Case: District Registrar Palghat and Others Vs. M. B. Koyakutty and Others

This appeal by special leave, directed against a judgment, dated December 18, 1968, of the High Court of Kerala, arises out of these facts: Koyakutty, Respondent herein, entered service of the former, Madras State on May 1, 1943 as temporary Section Writer on probation in the Registration Department. He did not possess the minimum, general educational qualification prescribed by Rule 29 of the Madras Ministerial Service Rules. This rule, inter alia, provided that no person shall be eligible for appointment to the service in any post either by direct recruitment or by recruitment by transfer on promotion unless he possesses the minimum general educational qualification prescribed in the Schedule to the General Rules. The General Rules provided that the passing of the Secondary School Leaving Examination or other equivalent examination shall be the minimum educational qualification for appointment to the Ministerial ServiceThe State Government, however, had the power to exempt a person from this qualification. The Madras Government passed an Order, dated April 15, 1954, (Ex. P-II), exempting, him from the said qualification for being appointed as a Lower Division Clerk in the Registration Department. It will be useful to quote this order in extenso:"The Government consider that in view of the fact that Sri M. B. Koyakutty belongs to a community which is educationally backward, the petitioner should be exempted from the minimum general educational qualification, so as to enable him to be appointed as a Lower Division Clerk in the Registration Department under G.O. MS. No. 2858 Rev. dt. 2-11-50 in his turn........ The Governor of Madras accordingly relaxes rules 28 and 29 of the Special Rules for the Madras Ministerial Service in favour of Sri M. B. Koyakutty, a temporary Section Writer in the Registration Department in the Registration District of Palghat in order to enable him to be appointed as a Lower Division Clerk in that department.Sd/-S. K. Chettu,Secretary to Govt."As a result of this exemption, Koyakutty was appointed a Lower Division Clerk in the Registration Department on May 19, 1954Consequent on the reorganisation of the States in 1956, Koyakutty was allotted to the Kerala State Service as Lower Division Clerk in the Registration DepartmentOn May 16, 1961, the Government of Kerala issued an Order, in consultation with the Public Service Commission, that "all such persons who did not possess the general minimum educational qualification and were appointed as Lower Division Clerks, after granting them exemption from that qualification", may be allowed to sit for a qualifying test to be conducted by the Commission, and in case they secure a certain minimum percentage of marks, they may be regarded as possessing the minimum general qualification of the S.S.L.C. Standard for purpose of promotion to Upper Division and higher grades or continuance in the Upper Division, as the case may be. The order further stated that the case of those who have been appointed and are continuing in the Upper Division, they need not be disturbed for the present, but they should be reverted, if they fail to qualify at the next such examination of the Commission. According to para 3 of the Order, "the minimum marks to be obtained for being declared eligible for promotion to or continuance in the Upper Division etc........ w ill be issued separately."A gradation list of Clerks was prepared by the District Registrar, Palghat, in which Koyakutty was shown at No. 1 among the officiating Lower Division Clerks, while the original respondents 1 and 2 were shown at Nos. 7 and 6, respectivelyIn July 1966, two vacancies occurred in the cadre of Upper Division Clerks in the Department. The original respondents 1 and 2, who were junior to Koyakutty, were promoted against those vacancies as Upper Division Clerks.Koyakutty thereupon filed a writ petition under Article 226 of the Constitution in the Kerala High Court, praying that the promotion of original respondents 1 and 2 be quashed and a direction be issued requiring the District Registrar, Palghat, and the State of Kerala to consider his claim and to promote him in preference to the original respondents 1 and 2Koyakuttys contention was that under the Rules, seniority should be the basis for promotion; and promotion of h is juniors amounted to a denial of equable treatment guaranteed under Article 14 and 16 of the Constitution. His stand was that the exemption granted to him by the Government, removing the bar from being appointed in the Ministerial Service enured for all purposes. This contention was rejected by the trial Judge, who held that the exemption granted to Koyakutty was for the limited object of enabling him to be appointed and continued in the post of a Lower Division Clerk and did not remove the bar of minimum educational qualification for his promotion to the post of Upper Division Clerk. In the result, Koyakuttys writ petition was dismissedOn appeal by Koyakutty, a Division Bench of the High Court reversed the judgment of the learned Single Judge, and directed the District Registrar, Palghat, and the State Government to treat Koyakutty as eligible for promotion as an Upper Division Clerk and pass necessary orders on that basis. The Division Bench further directed that Koyakuttys rank in the cadre of Upper Division Clerks will, also, be determined after he is promoted to that CadreHence this appeal by the District Registrar, Palghat and the State.

