PETITIONER: N. MURLEEDHARAN & ORS. ETC. Vs. RESPONDENT: THE STATE OF KERALA & ORS. DATE OF JUDGMENT: 20/02/1997 BENCH: K. RAMASWAMY, S. SAGHIR AHAMD ACT: HEADNOTE: JUDGMENT:
W I T H
CIVIL APPEAL NOS. 167-68 OF 1985
O R D E R
These appeals by special leave arise from the judgment
of the Division Bench of the Kerala High Court, made on July
5, 1984 in OP No.3003/80. In the State of Kerala, Head
Clerks/Head Accountants, U.D.Cs. and L.D.Cs. – the
ministerial staff consists of three groups of employees,
namely, those allotted from erstwhile composite Province,
(b) those similarly allotted from former Travancore-Cochin
State and (c) those recruited to the State Service on or
after November 1, 1956 (Kerala recruits). The appellants
belong to the last category, vis., Kerala and recruits. For
promotion from one ladder to the higher echelons, i.e., from
LDCs to UDSs and so on, the Government in G.O. (P) No.851,
dated June 16, 1980 issued in exercise of the power under
proviso to Article 309 of the Constitution, made the rules
called the Special Rules for the categories of Head
Clerk/Head Accountant, Upper Division Clerk and Lower
Division Clerk of the Kerala Land Revenue Department
included in the Kerala Ministerial Subordinate Service.
These rules came into force w.e.f. November 1, 1956. Rule 9
of the Rules prescribes the special qualifications and
provides that for promotion to the category of Upper
Division Clerk, a Lower Division Clerk shall pass the (a)
Revenue Test (Travancore, Cochin or Madras) provided that
passing this test shall be obligatory only from 14.1.1958;
(b) Accounts Test (Lower) provided that passing the test
will be obligatory only from 1.1.64; and (c) Secretariat
Manual Test upto 20.2.1958 and District Officer Manual Test
thereafter. All the employees from all three sources, who
did not pass the test, challenged the validity of the above
rule. The Division Bench had struck down the rule on the
ground that since the rule issued on June 16, 1980 was given
retrospective effect from November 1, 1956 and they were
asked to pass the test w.e.f. January 14, 1963, it was an
impossible to give effect to the prescription of Rules 4 to
6. It was also struck down on the ground that fixation of
the date, i.e., January 14, 1963 is arbitrary being without
any nexus. It is not in dispute that after the rule was
struck down, new rules came to be made in compliance of the
direction issued by the Division Bench on June 12, 1985. On
its basis, seniority list was prepared and promotions were
given to those found in the order of seniority. The latter
rules are not subject matter of any attack nor has anyone
questioned the correctness thereof. The promotions have also
become final. Under these circumstances, the question
arises: whether it is expedient at this distance of time to
go into the correctness of the judgment of the High Court?
All the Madras Allottees and Travancore-Cochin allottees
have now retired from service. Only Kerala recruits, perhaps
some of them, recruited on or after November 1, 1956, may be
in service.
Shri E.M.S. Anam, learned counsel for the appellants,
contends that the view expressed by the High Court is not
correct in law for the reason that in Travancore-Cochin
State, there was a rule in operation obligating the
allottees of that State to pass the required test prescribed
thereunder. Equally, the Madras allottees were required to
pass the test under the Madras Rules for promotion to the
higher cadre/category of posts. Therefore, mere making the
rule on June 16, 1980 with effect from November 1, 1956 is
consequential. It is not an impossibility of performance
provided the Madras or Travancore-Cochin a Alllottees had a
will to appear for and pass the examinations. The appellants
having passed the examinations are entitled to be considered
and promoted to the higher posts in accordance with the
rules as against those who either had appeared but failed or
those who did not appear at all. Both of those unequals
cannot be treated on par with equals for the purpose of
seniority and promotion. Though the argument is attractive,
in substance, we cannot give any relief to the appellants
for two reasons, namely, the subsequent rules, as stated
earlier, are not the subject matter of assailment of their
validity and the seniority was prepared on the basis of the
new rules and promotions were also given accordingly. They
became final and all of the Madras Allottees and Travancore-
Cochin allottees have since retired from service; hence
there is no need to go into the question in that behalf.
Questions relating to promotion of those from among Kerala
recruitees who had attempted but failed or those who passed
the test may be the relevant to be gone into. But since the
new rules have already been made and they are not being
challenged, the special rules have lost their relevance.
Under these circumstances, we decline to go into that
question.
The appeals are accordingly dismissed. No costs.