IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 WP(C).No. 7527 of 2005(U) ------------------------------------------- PETITIONER: --------------------- A.T.MAHESAN, LOWER DIVISION CLERK, 29 KERALA BATTALION N.C.C. WEST HILL, CALICUT 673 005. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SRI.LEJU T.BALAN RESPONDENTS: ------------- 1. THE STATE OF KERALA, REP. BY THE PRINCIPAL, SECRETARY TO DEPARTMENT OF HIGHER EDUCATION SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL, N.C.C. DIRECTORATE (K & L) COTTON HILL BUNGLOW, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. BENJAMIN PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7527 of 2005(U) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1: REPRESENTATION SUBMITTED BY THE PETITIONER TO R2 DTD. 28.10.2002. EXT.P2: REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST respondent DTD. 29.10.2003. EXT.P3: JUDGMENT IN W.P.(C).NO.11136/2004 ON THE FILE OF THIS HON'BLE COURT DTD. 30.32004. EXT.P4: ORDER ISSUED BY THE R1 DTD. 15.9.2004. EXT.P5: ORDER ISSUED BY THE R2 DTD. 1.2.2005 RESPONDENT'S EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. K.BALAKRISHNAN NAIR, J ============== W.P.(C).No. 7527 OF 2005 ==================== Dated this the 18th day of July, 2008. J U D G M E N T The petitioner is a member of a scheduled caste. He was appointed as L.D. Clerk in the department of National Cadet Corps on 13.6.1997. He completed his probation on 21.1.2000. Since he was a member of the scheduled caste he was entitled to be promoted temporarily as U.D. Clerk by virtue of the provisions of Rule 13(A)(1)(a) of the KS&SSR and allowed to continue for three years. If he does not pass the test within the three years, he will be reverted under Rule 13A(2)(a). Though he was entitled to the above benefit as a member of the scheduled caste, it was not extended to him. So, he filed Exts.P1 and P2 representations. This Court by Ext.P3 judgment directed the Government to consider those representations. The Government issued Ext.p4 holding that the petitioner is entitled to be promoted as U.D. Clerk temporarily in a vacancy that arose on or after 21.1.2000. In obedience to that direction, the 2nd respondent, appointing authority of the petitioner passed Ext.P5 W.P.(C).No. 7527 OF 2005 2 order promoting him as U.D. Clerk with effect from 21.1.2000 and also reverting him to the post of L.D. Clerk with effect from 21.1.2003. He has been granted all consequential monetory benefits also. This writ petition is filed challenging Ext.P5 order of the 2nd respondent. 2. According to the petitioner, he should have been promoted prospectively from the date of Ext.P1 for a period of three years and allowed him, during that three year period, to clear the Account Test (Lower) which is the obligatory test, which he should have cleared for promotion to the post of U.D. Clerk. The relevant portion of the Rule 13 A reads thus: “13A. Special and Departmental Tests-Temporary exemption for promotion-[1] Notwithstanding anything contained in rule 13- (a) Where a pass in a special or departmental test is 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 W.P.(C).No. 7527 OF 2005 3 member of a 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 test, 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 the case of a person belonging to any of the Scheduled Castes or Scheduled Tribes. 3. Going by the above Rule, the petitioner is entitled to get exemption only for a period of three years. The petitioner was entitled for promotion from the date he became eligible to be considered for promotion, that is, from the date he completed probation. The said benefit has been granted to him. Since he did not clear the test within the three year period, he was rightly reverted under Ext.P5. Account test (Lower) is a test conducted W.P.(C).No. 7527 OF 2005 4 by PSC from time to time. The petitioner joined service in 1997, and he was reverted under Ext.P5 only in 2003. Within the said time limit, the petitioner failed to clear the test. For that he must blame himself. Since he could not clear the test even within the extended time, I find no reason to grant him further time, accordingly the writ petition fails and the same is dismissed. K.BALAKRISHNAN NAIR, JUDGE bkn/-