Judgment

SARKARIA, J.:- This appeal by special leave, directed against a judgment, dated Dec. 18, 1968, of the High Court of Kerala, arises out of these facts:-

Koyakutty, Respondent herein, entered service of the former Madras State on May 1, 1943 as temporary Section Writer on probation in the Registration Department. He did not possess the minimum general educational qualification prescribed by Rule 29 of the Madras Ministerial Service Rules. This rule, inter alia, provided that no person shall be eligible for appointment to the service in any post either by direct recruitment or by recruitment by transfer on promotion unless he possesses the minimum general educational qualification prescribed in the Schedule to the General Rules. The General Rules provided that the passing of the Secondary School Leaving Examination or other equivalent examination shall be the minimum educational qualification for appointment to the Ministerial Service.

2. The State Government, however, had the power to exempt a person from this qualification. The Madras Government passed an Order, dated April 15, 1954, (Ex. P-II), exempting him from the said qualification for being appointed as a Lower Division Clerk in the Registration Department. It will be useful to quote this order in extenso:-

"The Government consider that in view of the fact that Sri M. B. Koyakutty belongs to a community which is educationally backward, the petitioner should be exempted from the minimum general educational qualification, so as to enable him to be appointed as a Lower Division Clerk in the Registration Department under G. O. Ms. No. 2858 Rev. dt. 2-11-50 in his turn....... The Governor of Madras accordingly relaxes rules 28 and 29 of the Special Rules of the Madras Ministerial Service in favour of Sri M. B. Koyakutty, a temporary Section Writer in the Registration Department in the Registration District of Palghat in order to enable him to be appointed as a Lower Division Clerk in that department.

Sd/- S. K. Chettu,

Secretary to Govt."

As a result of this exemption, Koyakutty was appointed a Lower Division Clerk in the Registration Department on May 19, 1954.

3. Consequent on the reorganisation of the States in 1956, Koyakutty was allotted to the Kerala State Service as Lower Division Clerk in the Registration Department.

4. On May 16, 1961, the Government of Kerala issued an Order, in consultation with the Public Service Commission, that "all such persons who did not possess the general minimum educational qualification and were appointed as Lower Division Clerks, after granting them exemption from that qualification." may be allowed to sit for a qualifying test to be conducted by the Commission, and in case they secure a certain minimum percentage of marks, they may be regarded as possessing the minimum general qualification of the S. S. L. C. Standard for purpose of promotion to Upper Division and higher grades or continuance in the Upper Division, as the case may be. The order further stated that the case of those who have been appointed and are continuing in the Upper Division, they need not be disturbed for the present, but they should be reverted, if they fail to qualify at the next such examination of the Commission. According to para 3 of the order, "the minimum marks to be obtained for being declared eligible for promotion to or continuance in the Upper Division etc ..... will be issued separately."

5. A gradation list of Clerks was prepared by the District Registrar, Palghat, in which Koyakutty was taken at No. 1 among the officiating Lower Division Clerks. while the original respondents 1 and 2 were shown at Nos. 7 and 6, respectively.

6. In July 1966, two vacancies occurred in the cadre of Upper Division Clerks in the Department. The original respondents 1 and 2 who were junior to Koyakutty, were promoted against those vacancies as Upper Division Clerks.

7. Koyakutty thereupon filed a writ petition under Art. 226 of the Constitution in the Kerala High Court, pray