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N. Mohammed Kutty Vs. High Court of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 1872 of 1974
Judge
Reported inAIR1978Ker55; (1978)ILLJ333Ker
ActsConstitution of India - Articles 162 and 309; Madras Judical Ministerial Service Rules; States Reorganization Act, 1956 - Sections 115(7)
AppellantN. Mohammed Kutty
RespondentHigh Court of Kerala and ors.
Appellant Advocate T.L. Viswanatha Iyer, Adv.
Respondent Advocate Govt. Pleader,; P.K. Appa Nair, Adv.
DispositionPetition allowed
Cases ReferredSamsher Singh v. State of Punjab
Excerpt:
service - promotion - sections 162 and 309 of constitution of india and section 115 of states reorganization act, 1956 - petitioner was government servant - petitioner and two respondents qualified test for promotion - petitioner placed below respondents - petition to quash impugned order - government order (go) prescribing new test for getting promotion issued - respondents qualified such test - petitioner contended that go will not have any effect on him and in no way improve prospects of respondents - go would become operative from 01.01.1964 - petitioner passed madras district offices manual test prescribed in madras judicial ministerial service rules (mjmsr) before such date - go was not issued under article 309 hence cannot adversely affect person who on date of decision was.....gopalan nambiyab, c.j.1. the case was referred to a full bench by a division bench of myself and balagangadharan nair j. as we doubted the correctness of the view taken by mathew j. of this court (as he then was) in o. p. 1846 of 1968 (ker) which was confirmed by a division bench in w. a. no. 949 of 1969 (ker).2. the petitioner is an allotted officer from the madras state governed by the madras judicial ministerial service rules, and entitled to protection under section 115 of the states reorganisation act, viz., his conditions of service shall not be varied to his prejudice or disadvantage except with the previous approval of the central government. he entered service on 1-8-1954 in the malabar area of the madras state which after reorganisation of states became part of kerala......
Judgment:

Gopalan Nambiyab, C.J.

1. The case was referred to a Full Bench by a Division Bench of myself and Balagangadharan Nair J. as we doubted the correctness of the view taken by Mathew J. of this Court (as he then was) in O. P. 1846 of 1968 (Ker) which was confirmed by a Division Bench in W. A. No. 949 of 1969 (Ker).

2. The petitioner is an allotted Officer from the Madras State governed by the Madras Judicial Ministerial Service Rules, and entitled to protection under Section 115 of the States Reorganisation Act, viz., his conditions of service shall not be varied to his prejudice or disadvantage except with the previous approval of the Central Government. He entered service on 1-8-1954 in the Malabar area of the Madras State which after reorganisation of States became part of Kerala. Respondents 4 to 7 are also allotted Officers and members of the same service who joined prior to the petitioner. Rule 22 of the Madras Judicial Ministerial Services Rules provides;

'22. Test or examination to be passed before appointment.-- No person shall be eligible for appointment to the class and category and by the method specified in columns (1) and (2) of the table below unless he has passed the test or examination specified in the corresponding entry in column (3) thereof.

123Class 1-

12 Upper Division Clerk and Accountant in the Sheriff's Office.

Promotion

(i) Account test forSubordinate Officers, Part I, (ii) Civil Judicial Test. (iii) Govt. TechnicalExamination in Typewriting by the Lower Grade.

Upper Division Clerks in thePresidency Court of Small causes City Civil Court, Office of the Administrator. General and OfficialTrustee including Cash-keeper, Record-keeper, Schedule Clerk and Accountants in the office of theAdministrator-General and Official Trustee.

do

(i) Civil Judicial Test. (ii) Account Test lor SubordinateOfficers Part I.

Upper Division Clerks in the Presidency Magistrates' Courts including Bench Clerks in the Stipendiary Magistrates Courts.

do

(i) Criminal Judicial Test except the Medical,Jurisprodence part of the test. (ii)Account Test for Subordinate Officers, Part I..

