Level Playing Field Ensured: Kerala HC Refuses To Interfere With Govt. Order Granting Exemption To Employees In Departmental Exam In Wake of Covid-19

The Kerala High Court refused to set-aside Govt. order granting conditional one-time exemption to the State Employees who had not passed departmental tests which are necessary for promotion in the wake of the COVID-19 pandemic.

The Court was considering a Petition against an order of Kerala Administrative Tribunal setting aside the Govt's 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.

The division-bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar observed, "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 wellbalanced, as it extended the benefit only to those who had applied for the examinations and those who cleared it in the immediate next opportunity."

The Petitioners were represented by Advocate S.P. Aravindakshan Pillay while the Respondents were represented by Advocate S. Prasanth.

Facts of the Case

The said order was issued 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 government had 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. It was stated in the affidavit 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 was further going to affect the senior employees in all their future promotions and therefore it 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. It was contended that the order was 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 conditions. It was 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.

Respondents, on the other hand, contended that 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.

The Tribunal eventually set-aside the said 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.

Reasoning By Court

The Court at the outset observed that 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..........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 over breadth in the given circumstance," the Court observed.

"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," it further observed.

The Court clearly disagreed with the Tribunal's finding

"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," it observed.

"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," the Court observed.

The Petition was accordingly allowed.

Cause Title: Sanjeev N Senior Tax Assistant vs. Anumol P S (2024:KER:96532)

Appearances:

Petitioner- Advocate S.P. Aravindakshan Pillay, Advocate N. Santha, Advocate V. Varghese, Advocate Peter Jose Christo, Advocate S.A. Anand, Advocate K.N. Remya, Advocate L. Annapoorna, Advocate Fairuz M.

Respondent- Advocate S. Prasanth, Advocate Varsha Bhaskar, Advocate Anupama Sibi, Advocate Malavika K., Advocate N.R. Reesha, Senior Government Pleader Nisha Bose

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