SHERAFUDDIN Vs. STATE OF KERALA

JUDGEMENT

(1.) RULE 39 Part II of the Kerala State and Subordinate Service RULEs provides for certain situations where the Government is empowered to relax the rigour of any rules, if it is required in the interests of justice and equity. (1) If pass in an examination prescribed under the Special RULEs is mandatory for confirmation in service and in case such examination was never conducted, is it a just and equitable cause to invoke the RULE granting exemption? (2)Could the same be exercised giving confirmation retrospectively and is it mandatory that notice is issued to the affected parties?

(2.) PETITIONERS are presently holding the post of superintendent of Police (non IPS ). They are aggrieved since respondents 3 to 6 are exempted from passing the prescribed test and also in declaring their probation retrospectively. The impugned orders are Exts. P6 and P7. At the outset two things are to be noted: (1) the case is contested only by respondents 3 and 6, among the contesting party respondents. It is submitted on their behalf that the affidavits filed by them in support of the application for vacating the interim order of stay can be treated as their counter affidavit for the purpose of the Writ Petition. (2)There is no counter affidavit by the State. Yet the learned Senior Government pleader submits that the case can be argued since the contentions are mainly on questions of law. The prayers in the Writ Petition are also to be noted, which read as follows: "i) Issue a writ of certiorari quashing Exts. P6 and p7. ii) declare that as the respondents 3 to 6 have not acquired the test qualification prescribed under R. 8 of the special rules governing their recruitment they are not entitled either for declaration of probation or to hold any post in the police service and they are liable to be discharged from service; iii) declare that Ext. P6 order issued in favour of respondents 3 to 6 is in violation of the principles of natural justice and the special rules; iv) declare that Ext,p6 has no retrospective effect and hence the consequential order issued by the 2nd respondent granting retrospective regularisation on the basis of the exemption granted by the government is bad in law; v) issue a writ of mandamus, order or direction commanding and compelling the respondents 1 and 2 not to grant any service benefits to the respondents 3 to 6 including seniority and promotion over the petitioners based on Ext. P6. " As per Ext. P6 order passed by the Government, the contesting respondents were exempted "from passing the prescribed tests in relaxation of rules by invoking R. 39 of the General Rules of KS & ssr". It was also ordered that the probation in respect of those officers in the category of Circle Inspector of Police should be declared and they should be confirmed against the substantive posts immediately. Ext. P7 is passed by the Director General of Police pursuant to Ext. P6. The Director General of police found the work and conduct during the probation period of the incumbent concerned as satisfactory and that no adverse remarks were reported. There is hence a declaration of having completed the period of probation as on 9. 10. 1984 in the post of Circle Inspector of Police. It is not in dispute that while passing the impugned orders, none of the petitioners was given any notice.

(3.) SRI. P. C. Sasidharan, learned counsel appearing for the petitioners, vehemently argued that having not cleared the mandatory test, it is mandatory as per the Rules to discharge them from service. It is his contention that since the pass in the examination was mandatory, the contesting respondents should have moved the Government for taking steps for conducting the test. In any case, while invoking R. 39, the petitioners should have been given notice. It is further contended that there cannot be a retrospective regularisation in service.