K.K. Mathew, J.
1. The petitioner is a senior Inspector Co-operative Department of the Kerala State. He is a graduate and has passed the obligatory departmental tests. He says that he in the was entitled to be promoted as Assistant Registrar of Co-operative Societies. Consequent on the reorganization of States, respondents 3 to 34 were allotted to Kerala State from Madras. In Madras State there were three categories of officers In the executive staff of the Madras Co-operative Subordinate Service, namely, sub-registrars, senior Inspectors and junior Inspectors. On 1 August 1958, the Go-operative Department of the Kerala State was reorganized. The sub-registrars allotted from Madras State were equated with the senior inspectors, grade I, of the erstwhile Travancore-Cochin State. Senior Inspectors from Madras State were Integrated with the co-operative Inspectors, grade II, of the erstwhile Travancore-Cochin State. The junior Inspectors from Madras were placed one block below the newly-Integrated junior Inspectors. That two Integrated categories were designated as senior Inspectors, viz., those consisting of sub-registrars of Madras and the inspectors, grade I, of the Travancvore-Cochin State; and junior inspectors, consisting of senior Inspectors from Madras and Inspectors, grade II, of the Travancore-Cochin area. Under the Madras rule a senior Inspector has to pass certain tests for promotion to the cadre of sub-registrar and In Travancore-Cochin State the second-grade Inspectors were required to pass certain tests for earning increment. The Integration was finally effected and the consent of the Central Government obtained by the letter dated 8 February 1962. Pending flnalization of the Integration, the Registrar of Co-operative Societies by his proceedings dated 3 February 1959 promoted 60 Junior Inspectors as senior inspectors. On 1 April 1960, the Registrar again promoted 19 Junior Inspectors to the grade of senior inspectors. Some doubt arose whether for promotion of the senior inspectors allotted from Madras who were redeslgnated as junior Inspectors, to the cadre of senior inspectors in Kerala State, the departmental tests should be passed. Government clarified the position by their order dated 27 February 1962 saying that all the newly-designated junior inspectors mast pass the Account Test (Lower) for promotion as senior Inspectors. The question subsequently arose whether the promotions granted by the Registrar of Co-operative Societies to the junior inspectors were regular and valid. Government passed Ex. P. 1 order on 24 July 1963 stating that the passing of the test was obligatory and that promotions made by the Registrar were irregular; Government therefore directed the reversion of all those persons who were promoted by the Registrar, except four persons who had by that time been promoted as Assistant Registrars and who at the time of promotions to Assistant Registrars' posts had passed the obligatory tests. To quash Ex. P. 1 order certain persons who have been promoted as senior inspectors filed writ petitions In this Court. One of those petitions was Original Petition No. 1497 of 1963. The petitions were disposed of by a common order and this Court dismissed the writ petitions whom the observation that respondents 19,15,17 and 6, who were the petitioners in Original Petition No. 1497 of 1963, need not be reverted as they had also been promoted as Assistant Registrars and had parsed the teat before their promotions as Assistant Registrars. There was a writ appeal from this order. That appeal was dismissed in view of the statement at the Bar that Government was reconsidering the matter. It was after this the Government passed the impugned order, Ex. P. 2, stating that since the promotions were made in 1962, and these persons were working In the posts of senior inspectors for a period of three years and in view of the facts that the promotions when made were not expressly mentioned to ba provisional the junior inspectors promoted as senior inspectors need not be reverted provided they pass the Account Test before the end of 1966.
2. Petitioner questions this order on several grounds. Petitioner says that Ex. P. 2 order was passed mala fide, that Government have no power to exempt the personnel from Madras area from passing the teat and that the order violates the fundamental rights of the petitioner and Ors. similarly situate under Articles 14 and 15 of the Constitution.
3. Sri Velayudhan Nair, appearing for the petitioner, submitted that Ex. P. 2 order was passed mala fide, that the reasons given in that order did not exist and that the order was passed with a view to help respondents 3 to 34. He also submitted that Government have no power to grant exemption from passing the test and the confining of the exemptions to the Madras personnel was discriminatory in character. On the question whether Government have power to grant exemptions from passing the test counsel relied upon Rule 13 of the General Rules of the Kerala State and Subordinate Service Rules, 1958. Rule 13 reads:
No person shall be eligible for appointment to any service, class, category or grade or any post borne on the cadre thereof unless he-
(a) possesses such special qualifications and has passed such special tests as may be prescribed in that behalf in -the special rules, or
(b) possesses such other qualifications as may be considered to be equivalent to the said special qualifications or special tests-
(i) by the Commission in cases where the appointment has to be made In consultation with It; or
(ii) by the State Government or by toe appointing authority with the approval of the State Government, In other cases.
