Kerala Public Service Commission v. Muraleekrishnan C.R.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** **OP(KAT).No.162 OF 2020** **AGAINST THE ORDER IN OA (EKM) 2920/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDNET NOS.1 AND 2:** **KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, P.S.C OFFICE, PATTOM, THIRUVANANTHAPURAM 695 004, KERALA** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENT/APPLICANT:** **1 MURALEEKRISHNAN.C.R. AGED 47 YEARS S/O. E. RAMANKUTTY NAIR, ASSISTANT EXECUTIVE ENGINEER, L.S.G.D SUB DIVISION, WANDOOR, MALAPPURAM 679 328, RESIDING AT ASWATHY, CHERUKARA P.O, MALAPPURAM, KERALA 679 340 MOB 9495563335** **R1 BY ADV. SRI.K.ANAND** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 06-08-2020, THE COURT ON 20-08-2020 DELIVERED THE FOLLOWING:** OP(KAT) No.162/2020 -:2:- ## **J U D G M E N T** Dated this the 20[th] day of August, 2020 ## _**Shaffique, J.**_ This O.P (KAT) is filed by the Kerala Public Service Commission (herein after referred to as 'KPSC' for short), challenging Ext.P3 order of the Kerala Administrative Tribunal in O.A(EKM) No.2920 of 2017, by which, a direction had been issued to the KPSC to issue a certificate of having successfully completed the Account Test (Lower) to the respondent, who was the Applicant before the Tribunal. It was the case of the respondent that since he had been successful in the test relating to the Kerala Service Rules (KSR Paper-II) in the Executive officers test and since he had cleared all papers other than KSR in the Account Test Lower, he was entitled to a declaration that he was successful in the Account Test (Lower). 2. The application submitted by the respondent for issuance of the certificate was rejected by the KPSC on the ground that he has not passed in all the papers of Account Test (Lower) Exam and Account Test for Executive Officers in the Kerala Service OP(KAT) No.162/2020 -:3:- Rules (KSR for short) cannot be treated as equivalent to Account Test (Lower). 3. The respondent joined as Assistant Engineer in the Municipal Common Service on 02.03.2007 and he was provisionally promoted as Assistant Executive Engineer on 16.06.2015 and was working in Local Self Government Department Sub Division, Wandoor in Malappuram District. 4. The respondent has passed only in three papers- Paper II Kerala Financial Code, Paper III Introduction to Indian Government Accounts and Audit Paper II and Paper IV Kerala Treasury Code, out of the four papers in respect of Account Test (Lower), but he did not secure a pass in the Paper I KSR. He has passed Paper II KSR but did not pass in Paper I –Kerala Financial Code for Executive Officers out of the two papers of Account Test for Executive Officers. The respondent had raised the contention before the Tribunal that instead of Account Test (Lower) Paper I KSR, he has passed Paper II-KSR for Executive Officers Test and since it is a higher test, he is entitled to get Account Test (Lower) Certificate. The petitioners submit that the Tribunal went wrong in allowing the prayer of the applicant. The copy of the O.A is produced as Ext. P1 and Ext.P2 is the reply affidavit filed by KPSC. OP(KAT) No.162/2020 -:4:- The examination result of the candidate published by KPSC is produced as Ext.R1 (A) and the notification and syllabus for Departmental Test by KPSC is produced as Ext.R1 (B). 5. The details of subjects for the Account Test (Lower) and Account Test for Executive Officers are as follows:- ## _“_ _**i) Account Test (Lower)**_ _Paper I : Kerala Service Rules_ _Paper II: Kerala Financial Code Volume I & II and Kerala Budget Manual_ _Paper III: Kerala Account Code Volume I and Introduction to Indian Government Account and Audit, V[t h] Edition except Chapters 12, 26, 27, 28 and 29._ _Paper IV: Kerala Treasury Code Volume I & II and Kerala Account Code Volume II_ ## _**ii) Account Test for Executive Officers**_ _Paper I: Kerala Financial Code Volume I & II, Kerala Account Code Volume I and Kerala Budget Manual (Chapters I to IV,VI and VII) Paper II: Kerala Service Rules.”_ 6. Rule 9 of the Special Rules governing qualifications and methods of appointment for various posts under the Kerala Local Self Government Engineering Service, 2007, produced as Ext.R1(C) reads as follows: _“_ _**9. Test Qualification** : The Assistant Engineers in Category 5 appointed by Direct Recruitment or by Transfer shall pass Account Test (Lower) or Executive Officer Test, Kerala Public Works Department Test, and Kerala Public_ OP(KAT) No.162/2020 ## -:5:- _Works Department Manual Test within the period of probation, if they have not already passed these tests.”_ 7. It is submitted that for declaration of probation, an Assistant Engineer shall pass either the Account Test (Lower) or Executive Officers Test which does not mean that papers in Account Test (Lower) and Executive Officers Test are equivalent and a pass in papers for either test can be grouped together thus making the respondent eligible to get the certificate. The applicant has neither passed the Account Test (Lower) or Executive Officers Test which are independent examinations with different syllabus and the level of difficulty of each examination is different and distinct. It is submitted that passing of one paper in one test cannot be transposed to another examination, since the commission is conducting test separately for each examination. 