P.V. Asha, J.@mdash1. The question whether the temporary exemption provided in Rule 13 A (i) (a) of Part II of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as ''the General Rules'' for short) to the members of Scheduled Castes/Scheduled Tribes is applicable to the special tests which are essential qualifications prescribed under the Special rules, and a further question whether the said exemption is applicable to promotion alone and not for appointment by transfer, have come up once again for consideration in these O.P.(KAT)s as well as Writ Appeals. All the Original Petitions are filed by the Government; whereas W.A No. 668 of 2009 and W.A No. 2764 of 2009 are filed by third parties against the very same judgment in W.P(C) No. 38283 of 2007. As the issue arising for consideration is common, all these cases were heard together and are disposed of by this common judgment.
2. By the impugned judgment and the impugned orders herein, this Court and the Kerala Administrative Tribunal (`KAT'' for short) have declared that, the party respondents who are members of Scheduled Caste/Scheduled Tribe Communities are entitled to appointment to the post of Superintendent of Survey and to that of Technical Assistants in the Department of Survey and Land Records in preference to their juniors, in recognition of their claim for temporary exemption under Rule 13A of the General Rules from pass in the tests prescribed.
3. We heard Sri. Mohamed Shaffi, the learned Government Pleader, Sri. Unnikrishna Kaimal for the appellant in W.A No. 2764 of 2009 and the learned Counsel appearing for the party respondents. The grounds of attack are twofold : (i) the exemption envisaged in Rule 13A is for promotion alone and not for appointment by transfer; (ii) there cannot be any exemption from the essential qualification as held in Sarojiniamma V State of Kerala & others :2002(3) KLT 573; therefore those who have not passed the Head Surveyor''s/Head Draftsman''s test, Account Test Lower and Revenue Test cannot be given appointment granting temporary exemption.
4. Rule 10 of the General Rules provides that the educational or other qualifications required for a post in the services under the State shall be as specified in the Special Rules. Rule 11 deals with special qualifications to be acquired or special tests to be passed during probation. According to this rule, where a probationer has already acquired the special qualification or pass in special test prescribed by the Special Rules or such other qualifications declared equivalent to such special qualifications or special test, he shall not be required to acquire such special qualifications or special tests again, after commencement of his probation. Rule 13 provides for special qualifications. As per Rule 13, in order to be eligible for appointment to any service, class, cadre or grade or any post borne on the cadre thereof, one should possess the special qualifications and pass the special test, as are prescribed in the special rules or should have possessed such other qualifications declared equivalent. The relevant provisions in Rule 13A, which comes up for our consideration are the following:
"13A. Special and Departmental Tests:--Temporary exemption for promotion:-- (1) Notwithstanding anything contained in rule 13:--
(a) Where a pass in a special or departmental test is 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 belonging to any of the Scheduled Castes or Scheduled Tribes who has not passed the said test but is otherwise qualified and suitable for appointment to such class, category, grade or post may be appointed thereto temporarily.
(b) 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.
(2) If a member of a service appointed under clause (a) of sub-rule (1) does not pass the test within three years from the date of such appointment or when the said test also involves practical training, within three years after the first chance to undergo such training after such appointment, or if a member of service appointed under clause (b) of sub-rule (1) does not pass the test within two years from the date of introduction of the said test or if the said test also involves practical training, within two years after the first chance to undergo such training after the introduction of the said test, he shall be reverted to the class, category, grade or post from which he was appointed and shall not again be eligible for appointment under clause (a) or (b) as the case may be, of sub-rule (1):
Provided that the period of temporary exemption allowed under clause (b) of sub-rule (1) shall be extended by three years in the case of a person belonging to any of the Scheduled Castes or Scheduled Tribes.
(3) xxx xxxx xxxxxxxxxxx
(4) Notwithstanding anything contained in sub-rules (1), (2) and (3), the period of exemption shail, if necessary, be extended taking into account the number of times the ''prescribed test was conducted during the period so as to enable the members of the service to get at least two chances to appear for the test for each year of exemption.
