P. Krishna Kumar, J
1. On 21/10/2023, the Government of Kerala issued an order granting a one-time exemption to the State Government employees who had not passed
departmental tests which are necessary for promotion in the wake of the COVID-19 pandemic on conditions that, (a) the exemption would apply only
to those who had applied for the departmental tests in the year 2020 and 2021 but failed to acquire the test qualification, and (b) that they should
acquire the test qualification in the very next departmental tests. If those conditions are satisfied, they will be given a promotion, effective from the
date the juniors have been granted a promotion. The validity of the said order is the subject matter of this petition.
2. The circumstances in which the said order was passed are described in Annexure A9 order. The government received representations from
employees and organisations that, owing to the outbreak of COVID-19, various employees lost their opportunity to attend the departmental tests, and
accordingly, they lost seniority to those who had already passed the test qualification. The government further stated in Annexure A9 that several
junior employees had overtaken their seniors in promotion because the seniors were prevented from attending departmental tests due to the COVID-
19 pandemic. The Government noted that this would further affect the senior employees in all their future promotions. Accordingly, the Government
decided to restore their seniority on the said conditions by relaxing the provisions contained in Rule 28b(iA) and 28b(bb) of Part II of Kerala State and
Subordinate Services Rules (‘KS & SSR’, for short).
3. Annexure A9 was challenged by the party respondents herein who were included in Annexure A7 seniority list of the Senior Clerks in the State
Goods and Services Tax Department. According to them, the relaxation granted is unjust as those senior employees had several opportunities to
acquire the test qualification, and further, the relaxation was beyond the powers conferred on the government.
4. The Government contended that Annexure A9 order had been issued in consultation with the Public Service Commission, invoking Rule 39 of part
II, KS & SSR, which empowers the Government to exercise its discretionary powers to relax the rules when the situation warrants, and that the
benefit granted was just a one-time affair and the same was confined only to the seniors who were otherwise qualified for the promotion, as also, on
the aforementioned conditions. The Government further contended that under Rule 13 A(4) of Part II, KS & SSR, a maximum number of chances are
prescribed for passing the mandatory departmental tests within the exemption period. The action of the Government to preserve justice could not be
treated as dilution of the prevailing rule provisions, it is urged.
5. After adverting to the contentions raised by both sides, the learned Tribunal set aside Annexure A9 order to the extent it relates to the promotion to
the cadre of Senior Clerk/Senior Tax Assistant, mainly for the reason that the seniors who were granted exemption had got several chances to appear
for the tests before the outbreak of COVID-19 pandemic.
6. Heard the learned counsel on both sides. The learned Senior Government Pleader Smt.Nisha Bose and the learned counsel appearing for the party
respondents, Sri. Prasanth S. submitted hearing notes to substantiate their conditions.
7. The learned Senior Government Pleader vehemently contended that Annexure A9 order was passed with the approval of the Governor, taking into
account the extraordinary circumstances that prevailed during the years 2020 and 2021, that Article 162 of the Constitution of India empowers the
Government to pass such orders to meet the extraordinary situation, as the executive power of the State extends to any matter in which the legislature
of the State has power to make laws. It is also contended that Annexure A9 order was passed in consonance with the provisions contained in Article
166 of the Constitution of India, and it did not offend any of the statutory provisions, as it was issued under Rule 39 of Part II of the KS & SSR. It is
also argued that several employees who applied for the departmental test were not able to participate in the examination conducted by the Kerala
Public Service Commission due to the pandemic crisis. While issuing the said order, the Government imbibed the doctrine of impossibility i.e., a person
shall not be denied his right merely because he cannot perform an act or comply with the condition that is impossible to perform or comply with, the
learned Government Pleader urged by referring to the decision in State of Madhya Pradesh v. Narmada Bacho Andolan and Others [(2011) 7 SCC
639]. It is also submitted that Rule 28b(bb)of Part II, KS & SSR prescribes only that the conditions existing at the time of occurrence of vacancy have
to be looked into in ordinary situations, which presupposes that in an extraordinary situation, the Government can deviate from it.
8. Sri. V. Varghese, the learned counsel appearing for the petitioners, supported the contentions of the learned Senior Government Pleader and further
submitted that even when the departmental tests were conducted during the time of the pandemic, the employees were not in a position to prepare for
the examination or to attend it due to various restrictions imposed by the Government as well as their individual health challenges. He also pointed out
that one of the two mandatory tests was not even conducted by the PSC because of the restrictions imposed at that time.
