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Wilson and ors. Vs. Registrar, Kerala Agricultural University and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1984)IILLJ199Ker
AppellantWilson and ors.
RespondentRegistrar, Kerala Agricultural University and ors.
Cases ReferredR.S. Deodhar v. State of Maharashtra
Excerpt:
- - 319/76 dated 2nd march, 1976 the service organisations had requested the university that all employees transferred as well as those recruited after the formation of the university might be granted exemption from passing departmental tests for a period of two years from the date of notification of the new tests. there is absolutely neither any justification nor any statutory backing for treating them distinctly or separately in regard to the need for acquiring obligatory tests for the purpose of promotion, probation etc. it is now well settled by the decision' of the supreme court in c......departments. if the persons had continued in the departments they would have had to pass these tests for promotion to ud cadre and above. in view of the above fact that in respect of the transferred staff the tests prescribed in the ordinance no. sro. 219/76 dated 2nd march, 1976 cannot be treated as new tests for the persons who have come to the kerala agricultural university from the departments of agriculture and animal husbandry. the omission regarding the test qualification in the statutes issued in sro no. 293/72 dated 15th june, 1972 must be presumably on the basis that tests have to be prescribed by an ordinance separately. till such time the ordinance is issued by the university the departmental conditions will continue to apply and hence it was necessary for the transferred.....
Judgment:

Bhaskaran, Ag. C.J.

1. The short question that falls for decision in the writ petition and in the writ appeal is whether the members of the non-teaching staff transferred to the Kerala Agricultural University (the University) on the one hand, and those of the non-teaching staff recruited to the University direct on the other, are to be treated differently in regard to the need for acquiring test qualifications for the purpose of promotion, probation etc. For the sake of convenience we would take up the writ appeal in the first instance; and would apply the conclusion reached therein for the disposal of the writ petition.

2. The appellants are the petitioners in O.P.No. 1541 of 1977-A. They entered Govt. service having been appointed Lower Division Clerks on the advice of the Kerala Public Service Com- mission in the Department of Agriculture/Animal Husbandry on 25th January, 1961 and 16th August, 1961 respectively. They were respectively promoted on the basis of seniority, to be Upper Division Clerks, on 24th April, 1972 and 4th October, 1972, respectively. They ceased to be in Government service on their services having been transferred to the University under Section 58(4)(b) of the Kerala Agricultural University Act, (Act 33 of 1971), with effect from 1st February, 1972. Respondents 1 to 3 respectively are the State of Kerala, the University and the Registrar of the University. Respondents 4 to 9 are persons recruited direct to the post of Lower Division Clerks in the University. Ext. PI is the copy of order No.GA(2)10655/73(I) dated 25th July, 1973 passed by the 3rd respondent, the Registrar, appointing certain person to be Lower Division Clerks in the University. Paragraph 3 of Ext. PI provides inter alia that pending issue of Kerala Agricultural University Service Regulation/ Rules, the candidates would be governed by the K.S.R. Ext. P2 is the copy-of order No. FA(1)-18269/73 dated 30th September, 1974 passed by the Registrar wherein towards the end it is stated as follows:

In pursuance of the decision of the Executive Committee it is hereby ordered that the Manual of Office Procedure be adopted in the University for office work until the University develops its own rules and procedure. The concerned staff members will have to pass the test in Manual of Office Procedure conducted by the Kerala Public Service Commission within a period of two years from the date of this order.

Officers and staff members who have already passed the Kerala Secretariat Manual will exempted from passing MOP.

In respect of recruits as L.D. Clerk, necessary entries regarding the obligatory test to be passed by them will be recorded in their respective service book.

Ext. P3 is the copy of the 3rd respondent Registrar's letter No. GA/7525/75, dated 29th April, 50 1975 addressed to the General Secretary, KAU Employee's Union, Mannuthy, which, in its operative portion, reads as follows:

I am to inform you that the Kerala Agricultural University has not prescribed any test of its own to be acquired by the ministerial employees of the Kerala Agricultural University except the MOP which was prescribed as per order No. GAI/18369/73 dated 30th September, 1974. As and when statutes prescribing the tests which are to be acquired by the ministerial Employees are issued, it will be notified for the information of all concerned.

Ext. P4 is the copy of Circular No. GA(1)7523/75 dated 26th December, 1975 issued by the Registrar under the orders of the Vice-Chancellor with respect to the departmental tests to be passed by the ministerial staff of the University for promotion. In substance it stated that Section 4 of the Statutes SRO. 293/72 dated 15th June, 1972 stipulating the conditions of service applicable to Government servants in KSR and KSSR would mutatis mutandis be applicable to the University employees; and, according to Rule 13 of KSSR, special and departmental tests would have to be passed by the employees for promotion to the higher posts. Tests qualifications for the following posts in the University, similar to those in Government Departments as prescribed by G.O. (P) No. 22/PD dated 14th January, 1963, have been specified by the Committee of the University.

