IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 RP.No. 825 of 2009(G) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.38283/2007 Dated 23/05/2008 .................... REVIEW PETITIONER(S): RESPONDENTS 1 AND 2 IN WPC: ------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DEPARTMENT OF SURVEY AND LAND RECORDS, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER RESPONDENT(S): PETITIONERS 1 - 10 IN WPC: ---------------------------------------- 1. R.BABU, HEAD SURVEYOR, OFFICE OF THE SUPERINTENDENT OF SURVEY (RE-SURVEY), PUNALUR, KOLLAM DISTRICT. 2. K.ANILKUMAR, HEAD SURVEYOR,OFFICE OF THE SUPERINTENDENT OF SURVEY NO.1, PATHANAMTHITTA. 3. T.SASIDHARAN, DISTRICT HEAD SURVEYOR, OFFICE OF THE DISTRICT SUPERINTENDENT OF SURVEY, COLLECTORATE, PATHANAMTHITTA. 4. D.MOHAN DEV, HEAD SURVEYOR, OFFICE OF THE SUPERINTENDENT OF SURVEY AND LAND RECORDS (RE-SURVEY), ANCHAL, KOLLAM DISTRICT. 5. SADANANDAN P.K., HEAD SURVEYOR, OFFICE OF THE SUPERINTENDENT OF SURVEY (RE-SURVEY) CHANGANACHERRY, KOTTAYAM DISTRICT. 6. K.SURENDRAN, HEAD SURVEYOR, OFFICE OF THE SUPERINTENDENT OF SURVEY (RE-SURVEY), PATTAMBI, PALAKKAD DISTRICT. 7. A.M.SANTHAKUMARI, HEAD SURVEYOR, OFFICE OF THE SUPERINTENDENT OF SURVEY (RE-SURVEY) PEERMADE, IDUKKI DISTRICT. 8. K.L.VALSAMMA, HEAD SURVEYOR, OFFICE OF THE SUPERINTENDENT OF SURVEY (RE-SURVEY), PEERMADE, IDUKKI DISTRICT. 9. K.R.RAJEEV, HEAD SURVEYOR, OFFICE OF THE SUPERINTENDENT OF SURVEY, NILAMBUR, WAYANAD DISTRICT. 10. N.B.SINDHU, HEAD SURVEYOR, OFFICE OF THE SUPERINTENDENT OF SURVEY (RE-SURVEY), KARUNAGAPPALLY, KOLLAM DISTRICT. BY GOVT. PLEADER SRI. SANDESH RAJA SRI.A.ANILKUMAR SMT.I.SHEELA DEVI FOR R-11 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI,J. ------------------------- R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 -------------------------- Dated this the 7th October,2009 O R D E R The State has filed this review petition contending that the direction issued to the 1st respondent in the writ petition to consider the case of the petitioners for promotion to the post of Superintendent of Survey and Land Records on the premise that the petitioners are entitled to temporary exemption from the qualification prescribed for the said post in terms of Rule 13A of Part II, K.S & S.S.R, suffers from an error apparent on the face of the record. 2. I will refer to the brief facts involved in the writ petition as elaborate arguments were advanced by the learned Senior Government Pleader and by the learned counsel for the writ petitioners. 3. The writ petitioners (hereinafter referred to as “petitioners”) are Head Surveyors in the Survey and Land Records Department. They commenced their service as Surveyor Gr.II, except in the case of the 1st petitioner who R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 2 commenced service as Draftsman Gr.II. They were then promoted as Grade I Surveyor and subsequently as Head Surveyor. Writ petitioners make reference to Ext.P1 seniority list of Head Surveyors and inclusion of the petitioners therein. It is contended that no test qualification is required for promotion up to and inclusive of the post of Head Surveyor in the Department. 4. In so far as appointment to the post of Superintendent of Survey and Land Records included in the State Services is concerned, recruitment is by transfer from Head Surveyors or direct recruitment. Pass in First Grade Surveyors and Head Surveyors Tests, Account Test (Lower) and Revenue Test are the qualifications prescribed for recruitment by transfer. Members of the Scheduled Castes/Scheduled Tribes are temporarily exempted from acquiring such special or departmental tests under Rule 13A of Part II of the K.S & S.S.R. Petitioners possess the minimum educational qualification of S.S.L.C. They asserted that by virtue of Rule 13A of the General Rules, they were exempted from acquiring the test qualifications R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 3 prescribed for the post of Superintendent of Survey and Land Records and accordingly they should be considered for appointment to the said post by transfer in terms of the Special Rules for the State Services. 5. A counter affidavit had been filed on behalf of the respondents in the writ petition and the principal contention taken up therein was that the Special Rules for the Subordinate Services prescribes the Head Surveyors Test, Account Test (Lower) and Revenue Test and they are not merely obligatory departmental tests for appointment to the post of Head Surveyor. They were qualifications required for declaration of probation namely confirmation of the said person iconcerned n the post. Exemption under Rule 13A and Rule 13AA of the General Rules are only applicable to obligatory Departmental test and do not apply to qualifications prescribed in the Special Rules for appointment to a particular post. 6. This Court had after hearing both sides, proceeded to direct the petitioners to move the Government for considering them for promotion to the post R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 4 of Superintendent of Survey and Land Records on the premise that they are entitled to exemption from acquiring the test qualification for the said post, in terms of Rule 13A of the General Rules. 