9. Sri Prasanth S., the learned counsel appearing for the party respondents, forcefully submitted that there are no grounds to interfere with the
impugned order as Annexure A9 was issued in an arbitrary fashion and it violates Rule 28b(bb) of Part II, KS &SSR, which mandates that the
promotions must be based on qualifications possessed at the time when the vacancy occurs. It also violates Rule 28 b (iA) as the said provision
provides that when a select list is prepared subsequent to the occurrence of a vacancy, no person who was not qualified for inclusion in the select list
at the time of occurrence of the vacancy shall be included in the select list for appointment against that vacancy. Rule 28b(iA) and Rule 28b(bb)are to
be read together. It is not legally possible to give relaxation to the rules retrospectively in view of the law laid down by the Full Bench of this Court in
James Thomas and Others v. Chief Justice, High Court of Kerala and Others [1977 KLT 622(F.B.)]. The said case considers theÂ
impact of Rule 28b(bb) of Part II, KS & SSR and the exemption permissible as per Rule 36 of the Kerala High Court Service Rules, which is
identical to Rule 39 of KS & SSR; he submits.
10. Sri. Prasanth S. further persuasively contended that the power of relaxation of rules can be exercised by the Government under Rule 39 of KS &
SSR only in exceptional circumstances after analysing the individual cases, and it cannot be exercised for giving a blanket exemption as it is done in
Annexure A9. Retrospective relaxation granted on the basis of an executive order is arbitrary and illegal; it is urged. Learned counsel placed reliance
on the decision in T.C.Sreedharan Pillai and Others v. State of Kerala (1973 KLT 151) to contend that the power under Rule 39 can be exercised in
individual cases based on distinct and substantial differences and the said power should not be used to undermine the substantive conditions of service
such as seniority and promotion based on qualifications. The decisions in The Income Tax Officer, Aleppey v. M.C.Ponnoose and Others (AIR 1970
SC 385) and Ex-Major N.C.Singhal v. Director General, Armed Forces Medical Services, New Delhi and Another (AIR 1972 SC 628) were referred
to by the learned counsel to contend that executive orders passed by the State Government granting exemption cannot have retrospective operation or
to confer eligibility for promotion. The learned counsel also placed reliance on the decisions in Upendranath v. Mabel Franco (2006 (4) KLT SN 70),
Aboobacker v. Emilia Morris (2020 (1) KLT OnLine 1092), Punjab Water Supply & Sewerage Board v. Ranjodh Singh and Others [(2007) (2) SCC
491], Union of India & Others v. Somasundaram Viswanath [(1989) 1 SCC 175] and B.N.Nagarajans and Others. v. State of Karnataka [(1979) 4
SCC 507].
11. As the decision of this case mainly revolves around the interpretation of Rule 28b(bb) of Part II, KS & SSR, it is profitable to refer to the said
provisions, which read as follows:
“28b(bb): Promotion which depends upon the passing of any examination.- Promotion in a service or class which depends upon the passing of any examination
(General or Departmental) shall ordinarily be made with reference to the conditions existing at the time of occurrence of the vacancies and not with reference to those
at the time when the question of promotions is taken up.â€
12. No doubt, ordinarily, promotions in service are typically made with reference to the conditions existing at the time of occurrence of vacancies,
rather than the time of actual promotion. Similarly, the plenary power conferred under Rule 39 of Part II, KS & SSR, on the Government should be
exercised after analysing individual cases, and blanket exemptions cannot be made. However, the impugned government order was passed in the most
extraordinary circumstances due to the COVID-19 outbreak. The Government found that several employees were unable to attend the examination.
Some of the examinations were not even conducted. The said order was passed after analysing various circumstances and fixing a realistic and
reasonable condition: the exemption would apply only to those who had applied for the examination during the pandemic and succeeded in the test
qualification in the immediate next opportunity. It is unquestionable that the COVID-19 pandemic had a profound impact on public life in Kerala. No
evaluation or analysis is required to determine the persons affected by the pandemic crisis. Every human being living in a civil society was adversely
affected by the pandemic in one way or another and hence it would be an exercise in futility if we compel the Government to make such an evaluation
before issuing an order of the above nature. Nevertheless, the Government fairly and reasonably limited the scope of the Government order to those
who had applied for the test during the pandemic and further carefully added a condition that the benefit would be provided only to those who could
succeed the test qualification in the next opportunity. Such a provision cannot be assailed for its overbreadth in the given circumstance.
13. Significantly, Rule 28b(bb) of Part II, KS & SSR, contemplates a situation of the above nature, implying that the Government could have exempted
a specified class of persons from the rigour of Rule 28b(bb) even without resorting to Rule 39. The term ""ordinarily"" in the provision suggests that
promotion shall typically be made with reference to the conditions existing at the time of occurrence of vacancies, but extraordinary circumstances
may warrant a deviation from this ordinary course of action. Therefore, it is implicit in the said provision itself that a deviation is possible in an
extraordinary circumstance.