Upper Division Clerks in the Officeof the Editor, Indian Law Reports Madras.

do

(i) Proof Examiner's Test.(ii) Government Technical Examination in Type-writing by the Lower Grade

The petitioner had become test qualified on 6-3-1962. A post of Upper Division Clerk became vacant on 9-7-1963 and the petitioner was promoted to the said post, None among respondents 4 to 7 were qualified. The Account Test specified in the Madras Rules was conducted in July 1963 and the results of the same were published on 12-11-1963. Respondents 5 and 7 had passed the test and respondents 4 and 6 not. By Ex. P-2 order dated 4-6-1973, the 2nd respondent the District Judge Kozhikode, placed the petitioner below respondents 5 and 7. The petitioner filed Ex. P-6 representation which was rejected by Ext. P-7 order of the High Court on the ground of Exts. P-4 and P-5 G. Os. -- (to be noticed presently), and the judgments of the High Court in O. P. No. 1846 of 1968 (Ker) and W. A. No. 949 of 1969 (Ker). The petitioner's representation to the Government was rejected as not maintainable. The writ petition seeks to quash Exts. P-2 and P-7,

3. The petitioner's trouble started with Ext. P-3 G. O. dated 14-1-1963 (G. O. (P) No. 22 -- Public (Services-D) Department) which prescribed tests in office procedure and Account Test Lower for the Ministerial Staff of the different officer of the State Government. Paras. 2 (d) and (3) of the G. O. ran thus:

'2 (d) Lower Division Clerks in the remaining offices except the High Court but including the Civil and Criminal Courts subordinate to the High Court and subordinate offices of the public relations Department should pass a test on the new Manual of Office procedure for use in Offices other than Secretariat during the period of probation; and

(3) The penalty for not passing the tests in office procedure during the period of probation will be as indicated in Rules 19 (b) and 21 of Part II of the Kerala State and Subordinate Services Rules, 1958. In cases where probation has not already been prescribed, the persons concerned should be required to pass the tests within a period of two years from the date of orders or from the date of appointment, whichever is later. Persons who on the date of issue of orders have either passed the Travancore-Cochin Secretariat Office Manual Test or have already secured promotion to the Upper Division or Grade I will not be required to pass the new test in Office Procedure.' The syllabus of the notified test was prescribed by Ex. P-4 G. O. (P) No. 455/23rd October 1963. After noticing the test then being conducted for the Travancore-Cochin personnel and for the allotted Officers from Madras, it was ordered that the test then conducted by the Public Service Commission for the Officers of the former Travancore-Cochin State and those allotted from Madras will be abolished'. Clause 4 of Ext. P-4 G. O. stated that candidates who have passed in one or more papers of Travancore-Cochin or Madras Tests will be deemed to have passed in the corresponding paper or papers of the new tests. The G.O. wound up with para. 7 as follows:

'7. The above orders will come into force with effect from 1-1-1964.' By Ext. P-5 G. O. (P) No. 628 Public (Services-D) Department dated 6-10-1965, the Government noticed that the introduction of the new test will alter the conditions of service, of all allotted Officers to their disadvantage and attracted the proviso to Section 115(7) of the States Reorganisation Act, and the principles adopted by the Govt. of India for imposition of new tests on the allotted personnel in accordance with the rules of the State to which they were allotted. After consideration of these, para. 3 of the G. O. stated:

(i) For the persons allotted from Madras as well as from Travancore-Cochin the tests prescribed in G. O. (P) 22, Public (Services) dated 14-1-63 will be made compulsory only from the 14th Jan., 1967. In the meanwhile none of those persons will be debarred from confirmation, promotion, increments etc., as the case may be, for want of these test qualifications. However promotions and confirmations given during the period of exemption will be purely provisional subject to their acquisition of the test qualifications before the expiry of the period of exemption. In case a person thus promoted does not acquire the requisite qualification within the period of exemption then the promotion given to him will be cancelled and he will be reverted to his earlier position. Similarly an officer who obtained confirmation on the basis of the exemption referred to above, the confirmation will be cancelled unless he acquires the qualification within the period of exemption. The increments granted on the basis of this order will be stopped after the period of exemption unless the officer acquired the test qualification.

(ii) All Officers to whom G. O. (P) 22 Public (Services) dated 14-1-1963 would otherwise be applicable will be exempted from passing these tests, if on the date of the above G. O. they had completed 45 years of age.'