(4A) xxxxxxx
(5) A person reverted for not passing the tests within the period of exemption shall not, by reason only of the appointment within the period of exemption be entitled to any preferential claim to future appointment to the class, category, grade or post as the case may be, to which he has been so appointed;
Provided that this rule shall not be applicable to tests prescribed for purposes of promotion of the executive staff below the rank of Sub-Inspectors belonging to the Police Department.
(emphasis supplied)
In this case we are concerned with only [sub rules 1(a), (2) and (5).]"
5. It is pertinent to note that the heading given to Rule 13(A) is "Special and Departmental Tests - Temporary Exemption for Promotion". It is in this context on the basis of the heading of the rule, that the learned Government Pleader contends that, this provision is applicable only in respect of promotion and not in respect of appointment by transfer. At the same time, a Division Bench of this Court, in the judgment in Somarajan v. State of Kerala [, 2007(1) KLT 186], interpreted this provision and held that Rule 13A deals with appointments, which will include promotion as well as appointment by transfer and therefore, the appointments referred to in Rule 13A should relate to, all the appointments which will include not only promotion but also appointments by transfer from one service to another. In the light of the contentions raised by the Government, despite all the earlier decisions rendered by this Court in various cases, it is necessary to have a deeper analysis of the provisions.
6. Rule 13A(1) begins with a non obstante clause, ie. notwithstanding anything contained in Rule 13, and provides for exemption from the condition of possessing of the special tests/qualifications required under Rule 13. It can be seen that the words and expressions used in Rule 13 A are:
"''Where a pass in a special or departmental test is 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 belonging to any of the Scheduled Castes or Scheduled Tribes who has not passed the said test but is otherwise qualified and suitable for appointment to such class, category, grade or post may be appointed thereto temporarily. Thus the exemption is available to a member of ''a service'' for the purpose of appointment to a post in a service if the special rules for a service prescribes pass in departmental or special test.'' In case what was envisaged therein was promotion, the legislature would have employed the words and expressions ''member of ''the service'''' belonging to SC/ST. The next provision which requires examination is Subrule 2 of Rule 13A, which all along uses the expressions ''appointment'' and ''appointed'', while it provides for reversion of members of the S.Cs/S.Ts who were appointed by virtue of clause (a), in case they do not pass the special or departmental test prescribed in the Special Rules within a period of 3 years from the date of such appointment, or within 3 years after the first chance to undergo such training after such appointment, and it provides that he shall be reverted to the class, category, grade or post from which he was appointed and shall not again be eligible for appointment under clause (a). Sub Rule 5 provides that, a person who is thus reverted, will not be entitled to any preferential claim for future appointment to the category to which he was appointed granting the temporary exemption. Now coming to the proviso, it can be seen that the benefit of temporary exemption is specifically made inapplicable to promotion of executive staff below the rank of Sub Inspectors of Police Department. Thus the expression ''promotion'' is employed in the proviso alone. Hence even though Rule 13A begins with a heading indicating temporary exemption for promotion, what is provided in the Rule relates to appointments. None of the clauses in this provision provide for appointment from ''a service'' to ''the service''. On the other hand, the words ''special rules of a service'', are followed by ''member of a service''. If a member of a service belonging to S.Cs/S.Ts is otherwise qualified and suitable for appointment to class, category or grade or post in a service, he can be appointed even if he has not passed the special or departmental test prescribed by the Special Rules. Sub rule 2 also does not indicate anywhere that the reversion can only be given to those who are appointed/promoted to the same service because clause 2 also provides that if a "member of a service" appointed under clause (a) does not pass the test within 3 years from the date of his appointment, he shall be reverted to the class, category or post from which he was appointed. Therefore, there is no merit in the contention raised by the learned Government Pleader that, Rule 13A relates only to promotions. When the provisions contained in Rule 13A refer to appointment specifically and not to promotion, the expression "promotion" indicated in the heading of the Rule alone cannot be the decisive factor to determine the applicability of the exemption. The heading alone cannot by itself exclude appointments in all other modes covered by the provisions contained in Rule 13A."