1. Junior Superintendent

2. Head Clerk

3. U.D. Clerk

4. Accountant Grade-1

Heads of office under the University were therefore informed that the test in M.O.P. and Account Test (Lower) were necessary to the ministerial staff for promotion as U.D. Clerk under University service. They were also informed that thereafter promotions in the University service would be from among qualified persons only. For the first time it is by Ext. P5 Ordinance (SRO. 319/76) dated 2nd March, 1976 made by the 1st respondent in exercise of the powers conferred by Section 63 of the Act and in pursuance of Clause (10) of the Statute, issued by the Government under Notification No. 31811/AG/74/72/AD dated 15th June, 1972 and published as SRO No. 293/72 in the Kerala Gazette Extraordinary dated 15th August, 1972, that the 1st respondent Government made the Ordinance regarding the departmental tests to be passed by the employees. Clause 1 of the Ordinance provides:

1. Application - This Ordinance shall apply to all employees of the Kerala Agricultural University, except the members of the teaching staff of the Colleges under this University, Stenographers, Typists and Technical staff, who have been transferred from the service of the Government of Kerala and for whom no obligatory tests were prescribed by that Government and such other technical posts as are exempted by specific orders and also such of those in the ministerial cadre who have already passed the obligatory tests and qualified for promotion prior to their appointments to the Kerala Agricultural University.

Clause 2 reads as follows:

Tests and Examinations - All University employees shall pass the Examination conducted by the Kerala Public Service Commission in respect of the following departmental tests, namely:

1. Manual of Office Procedure; and

2. Account Test (Lower).

Clause 5 provides the application of the Kerala State and Subordinate Service Rules, 1958.

The period of passing the test and other allied matters shall be governed by the provisions relating thereto in the Kerala State and Subordinate Service Rules, 1958.

In the Explanatory Note to the Ordinance it is stated -

The first Ordinance regarding the departmental test to be passed by the Kerala Agricultural University employees has not been made so far.

This notification is to prescribe the departmental tests to be passed by the Kerala Agricultural University employees.

It was thereafter on 26th March, 1977 the 3rd respondent Registrar under the orders of the Vice-Chancellor issued order No. GA(2) 24815/76, a true copy of which is Ext. P6. In paragraph 3 it makes reference to a representation made by service organisations. Consequent on the issuance of Ordinance No. 319/76 dated 2nd March, 1976 the service organisations had requested the University that all employees transferred as well as those recruited after the formation of the University might be granted exemption from passing Departmental tests for a period of two years from the date of notification of the new tests. The University, however, thought that the question of giving exemption from test qualification would arise only if new tests were introduced. It was of the opinion that in the case of the staff transferred from the Agriculture and Animal Husbandry Departments, the Kerala State and Subordinate Services Rules would apply to them; and in the case of service conditions they have to conform to the rules of those departments for the purpose of test qualifications etc. In paragraph 4 of Ext. P6 it is stated:

The Manual of Office Procedure and the Account Test (L) were obligatory tests in the Agriculture and Animal Husbandry Departments. If the persons had continued in the Departments they would have had to pass these tests for promotion to UD cadre and above. In view of the above fact that in respect of the transferred staff the tests prescribed in the Ordinance No. SRO. 219/76 dated 2nd March, 1976 cannot be treated as new tests for the persons who have come to the Kerala Agricultural University from the Departments of Agriculture and Animal Husbandry. The omission regarding the test qualification in the statutes issued in SRO No. 293/72 dated 15th June, 1972 must be presumably on the basis that tests have to be prescribed by an ordinance separately. Till such time the ordinance is issued by the University the departmental conditions will continue to apply and hence it was necessary for the transferred to pass the obligatory tests for 35 promotion even though the tests were not mentioned in the SRO No. 293/72.

In paragraph 5 it is also stated -

Hence the tests prescribed in Ordinance SRO 319/76 cannot be considered as new tests for the newly recruited L.D. Clerks also in the Kerala Agricultural University.

Paragraph 6 states as follows -

6. In the circumstances the following orders are issued:

(i) The Lower Division Clerks transferred from the department of Agriculture and Animal Husbandry shall have to pass the tests in MOP/Secretariat Manual and Account Test (L) for the declaration of probation and for promotion to higher posts respectively.

(ii) The newly recruited LD Clerks in the Kerala Agricultural University shall also pass the tests in MOP/Secretariat Manual and Account (L) for the declaration of probation and for promotion to the UD Cadre and above.

(iii) Both the transferred employees and the employees newly recruited by the Kerala . Agricultural University (except the members belonging to Scheduled Caste/Scheduled Tribe) are not eligible for exemption from passing the tests for any period from the date of issue of the ordinance.

