The main legal point established in the judgment is the application of Rule 39 of the Kerala State and Subordinate Services Rules, 1958, in remedying an otherwise unjust and inequitable situation faced by the Assistant Sub-Inspectors.

JUDGMENT :

Kurian Joseph, J.

What is equity and justice in a situation where a few employees face adverse consequences for not passing an obligatory test which was never conducted, is the short question arising for consideration in this case.

2. In a special recruitment, thirty-seven Assistant Sub-Inspectors belonging to the Scheduled Caste/Scheduled Tribe community were appointed by the Government of Kerala during 1988. It is the requirement of the Special Rule that they should pass the special test conducted by the Kerala Public Service Commission for declaration of probation. Rule 9 of the Special Rules, to the extent relevant, reads as follows:

"9. TEST-

(a) Every person appointed under these rules shall, pass the test on the subjects mentioned in Annexure III to these rules at or before the fifth of such tests held after such appointment the maximum number of chances shall be limited to three.

Note: The examination will generally be conducted half-yearly by the Kerala Public Service Commission."

3. For over twelve years, the test was not conducted by the Commission. In the meanwhile, those Assistant Sub-Inspectors approached the High Court and obtained orders for provisional promotion to higher posts along with their juniors.

4. While the Assistant Sub-Inspectors continued to enjoy provisional promotions, the Government felt that there should be a one-time solution for the issue regarding the passing of the test under the Special Rules since the test had not been conducted. In such circumstances, the Government passed an Order dated 17.11.2000 invoking Rule 39 of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as 'the Rules') exempting those thirty-seven directly recruited Assistant Sub-Inspectors from passing the test prescribed under the Special Rules. Since the order is self-explanatory, we shall extract the same as such:

"ORDER

As per Government Order read as first paper above, Government issued Special Rules for Special Recruitment from among members of scheduled castes/scheduled tribes to the post of Assistant Sub Inspector in the general Executive Branch (Local Police) in the Police Department. Subsequently the Director General of Police proposed certain modifications to the above Government order during 1988, the following are the gist of the proposals :-

(1) the Note under rule 9(a) of the said rules shall be deleted and the Department may be authorised to conduct the tests and declare the results as in the case of other trainees in the Police Department.

(2) Every person appointed to the Police force is required to execute a bond to the effect that he shall serve the Department for a minimum period of 5 years after practical training.

(3) the period of training of Assistant Sub Inspectors shall not count as duty for increment and probation, duty for the limited purpose of calculation of leave eligibility as a special case as in the case of Police Constables and Sub Inspectors.

The above proposal of the Director General of Police was considered by Government in detail and draft amendment notification in this regard was forwarded to the Kerala Public Service Commission for their advice on 6.1.1989. Initially the Kerala Public Service Commission did not agree to the amendment proposal. But during 1993 the Kerala Public Service Commission sought clarifications for certain points and the reply to the clarifications sought by the Kerala Public Service Commission was furnished to them. Final decision on the proposal is yet to be taken.

Consequent on the issuance of the Government Order read as 1st paper above, 37 persons belonging to SC/ST Community were directly recruited as Assistant sub Inspectors during 1988 and they joined training from 1.11.1988 onwards. According to Rule 9(a) of the Special Rules issued as per the above Government Order all the 37 Assistant Sub-Inspectors should pass the test prescribed thereunder to be conducted by the Kerala Public Service Commission for declaring the satisfact