7. The next question to be considered is whether exemption is available when the special or even the departmental test referred to in clause (a) forms the essential qualification prescribed for a post. The learned Government Pleader relies on the judgment of another Division Bench of this Court in Sarojini Amma v. State of Kerala [2002(3) KLT 573], in support of his contention that, there cannot be any exemption from essential qualifications. The judgment in Sarojini Amma''s case (supra) was with respect to the exemption under Rule 13B of KS&SSR, whereby permanent exemption was granted to persons in Government service who attain the age of 50 years and who have put in 25 years of service, from passing the obligatory departmental test. As per that Rule, the members belonging to S.C/S.T were made eligible for permanent exemption when they attain the age of 50 years. The learned Government Pleader pointed out that, the Division Bench rendered that decision while considering the qualifications for appointment to the very same post of Superintendent of Survey and Technical Assistants in the very same Department, ie the Department of Survey and Land Records and that the temporary exemption under Rule 13A also cannot be given from passing the test, when those tests are essential qualifications.
8. The method of appointment and qualifications to the post of Superintendent of Survey and Technical Assistant which come in category 3 and 4 of the Kerala Survey and Land Records Service are governed by the Special Rules thereof. The method of appointment for both these posts is by appointment by transfer from the Subordinate Service of the Survey and Land Records. The qualifications prescribed are as given below:
The qualification and method of appointment of Technical Assistant is as follows:
9. Thus it can be seen that, the tests prescribed for appointment to the post are essential qualifications prescribed for appointment by transfer. The pass in Head Draftsman Test or Head Computer''s test as well as pass in Account Test and Revenue Test are the qualifications prescribed for appointment to the post of Technical Assistants; whereas pass in Head Surveyor''s Test, Account Test and Revenue Test are the qualifications prescribed for Superintendent of Survey, which are in addition to the academic qualification. In the judgment in Sarojini Amma''s case (supra), though it was with reference to the exemption under Rule 13B for those who attained the age of 50 years, from possessing departmental tests, it was held that there cannot be any exemption from the essential qualifications for a post. Therefore, it is necessary to examine whether these tests, which are qualifications, can be considered as special or departmental test coming under the purview of exemption under Rule 13A.
10. Special test is not seen defined anywhere in the KS&SSR or Kerala Service Rules (''KSR'' for short). Departmental test also is not defined in the KS&SSR. However, obligatory departmental examination is seen defined under explanation to Rule 12(7) of Part I KSR. Under explanation to Rule 12(7), any test prescribed for successful completion of probation or training, any test prescribed for making an officer eligible for increment or for confirmation, any test prescribed for promotion to any higher post coming in the line of promotion in the Department, any test prescribed for qualification for continuance in any post and any test newly prescribed for persons already in the service are treated as obligatory departmental examinations. But Rule 13A provides for exemption from departmental tests and special tests for a person who is otherwise qualified. As far as those in the feeder category for appointment to the posts in question are concerned, the only qualifications they require for appointment to the respective higher posts are the tests mentioned earlier. A reading of Rule 13 of KS&SSR would show that, in order to be eligible for appointment to any service or post, one should possess all the special qualifications and has to pass such other special tests as prescribed in the special rules. In other words, these special tests are considered as qualifications. Rule 11 also refers to special tests for the purpose of completion of probation. Originally, the exemption granted under Rule 13A was only from the newly prescribed special or departmental tests prescribed by the Special Rules, till it was amended as per SRO No. 675/74 dated 17.09.1974 deleting the words "newly prescribed" and thereby providing for exemption from the special or departmental tests prescribed by the Special Rules. Rule 13A also indicates from the words "but is otherwise qualified" that, pass in special or departmental tests which are exempted also relates to qualification. The benefit of Rule 13A will be available for a period exceeding 3 years, as provided in Rule 13AA, in the case of those who entered service before 31.12.1985, by way of extensions granted by the Government Orders issued from time to time. Under Rule 13B, all persons in the Government service who attain the age of 50 years and have completed 25 years of service were made eligible for permanent exemption from passing obligatory departmental test. By way of an amendment introduced by G.O(P)309/84/GAD dated 31.08.1984, 4th proviso was added to this rule extending the eligibility for exemption to all those in Government service who attain the age of 50 years on or after 26th day of August 1981 from passing the obligatory departmental tests. As a consequence to the judgment in Sarojini Amma''s case (Supra), the provisos contained in Rule 13B as well as the 4th proviso to Rule 13B have been amended and therefore as at present permanent exemption under Rule 13B is available only to the obligatory departmental tests other than those prescribed as essential qualifications in the Special Rules. No amendment is brought about to Rule 13A.