The cumulative effect of Exts. P-3, P-4 and P-5 G. Os. was set out in Ext. P-1 letter dated 8-9-1972 from the Secretary to the Government to the Registrar of the High Court, with copy to the writ petitioner. That letter stated that the additional time granted to the allotted personnel for passing the new test is necessary for getting their promotion to the Upper Division post and that in view of the judgment in O. P. No. 1846 of 1969 (Ker) and W. A. No. 949 of 1969 (Ker), the G. Os. Exts. P-5, P-3 required no modification and that the additional time under Ext. P-5 is applicable to the allotted Officers of the Malabar Courts also. The G. O. and the communications indicate sufficiently clearly that the allotted personnel are not to be visited with any disqualification before 14-1-1967, the outer-most limit of time available to the personnel for qualifying themselves in the revised test.

4. Counsel for the petitioner submited with force that Exts. P-3, P-4 and P-5 will not have any effect on the petitioner; nor would they, in any way, improve the prospects of respondents 4 to 7. The ban of Exts. P-3 to P-5 would become operative only on 1-1-1964 as indicated in the last paragraph of Ext. P-4. He referred to Ext. P-9 Memorandum of the Government dated 13th Dec., 1963 granting an overall exemption, to the allotted personnel who had passed the Madras District Offices Manual Test before the date of Ext. P-3 G. O. and to Ex. P-11 order, which, after noticing the provision in the Madras Judicial Ministerial Service Rules that a Lower Division Clerk should be on probation for a period of two years on duty within a continuous period of three years, and that all Lower Division Clerks from Madras had completed more than three years on the date of Ext. P-3 G. O. had stated that they might have satisfactorily completed their period of probation, and that they need not pass the test in Office Procedure. As the Travancore-Cochin personnel had to pass the said test an overall exemption was granted to them.

5. It was strongly contended by the counsel for the petitioner that neither Ex. P-3 nor Ex. P-4 can validly displace the Madras Judicial Ministerial Services Rules, and that such was not their effect. Exts. P-3 and P-5 were executive orders of the Government and the statutory Madras rule was continued in force by Article 372(1) of the Constitution, and protected by the proviso to Section 115, Clause (7) of the States Reorganisation Act. It was pointed out that the Government themselves had realised this position as was revealed by Ext. P-5 G. O., Ext. P-10 Official Memorandum, and Ex. P-12 letter from the Home Secretary to the Registrar of the High Court. Ex. P-10 dated 11-7-1968 enclosed a letter dated 10-5-1967 from the Secretary to the Government to the Registrar of the High Court. It categorically stated that Ex. P-3 G. O. was not issued under Article 309 of the Constitution and hence cannot adversely affect a person who on the date of the decision was governed by statutory rule like the Madras Judicial Ministerial Service Rules. It stated:

'Thus the position is that till the issue of the unified Kerala Special Rules (Statutory), the Madras Special Rules will apply only to those allotted to Kerala from the Madras Government Service consequent on the Reorganisation of States on 1-11-1956 P. 11 while persons appointed to Kerala Service on or after 1-11-1966 (irrespective of whether the appointment happens to be made in the Malabar area or the Travancore-Cochin area of the State) are being governed by the Travancore-Cochin Rules. The application of these rules is with reference to the personnel governed by the Madras or Travancore-Cochin Rules and not in relation to the area in which the employees happen to work or got appointed. '

Ext. P-12 was in answer to a letter from the Registrar. Dealing with the specific question whether Ext. P-3 G. O. was in supersession of the Madras Judicial Ministerial Service Rules, it was stated that all those allotted from Madras will be governed by the Madras Rules and that Ext. P-3 G. O. cannot be deemed to be in supersession of the Madras Rules, Ext. P-12 also stated that the concurrence of the Government of India has been sought for extension of the orders in the G. O. to the allotted personnel. The petitioner's counsel only cited Exts. P-10 and P-12 to show that even the Government itself had expounded Ext. P-3 G. O. as not meant to override the statutory Madras rule. Its legal effect should, of course, be determined quite apart from the Government's exposition of it.