This rule, however, does not mean that the Government In special deserving cases are barred from relaxing or exempting any person from the qualifications required by the rule. Special rules have been framed In 1962 requiring the passing of the test as a qualification for promotion to the post of senior inspectors. But it was open to the Governor in the exercise of his power under Rule 39 to grant exemptions If he considered the cases to be fit and proper for exercising his dispensing power under that rule. Rule 13A says:
Notwithstanding anything contained In Rule 13, where a pass In a special or departmental test Is newly prescribed by the special rules of a service for any category, grade or post therein or In any class thereof a member of a service who has not passed the said test but is otherwise qualified and suitable for appointment to such class, category, grade or post may within two years of the introduction of the test be appointed thereto temporarily. If a member so appointed does not pass the test within two years from the date of introduction of the said test or when the said test also Involves special training, within two years after the first change to undergo such training, he shall be reverted to the class, category or grade or post from which he was appointed and shall not again be eligible for appointment under this rule.
Sri Velayudhan Nair, no doubt, submitted that Rule 39 is ultra vires the Constitution as It Invests the Governor with uncanalized powers. I am not prepared to accept this contention, I think the rule is valid and has been held so by this Court. The rule vests the dispensing power in the highest dignitary in the State, and I cannot presume that he will misuse the power. If in any particular instance the power has been misused, it may be open to the Court to strike down the exercise of the power in that particular case. I, therefore, think that the Governor had the power to grant the exemptions from passing the test. Sri Velayudhan Nair said that the Governor has not exercised the power under Rule 39 In this case as the order, Ex. P. 2, was passed by Government. I see no substance in the argument.
4. The next argument of Sri Velayudhan Nair was that Ex. P. 2 order was passed only to help respondents 3 to 34, He said that the reasons given in that order were not existent and they were put forward as mere pretence to justify the granting of exemptions. It may be recalled that all persons affected by the order of Government in G.O. Ms. No. 691/Agri. 63, dated 21 July 1963, were persons promoted to the rank of senior inspectors before the Government Order dated 27 February 1962 was issued. The question of the posts as between the first-grade co-operative Inspectors of Travancore-Cochin and co-operative sub-registrars of Madras was Itself being questioned by the allotted officers from Madras. The matter could not be considered as having been finally settled until the Government of India In their letter No. 8-3 (19) 61/SR (S). dated 8 February 1965, communicate the decision that the existing equation of posts will stand. All the affected officers were holding the higher posts for nearly three years before promotions were cancelled in July 1963, and they have been continuing In the higher poets till the Issue of the order dated 30 April 1965 by virtue of the High Court's order. Further, In the order of the Registrar of Co-operative Societies dated 1 April 1960 there was no mention that the promotions were provisional. Apart from this, eight senior Inspectors who were promoted as Assistant Registrars, were exempted from reversion, four as per G.O. Ms. No. 691 of 1963 Agri, dated 24 July 1963, and four as per the judgment of the High Court In Original Petition No. 1497 of 1963. In view of these facts I cannot say that the reasons given by Government In Ex. P. 2 order were unreal. If Government on the basis of these reasons found that it was just and equitable that the exemption granted to the gazetted officers from passing the Account Test till the end of 1966 by Government Order dated 16 June 1963 (Ex. P. 3) should be extended to these persons as well. I do not think it proper for this Court to Interfere with Ex. P. 2 order. Considerations which prompted Government In issuing Ex. P. 3 order apply to the senior inspectors also. The number of officers affected is fairly large and It Is represented that almost all of them have passed the test. Exhibit P. 2 order was passed in consultation with the Public Service Commission. I cannot, therefore, say that there was any mala fides In the Government in passing Ex. P. 2 order. Even at the time when the writ appeal was heard It was represented on behalf of the Government that the matter was being considered by Government afresh, and it was on the basis of that representation that this Court did not pass any order on the merit of the writ appeal.
5. For these reasons, I think, the order of Government, Ex. P. 2, has to be sustained and the writ petition dismissed. I do so. No costs.