Case: A.P. Showkath Ali &amp; Others Vs. State of Kerala &amp; Others

2. In a special recruitment,rs belonging to the Scheduled Caste/Scheduled Tribe community were appointed by the Government of Kerala during 1988. It is the requirement of the Special Rule that they should pass the special test conducted by the Kerala Public Service Commission for declaration of probation. Rule 9 of the Special Rules, to the extent relevant, reads as) Every person appointed under these rules shall, pass the test on the subjects mentioned in Annexure III to these rules at or before the fifth of such tests held after such appointment the maximum number of chances shall be limited to three.Note: The examination will generally be conductedby the Kerala Public Service Commission.For over twelve years, the test was not conducted by the Commission. In the meanwhile, those Assistantapproached the High Court and obtained orders for provisional promotion to higher posts along with their juniors.4. While the Assistantcontinued to enjoy provisional promotions, the Government felt that there should be asolution for the issue regarding the passing of the test under the Special Rules since the test had not been conducted. In such circumstances, the Government passed an Order dated 17.11.2000 invoking Rule 39 of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as ‘theven directly recruited Assistantfrom passing the test prescribed under the Special Rules. Since the order iswe shall extract the same asper Government Order read as first paper above, Government issued Special Rules for Special Recruitment from among members of scheduled castes / scheduled tribes to the post of Assistant Sub Inspector in the general Executive Branch (Local Police) in the Police Department. Subsequently the Director General of Police proposed certain modifications to the above Government order during 1988, the following are the gist of theThe Note under rule 9(a) of the said rules shall be deleted and the Department may be authorized to conduct the tests and declare the results as in the case of other trainees in the Police Department.2) Every person appointed to the Police force is required to execute a bond to the effect that he shall serve the Department for a minimum period of 5 years after practical training.3) The period of training of Assistant Sub Inspectors shall not count as duty for increment and probation, duty for the limited purpose of calculation of leave eligibility as a special case as in the case of Police Constables and Sub Inspectors.The above proposal of the Director General of Police was considered by Government in detail and draft amendment notification in this regard was forwarded to the Kerala Public Service Commission for their advice on 6.1.1989. Initially the Kerala Public Service Commission did not agree to the amendment proposal. But during 1993 the Kerala Public Service Commission sought clarifications for certain points and the reply to the clarifications sought by the Kerala Public Service Commission was furnished to them. Final decision on the proposal is yet to be taken.Consequent on the issuance of the Government Order read as 1st paper above, 37 persons belonging to SC/ST Community were directly recruited as Assistant sub Inspectors during 1988 and they joined training from 1.11.1988 onwards. According to Rule 9(a) of the Special Rules issued as per the above Government Order all the 37 Assistantshould pass the test prescribed thereunder to be conducted by the Kerala Public Service Commission for declaring the satisfactory completion of their probation and for earning increments. But unfortunately, no test was conducted by the Kerala Public Service Commission till date probably because proposals to amend the provisions in the Special Rules regarding the conduct of the test and certain other matters had been under consideration. As a result, these 37 officers did never get an opportunity to appear for the test and hence the satisfactory completion of probation of the above mentioned 37 Assistant Sub Inspectors has not been declared so far. This created a situation during 1991 when Assistant Sub Inspectors who were juniors to these 37 officers were promoted asSome among the 37 Assistant Sub Inspector approached theHigh Court by filing OP No. 12822/91 and based on the directions of theHigh Court all the 37 officers were provisionally promoted as Sub Inspector.Though, based on the directions of theCourt, all the 37 Assistant Sub Inspectors were promoted as Sub Inspectors, the question of passing of the test for declaration of their probation in the category of Assistant Sub Inspector remains unsolved. The Director General of Police has reported that the seniority of these officers could not be fixed so far. Further these officers are being denied annual increment due to them as passing of the test is necessary for increment also. The Director General of Police has further reported that all the37 Assistant Sub Inspector have become senior Sub