7. It seems that the directions were not complied with and the writ petitioners moved this Court under the Contempt of Courts Act. Time for compliance was extended on more than one occasion. Ultimately, the Government proceeded to pass an order holding that petitioners are not entitled to temporary exemption, from the tests in question for promotion to the post of Superintendent of Survey and Land Records as the same tests are obligatory departmental test for a person to be confirmed in the post of Head Surveyor borne in the Subordinate Services. Reference in this regard was made to Rule 6 of the Special Rules relating to the Subordinate Services. It seems that the Director of Survey and Land Records then proceeded to cancel the declaration of probation made in the case of the petitioners in the post of Head Surveyor. Thereafter the Government has proceeded to file this review petition R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 5 as already mentioned above. 8. A detailed counter affidavit has been filed by the writ petitioners. 9. Heard Sri.Sandesh Raja, learned Senior Government Pleader appearing for the State, Smt.Ranjini, learned counsel for the writ petitioners and Smt.Sheela Devi for the additional respondent, who had got himself impleaded in the review petition. 10. I have proceeded to consider the question urged in the review petition in the context of the General Rules as also the Special Rules for the State Services and Subordinate Services in question. 11. Rule 13A of the General Rules provides that where a pass in the special or departmental test is prescribed by the Special Rules of the service, a member of a State Service belonging to any Scheduled Castes or Scheduled Tribes who has not passed the said test but is otherwise qualified and suitable for appointment may be appointed thereto temporarily. Rule 13A (ii) provides for the reversion of such person if he does not pass the test R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 6 within three years from the date of such appointment. Rule 13AA provides that notwithstanding anything contained in the Special Rules, the Government may be ordered an exemption for a specified period to any member or members belonging to scheduled caste or scheduled tribe and already in service from passing the test referred to in Rule 13 or Rule 13A of the Special Rules. Rule 13AA is incorporated with effect from 13.1.1972. Per se Rule 13AA applies only to those persons who were in service on 13.1.1972. But reference will also have to be made to Rule 13AB which reads as follows: "13AB The orders exempting members of the Scheduled Castes and of the Scheduled Tribes who were in service on the 13th January, 1972, issued under rule 13AA shall be and shall be deemed always to have been applicable to members of the Scheduled Castes and of the Scheduled Tribes who entered service after the said date also." 12. There is no dispute that petitioners are entitled to avail the benefit of Rule 13A of the Rules in so far as the test prescribed in the Special Rules for the Subordinate R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 7 Service, for the post of Head Surveyor are concerned. These tests are Head Surveyors Test, Account Test (Lower) and Revenue Test. They were accordingly appointed to the said post by promotion as well. It is also not disputed that their probation was actually declared. Though subsequently the Director has cancelled the declaration of their probation, such cancellation has come about only after the judgment under review was passed. 13. The crucial question is whether the temporary exemption that is granted or rather available under Rule 13A of the General Rules will also operate as an exemption from the acquisition of those qualifications, otherwise mandated by the Special Rules in question. Rule 6 of the Special Rules for the Survey and Land Records Subordinate Service reads as follows: "6. Tests (1). A probationer in the post of Head Surveyor shall, within the period of probation, pass the tests specified below unless he has passed tests previously. 1.