14. However, it is necessary to examine whether the above finding is in conflict with the law settled by the Full Bench of this Court and the Apex
Court in the decisions referred to above. The learned Tribunal set aside Annexure A9, following the Full Bench decision in T.C Sreedharan Pillai's
case (supra), holding that the exemption granted in Annexure A9 is more or less similar to the one which was considered by the Full Bench and thus
the dictum laid down therein is squarely applicable in the present case.
15. It is necessary to refer to paragraph 12 of the impugned order, which reads as follows:
“12. …………It is relevant to note that the seniors who are granted exemption got several chances to appear in the tests several years prior to the outbreak of
Covid pandemic and they could appear in the tests conducted even in the year 2020. It is not a case that they got only one chance to appear in the test and that test
was not held in time. From the documents produced along with the rejoinder, it is evident that the PSC has conducted the test even in 2020, apart from the
innumerable tests conducted before that. Annexure A13 and A14 series would show that the party respondents who entered appearance and filed reply statements
had appeared and failed in tests of January and July 2020. The exemption granted in Annexure A9 is more or less similar to the one which was considered
by the Full Bench in Sreedharan Pilla's case (cited Supra). We find that the dictum laid down therein is squarely applicable in this case and thus the relaxation granted
as per Annexure A9 order is unsustainable. Moreover in the present case the tests from which exemption are granted are essential qualifications for the post of Senior
Tax Assistant. Grant of such exemption is beyond the authority and it does not come under the purview of Rule 39 of KS&SSR.â€
We cannot agree with the above observations because the factual and legal aspects considered by the said Full Bench were not at all similar to the
present case. It is true that in the said case, the Government order under challenge was giving exemption to a category of employees by considering
them as a “special case†and thereby restoring seniority to them over the juniors who got promotions prior to them because they were test
qualified at the time of occurrence of vacancies, and that the Government order further provided a condition that the seniors should pass the test
qualification in the immediate next opportunity. The Tribunal might have been persuaded by the above factual similarities in arriving at a conclusion
that the law laid down in the said case is squarely applicable to the present one. In that case, there was no justification for the seniors who were not
test-qualified when the vacancy had arisen. The Government was moved by their representation for no extraordinary reasons as in the present case.
Undoubtedly, in such circumstances, the Government was not expected to issue such an order under Rule 39, as it violates Rule 28b(bb), which
provides that promotion shall ordinarily be made with reference to the conditions existing at the time of occurrence of vacancies. This is the
circumstance in which the Full Bench of this Court laid down that Rule 39 cannot be regarded as conferring an arbitrary power on the Government to
ignore the existing service rules and to deal with cases of a few officers contrary to it. Even while holding so, the Full Bench held as follows:
“20. Ordinarily, therefore, it is not expected that the power under R.39 should be resorted to merely for the purpose of getting round the provision contained in any
of the general rules or special rules. R.39 is to be invoked only to meet exceptional situations where gross injustice or inequity is seen to result from the application of
the rules in all their rigour. In such cases and such cases alone, R.39 empowers the designated authority to mete out equity and justice by passing appropriate orders
in relaxation of the provisions of the rules concerned ……
We have also indicated that in rare and exceptional cases where there are valid grounds for a reasonable classification, it is permissible under R.39 to accord a special
treatment by granting a partial or even total relaxation of a substantive provision contained rules.â€
(emphasis added)
The Government order under challenge is precisely coming within the above fold and thus the same cannot be overturned by applying certain other
observations made by the Full Bench which are not relevant in the present context.