11. Subsequent to Sarojini Amma''s case, another Division Bench had occasion to consider the impact of Rule 13A in the judgment in State of Kerala V Chathan : , 2005(1) KLT 75, while considering the case of Head Clerks/Revenue Inspectors in Revenue Subordinate Service, who were denied promotion as Deputy Tahsildars for want of pass in revenue test and account test (lower). The learned Single Judge held that they were eligible for exemption under Rule 13A. Government filed appeal contending that, pass in revenue test as well as account test was part of the requisite qualifications prescribed and exemption was available only for promotion and not for appointment by transfer, relying on the judgment in Sarojini Amma''s case (supra). The learned Division Bench distinguished Sarojini Amma''s case as the same was with reference to the exemption admissible under Rule 13B of KS&SSR, whereas the temporary exemption claimed for appointment to the post of Deputy Tahsildars was under Rule 13A. The following observations in that judgment in paras 4 and 5 are relevant.
"4. xxx Constitutional validity of R.13AA was upheld and orders issued under R.13AA extending the period of exemption were upheld by a seven-member Bench in the decision in State of Kerala & Anr. v. N.M. Thomas & Ors. (, AIR 1976 SC 490), even though one of the Judges differed from the majority view. While exercising the powers vested under S. 13AA, a clarification was also issued by Ext. P3 where it is made clear that the exemption is applicable to all promotions, that is, in selection as well as in non-selection categories. It also further clarified that the above benefits are not available to those employees who entered service on or after 1,1.1986.
5. In sub-r.1(a) of R.13A of the K.S.S.S.R. what is exempted is special or departmental tests prescribed by the Special Rules of a service for appointment to any class, category or grade or post. Therefore, R.13A, unlike R.138, deals with the case of appointment by transfer, not mere promotion. In other words, even tested in common parlance, appointment by transfer and promotion are more or less the same. Appointment by transfer is to another service as it is a selection as held by the Division Bench in Kerala Water Authority v. Augustin (, 2001 (3) KLT 746) and one must acquire the prescribed qualifications. R.13A gives an exemption to the general rule. Pass in departmental test which is prescribed as qualification in the Special Rules for appointment to such category of post is specifically exempted under S.13A and the wordings used in R.13A and R.138 are entirely different. Unlike R.13B, R.13A is applicable not only in normal promotions, but also for appointments by transfer to a higher post. Therefore, we agree with the learned Single Judge that as far as the petitioners who are members of the scheduled castes/schedule tribes are concerned, they are entitled to the benefit of R.13A. In 1985(1) ILR Kerala 657 and 2002 (3) KLT 573, the effect of R. 13A was not considered but only R. 13B was considered and the wordings in R. 13 A and R. 13B are entirely different. We see no ground to differ from the findings of the learned Single Judge...."
12. It is relevant to note that, in Somarajan''s case (supra), the Division Bench considering the very same special rules has held that, exemption was available from special tests and departmental tests and that Rule 13A applies in the case of appointments. After an elaborate consideration of the provisions regarding exemption in the general rules and the Special Rules, it was held as follows:
"12. It could, perhaps, be doubted whether these exemptions would be applicable to any special test prescribed as essential qualification for a post. That was also cleared by introducing 13BB in the General Rules of the Rules to the effect that,
"The provisions in R.13 A, 13 AA and 13B of these Rules shall not apply to the qualifying course/training prescribed for the members of the Kerala Fire Service and Kerala Fire Subordinate Service". That means, the provisions in R.13A, 13AA and 13B apply to other qualifications.
13. The exemption provided in R.13AA thus covers every qualifications than the "qualifying course/training prescribed" for Fire Service personnel. Of course, R.13BB does not mention R.13 AB. But, R.13AB is only an extension of the exemption provided in 13AA. Therefore, the employees belonging to Scheduled Caste/Scheduled Tribe are entitled to exemption from any test other than the qualifying course/training prescribed for Fire Service Personnel. This is clear from R.13BB. Therefore, in the light of 13BB, it is no longer a debatable question whether exemption from Special or Departmental test prescribed as essential qualification for a post is available to the members of Scheduled Castes/Scheduled Tribes in service or not."
