# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.UBAID**
**THURSDAY, THE 16TH DAY OF JANUARY 2014/26TH POUSHA, 1935**
**OP(KAT).No. 3311 of 2012 (Z)**
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## **AGAINST THE ORDER IN OA 1380/2012 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM**
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## **PETITIONER/APPLICANT:**
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**JIMMY ABRAHAM, AGED 50 YEARS S/O ABRAHAM, DEPUTY TAHSILDAR (ELECTION), TALUK OFFICE, MEENACHIL, PIN:686575, KOTTAYAM DISTRICT, RESIDING AT KANATTU HOUSE, MUNDANKEL POST, PALA 686574.**
## **BY ADV. SRI.P.CHANDRASEKHAR**
## **RESPONDENT(S)/RESPONDENTS:**
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**1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.**
**2. THE LAND REVENUE COMMISSIONER, OFFICE OF THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM-695 001.**
**3. THE DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM-686 001.**
**BY SENIOR GOVERNMENT PLEADER SRI.NOBLE MATHEW**
**THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 16-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**PJ**
**OP(KAT).No. 3311 of 2012 (Z)**
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## **APPENDIX**
## **PETITIONERS' EXHIBITS**
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- **P1: COPY OF OA.NO.130/2012 BEFORE THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.**
- **P2: COPY OF ORDER DATED 17/7/2012 IN OA.NO.1380 OF 2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL.**
## **RESPONDENTS' EXHIBIT**
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**NIL.**
**/ TRUE COPY /**
**P.S. TO JUDGE**
**PJ**
**“C.R.”**
**THOTTATHIL B. RADHAKRISHNAN & P. UBAID, JJ.** ------------------------------------------- **O.P (KAT) No. 3311 OF 2012** -------------------------------------------Dated this the 16[th] day of January, 2014
## **JUDGMENT**
## Thottathil B. Radhakrishnan, J.
- 1.Heard the learned counsel for the parties.
2.This Original Petition under Article 227 of the Constitution of India impugns the decision of the Kerala Administrative Tribunal refusing to hold the prescription of 'Criminal Judicial Test' as part of the “Tests and Training” to be undergone by Deputy Tahsildars in terms of Rule 10 of the Kerala Revenue Subordinate Service Special Rules, 1980, the “Special Rules”, for short, as void.
3.Methods of appointment to the category of Deputy Tahsildar are 'by transfer' and 'by direct recruitment'. Petitioner is a 'by transfer' appointee which required him to pass the tests prescribed in Rule 10, within the period of probation, unless he had passed those tests earlier. The tests prescribed as per
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that statutory rule includes (1) the District Office Manual Test,
(2) the Revenue Test (Travancore) or Revenue Test (Cochin) or Revenue Test (Madras), (3) the Criminal Judicial Test, (4) the Account Test (Lower) or Account Test for Subordinate Officers, Part I (Madras) and (5) Survey Test (Higher). A probationer who holds a degree in law of any recognized University shall not be required to pass Criminal Judicial Test. Rule 10 of the Special Rules also prescribes training for persons who are appointed by direct recruitment.
- 4.Petitioner does not hold a degree in law. Following his appointment by transfer, he did not pass the Criminal Judicial Test prescribed as per the Special Rules within the probation period in spite of the Government having issued orders extending his period of probation along with others who had not cleared the required obligatory tests. Petitioner's probation was not duly declared since he did not clear the Criminal Judicial Test. Though he did not clear the Criminal Judicial Test and had crossed 50 years of age, the petitioner was still allowed by the State Government to continue as a Deputy Tahsildar without reverting him.
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- 5.For that, he has to thank his stars or well-wishers and godfathers that he may have or would have had, in the higher echelons of administration. That situation stinks, because such benevolence is not seen to be available and due in terms of any of the relevant laws. Constitution and the laws do not work in secrecy. They are not envisioned to operate in hibernation or away from the public eye.
- 6.Petitioner moved the Tribunal challenging the stipulation in Rule 3 of the Special Rules insisting on pass in Criminal Judicial Test. Tribunal dismissed it. Hence, he is here.
- 7.Petitioner's learned counsel argued that the prescription of Criminal Judicial Test for the category of Deputy Tahsildar is irrational, arbitrary and unrealistic in as much as, the nature of duties and responsibilities attached to that post do not warrant any exercise of power under the criminal laws and the mere fact that the Deputy Tahsildar is in the feeder category to the post of Tahsildar, is no reason to assume that those in that feeder category should also undergo the
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Criminal Judicial Test until they get promoted to the category of Tahsildar. The view of the learned Tribunal that the Tahsildars may have to exercise powers in terms of the Code of Criminal Procedure from their first day in office as such, also as Executive Magistrates and therefore, there is nothing wrong in the prescription is criticized as unwarranted.
- 8.Referring to the counter affidavit filed in this case, learned Senior Government Pleader has also argued relying on the decision of the Honourable Supreme Court of India in Special Leave Petition No.9807/11, K. Leela and another v. State of Kerala and others, affirming the decision of this Court that power of exemption under Rule 13 of the Special Rules, as available to members of Scheduled Castes and Scheduled Tribes, does not extend to granting exemption from the prescription of acquisition of qualifications as per the Special Rules, even as regards that category.
- 9.The only question is whether the impugned prescription is liable to be declared as unconstitutional and hence, void and inoperative.
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10.Special Rules are framed in exercise of authority under the Kerala Public Services Act, 1968. The legislative competence of that piece of subordinate legislation is not challenged before us. Nor can it be successfully done in view of the Constitution and the primary legislation under which it is made. There is no power of exemption in the Special Rules. The power is only to continue the period of probation as is done in terms of the Kerala State and Subordinate Services Rules, 1958.
11.The only issue raised and argued is that the prescription of 'Criminal Judicial Test', as among the tests is arbitrary. Firstly, such prescription is within the domain of the repository of power to frame such a Rule. That power is enjoined on the Government. The requirement of the administrative system is to be assessed by the Government. Special Rules came in 1980 and till 2014, that stands. No ground for judicial review of subordinate legislation is demonstrated as referable to constitutional and statutory authority. Secondly, looking at the various duties and responsibilities of Deputy Tahsildars
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under different revenue enactments, it can be seen that those powers cannot be exercised by a person who is ignorant of the basic principles of the criminal justice delivery system. One positive material in the Special Rules in support of this is the fact that a direct recruit Deputy Tahsildar has to undergo a scheme of training prescribed in Rule 10. Such training, among other things, includes Police and Magisterial training for three weeks. What does it mean? It clearly discloses that a person holding the post of a Deputy Tahsildar should have the basic knowledge of Police and Magisterial exercise of power. In so far as an 'in-service candidate' who comes 'by transfer' is concerned, the rule making authority has taken the view that it is necessary that a 'by transfer' recruit ought to pass the Criminal Judicial Test unless he holds a degree in law. Are we to take it that a 'by transfer' to the category of 'Deputy Tahsildar' can seek exclusion of having such knowledge and expertise? Institutional obligation to deliver, as is expected, is of prime importance.
12.Having regard to the objects sought to be achieved by the formulation of the impugned rule, we find no way to hold
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that the said rule fails on the face of Article 14 of the Constitution. It answers the touchstones of constitutionality in terms of Part III of the Constitution.
13.For the aforesaid reasons, this Original Petition fails.
In the result, this Original Petition is dismissed. We dissuade ourselves from imposing any order on the petitioner to pay costs to the State Exchequer, which is definitely due on this frivolous litigation.
## **THOTTATHIL B. RADHAKRISHNAN, JUDGE**
## **P. UBAID, JUDGE**
DMR/-