Inspectors who can be considered for promotion as Circle Inspectors. If the issue regarding the passing of the test and declaration of probation is not solved immediately, these officers are likely to be superseded in the promotion of this post of Circle Inspectors. The situation as described above has arisen for no fault of these officers. Though passing of the test has been prescribed for the declaration of their probation, the test prescribed has never been conducted though 12 years have passed since their recruitment. They were appointed as Assistant12 years ago and they are at present working as (Provisional) Senior Sub Inspectors still getting the minimum of the scale of pay of the Assistant Sub Inspector. Now after a lapse of 12 years, insisting on the passing of the test by these officers is quite unjustified. Now that they will be working as Sub Inspectors for the last several years, insistence on a test which was to decide then suitability for confirmation in the rank of Assistant Sub Inspector is illogical also. In order to sort out an immediate solution to the above problem, the Director General of Police has proposed that this is a fit case of invoking powers of the Government under Rule 39 of the KSSRs, 1958 taking into account the extraordinary circumstances under which these officers have suffered seriously for so long. He has, therefore, recommended that the Government may 5 invoke General Rule 39 and exempt these officers from passing the test prescribed under Rule 9(a) of the special Rules.Having examined the proposal in detail, Government are pleased to exempt the 37 directly recruited Assistant Sub Inspectors from passing the test prescribed under Rule 9(a) of the Special Rules issued as per Government Order read as first paper, as a Special Case, by invoking Rule 39 of the Generalsupplied)5. The above Order was challenged by the appellants before the High Court of Kerala. The High Court, as per the impugned Order, dismissed the writ petition, holdingThe reasons stated by the Government disclose an extraordinary situation and the injustice that was meted out to the Assistant Sub Inspectors of Police, warranting invocation of its powers under Rule 39 of K.S. & S.S.R. Reasoning of the Government that it was illogical and unjustified to ask the Assistant Sub Inspectors of Police to appear for the test after rendering service of 12 years in the post also cannot be said to be unreasonable. We are satisfied that Government was justified in invoking the power under Rule 39 of K.S. & S.S.R. and in our considered view, there is nothing illegal in Ext.P6 order of the Government.Aggrieved, the appellants are before this Court.

Reasoning:
10. We do not think that it needs any elaborate discussion to note that Rule 39 of the Rules is to operate notwithstanding anything contained in the Rules or Special Rules or Government Orders. No doubt, under Rule 13AA, the passing of test is obligatory for members of the Scheduled Caste and Scheduled Tribe below the rank ofin the Police Department. But it has to be seen that it is Rule 39 which is an exception to the exemption contemplated under Rule 13AA. Rule 39 is to operate notwithstanding anything prescribed not only in the Kerala State and Subordinate Services Rules or the Special Rules but even in any Government Order. The whole purpose of such residuary power is to remedy an otherwise, unjust and inequitable situation. Therefore, the Government Order dated 05.02.2000 also does not stand in the way of the 9 Government invoking Rule 39. That apart, Rule 13AA operates in the matter of promotion whereas in the instant case, Rule 39 is operated in the matter of probation.11. The reliance placed on the Full Bench decision in T.C. Sreedharan Pillai and others (supra), according to us, is of no avail to the appellants.We respectfully endorse the views expressed by the Kerala Highis a lot of difference between the court exercising equity jurisdiction and theitself exercising it. As in the instant case, a residuary power is reserved by the law maker, namely the Government, to be used in certain situations which are not otherwise prescribed under law. However, such power does not clothe the Executive to supplement a prescribed provision or to act in violation of the same.15. Back to the facts, in ascertaining equity and justice, the simple question to be addressed is what would happen to those thirty seven Assistant SubInspectors in service, in case the exemption is not granted. For no fault on their part, should they have to continue as Assistantonly till their retirement? Is there any point, nay, does it even appeal to common sense, to subject them to the test after more than twelve years of entering service and serving in promoted posts as well? Certainly, to remedy such a situation, an equitable relief deserves to be granted to such employees in the interest of justice by invoking Rule 39. That is what has been done by the Government as per the impugned Order dated 17.11.2000.