6. The learned Advocate General contended that Ext. P-3 is made under the proviso to Article 309 and that the judgment of Mathew J. in 0. P. 1846 of 1968 (Ker) and of the Division Bench in W. A. No. 949 of 1969 (Ker) had proceeded on the same basis. The judgment of Mathew J. (a copy of which has been produced as Ext. R-1 with the counter-affidavit of respondents 4 to 7) dealt with the matter thus:

'3. Counsel for the petitioners argued that the provisions in the rules cannot be altered by a G. O. like Ext. P-1 and that even otherwise it is clear from Ext. P-3 communication that Government did not intend to alter or modify the operation of the rules by Ex. P-1. Ex. P-3 no doubt, says that Ex. P-1 was not intended to supersede the Rules. But it does not follow that it was not open to the Government to prescribe unified tests in substitution of the test prescribed by the rules. In their letter No. 29428/C4/66 Home dated 8-8-1966 the Government have stated that the Account Test (Lower) introduced by Ext. P-1 is a new test of a higher standard.'

On appeal, the Division Bench in W. A. No. 949 of 1969 (Ker) dealt with the matter thus:

'The main argument of the counsel of the appellants is that Ex P-1 is an executive order and it cannot replace Rule 22 of the Madras Judicial Ministerial Service Rules passed under Article 309 of the Constitution. As rightly pointed out by the single Judge, Ex. P-1 prescribed unified tests in substitution of the tests prescribed by Rule 22 of the Madras Rules and it is not just an executive order as claimed by the counsel. Therefore, this contention was rightly rejected by the single Judge.'

With respect, neither Mathew J. nor the Division Bench in appeal had considered or dealt with the argument whether, and if so, how, the Madras Judicial Ministerial Service Rules could be overridden by orders of the type of Ex. P-3. Apart from the Government's exposition contained in Ex. P-5 and Ext. P-12 that Ext P-3 cannot have this effect, we have the fact noticed in Ext. P-3 that the Central Government's approval had actually been sought for the variation effected by Ext. P-3 in regard to the conditions of service of the Madras personnel. There is no explanation as to the Government of India's reply. The counter-affidavit of the State would state in para. 4 that a general approval would suffice as expounded by the Supreme Court decisions, and that moreover, the Central Government had given its prior approval as can be seen from the letter of the Ministry of Home Affairs dated 3-12-1963. The letter is not produced. (The reference to the Home Secretary's letter dated 3-12-63 is possibly a mistake for Ext. P-12 dated 31-12-1963 which states the position exactly contrary to what is averred in the counter-affidavit). On the other hand, we find a volte face in the present proceedings that Ext. P-3 is a statutory rule. The point was pressed by the Advocate General and the jurisprudential concept of a 'law' as distinct from an executive order, were explained with reference to the recent decision of a Full Bench of the Bombay High Court in Chandrakant v. State of Maharashtra, AIR 1977 Bom 193, paras. 14, 15, 200, 206, 207 and 214: (1977 Lab IC 654). It was stressed that the question whether Ext. P-3 was a law or an executive order had to be decided with reference to the subject-matter and generality of its application. For the said proposition reliance was placed also on the decision in State of Gujarat v. Vora Fiddali (AIR 1964 SC 1043, para. 56), where, the order of delegation, the effect of which was disputed, was construed to be a law on account of its general application. The observations of Subba Rao J. in paragraph 96 and of Shah J. in para. 106 and of Hidayatullah J. that it was not a rule of human conduct should also be taken note of in this context.

