http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: N. MURLEEDHARAN & ORS. ETC.

       Vs.

RESPONDENT: THE STATE OF KERALA & ORS.

DATE OF JUDGMENT:       20/02/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHAMD

ACT:

HEADNOTE:

JUDGMENT:                           W I T H               CIVIL APPEAL NOS. 167-68 OF 1985                          O R D E R      These appeals  by special leave arise from the judgment of the Division Bench of the Kerala High Court, made on July 5, 1984  in OP  No.3003/80. In  the State  of  Kerala,  Head Clerks/Head  Accountants,   U.D.Cs.  and   L.D.Cs.   -   the ministerial staff  consists of  three groups  of  employees, namely, those  allotted from  erstwhile composite  Province, (b) those  similarly allotted  from former Travancore-Cochin State and  (c) those  recruited to  the State  Service on or after November  1, 1956  (Kerala recruits).  The  appellants belong to  the last category, vis., Kerala and recruits. For promotion from one ladder to the higher echelons, i.e., from LDCs to  UDSs and  so on, the Government in G.O. (P) No.851, dated June  16, 1980  issued in  exercise of the power under proviso to  Article 309  of the Constitution, made the rules called  the   Special  Rules  for  the  categories  of  Head Clerk/Head  Accountant,   Upper  Division  Clerk  and  Lower Division  Clerk   of  the  Kerala  Land  Revenue  Department included in  the  Kerala  Ministerial  Subordinate  Service. These rules  came into force w.e.f. November 1, 1956. Rule 9 of the  Rules  prescribes  the  special  qualifications  and provides  that  for  promotion  to  the  category  of  Upper Division Clerk,  a Lower  Division Clerk  shall pass the (a) Revenue Test  (Travancore, Cochin  or Madras)  provided that passing this  test shall  be obligatory only from 14.1.1958; (b) Accounts  Test (Lower)  provided that  passing the  test will be  obligatory only  from 1.1.64;  and (c)  Secretariat Manual Test  upto 20.2.1958 and District Officer Manual Test thereafter. All  the employees  from all  three sources, who did not  pass the test, challenged the validity of the above rule. The  Division Bench  had struck  down the  rule on the ground that since the rule issued on June 16, 1980 was given retrospective effect  from November  1, 1956  and they  were asked to  pass the  test w.e.f.  January 14, 1963, it was an impossible to  give effect to the prescription of Rules 4 to 6. It  was also  struck down  on the ground that fixation of the date,  i.e., January 14, 1963 is arbitrary being without any nexus.  It is  not in  dispute that  after the  rule was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

struck down,  new rules came to be made in compliance of the direction issued  by the Division Bench on June 12, 1985. On its basis,  seniority list  was prepared and promotions were given to  those found  in the order of seniority. The latter rules are  not subject  matter of  any attack nor has anyone questioned the correctness thereof. The promotions have also become  final.   Under  these  circumstances,  the  question arises: whether  it is expedient at this distance of time to go into  the correctness  of the judgment of the High Court? All the  Madras Allottees  and  Travancore-Cochin  allottees have now retired from service. Only Kerala recruits, perhaps some of them, recruited on or after November 1, 1956, may be in service.      Shri E.M.S.  Anam, learned  counsel for the appellants, contends that  the view  expressed by  the High Court is not correct in  law for  the reason  that  in  Travancore-Cochin State,  there   was  a  rule  in  operation  obligating  the allottees of that State to pass the required test prescribed thereunder. Equally,  the Madras  allottees were required to pass the  test under  the Madras  Rules for promotion to the higher cadre/category  of posts.  Therefore, mere making the rule on  June 16,  1980 with effect from November 1, 1956 is consequential. It  is not  an impossibility  of  performance provided the  Madras or Travancore-Cochin a Alllottees had a will to appear for and pass the examinations. The appellants having passed the examinations are entitled to be considered and promoted  to the  higher posts  in accordance  with  the rules as against those who either had appeared but failed or those who  did not  appear at  all. Both  of those  unequals cannot be  treated on  par with  equals for  the purpose  of seniority and  promotion. Though the argument is attractive, in substance,  we cannot  give any  relief to the appellants for two  reasons, namely,  the subsequent  rules, as  stated earlier, are  not the  subject matter of assailment of their validity and  the seniority was prepared on the basis of the new rules  and promotions  were also given accordingly. They became final and all of the Madras Allottees and Travancore- Cochin allottees  have since  retired  from  service;  hence there is  no need  to go  into the  question in that behalf. Questions relating  to promotion  of those from among Kerala recruitees who  had attempted but failed or those who passed the test  may be the relevant to be gone into. But since the new rules  have already  been made  and they  are not  being challenged, the  special rules  have lost  their  relevance. Under these  circumstances,  we  decline  to  go  into  that question.      The appeals are accordingly dismissed. No costs.