IMPORTANT POINT
The court upheld the government's authority to grant one-time exemptions for promotions under extraordinary circumstances like the COVID-19 pandemic, emphasizing the need to consider qualifications at the relevant time.

JUDGMENT :

P.Krishna Kumar, J.

On 21/10/2023, the Government of Kerala issued an order granting a one-time exemption to the State Government employees who had not passed departmental tests which are necessary for promotion in the wake of the COVID-19 pandemic 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 validity of the said order is the subject matter of this petition.

2. The circumstances in which the said order was passed are described in Annexure A9 order. The government 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. The government further stated in Annexure A9 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 would further affect the senior employees in all their future promotions. Accordingly, the Government 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 (‘KS & SSR’, for short).

3. Annexure A9 was challenged by the party respondents herein who were included in Annexure A7 seniority list of the Senior Clerks in the State Goods and Services Tax Department. According to them, the 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.

4. The Government contended that Annexure A9 order had been 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 aforementioned conditions. The Government 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. The action of the Government to preserve justice could not be treated as dilution of the prevailing rule provisions, it is urged.

5. After adverting to the contentions raised by both sides, the learned Tribunal set aside Annexure A9 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.

6. Heard the learned counsel on both sides. The learned Senior Government Pleader Smt.Nisha Bose and the learned counsel appearing for the party respondents, Sri. Prasanth S. submitted hearing notes to substantiate their conditions.

7. The learned Senior Government Pleader vehemently contended that Annexure A9 order was passed with the approval of the Governor, taking into account the extraordinary circumstances that prevailed during the years 2020 and 2021, that Article 162 of the Constitution of India empowers the Government to pass such orders to meet the extraordinary situation, as the executive power of the State extends to any matter in which the legislature of the State has power to make laws. It is also contended that Annexure A9 order was passed in consonance with the provisio