After referring to the Obligatory departmental tests given in Rule 12(7) of Part I KSR, it was held as follows:
"16. xxxx These tests, being obligatory departmental tests, any other tests will necessarily be Special tests mentioned in R.13 and R.13A. The tests which are prescribed as per the Special Rules, for the post of Superintendent of Survey and Land Records are not any of the tests mentioned in Explanation to R.12(7) of Part I K.S.R. Therefore, those are the special tests covered by R.13, 13A, 13AA and 13AB as well."
Regarding the applicability of Rule 13A to appointment it was held as follows:
"18. Appointment includes appointment of different types viz., appointment by direct recruitment, appointment on promotion and appointment by transfer from one service to another. In Clause 13 A dealing with exemption also, only the word ''appointment'' which obviously includes different types of appointments as indicated already alone is mentioned. It is this exemption which is enabled to be extended for further terms to those belonging to Scheduled Castes/Scheduled Tribes as per Rr.13AA and 13AB. Therefore, this exemption is applicable to appointment by transfer as well. On the other hand, when the exemption is confined to promotion alone, it is so specified in the rules. For example, the exemption allowed under R.13 B, which enables the incumbents eligible "for all purposes, such as promotion or appointment as full member of service etc."
The State of Kerala had approached the Apex Court as against the judgment in Somarajan''s case and the SLP Nos. 3620 of 2007 and 3623 of 2007 were dismissed by its order dated 22.2.2010.
13. But the very same Division Bench had, in Krishnakumar v. Chathan [, 2007(1) KLT 558] held that, there cannot be any exemption from special tests which are basic qualification, even under Rule 13A. In that case, this Court was considering the case of Deputy Tahsildars who were superseded in the select list for appointment to the post of Tahsildar, for want of pass in criminal judicial test. As per Rule 6 of the Special Rules for Kerala Revenue Service which provides for the qualification for appointment to the post of Tahsildar, one should have a degree in law or pass in criminal judicial test and pass in departmental test namely, revenue test, account test and survey test higher. After analysing Rule 6 thereof, this Court found that, the criminal judicial test which is an alternative for degree in law did not come within departmental test as in the case of the other departmental tests, like revenue test, account test and survey test provided therein. In this, the judgment, rendered in the case of Superintendent of Survey and Land Records, ie. the Somarajan''s case (supra) was distinguished, observing that the Head Surveyors test mentioned in the special rules applicable therein was prescribed as a specific test and not as an alternate to any academic qualification and it was in those circumstances it was held that, the members of the Scheduled Castes/Scheduled Tribes were eligible for temporary exemption from passing the said special test under Rule 13A. Paragraphs 13 and 14 of that judgment are relevant in this context, which read as follows:
"13. What was considered in the judgment in W.A. No. 1138/06 and connected cases relied on by the learned single Judge was whether the test prescribed for recruitment by transfer to the post of Superintendent of Survey and Land Records, Category III in Table in the Special Rules for Kerala Survey and Land Records Service viz., Head Surveyors'' Test was a special test or not. There, that test was prescribed as a specific test and not as an alternate to any academic qualification. Taking into account that aspect, that it was a test in addition to the minimum academic qualification of S.S.L.C prescribed for that post, it was held therein that it was a ''special test'' from which the candidates belonging to the scheduled caste coming within the purview of the orders issued by the Government in terms of R. 13 AA of the General Rules would be entitled to temporary exemption from that test, for promotions.
14. R.13A of the General Rules provides for exemption from "Special and Departmental Tests'' prescribed by Special Rules for a limited period. R.13 AA enables Government to issue orders exempting members of Scheduled Caste/Scheduled Tribe already in service for a specified period, from passing ''the tests referred to in R. 12 or R.13 A'', which include the special tests also. This exemption is in terms of orders issued under R. 13AA, from time to time which is available even now. R.13 AB provides that the exemption so ordered "shall be deemed always to have been applicable to the members of Scheduled Caste/Scheduled Tribe who entered service after that date also." Therefore, the writ petitioners certainly come within the ambit of the said rules and orders issued thereunder in respect of the special tests as well. There cannot have any different view. But as already mentioned, the point is whether ''Criminal Judicial Test'' is a special test or not to claim such exemption."
