P.R. Ramachandra Menon, J.

1. Whether the petitioners who failed to meet the requirements in clearing the departmental test and obtained promotion in terms of Rule 13A of Part II, KS & SSR are entitled to be granted any exemption sought for with reference to Rule 39 of the said Rules as a matter of right, is the point to be considered by this Court.

2. The petitioners herein who belong to SC/ST communities respectively joined the service of the respondents as 'LDC' in the year 2002 and 2001 respectively. The petitioners were given promotion as UDC in the year 2007, invoking Rule 13A of the above Rules, giving a march over the seniors, subject to the condition that they would clear the departmental test within three years. Annexure A1 is the promotion given to the first petitioner, whereas Annexure A2 is the promotion in the case of the second petitioner.

3. While they were continuing in service as above, the petitioners were served with Annexures A3 and A4 show-cause notices as to why they shall not be reverted for not having cleared the departmental tests. It was answered by the petitioners by submitting Annexure A6 reply, wherein it was pointed out that the first petitioner had already cleared all the Departmental tests in January 2013 and that the second petitioner had cleared the same in January, 2016. The replies were considered but found unsatisfactory and accordingly, Annexure A7 order of reversion was passed, which was subjected to challenge in O.A.No.778 of 2015.

4. The petitioners were enjoying the benefit of the interim order of stay granted by the Tribunal in the above O.A. Pursuant to Annexure A11 order passed by the Tribunal, to cause the representation to be considered, the matter was dealt with by the Government, who passed Annexure A13 order holding that the petitioners/applicants were not entitled to have the benefits sought for. This made the petitioners to approach the Tribunal again by filing O.A(EKM)No.806 of 2016, wherein Annexure A14 order was passed to cause the matter to be considered in terms of Rule 39 of Part II KS & SSR as projected by the applicant. It was accordingly, that the matter was considered again by the Government who passed Annexure A15 order rejecting the representation and this led to O.A.(EKM)No.2372 of 2017 preferred by the petitioners. The claim was opposed from the part of the Department and after hearing both the sides, and also with reference to the relevant provisions of law, the Tribunal held as per Ext.P1, that the claim was unfounded and that there was nothing wrong on the part of the Government in having passed Annexure A15. Thus the O.A. came to be dismissed, which is the subject matter of challenge in this Original Petition.

5. The learned counsel for the petitioner submits that the petitioners are eligible to have the benefit of Rule 13AA, which contains a 'non-obstante clause' and as such, the Government is having sufficient power to have the period of exemption to be extended, which was not invoked in the case of the petitioners; nor appreciated by the Tribunal. The next submission is that, before initiation of the proceedings, the first petitioner had cleared the tests in January 2013 and as such, he stands on a different footing, whose claim ought to have been considered favourably by the Government/Tribunal. There is a further contention that, in the case of the first petitioner he had crossed the age of 50 years on 01.05.2017 (the date of birth being 01.05.1967) and as it stands so, the first petitioner is entitled to have the benefit of Rule 13B of Part II, KS & SSR to have permanent exemption.

6. The learned Government Pleader appearing for the respondents submits that the idea and understanding of the petitioners as to the applicability of 'Rule 13AA' is quite wrong and misconceived. Such power vested with the Government is to grant exemption to a specific period from not clearing the test, to be ordered in appropriate cases. The said power has to be exercis