). In Annexure II, the Subordinate Service Rules lays down the scheme of training to be undergone by the incumbents. It includes (1) training of a Village Officer, (2) training as Firka Revenue Inspector, (3) Higher survey training and (4) training as the Taluk Surveyor. 11. Promotion from the post of Deputy Tahsildar is to the post of Tahsildar which is comprehended by the Special Rules, namely, the Kerala Revenue Service Rules. Qualifications for the post of a Tahsildar is provided in Rule- 6 of the Rules. They are (1) Degree in Law or a pass in Criminal Judicial Test 2) Revenue Test 3) Account Test Lower and 4) Survey Test (higher). The aforementioned qualifications must be possessed by a person to be W.P.(C)19533/2007& con.cases -12- appointed as a Tahsildar. 12. As noted above, the special qualification prescribed for the post of L.D.Clerk in the Land Revenue Department, as per the amendment to the Ministerial Rules effected by GO(P) 567/89 DTD.12.7.1989 was a pass in the chain survey test. This was given retrospective effect from 10.9.1984. The petitioner was appointed as LD Clerk in the Land Revenue Department on 14.10.1983 which is prior to the prescription of chain survey test as a special qualification for the post of LD Clerk. Though retrospective effect has been given to GO(P) 567/89/RD issued on 12.7.1989, from 10.9.1984, it is a fact that the petitioner's probation in the post of LD Clerk was declared prior to the chain survey test being actually prescribed as a qualification thereof in the special rules governing the recruitment to the post in question. In the case of petitioners in other cases, some of them were appointed to the post of LD Clerk prior to the date of GO(P) 567/89 dtd.12.7.1989. But some of them were appointed only subsequent to the said date. But W.P.(C)19533/2007& con.cases -13- it could be said that all of them were advised for appointment prior to 12.7.1989, except in one case. Even in the case of Writ Petition 32611/2007, the advise given to the petitioner therein, obviously, should have been against a vacancy which should have arisen prior to 12.7.1989. These facts are mentioned only to highlight the position that there was nothing illegal about the appointment of the petitioners to the post of LD Clerk in the sense that the appointment was not in contravention of any statutory prescriptions. As a matter of fact this issue probably may not have arisen at all, if the Ministerial Rules amended by GO(P) 567/89 had not been amended thereafter by Ext.P5 notification. It is to be noted that if the original appointment to the post of entry in the Land Revenue Department cannot be said to be illegal, then the amendment of the said rules subsequent thereto will not have any impact on the validity of the appointment or to be more precise on the advise of the candidate concerned. But the Ministerial Rules again came to be amended in 1996 which was again given W.P.(C)19533/2007& con.cases -14- retrospective effect from 10.9.1984. As stated above, the resultant situation is one, where as Rule 11 of the Ministerial Rules now stands, pass in the chain survey test will necessarily have to be acquired during the period of probation as a Lower Division Clerk. The irrefutable fact is that Ext.P5 amendment has been given retrospective effect from 10.9.1984. Therefore with effect from 10.9.1984, a pass in the chain survey test should be treated as a special qualification to be acquired by every approved probationer in the post of a Lower Division Clerk in the Land Revenue Department. This is a statutory prescription and this comprehends all the petitioners including the petitioner in Writ Petition No.19533/2007 who though appointed only on 14.10.1983 had not completed his probation in the post of LD Clerk on 10.9.1984 which is the date of effect of the amendment to Rule 11 of the Ministerial Rules, brought about by Ext.P5 notification. 13. There is no challenge in the writ petition to either Ext.P5 notification or to the date of effect of the W.P.(C)19533/2007& con.cases -15- amendment. In other words, special rules relating to the post of the Lower Division Clerk in the Land Revenue Department, as it stands now, contemplates a pass in the chain survey test as a special qualification to be acquired during the period of probation. If this position is accepted, can it be said that the petitioners should be insisted upon acquiring the said qualification even for the purpose of promotion to the post of Deputy Tahsildar or Tahsildar which are covered by a different set of special rules of the General rules. Reference is made in this regard to Rule 28 (b)(2) which provides that all promotions or appointments by transfers to higher posts [other than selection posts which are covered by 28(b)(1] shall subject to the provisions of these rules and the special rules be made in accordance with the seniority subject to the person being considered suitable for the post. It cannot be disputed that pass in the chain survey test is a special qualification to be acquired in terms of Rule 11 of the Ministerial Rules, which are the special rules comprehending LD Clerks up to Head W.P.(C)19533/2007& con.cases -16- Clerks. Learned counsel for the petitioners submit that a pass in the chain survey test is not prescribed as a necessary qualification to be acquired by either Deputy Tahsildar or Tahsildar, as per the subordinate rules or the revenue rules as the case may be, and consequently for the purpose of promotion to the post of Deputy Tahsildar or Tahsildar, a pass in the chain survey test cannot be considered as a necessary qualification. Learned senior government pleader submits that if the special qualification is prescribed in relation to a post which is either the feeder category for promotion to the post of Deputy Tahsildar or a post still lower in the hierarchy, then possession of the said qualification should be treated as an implied condition for being considered as eligible for promotion to all the other posts in the same department. In other words, what he contends is that special rules, within the meaning of Rule 28 (b)(2) comprehends not only the special rules relating to the post of Deputy Tahsildar or Tahsildar, as the case may be, but the Ministerial Rules covering a Lower Division W.P.