The exemption provided under Rule 13A from the special test viz. the criminal judicial test which is prescribed as an alternate qualification to degree in law under the special rules for Kerala Revenue Service is distinct and different and in that view of the matter, there cannot be any exemption from passing criminal judicial test by virtue of Rule 13A, because there is no exemption from basic qualification or special qualification. Moreover, in that case, the special rules itself had in the first proviso to Rule 6 made it clear that the qualification provided therein under clause (a) was made compulsory w.e.f 17.10.1966, which is carried over in the new Special Rules issued in 1980, there cannot be any exemption.
14. On an analysis of the entire provisions contained in Rule 13A, Rules 10 onwards of the General Rules, we are unable to accept the contention that exemption is intended only for the purpose of promotion. It is true that promotion is confined to the same service, whereas appointment by transfer is to another service. The appointment by transfer can be in the very same Department as also to another Department; whereas promotion will be confined to the same service in the same Department. "Recruitment by transfer" is defined under Rule 2(13) of Part I KS&SSR to mean as follows:
"Recruited by transfer
(13) A candidate is said to be "recruited by transfer" to a service-
a) if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service; and
if at the time of his first appointment thereto -
b) he is either a full member or an approved probationer in any other service, the rules for which prescribe a period of probation for members thereof:
Provided that where the Special Rules for a service provide for recruitment by transfer to any class or category thereof from any specified class or category of another service, a candidate shall, unless the recruitment is made from a post carrying an identical scale of pay, be a full member or an approved probationer in the class or category so specified; or
c) he is the holder of a post in any other service for which no probation has been prescribed, and has put in satisfactory service in that post for a period of two years on duty within a continuous period of three years.]"
From the definition it can be seen that, appointment from one service to another in accordance with the Special Rules or orders prescribed for such appointment of a person, who is a full member or an approved probationer, can be termed as recruitment by transfer. In other words, it is not necessary that the recruitment by transfer should only include appointment from the Subordinate Service to the State Service, as in the case of appointments of Deputy Tahsildars to Tahsildars from Revenue Subordinate Service to Revenue Service, but also as in the case of Head Surveyors/Head Draftsman to the post of Superintendent of Survey/Technical Assistant from the Subordinate Service to the State Service of the Survey and Land Records Department. It can also be to an equivalent post from another Department. Therefore, the circumstances occurring in each and every case are different. The judgment in Secretary to Government v. Surendran [, 2014(3) KLT 115] relied on by the learned Government Pleader does not apply in the circumstances of the case. In that case, while considering the question of grant of higher grade in terms of pay revision orders, which provided for scale of pay of the next promotion post on grant of higher grade, this Court explained the distinction between promotion and appointment by transfer.
15. In this context, it is pertinent to note that the Government have been consistently filing appeals contending that, the exemption is not available for appointment by transfer but for promotion and this Court has been consistently rejecting their contention, as can be seen from the judgments in Chathan''s case and Somarajan''s case (supra) rendered in 2005 and 2007 respectively.
16. In this context, the Government is very well aware of the fact that in the present case, the posts in the feeder categories for appointment of Survey Superintendent as well as Technical Assistant are those in the next lower category, included in the subordinate Service of the very same Department. The channel for their entry to the higher category happened to be through a process of selection by DPC since the higher posts happen to be in the State Service. In such cases, those in the feeder category for appointment from the subordinate service of a department to the State Service of the same department, especially those in the immediate lower category, are fully acquainted with the matters coming within that Department, unlike in the case of recruitment by transfer from one Department to another Department or in the case of direct recruitment. In the case on hand, the appointments are made from the Subordinate Service of Survey and Land Records to the post of Superintendent and Technical Assistant, which are posts in the State Service, to which appointments are to be made by selection through Departmental Promotion Committee.