16. In Showkath Ali v. State of Kerala (2008(1)KLJ 923), a Division Bench of this court had the occasion to consider the validity of a Government
order that was issued under Rule 39 of Part II, KS & SSR for giving exemption to Assistant Sub Inspectors of Police from passing the departmental
test from the rigour of Rule 13A of the KS & SSR, after referring to the law settled in T.C.Sreedharan Pillai’s case (supra). In the said case, the
Special Rules applicable to the Sub Inspectors of Police insists a pass in the departmental test conducted by the KPSC as a mandatory condition for
promotion, but the test was not conducted by the KPSC and thus they could not pass that qualifying examination. The Division Bench, after referring
to paragraph 20 of the judgement in T.C. Sreedharan Pillai's case, observed as follows:
“9.The reasons stated by the Government disclose an extra ordinary situation and the injustice that was meted out to the Assistant Sub Inspectors of Police,
warranting invocation of its powers under R.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 R.39 of K.S. & S.S.R. and in our considered view, there is nothing illegal in Ext. P6 order of the Government.â€
17. The Division Bench further followed the law laid down in Sherafuddin v. State of Kerala 2004(2)KLT 731, where also certain
Circle Inspectors of Police were exempted from passing the prescribed test in relaxation of the Special Rules by invoking Rule 39 as the test was not
conducted in time. In Sherafuddin’s case (supra), the question of the permissibility of issuing a Government order with retrospective effect to give
exemption to a class of persons was also considered. After following the decisions in M.Venkateswarlu v. Government of Andhra Pradesh [(1996) 5
SCC 167] and Santhosh Kumar v. State of Andhra Pradesh [(2003) 5 SCC 511], this court held that when there is failure of justice resulting inequity
and injustice, Rule 39 of the General Rules of the KS & SSR has to be invoked even with retrospective effect for doing complete equity. Thus, it is
evident that extraordinary circumstances require extraordinary treatment and the same is within the implicit scheme of KS & SSR as evident from
Rule 28b(bb) as well as Rule 39. This principle is upheld in T.C Sreedharan Pillai’s case  (supra) itself, as also in Showkath Ali's and
Sherafuddin’s case (supra). The only difference is that, here, in the estimation of the government, senior employees could not have passed or
attended the exam due to the pandemic crisis, whereas, in the said cases, the exam was not conducted.
18. We are mindful of the devastating impact of the pandemic on our daily lives and how the nation has tackled the crisis during 2020-2021. The
COVID-19 pandemic had a catastrophic impact on our daily lives and the nation's response to the crisis in 2020-2021 was unprecedented. The
stringent measures, including lockdowns, zonal restrictions, and the judicial directions for decongesting prisons and suspending statutory limitation
periods, are testaments of the far-reaching consequences of the pandemic. Given these extraordinary circumstances, it is illogical to differentiate
between the two situations, as both are characterized by the doctrine of impossibility and force majeure.
19. The Full Bench of this Court in James Thomas's case (supra) considered a situation analogous to the one in T.C. Sreedharan Pillai's case (supra).
The exemption or relaxation at issue in that case was not granted in response to exceptional or extraordinary circumstances, as mentioned earlier.
Consequently, the court was not required to examine its validity in light of the implicit safeguards provided in Rule 28b(bb) and Rule 39 of Part II, KS
& SSR. For the same reason, we are not adverting to the other decisions cited by the learned counsel for the party respondents.
20. The Tribunal found that the seniors who were granted exemption had several chances to appear in the test prior to the outbreak of COVID-19,
and further, they have appeared in some of the tests conducted even during the pandemic period. The Tribunal also observed that it was not a case
where the seniors got only one chance to appear in the test or that the test was not held in time. We cannot uphold the said reasoning on multiple
scores. The petitioners had indeed failed several times on previous occasions when they attempted the examination for test qualification. However, it
is not a fair and valid reason to set aside the order passed by the Government resorting to its power under Rule 39 of Part II, KS & SSR, and Article
162 of the Constitution. A candidate has a vested right to be considered for promotion if he possesses the required qualifications at the relevant time.
Ordinarily, if he/she fails to pass the test qualification before the material period, he/she has no justification to challenge the promotion given to juniors
who already possess the necessary qualifications. Nevertheless, the number of attempts a candidate takes to pass the test qualification is not
considered a relevant criterion for promotion or selection. Consequently, candidates have every right to get qualified, even on the last day of the
applicable date, regardless of the number of attempts they previously utilised.
21. In response to the extraordinary circumstances caused by the COVID-19 pandemic, which prevented candidates from clearing the examination
conducted during the year 2020-2021, the Government issued the said relaxation order with such a rider. Given that the pandemic affected the entire
world, it is common knowledge that not everyone was in a position to prepare for the examination, even if they could have attended it. To ensure a
level playing field, the Government issued the said direction, which is fair, reasonable, and well-balanced, as it extended the benefit only to those who
had applied for the examinations and those who cleared it in the immediate next opportunity.
22. Sri.Prasanth S., the learned counsel for the party respondents, raised another contention based on Rule 28 b(iA) of the KS & SSR that no person
who was not qualified for inclusion in the select list at the time of occurrence of vacancy shall be included in the select list for appointment against that
vacancy. We are of the view that Rule 28b(iA) and Rule 28b(bb) are to be read together and when there is an extraordinary circumstance of the
above nature, it is well within the power of the Government to relax the conditions in favour of a well-defined class as above mentioned.
23. For the above reasons, we find that the impugned order of the Tribunal is liable to be set aside.
The Original Petition is allowed accordingly and the impugned order is set aside.