(iv) The provisional promotion given to-the LD Clerks to cadre of Upper Division Clerks in the Kerala Agricultural University service after 1st February, 1972 will be regularised with reference to test qualifications and seniority. Orders in this regard will be issued shortly.

(v) Further promotions in the Kerala Agricultural University will be only of test qualified persons except SC/ST candidates who are eligible for exemption from passing the tests.

3. We have extracted paragraph 6 of Ext. P6 in its entirety because the challenge in the writ petition was directed mainly against such conditions therein as would adversely affect the petitioners who are transferred employees of the University.

4. The employees of the University could not be classified into two categories on the basis of the manner in which they came to be the University employees, it being an integrated class on account of the fusion of the employees who came from two different sources, from Government Service by transfer and by direct recruitment. There is absolutely neither any justification nor any statutory backing for treating them distinctly or separately in regard to the need for acquiring obligatory tests for the purpose of promotion, probation etc. This position is clear from the scheme of the Act and the provisions contained in els. 4, 5 and 10 of the statute and cls.l, 2 and 5 of SRO. 319/76. Exts. P3 and P4 could not prevail against the statutory provisions, and they have only to be ignored so far as they relate to this aspect of the matter.

5. We are in agreement with the views expressed by the Division Bench in W.A. Nos. 172 and 207 of 1982, in which the question for decision concerned the obligation of the appellants in W.A. No. 172 of 1982, who were direct recruits 5 to the post of Lower Division Clerks in the University, to pass the account test (Lower) and the Manual of Office Procedure test before they were specifically prescribed as essential for Lower Division Clerks of the University by Ordinance 10 (SRO 319 of 1976) published in the Kerala Gazette dated 2nd March, 1976, as envisaged by Clause 10 of the First Statutes of the University. In the concluding portion of the judgment, Subramonian Poti, Ag. C.J., (as he then was) who spoke for the 15 Bench said:

The learned single Judge therefore directed the respondents, University, to look into the matter and decide whether the test referred to in the Ordinance of 1976 and in 20 the Ordinance of 1978, are different, and if not, whether any distinction could be made between ministerial employees and the teaching staff in the matter of granting exemption for a period of two years, and to pass the 25 unified test in accordance with the proviso to Rule 13 of the Kerala State k Subordinate Service Rules. The ordinance of 1976 specifically excluded the teachers so much so that so far as the teachers were concerned, 30 for the first time they were asked to pass the test only by the ordinance in 1978. The appellants succeed. The consequence is that, we see no reason to accept the case of the University that the appellants were not asked 35 to pass a new test in 1976. Consequently the appellants are entitled to seniority over those who have superceded them during the relevant period and we hold the appellants are entitled to restoration of rank. The juniors 40 to the appellants with test qualification could not have superceded them during the period of two years. It is so declared.

We would only add that in regard to the need for acquiring test qualifications, what the Division 45 Bench said with respect to the direct recruits is applicable with equal force to the transferred employees also, for, on that question, in the light of the foregoing discussion, we have already found that both of them stand on the same footing. 50

6. On behalf of one of the respondents it was submitted that he had acquired the test qualifica tions even before he was transferred to the University under Section 58(4) of the Act; and, therefore, had he continued in the Government service, he would have had a chance to get promotion even before all the other Lower Division Clerks who were transferred along with him could have expected to be promoted to the post of Upper Division Clerks, and that they had been deprived of that chance. It is now well settled by the decision' of the Supreme Court in C.A. No. 2281 of 1965 dated 25th January, 1967 that though to be considered for promotion is a right, mere chance of promotion is not a vested right. A rule which merely affects chances of promotion cannot be regarded as a variation of the conditions of service. The decision rendered by Wanchoo, j., (as he then was) in the case referred to above was referred with approval in the subsequent decision of the Supreme Court in R.S. Deodhar v. State of Maharashtra 1974-1 L.L.J. 221. Thus, the contention raised on behalf of one of the respondents in this case that he is entitled to promotion prior to his transfer to the University has only to be rejected; and we do so, as chance or expectation of promotion does not confer any entitlement to promotion on the person concerned.

7. The result, therefore, is that we have to allow the appeal quashing Exts. P3, P4 and P5. 5 We declare that the members of the non teaching staff of the University, whether they are transferred employees or direct recruits, are not under any legal obligation to pass the tests for promotion, probation etc., before they were specifically M) prescribed by the relevant Ordinance (SRO No. 319 of 1976) dated 2nd March, 1976 issued under clause No. 10 of the First Statute of the University; and that they are also entitled to the benefits of the exemption granted under Rule 13-A or 15 13-AA, as the case may be, of the Kerala State and Subordinate Services Rules. Following the above reasoning the writ petition also has to be allowed.

We allow the writ appeal and the writ petition 20 in terms mentioned above. No costs.


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