TaxTMI 
TaxTMI 
2017 (8) TMI 1745
X X X X Extracts X X X X
X X X X Extracts X X X X
....of probation. Rule 9 of the Special Rules, to the extent relevant, reads as follows: 9. TEST- a) Every person appointed under these Rules shall, pass the test on the subjects mentioned in Annexure III to these Rules at or before the fifth of such tests held after such appointment the maximum number of chances shall be limited to three. Note: The examination will generally be conducted half-yearly by the Kerala Public Service Commission. 3. For over twelve years, the test was not conducted by the Commission. In the meanwhile, those Assistant Sub-Inspectors approached the High Court and obtained orders for provisional promotion to higher posts along with their juniors. 4. While the Assistant Sub-Inspectors continued to enjoy provisional promotions, the Government felt that there should be a one-time solution for the issue regarding the passing of the test under the Special Rules since the test had not been conducted. In such circumstances, the Government passed an Order dated 17.11.2000 invoking Rule 39 of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as 'the Rules') exempting those thirty-seven directly recruited Assistant Sub-Inspect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mmission till date probably because proposals to amend the provisions in the Special Rules regarding the conduct of the test and certain other matters had been under consideration. As a result, these 37 officers did never get an opportunity to appear for the test and hence the satisfactory completion of probation of the above mentioned 37 Assistant Sub Inspectors has not been declared so far. This created a situation during 1991 when Assistant Sub Inspectors who were juniors to these 37 officers were promoted as Sub-Inspectors. Some among the 37 Assistant Sub Inspector approached the Hon'ble High Court by filing OP No. 12822/91 and based on the directions of the Hon'ble High Court all the 37 officers were provisionally promoted as Sub Inspector. Though, based on the directions of the Hon'ble Court, all the 37 Assistant Sub Inspectors were promoted as Sub Inspectors, the question of passing of the test for declaration of their probation in the category of Assistant Sub Inspector remains unsolved. The Director General of Police has reported that the seniority of these officers could not be fixed so far. Further these officers are being denied annual increment due to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arranting invocation of its' powers Under Rule 39 of K.S. & S.S.R. Reasoning of the Government that it was illogical and unjustified to ask the Assistant Sub Inspectors of Police to appear for the test after rendering service of 12 years in the post also cannot be said to be unreasonable. We are satisfied that Government was justified in invoking the power Under Rule 39 of K.S. & S.S.R. and in our considered view, there is nothing illegal in Ext. P6 order of the Government. 6. Aggrieved, the Appellants are before this Court. 7. Shri Shyam Divan, learned Senior Counsel appearing for the Appellants submits that Under Rule 13AA of the Rules, no exemption can be granted to the members of the Scheduled Castes and Scheduled Tribes from passing the tests prescribed for the purpose of promotion in the case of Executive staff below the rank of Sub-Inspectors in the Police Department. It is contended that the said Rule has to operate notwithstanding anything contained in the Rules, and therefore, it is an exception to Rule 39. It is also contended that the Government Order dated 05.02.2000 has specifically ruled that Scheduled Caste and Scheduled Tribe employees who entered the service....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Police Department. But it has to be seen that it is Rule 39 which is an exception to the exemption contemplated Under Rule 13AA. Rule 39 is to operate notwithstanding anything prescribed not only in the Kerala State and Subordinate Services Rules or the Special Rules but even in any Government Order. The whole purpose of such residuary power is to remedy an otherwise, unjust and inequitable situation. Therefore, the Government Order dated 05.02.2000 also does not stand in the way of the Government invoking Rule 39. That apart, Rule 13AA operates in the matter of promotion whereas in the instant case, Rule 39 is operated in the matter of probation. 11. The reliance placed on the Full Bench decision in T.C. Sreedharan Pillai and Ors. (supra), according to us, is of no avail to the Appellants. The Full Bench has summarized the law on Rule 39 in paragraphs-20 and 21, which read as follows (paragraph numbers are given as they appear in MANU/KE/0299/1972): 20. We may now summarise the conclusions that emerge from the preceding discussion. We hold that Rule 39 is valid and that it does not suffer from the vice of arbitrariness or excessive delegation. We are of the view that the said R....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f any of the other persons in the service, we find it difficult to uphold the said contention when it is stated in such a wide form. While explaining the scope of Rule 39 we have already held that it is permissible under the said Rule to grant a relaxation of the rigour of the Rules or even an exemption from any provision contained in the Rules in favour of any officer or officers, in regard to whom the facts and circumstances are such that a valid classification for according special treatment would be justified Under Article 14 and 16 of the Constitution. It is quite possible that when such an order is passed it may directly or indirectly have repercussions regarding the seniority, rank or chances of promotion of some of the other officers in service. That, however, has to be regarded as an inevitable incident of service flowing from the exercise of the power Under Rule 39 which is as much a Rule regulating the conditions of service of all the officers in the service of the State as the other provisions contained in the Kerala State and Subordinate Services Rules. The rights conferred on the members of service by the earlier Rules Nos. 1 to 38 in the Kerala State and Subordinate ....