Reasoning:
A similar argument was raised before the Appellate Bench of the High Court, also, and it was repelled, and, in our opinion, rightly. Special Rules for the purpose of the Kerala Rules, 1958, will be as defined in Rule 2(16) in Part I. That definition contemplates that Special Rules in Part III will be framed by the Governor of Kerala. But, no such rules have so far been framed.We have, therefore, no hesitation in holding, in agreement with the High Court, that in the matter of promotion as an Upper Division Clerk, the appellant was governed by Rule 28(b)(ii) in Part IIAfter t he enactment of the Kerala Public Services Act of 1968, the position was that by virtue of Section 3 of that Act, the Kerala State Subordinate Services Rules of 1958 framed by the Governor under the proviso to Article 309 of the Constitution were deemed to have been made under the Act and were continued until superseded by rules made under that Act. As noticed already, no Special Rules relating to Upper Division Clerks have been framed. The General Rules in Part II will, therefore, be applicable to Upper Division Clerks, also.It will bear repetition that the preamble to the Rules and Rule 1 in Part II, indicate that all the previous rules have been superseded. These General Rules do not provide any minimum general educational qualification for promotion to the cadre of Upper Division Clerks from that of Lower Division Clerks. All that is required by rule 28 (b) (ii) which governs the promotions from the Lower Division to the Upper Division, is that promotions shall be made in accordance with seniority subject to the persons fitness for appointment. There is nothing in this sub-rule or elsewhere which provides that a member of the Lower Division will be presumed to be unfit for promotion to the Upper Division unless he possesses the minimum general educational qualification, or passes a qualifying test. It is conceivable that the State Government may prescribe a general test for all Clerks of the Lower Division to judge their fitness for promotion to the Upper Division. But, such is not the case here. The respondent and the others like him who were appointed as Lower Division Clerks after granting them exemption from possessing the minimum general educational qualification have been singled out for this discriminatory treatment. There is nothing on the record to show that the case of the respondent was considered for promotion and he was found unfitThe case in point is Roshal Lal Tandon v. Union of India. In that case, before the impugned notification was issued, there was only on e rule of promotion for both the departmental promotees and the direct recruits, and that rule was seniority-cum-suitability, and there was no rule of promotion separately made for application to direct recruits. As a result of the impugned notification, a discriminatory treatment was made in favour of the direct recruits, i.e. existing Apprentice Train Examiners who had already been absorbed in Grade D by March 31, 1966, because the notification provided that this group of Apprentice Train Examiners should first be accommodated en bloc in Grade C upto 80 per cent of vacancies reserved for them without undergoing any selection. Ramaswami J., speaking for a Bench of five learned Judges, held that the impugned notification violated the guarantee under Articles 14 and 16 of the Constitution. The reason was that once the direct recruits and promotees were absorbed in one cadre, they formed one class and they could not be discriminated against for t he purpose of further promotion to the higher Grade C. In that case, it was not disputed that before the impugned notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that rule was seniority-cum-suitability. The impugned notification was discriminatory because in the case of that category who were appointed as Train Examiners by promotion the aforesaid test of seniority-cum-suitability prescribed by the rule for further promotion to the higher Grade C was abandoned and, instead, selection on merit only was adopted.The principle enunciated in Roshan Lal Tandon v. Union of India applied with greater force to the facts of the present case because here the classification made by the impugned Government Order is not only unfair and irrational but also, virtually amounts to abandonment of the test of seniority-cum-fitness provided in rule 28 (b) (ii)Ordinarily, the court does not issue a direction in such positive terms, but the peculiar feature of this case is that it has not been disputed that Koyakutty respondent satisfies the two-fold criterion for promotion laid down in the statutory rule 28(b)(ii). Indeed, the District Registrar, Palghat, who was impleaded as respondent 3 in the writ petition, expressly admitted in paragraph 8 of his counter-affidavit filed before the High Court, "that the seniority of service is the basis of promotion from t he ranks of Lower Division Clerks to the ranks of Upper Division Clerks provided they are fully qualified by passing the departmental tests for the purpose". It was never the case of the Registrar that Koyakutty was not otherwise fit for promotion. Indeed, even in the grounds of appeal to this Court, incorporated in the Special Leave Petition, it is not alleged that Koyakutty did not satisfy the criterion of seniority-cum-fitness prescribed by Rule 28(b)(ii). The position taken by the appellant, throughout, was that this rule should be deemed to have been "supplemented" by the impugned Government Notification. It is not correct that the impugned Notification merely "supplements" or fills up a gap in the statutory rules. It tend s to super-add or super impose by an Executive fiat on the statutory rules something inconsistent with the same. Since the existence of both the criteria viz., seniority and fitness for promotion to the Upper Division prescribed by the statutory Rule 28(b)(ii), in the case of Koyakutty was not disputed, the High Court was justified in issuing the direction, it did.