(i) Head Surveyors Selective Test (Travancore) R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 8 (ii) Theodolite Survey Test and Mapping Test (Cochin) (iii) Head Surveyors and Sub-Assistants Test (Madras) 2. Account Test (Lower) 3. Revenue Tests [Provided that a person who has passed the Head Surveyors and Sub-Assistants Tests of Madras shall not be required to pass the Revenue Test.] " 14. Learned Government Pleader submits that the exemption available under Rule 13A operates only in the matter of appointment and where the same tests are prescribed as obligatory departmental test for the purpose of declaration of probation or confirmation of any incumbent in question in the post as a full member of that service, such exemption under Rule 13A would not be available as such. 15. None of the exemptions provided under Rule 13A or 13AA or 13AB, according to him, relates to a qualification which is required for the purpose of declaration of probation. They all contemplate temporary R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 9 exemption from special and departmental test at the stage of appointment to a service on promotion. They do not relate to qualifications which have to be acquired by a probationer for confirmation in the service, it is contended. In this context, he submits that the direction issued by this Court in the judgment sought to be reviewed, on the premise that the petitioners are entitled to exemption for promotion to the post of Superintendent of Survey and Land Records suffers from an error apparent on the face of the record and requires to be reviewed. 16. Learned counsel for the petitioner submits that the obligatory departmental tests which are mentioned in Rule 6 of the Special Rules for Subordinate Service are significantly the same as the qualification prescribed for the post of Superintendent of Survey and Land Records in the State Service. 17. It is also contended that the exemption provided under Rule 13A which is extended under Rule 13AA or 13AB as the case may be, would be rendered illusory, if the benefit of exemption is not made available for the R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 10 obligatory departmental test required for declaration of probation as well. She refers to the judgment of a learned Judge of this Court in Ramamoorthy Vs. State of Kerala [1991 (1) KLT 838]. This Court was concerned in the said case with the departmental tests prescribed for the completion of probation in the category of U.D Clerks in the Kerala State Road Transport Corporation. General Rules were applicable to the said post also. It was held that the order granting exemption from passing test under Rule 13A of the General Rules would be available in respect of the test for promotion as also in relation to probation. 18. Learned counsel for the petitioners also referred to the judgment of the Division Bench of this Court in Somarajan Vs. State of Kerala [ 2007 (1) KLT 186. The Division Bench was concerned with the question as to whether the exemption granted by the Government to the members of the Scheduled Castes/Scheduled Tribes under Rule 13AA of the General Rules is applicable to special tests prescribed as essential requirement as per the Special R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 11 Rules for appointment to the post of Superintendent of Survey and Land Records. It was held that the exemption under Rule 13AA and 13AB is available not only for obligatory departmental test but also for special qualification prescribed for a post in question. Paragraph 15 of the judgment reads as follows: "This rule covers everybody. The exemption provided is from "obligatory departmental test". This is intended for the incumbents who have crossed 50 years of age and completed 25 years of service it is a permanent exemption. On the other hand, the exemption provided for in R.13A which is extended by R.13AA and 13AB is a temporary exemption from passing "Special or Departmental tests." Therefore, exemption envisaged in R.13A and 13AA exentended further by R.13AA and 13AB and that under R.13B are in respect of different types of tests. Those covered by 13A in respect of Scheduled Castes/Scheduled Tribes are special and departmental tests which include any qualification within the groups of Special/departmental test, other than the qualifying course/training made mention of in R.13BB. It is, thus, clear that such exemption is available to the members of Scheduled Castes/Scheduled Tribes from the special test or departmental test, which are dealt with in R.13A, 13AA and 13AB, as the essential qualifications for being considered for appointment either by transfer or by promotion, as the case may be. It is not confined to obligatory departmental tests alone as contended by the