IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 16264 of 1996(J)
1. P.BALACHANDRAN PARAKKATTIL
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.E.SUBRAMANI (SR.)
For Respondent :SRI.K.RAMAKUMAR
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :16/01/2007
O R D E R
S. Siri Jagan, J.
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O.P. No. 16264 of 1996
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Dated this, the 16th January, 2007.
J U D G M E N T
Petitioner has approached this Court with a grievance that
although he was eligible to be considered for inclusion in the select
list for the year 1984 for promotion to the post of Excise Inspectors,
he was not so included. The explanation given by the Government for
non-consideration of the petitioner for inclusion in the 1984 select list
was that he was too junior among the persons who were eligible to be
considered and since others senior to him were considered and
included in the list, the petitioner was excluded. But the petitioner
has filed a reply affidavit in which he categorically asserts that
respondents 3 to 10 who were actually included in the list were not
eligible to be included in the select list because at the relevant time,
they did not have the obligatory test qualification prescribed for
eligibility for promotion to the post of Excise Inspector. This
obligatory test qualification was introduced as an eligibility
qualification as per G.O(P) No. 36/82/TD dated 14-5-1982 as per
which, for promotion to the post of Excise Inspectors, a pass in
obligatory test in District Office Manual or Manual of Office
Procedure were made mandatory. However, by a Note to Rule 6 of
Excise and Prohibition Subordinate Service Rules, the existing
Preventive Officers were given time to pass the test. As per the said
Note, they should have passed the test within two years or within four
chances from the date of issue of the order, which is 14-5-1982.
Originally, in the counter affidavit stated to have been filed by the
State, which is not available in the files, but copy of which has been
made available for perusal, the contention was that respondents 3 to
10 had in fact passed the obligatory test within the four chances.
However, the petitioner along with his reply affidavit produced copies
of Gazette notifications by which the results of five departmental tests
O.P. No. 16264/1996 -: 2 :-
were published by the Kerala Public Service Commission. Relying on
the same, the petitioner would submit that after publication of the
Government Order dated 14-5-1982 making the obligatory test an an
eligibility condition for promotion, five departmental tests were
conducted and respondents 3 to 10 passed the test only in the 5th
chance after the date of the order and therefore for inclusion in the
select list for 1984, respondents 3 to 10 were not eligible. Yesterday,
an affidavit has been filed on behalf of the respondents wherein the
State has tried to give a different explanation for inclusion of
respondents 3 to 10 in the select list for 1984. Although G.O(P) No.
36/82 was issued on 14-5-1982, it was actually notified in the Gazette
only on 6-7-1982. The notification of the PSC to which Ext. P2 relates
was issued on 27-4-1982 and the last day for submission of the
application for the post was 9-6-1982. Since the Government Order
was notified in the Gazette on 6-7-1982, the officers could not have
applied for that test since the last date for submission of application
was 9-6-1982. On that reasoning, they would submit that the test
which respondents 3 to 10 passed was in the 4th chance and therefore
they were eligible for consideration for inclusion in the select list for
the year 1984.
2. But the learned counsel for the petitioner points out that this
contention would not hold water because the Note to Rule 6 of the
Special Rules states that the two years or four chances given to the
officers were from the date of issue of the orders, which is 14-5-1982
and since the last date for submission of application relating to Ext.
P2 result was 9-6-1982, they should be taken as the first chance
available to respondents 3 to 10 for passing the obligatory
departmental test.
3. I have considered the rival contentions in detail.
4. Now, the only question requires to be decided by me is as to
O.P. No. 16264/1996 -: 3 :-
whether respondents 3 to 10 have passed the obligatory departmental
test within the four chances available to them from the date of issue of
the orders making a pass in the obligatory departmental test as an
eligibility condition for consideration for promotion to the post of
Excise Inspectors. Admittedly, G.O(P) No. 36/82/TD was issued on 14-
5-1982. Note to Rule 6 of the Special Rules reads thus:
“Note:- Two years or four chances shall be given for
the officers to pass the Departmental Tests viz. Manual of
Office Procedure or District Office Manual from the date of
issue of the orders.”
This note specifically states that the four chances given to the Excise
Preventive Officers in service are from the date of issue of the orders.
If that is taken as the date, then the result in respect of which was
published by Ext. P2 is certainly the first chance available to
respondents 3 to 10 to secure the test qualification, since the last date
for submission of application in respect of that test was admittedly 9-
6-1982, which was subsequent to the date of issue of G.O(P) No. 36/82
dated 14-5-1982. I am not inclined to accept the contention taken in
the affidavit dated 15-1-2006 filed on behalf of respondents 1 and 2
that the four chances have to be calculated from the date of the
notification of the Government Order in the Gazette, namely, 6-7-
1982. That is not what is stated in the Special Rules. The Special
Rules specifically state that four chances is from the date of issue of
the orders, which evidently is 14-5-1982. That being so, clearly,
respondents 3 to 10 have passed the obligatory test only in the 5th
chance. Therefore, they could have been considered for inclusion in
the select list only subsequent to passing of their test and not in the
1984 select list. If they are excluded from the field of choice, then,
certainly the petitioner would be entitled to be considered for
inclusion in the 1984 select list, which fact has not been disputed in
the affidavit. That being so, I am of opinion that the petitioner should
O.P. No. 16264/1996 -: 4 :-
have been considered for inclusion in the select list for the year 1984.
5. It is submitted before me that respondents 3 to 10 are no
longer in service, they having retired from service on
superannuation. However, since the petitioner has not been
considered for inclusion in the 1984 select list, although he was
eligible, for no fault of his, I am of opinion that since he was actually
entitled to be considered inclusion in the 1984 select list, he should
be given notional benefits of fixation of pay on that basis, if found
suitable otherwise. In the above circumstances, the original petition
is disposed of with the following directions.
A Review Departmental Promotion Committee constituted for
the purpose shall consider the case of the petitioner for inclusion in
the 1984 select list on the basis that respondents 3 to 10 were not
eligible to be considered to be included in the 1984 select list. If he is
found to be entitled to be included in the select list for 1984, he
should be given promotion with effect from the date when the
vacancy relating to 1984 select list arose and he should be given
notional fixation in the promoted post with effect from that date and
all further dates of promotion of the petitioner shall also be revised
accordingly. However, I make it clear that the petitioner would not be
entitled to monetary benefits arising therefrom till today. The entire
exercise shall be completed before the petitioner retires from service
on 28-2-2007.
Sd/- S. Siri Jagan, Judge.
Tds/