7. Counsel for the petitioner strongly demurred to the proposition that Exts. P-3 and P-5 could be regarded as law or as rules promulgated under Article 309 of the Constitution. Ex facie they do not purport to be so; the Government themselves did not understand them to be so (vide Exts. P-10 and P-12). The Madras Judicial Ministerial Service Rules are undoubtedly framed under Article 309 of the Constitution. It was ruled in Nagarajan v. State of Mysore (AIR 1966 SC 1942, para. 3 : (1966 (3) SCR 682) that 'if there is an Act or a statutory rule on any matter, the executive must abide by that Act or Rule, and it cannot, in exercise of the executive power under Article 162 of the Constitution, ignore or act contrary to that rule or Act, R.N. Nanjundappa v. Thimmaiah, AIR 1972 SC 1767: (1972 Lab IC 618) had to deal with the argument that the regularisation of appointment was itself a rule under Article 309 of the Constitution read with the power under Article 162. The argument was rejected as unsound and unacceptable. It was observed (at pp. 623-624 of Lab IC):

'The Executive has the power to appoint. That power may have its source in Article 162. In the present case the rule which regularised the appointment of the respondent with effect from 15th February, 1958 notwithstanding any rules cannot be said to be in exercise of power under Article 162. First, Article 162 does not speak of rules whereas Article 309 speaks of rules. Therefore, the present case touches the power of the State to make rules under Article 309 of the nature impeached here. Secondly, when the Government acted under Article 309 the Government cannot be said to have acted also under Article 162 in the same breath. The two Articles operate in different areas. Regularisation cannot be said to be a form of appointment. Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.' Our attention was also called to the distinction between law and executive order expounded recently by the Supreme Court in Shukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (AIR 1975 SC 1331, paras 18, 21, 22 and 24) : (1975 Lab IC 881). Attention was also called to the decision in State of Madhya Pradesh v. Lal Rampal Singh (AIR 1966 SC 820), to State of Madhya Pradesh v. Lal Bhargavendra Singh (AIR 1966 SC 704), Venkateswararao Naidu v. Union of India AIR 1973 SC 698 : (1973 Lab IC 427), and State of Assam v. Basanta Kumar Das, AIR 1973 SC 1252 : (1973 Lab IC 920). These decisions have expounded the concept of law and the limitations on the said concept.

8. Counsel for the petitioner particularly invited our attention to Samsher Singh v. State of Punjab, AIR 1974 SC 2192, paras. 41, 43 and 141 : (1974 Lab IC 1380) to show that the principle in Jayanthilal's case (AIR 1964 SC 648) was actually confined to Article 258 of the Constitution. We were also taken through the discussion in Seervai's Constitution of India, Vol. II, page 1053 and following, regarding this aspect of the question.

9. We are satisfied that Exts. P-3 and P-5, cannot be regarded as having been promulgated under Article 309 of the Constitution, Neither in form, nor in substance do they purport to be so. There is no reference to Article 309 at all in Exts. P-3 and P-5. It is not possible to trace them to that source of power. They say nothing about the Madras Judicial Ministerial Service Rules --whether these are repealed or not. And they, by themselves are incapable of repealing the Madras Rules in the face of the proviso of Section 115(7) of the States Reorganisation Act. Taken at their proper worth, we have too, the exposition by Government Pundits in Exts. P-1i and P-12 that Exts. P-3 and P-5 G. Os. are not under the proviso to Article 309 and cannot get rid of the Madras Rules (See also Ex. 15). We think that represents the correct position.

10. After arguments concluded and judgment was reserved on the 14th June 1977, a reposting of the case was sought with a petition -- C. M. P. 11046 of 1977 -- filed by Counsel for respondents 4 and 5 to receive Exts. R-5 and R-6 as additional evidence. Ext. R-5 is G. O. (P) 190/77 D/- 16-6-1977 which inserted a proviso in R. 13 of the Kerala State and Subordinate Services Rules, with effect from 14th Jan. 1963. The said notification is as follows :

'S. R. O. No. 563/77. -- In exercise of the powers conferred by Sub-section (1) of Section 2 of the Kerala Public Services Act, 1968 (19 of 1968), the Government of Kerala hereby make the following amendment to the Kerala State and Subordinate Services Rules, 1958, namely:--

AMENDMENT

In Part II of the said rules, in Rule 13, the following proviso shall be inserted, namely:--

'Provided that in the case of the ministerial staff of the different departments/offices in the Kerala Ministerial Subordinate Service the unified tests prescribed in G. O. (P) No. 22/63/PD dated the 14th Jan. 1963 as subsequently amended or clarified shall be applicable, until the Special Rules for the Kerala Ministerial Subordinate Service came into force.