17. In this context it is relevant to note that certain Head Surveyors the immediate feeder category for the post of Superintendent of Survey, had approached this court as well as the KAT, when their probation were not declared/ declaration of probation was cancelled, on the ground that they did not pass the tests during the period of their probation, as prescribed under Rule 6 of the Special Rules. They had entered service as Surveyor Gr.II and were thereafter promoted as Surveyor Gr.I and thereafter as Head Surveyor. The Tribunal quashed the orders cancelling probation holding that the tests mentioned in Rule 6 therein were required to be passed only by direct recruits and not by promotees. The requirement of passing the test for promotion upto the post of Head Surveyor was deleted by way of amendment made in the Special Rules as per G.O(P) No. 491/1993/RD dated 08.11.1993. The Government''s contention was that though pass in the test was not necessary for promotion, they were required to pass those tests for the purpose of declaration of probation, as per Rule 6. Tribunal held that the tests were to be passed only in the case of direct recruits and those appointed by transfer. Referring to the explanatory note to the amendment effected to Rule 4 in the year 1993, the KAT held that the Rules were amended deleting the requirement of test qualification on the basis of the recommendation of the Director of Survey and Land Records in respect of promotion to non gazetted posts like Head Surveyor saying that, departmental tests need not be made obligatory. It was observed therein that, Surveyors and Draftsmen were required to possess technical qualifications in order to get their probation declared and the minimum qualification for recruitment as Surveyor is SSLC and General Survey Test. Training in Higher Survey was given departmentally and they require field experience while in service, which enriches their knowledge and skill. It was in those circumstances that, the requirement of tests qualification was deleted. KAT set aside the action of the Department and allowed the Original Applications. The Government filed Original Petitions against it. A Division Bench of this Court, to which one of us was a party, (Sri. Surendra Mohan, J.) had, by judgment dated 20.10.2015, in O.P (KAT) No. 79/2015 & a batch of cases filed by the Government and the Director of Survey and Land Records, upheld the orders passed by the K.A.T. The explanatory note for amendment to Rule 4 effected in 1993 reads as follows:
"Explanatory Note
(This does not form part of the notification, but is intended to indicate its general purport).
The Director of Survey & Land Records Department has recommended that for promotion to non-gazetted posts like Head Surveyor, departmental tests need not be made obligatory. The Board or Revenue has also recommended abolition of test qualification. Government have examined these recommendations. Surveyors and Draftsmen are required to possess technical qualification before their probation is declared. The minimum qualification for recruitment as Surveyor is S.S.L.C. and Chain Survey Test. Further, training in higher survey is given departmentally.
Also on the job, they require field experience which enriches their knowledge and skill. In respect of comparable positions in other technical departments like P.W.D. there are no departmental tests for junior Engineers and I Grade Draftsmen.
Hence, Government have decided that acquisition of departmental test qualification need not be insisted upon in the case of executive staff like the surveyors and draftsman for promotion up to and including the cadre of Head Surveyor and Head Draftsman. Government consider it necessary to amend the special rules for the purpose.
This notification is intended to achieve the above object."
The test qualifications which are required for appointment to the posts of Superintendent of Survey/Technical Assistant are the very same test qualifications prescribed for appointment to the post of Head Surveyor/Draftsman. Government found it unnecessary to insist on such test qualifications seeing that the eligible hands who were being appointed were highly experienced. If that be so, the departmental hands who are being appointed by transfer, as Superintendents/Technical Assistants, can in no way be said to be persons not enriched with experience, as in the case of the Head Surveyors and more than them. Appointment is given only by transfer from those posts. The test mentioned is the one deleted in the case of Head Surveyors.
18. In the above background, we do not find any reason to doubt the eligibility of the applicants before the KAT who are members belonging to SC/ST for exemption from pass in the tests prescribed in the Special Rules under Rule 13A, for the purpose of appointment by transfer to the post of Survey Superintendent/Technical Assistants. For the forgoing reasons, we do not find any reason to doubt the correctness of the decisions rendered in State of Kerala V Chathan : , 2005 (1) KLT 75 or in Somarajan''s case : , 2007 (1) KLT 186.
The O.P(KAT)s and Writ Appeals are therefore dismissed.