(C)19533/2007& con.cases -17- Clerk also. As otherwise, according to him, there will be an anomaly and an in-congruity brought about by the fact that a person who was ineligible to complete his probation in the post of Lower Division Clerk, by reason of not possessing the requisite special qualification, would nevertheless be treated as qualified to be promoted to the post of Deputy Tahsildar and Tahsildar which are obviously promotion posts in the same hierarchy. 14. There is considerable force in the submission of the Government Pleader. As noted above, the actual effect of Ext.P5 notification which amended the Ministerial Rules with effect from 10.9.1984 is to provide a pass in the chain survey test as special qualification to be acquired during the period of probation in the post of Lower Division Clerk. Admittedly none of the petitioners had completed their probation as on 10.9.1984. Consequently if the amendments to the Ministerial Rules are therefore enforced literally, it could leave a situation where a declaration of probation insofar as the petitioners are concerned could be W.P.(C)19533/2007& con.cases -18- treated as irregular or even illegal. 15. But I do not think this can be the intended result of either the amendment to the Ministerial Rules effected in1989 or the further amendment brought about by Ext.P5 notification in 1996. No doubt, the amendments have been given retrospective effect from 10.9.1985. But a literal implementation of the rules in the manner aforementioned would be to lose sight of the fact that legal, regular and proper appointments of persons in the Land Revenue Department effected against vacancies which had arisen prior to 10.7.1989 and declaration of probation of such persons in accordance with the rules as it existed at that point of time would be in jeopardy. In other words, a literal enforcement of the retrospective effect given to the Ministerial Rules either in 1989 or in 1996 could lead to arbitrary and illegal consequences. In my view, this will have to be avoided. 16. At the same time I cannot lose sight of two facts which have been highlighted by Mr.Nandakumar. First is that W.P.(C)19533/2007& con.cases -19- the Ministerial Rules, as they now stand, provide for a pass in the chain survey test which is the necessary special qualification to be acquired by a probationer in the post of a Lower Division Clerk for a successful completion of probation. Secondly the said qualification is a special qualification for a post though lower, is in the same hierarchy as that of a Deputy Tahsildar and a Tahsildar. Therefore to declare that a pass in the chain survey test is unnecessary for promotion to the post of a Deputy Tahsildar and Tahsildar as such, would be to do violence to the Ministerial Rules as such. If that be so, in my view, what is required at this stage is a harmonious middle path. I am also constrained to observe two other factors, at this stage. One is that the retrospective effect given to the amendment in 1989 with effect from 10.9.1984 as also the amendment by Ext.P5 notification in 1996 (again with effect from 10.9.1984) are not challenged herein. Had it been challenged at the appropriate time it might have been clarified that the amendment shall not interfere with the rights which are accrued or acquired. See in this regard the W.P.(C)19533/2007& con.cases -20- decisions of the Division Bench of this Court in Kerala Panchayat Executive Officers Association v State of Kerala reported in (2000(3) KLT 701) as also Gopinathan v State of Kerala (1984 KLT 726) which dealt with the same set of rules, prior to the integration in the Land Revenue Department. Secondly a perusal of the qualifications to be necessarily possessed or acquired by a person aspiring for promotion to the post of Deputy Tahsildar and Tahsildar will show that in the case of a Deputy Tahsildar, he has to pass a survey test (higher) for successful completion of probation. Learned counsel for the petitioner contends that in the case of a Tahsildar survey test (higher) is a qualification prescribed for appointment to the said post. A perusal of the Annexure to the Subordinate Rules and the Revenue Rules will show that the training to be undergone by a Deputy Tahsildar during the period of probation includes a training in survey also. It would be reasonable to presume that the acquisition of a qualification of survey test (higher), which is prescribed in relation to the post of Deputy Tahsildar would comprehend W.P.(C)19533/2007& con.cases -21- a reasonable competence in chain survey also. At any rate, it may not be possible to say that an approved probationer in the post of Deputy Tahsildar will be completely unaware of chain survey. 17. Learned counsel for the petitioner points out the Note under Rule-11 which provides "Those who are appointed to the category of Lower Division Clerk/Village Assistant by direct recruitment shall be deputed to Chain Survey Course by the Department immediately after their appointment and within the period of their probation" 18. It is submitted that therefore there was an obligation on the part of the department to depute persons who were appointed to the post of a Lower Division Clerk/Village Assistant by direct recruitment for a chain survey course, immediately after their appointment and during their period of probation. Of course by the time Ext.P5 notification was issued, all the petitioners had actually completed their probation, but nevertheless it indicates that there was an obligation on the part of the department to