This amendment shall be deemed to have come into force with effect from 14th Jan. 1963.'

Ext. R-6 is the explanatory note which meant to explain the circumstances leading to Ext. R-5.

11. It is obvious that Ext. R-5 cannot at all affect the question. Rule 8 of the Kerala Civil Services (Classification, Control and Appeal) Rules enacts that the subordinate services shall consist of those specified in Schedule II. Turning to Schedule II, items 18 and 22 read as follows:

'18. The Kerala Judicial Ministerial Service.

22. The Kerala Ministerial Subordinate Service.'

It was attempted by the learned Advocate General and by the counsel for respondents 4 and 5 to connect Ext. R-5 with both the items of subordinate services 18 and 22 in Schedule II. It is obvious that the attempt is futile. The Gazette notification Ext. R-5 speaks only of service in the singular and not of service in the plural as the typed copies handed over to us did. The expression 'Kerala Ministerial Subordinate Service' occurring in Ext. R-5 tallies exactly with Item 22 and not with Item 18. We are therefore of the opinion that Ext. R-5 does not cover Item 18 of Schedule II of the Kerala Civil Services (Classification, Control and Appeal) Rules and is therefore unhelpful to the respondents.

12. The learned Advocate General attempted an argument that the passing of the test under the Madras Judicial Ministerial Service Rules for Upper Division Clerks was made compulsory only by a G. O. in 1958. For this he placed reliance on G. O. (P) 411 dated 7th November, 1958 a copy of which has been produced with the additional counter-affidavit of respondents 4 to 7 dated 5th April 1977 (Ext. R-5) (There has been a duplication of Exhibits -- one of the exhibits produced on 28th July 1977 also has been referred to as Ext. R-5). Ext. R-5 dated 7th Nov., 1958 only recalls certain recommendations of the Pay Revision Commission in regard to fixing the proportion between the Upper Division and Lower Division Clerks and accepted the same, and said that this will take effect from 1-11-1958. On the basis of this order it was argued by the learned Advocate General that the expression Upper Division Clerk is not mentioned at all in Category 4 of Class IV of Rule 5 of the Madras Judicial Ministerial Service Rules which provides for the constitution of the service. Category 3 of Class IV of Rule 5 is : 'Central Nazirs'; and promotion to that post is by direct recruitment if no qualified and suitable member is available for promotion, or recruitment by transfer from any other service. Rule 6 provides for appointment to the several classes of posts and categories. There is no reference eo nomine to 'Upper Division'. The learned Advocate General, by way of contrast, pointed to Categories 12 and 13 of Class I of Rule 5, and to Class I, Category 12 of Rule 5, both of which make express reference to Upper Division Clerks. The argument appears to us to be laboured and involved, and we are not prepared to accept it. We rather feel, with the Counsel for the petitioner, that in the scheme of classification of the several categories in Class IV, Category No. 4, the Upper Division is a generic name -- although not so expressly mentioned -- to cover the posts of Head Clerks of Judicial District Magistrate Courts, Head Clerks of SubordinateJudges' Courts, Head Clerks of Sub Divisional Magistrates' Courts, etc., all of which are clubbed together in Category 4. Having regard to the provision in Rule 5 that the service shall consist of all the classes and categories enumerated, there is no scope for inventing a new and unnamed category of Upper Division Clerks, not expressly enumerated by the Rules. Whether the Upper Division category is expressly mentioned or not, there is little doubt that on the scheme of the Rules, promotion to Category 3 of Class IV is from category No. 4 of the same class. That cannot be denied by introducing an Upper Division as a sort of buffer, which would involve a violation of the scheme and frame work of the Rules, and in particular of Rule 5. There is also the danger that even if such a category were to be invented the persons in that category will only stagnate, as appointment to fourth (third?) category is by promotion from Category No. 3 (No 4?). The reply affidavit dated 6-4-1977 filed on behalf of the petitioners, has, we think, rightly pointed out that the direction in the G. O. (R-5) dated 7-11-1958 recognising e certain proportion between the Upper Division and Lower Division Clerks from 1-11-1958 was only a recognition of the recommendations of the Pay Commission and the application of a well-understood designation to all the posts enumerated in Category 4 of Class IV of Rule 5. We are therefore unable to accept the argument of the learned Advocate General that Exts. P-3 and P-5 are statutory in character and override the Madras Judicial Ministerial Service Rules. We are also unable to accept his contention that whether these were statutory or not, the Upper Division Clerks were a category unknown to Class IV, Category 4 of Rule 5, and came to be recognised as such only cm and from 1-11-1958 by Ext. R-5 G. O. We cannot also accept the further argument that the tests came into force from 14-1-1963 and not from 1-1-1964 as expressly stated in Ext P-4. The syllabus was prescribed only by Ext. P-4 dated 23-10-1963. Anyway, the petitioner passed the tests on 6-3-1962.

