Kerala High Court Declines To Interfere With State's Decision To Allow Govt Employees To Re-Take Dept Exam Due To COVID-19

The High Court held that the Government was within its powers under Rule 39 of Part II of Kerala State and Subordinate Service Rules (KS & SSR) while giving extra chance to State Government employees who had not passed the departmental test necessary for promotion during the COVID-19 pandemic.The Government passed this order after getting representations from employees that they could not attend the test due to the Covid-19 outbreak and thereby lost their seniority to those who already passed the test. The Government issued an order granting one -time exemption to the employees who hadn't passed the test during Covid outbreak with condition that they should have applied for departmental tests in the year 2020 and 2021 but failed to acquire the test qualification and that they should acquire the test qualification in the very next test. The Government said if they fulfil these conditions, they would be given a promotion effective on the date from which their juniors were given a promotion.The order was challenged before Kerala Administrative Tribunal by some Senior Clerks in the State Goods and Service Department whose name was included in the seniority list saying that they had several opportunities to acquire the test qualification and the relaxation was beyond the powers conferred on the government. The Tribunal had allowed the applicationPower of State Under Rule 39 of Part II of KSSRThe Division Bench comprising Justice A. Muhamed Mustaque and Justice P. Krishna Kumar noted that the power under Rule 39 should be exercised after analysing individual cases and blanket exemptions cannot be made. The Court however said that Covid was an extraordinary circumstance. Many employees were unable to attempt the examination and many tests were even not conducted. The Court said that it is common knowledge that not everyone was in a position to prepare for the examination during covid. The Court also said that the exemption was given after fixing realistic and reasonable condition – that it would be given only for those who applied for the exam during the pandemic and the person should pass the examination in the immediate next opportunity. The court also noted that the impact of Covid was so profound on the public that no evaluation is needed to determine the persons affected by the pandemic. The Court held that in such circumstances, the provision cannot be said to be broad.The Court also distinguished the given scenario from the full bench decision in T. C. Sreedharan Pillai and Others v State of Kerala (1973). In that case, also, the government gave an exemption to a category of employees and restored their seniority to the juniors who were test-qualified when the vacancy occurred saying that these employees should pass the test in the immediate next opportunity. In that case, the Court held that the order was contrary to Rule 28(b)(b). The Court in that case said that the Government cannot pass an order under Rule 39 ignoring the existing service rules. The Court in that case, however, observed that Rule 39 can be exercised in rare and exceptional cases where there is a valid case for reasonable classification. The Court in the instant case, observed that the Government order in question was passed in an extraordinary circumstance.The Court also referred to Showkath Ali v State of Kerala (2008) where the High Court held that when there is failure of justice resulting in inequity, Rule 39 can be invoked even with retrospective effect for doing complete equity.Order Not Contrary To Rule 28(bb)Rule 28 (bb) says that promotion which depends upon the passing of any examination shall ordinarily be made with reference to the conditions existing at the time of occurrence of vacancy and not with reference to those at the time when the question of promotion is taken up.The Court said that the word “ordinarily” used in the provision itself suggests that in extraordinary conditions, deviation can be made. The Court observed that the Government could have exempted a specific class of people from Rule 28(bb) even without resorting to Rule 39.Seniors Had Several Attempts Before COVID-19 Not A Valid Reason To Set Aside The OrderThe Court said that the petitioners had failed several times on previous occasions while attempting the examination is not a valid reason to set aside the order. The Court noted that a person can qualify for promotion even on the last possible date regardless of the number of attempts they made.“..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 utilized.”Accordingly, the Court allowed the petition.Counsel for the Petitioners: Advocates S. P. Aravindakshan Pillay, N. Santha, V. Varghese, Peter Jose Christo, S. A. Anand, K. N. Remya, L. Annapoorna, Fairuz...

Kerala High Court Declines To Interfere With State's Decision To Allow Govt Employees To Re-Take Dept Exam Due To COVID-19

Manju Elsa Isac

Tags