8. The counsel for the respondent has drawn our attention to the following cases:- i) In _**Vijaya Kumar v. State of Kerala**_ [2004(1) KLT 299], the difference between the Account Test Lower and Account Test for Executive Officers were considered. It was observed that the Account Test (Lower) is far more difficult than Account Test for Executive Officers. OP(KAT) No.162/2020 ## -:6:- ## ii) _**K. Balan Master and Another v. State of Kerala and**_ _**Others**_ [2006 (4) KLT 702] - The question considered was whether the passing of some of the papers in Account Test (Lower) and the remaining papers in Account Test (Higher) satisfies the requirement under Rule 45B(1) of Kerala Education Rules which mandates that Account Test (Lower) conducted by KPSC shall be an obligatory qualification for teachers for the promotion as Headmasters of Lower Primary and Upper Primary Schools. It was held that the teachers who pass Account Test (Higher) shall be deemed to have passed Account Test (Lower). Acquisition of the test qualification in Account Test (Lower) will be complete even if the candidate does not pass one or more papers in Account Test (Lower) provided he secures a pass in Account Test (Higher) as the case may be. 9. We do not think that the above judgments can have any application to the factual situation arising in the case. The question considered in _**Vijaya Kumar's case**_ (supra) was whether a Forest Range Officer who has passed Account Test (Lower) was eligible for promotion to the post of Assistant Conservator of Forests. It was held that in terms of Rule 4 of the Special Rules for the Kerala Forest Service, a Ranger is required to OP(KAT) No.162/2020 -:7:- qualify the Account Test for Executive Officers only if he has not already passed the Account Test (Lower). This decision does not support the case of the respondent. In fact it establishes that the level of difficulty is different for both tests namely Account Test Lower and Account Test for Executive Officers. The case of _**K.Balan Master**_ (supra) was considered in the light of the test qualification required for being appointed as Headmaster in a school. Of course, that was a case in which the concerned teacher had passed three papers in Account Test (Lower) and one paper in Account Test (Higher), whereas the qualification was that the teacher should have passed Account Test (Lower) conducted by KPSC. It is in that background that it was held that teachers who have passed Account Test (Higher) shall be deemed to have passed Account Test (Lower) and that acquisition of test qualification in Account Test (Lower) would be complete even if the candidate does not pass one or more papers in Account Test (Lower) provided he secures a pass in the corresponding papers in the Account Test (Higher). In order to arrive at the said conclusion, Division Bench placed reliance on _**Jyothi K.K. v. Kerala Public Service Commission**_ (JT 2002 Suppl. (1) SC 85), wherein it was held that OP(KAT) No.162/2020 -:8:- if a person had acquired higher qualifications in the same faculty, such qualification would presuppose acquisition of a lower qualification prescribed for the post. Apparently _**Jyothi's case**_ (supra) has no application to the factual situation relating to the aforesaid case and the same was rendered based on its own facts and cannot be applied to the facts of the present case. 10. As far as the present case is concerned, Special Rules clearly prescribe that Assistant Engineers shall pass Account Test (Lower) or Account Test for Executive Officers. A pass in either of these tests is required for being qualified. It is apparent that the applicant had not passed any of these tests. He had only passed in 3 papers out of 4 in Account Test (Lower) and one paper in Account Test for Executive Officers. Contention of the applicant is that he failed in Paper I - Kerala Service Rules in Account Test (Lower) whereas he got a pass in the Account Test for Executive Officers for the said subject i.e., Kerala Service Rules. Apparently both tests are different. We do not think that any such concession can be extended to the applicant when the Special Rules clearly indicate a pass in either Account Test (Lower) or a pass in Executive Officers Test. The applicant will have to qualify in all the papers either in Account Test (Lower) or Executive Officers Test. OP(KAT) No.162/2020 -:9:- Equivalency is not a matter regarding which Court or Tribunal can consider to arrive at a conclusion that the curriculum and the nature of examinations are same. Under such circumstances, the Tribunal committed error in allowing the Original Application. In the result, this OP(KAT) is allowed. The order dated 11[th] December 2019 in OA (Ekm) No.2920/2017 shall stand set aside and the Original Application stands dismissed. **Sd/-** **A.M.SHAFFIQUE** Rp **JUDGE Sd/GOPINATH P. JUDGE** OP(KAT) No.162/2020 -:10:- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER IN O.A (EKM) NO. 2920 OF 2017 WITH ITS ANNEXURES.** **EXHIBIT P1(A1) TRUE COPY OF THE REPRESENTATION FILED BY THE APPLICANT BEFORE THE 2ND RESPONDENT DATED 30/08/2016** **EXHIBIT P1(A2) TRUE COPY OF THE ORDER DATED 10/11/2016 IN O.A (EKM) NO. 1730/2016** - **EXHIBIT P1(A3) TRUE COPY OF THE LETTER NO. DEVI/1698/16/EW DATED 15/06/2017 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P1(A4) TRUE COPY OF THE JUDGMENT DATED 11/04/2007 IN W.P(C) NO. 28719/2006** **EXHIBIT P2 REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS.** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 11/12/2019 IN O.A (EKM) NO. 2920 OF 2017** - **RESPONDENT'S EXHIBITS:** - **EXHIBIT R1(A) A TRUE COPY OF THE EXAMINATION RESULT OF DEPARTMENTAL TEST – JULY 2014, TO PROVE THE FACT THAT THE APPLICANT HAS PASSED ACCOUNT TEST EXECUTIVE OFFICERS, KSR (PAPER II)** **EXHIBIT R1(B) TRUE COPY OF THE NOTIFICATION NO:DE1(1)2690/2014/PV DATED 21.4.2014 ISSUED WITH REGARD TO THE DEPARTMENT TEST OF JULY 2014 SHOWING THE SYLLABUS BOTH FOR ACCOUNT TEST (LOWER) PAPER I AND ACCOUNT TEST FOR EXECUTIVE OFFICER (PAPER II) (RELEVANT PORTION)** OP(KAT) No.162/2020 -:11:- **EXHIBIT R1(C) TRUE COPY OF NOTIFICATION GO(P) NO.271/2007/LSGD DATED 27.11.2007.** True Copy PS to Judge Rp