13. That takes us to some of the other contentions advanced by the learned Counsel for the petitioner which also appear to us to be well founded. Counsel invited our attention to Rule 22 of the Madras Rules that no person shall be eligible for appointment to the Class and Category and by the method specified in Columns 1 and 2 of the table below, unless he has passed the test or examination specified in the corresponding entry in Column 3. In Class IV, Category 4 under Column (1) the comprehensive entry is : 'All posts' and the test prescribed is only the translation test. By virtue of Rule 13-A, Sub-clause (3) of the Kerala State and Subordinate Services Rules, substituted in 1974 with effect from 13-5-1966, if any new test or tests of a higher standard for promotion are sought to be introduced, the same shall be subject to the three conditions mentioned therein, viz. (1) that additional time, double that of the ordinarily permissible time, for passing the test shall be allowed to an allotted employee; (2) penalties for not passing the tests such as denial of benefits like increments, promotion etc, shall be held in abeyance till the expiry of the time given for passing the prescribed test; and (3) allotted employees of, and above, the age of 45 years, shall not be required to pass the test. The second of these conditions had been stated even earlier in Ext. P-1,

14. Counsel for the petitioner also relied on Rule 35 (f) of the Kerala State and Subordinate Services Rules which is as follows :

'35 (f)-- Notwithstanding anything Contained in these rules or in the Special Rules, in the case of persons allotted to the State of Kerala from Service under the Government of Madras consequent on the Reorganisation of States, pass in Account Test for Executive Officers (Madras) and pass in Account Test for Subordinate Officers Part I (Madras) shall respectively be accepted as sufficient qualification in lieu of pass in Account Test for Executive Officers of the Kerala State and pass in Account Test (Lower).'

15. The above two contentions of the petitioner's Counsel based on Rule 13-A, Clause (3) and on Rule 35 (f) also appear to us to be sound and acceptable. But as we have accepted the main contention urged on his behalf we do not think it necessary to base our conclusion on these two contentions.

16. It only remains for us to add that in view of our discussion on the main point argued, we cannot agree with the principle of the decisions in O. P. 1846 of 1968 and in W. A. No. 949 of 1969 in so far as they regard Exts. P-3 and P-5 G. Os. as overriding the Madras Judicial Ministerial Rules. To that extent, we would hold these decisions to be wrong and overrule the same. An appeal was made by the Advocate-General to save these decisions on the principle of stare decisis. He cited the decisions of the Supreme Court in AIR 1976 SC 410, AIR 1976 SC 1441 and AIR 1976 SC 1455 : (1976 Lab IC 1012), and the English decision in Geolong Harbor Trust Commrs, v. Gibbe Bright & Co. (A FIRM) (1974 AC 810). We do not propose to examine these cases elaborately. We are unable to sustain the plea of stare decisis. There was no consideration in O. P. 1846 of 1968 or in W. A. 949 of 1969 as to how the Madras Rules could be jettisoned by Exts. P-3 and P-5 orders; nor as to whether the proviso to Section 115(7) of the States Reorganisation Act was violated; nor of the warnings contained in Exhibits P-5, P-10 and P-12. And the allotted personnel have not allowed the grass to grow under their feet since the decisions were rendered. There can be no question of stare decisis in the circumstances.

17. We allow this writ petition and quash Exts. P-2 and P-7 orders. There will be no order as to costs.


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