appellants." R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 12 19. A perusal of Somarajan's case would indicate that the Court had proceeded on the premise that the exemption under Rule 13A, 13AA and 13AB would obviously apply to all obligatory departmental tests and the question that was that was posted for consideration of the Division Bench was only whether the exemption would take any special qualification prescribed for the post. Significantly, the special qualification prescribed for the post of Superintendent of Survey and Land Records, was earlier prescribed as qualification for the post of Head Surveyor also. But later, the Special Rules for the Subordinate Services were amended and the aforementioned test ceased to be qualifications necessary for appointment to the post of Head Surveyors. But they continue to be retained as an obligatory departmental test under Rule 6 of the Special Rules for the post of Head Surveyor. What is noteworthy is that the aforementioned tests continued as qualification for the post of Superintendent of Survey and Land Records, R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 13 comprehended by the State Service. 20. Somarajan's case upheld the contention that the aforementioned tests prescribed as qualification for the post of Superintendent of Survey and Land Records are comprehended by the orders of exemption issued by the Government under Rule 13A, 13AA and 13 AB. Then it would be highly incongruous to consider the said qualifications as beyond the scope of the orders of exemption, in so far as it relates to the post of Head Surveyor included in the Subordinate Services. It would be not be reasonable to infer that a Head Surveyor not possessing the above mentioned qualification may not be entitled to be confirmed in the said post on declaration of probation but would nevertheless be entitled to be appointed to the post of Superintendent of Survey and Land Records by transfer from the Subordinate Services on the strength of the orders of exemption issued under Rule 13A, and extended under Rule 13AA and 13AB as the case may be. R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 14 21. As already noted, the principle that the orders of exemption issued in relation to any test, for the purpose of promotion will also comprehend declaration of probation has been upheld by a learned Judge of this Court in Ramamoorthy Vs. State of Kerala [ 1991 (1) KLT 838]. The direction issued in the judgment which is sought to be reviewed is in conformity with Ramamoorthy Vs. State of Kerala [ 1991 (1) KLT 838]. 22. In these circumstances, I do not find any error in the judgment sought to be reviewed. 23. Learned Government Pleader refers to another judgment of a Division Bench of this Court namely, Sarojini Amma Vs. State of Kerala [2002 (3) KLT 573]. The Bench had in the said case specifically held that permanent exemption under Rule 13AB of the General Rules will be available only for obligatory departmental test and will not be available in relation to basic essential qualification for direct recruitment and recruitment by transfer. It is contended that a contrary view has been taken in the case of Somarajan's case. R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 15 24. On a perusal of the judgment of the Division Bench in Somarajan's case and Sarojini Amma's case, one will be constrained to observe that there is a divergence of views. Significantly both the cases dealt with the same Special Rules and the same post of Superintendent of Survey and Land Records. 25. But I am bound to follow the the Division Bench in the subsequent judgment. I also take note of the fact that Somarajan had specifically held that exemption from acquiring an obligatory departmental test will apply in the case of a qualification prescribed for the post . I have already observed earlier that Somarajan dealt with the case of qualification prescribed for the post of Superintendent of Survey and Land Records , the very same post in question. 26. Assuming that there is a conflict between the opinions voiced in Sarojini Amma and Somarajan is a matter that may have to be resolved by a Bench of superior strength. R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 16 For all these reasons, I am of the view that the view taken in the judgment sought to be reviewed does not suffer from any error apparent on the face of the record. Review petition is therefore, dismissed. The time limit prescribed in the judgment sought to be reviewed shall now be made applicable with reference to the date of the judgment in the review petition. (V.GIRI,JUDGE) ma R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 17 R.P. No.825 of 2009 in W.P ( C) No.38283 of 2007 18