State of
Karnataka Vs. B.V. Thimmappa [1993] INSC 322
(23 August 1993)
Venkatachala
N. (J) Venkatachala N. (J) Ahmadi, A.M. (J)
CITATION:
1994 SCC Supl. (1) 124 JT 1993 (5) 9 1993 SCALE (3)523
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by VENKATACHALA, J.- Whether the
non-passing of Service and Kannada Language Examinations by government servants
of Karnataka, required to be passed by them under the Karnataka Civil Services
(Service and Kannada Language Examinations) Rules, 1974 within the period
allowed for the purpose thereunder, rendered them liable to reversion, from the
higher posts to which they were promoted during that period, to the lower posts
held by them before such promotions, is the sole question, which needs our
answer in deciding these civil appeals and special leave petitions.
2. New
State of Mysore formed under the States Re- organisation Act, 1956 ('the S.R.
Act'), comprised certain territories of the States of Bombay, Hyderabad and
Madras and the territories of the States of Coorg and Mysore. As a consequence
thereof, a large number of government servants who belonged to the States of
Bombay, Hyderabad and Madras and all the government servants who belonged to
the States of Mysore and Coorg constituted the Civil Services of the new State
of Mysore, which a few years thereafter, was renamed as 'Karnataka State'. In
course of time, the contingent of government servants in State's Civil Services
largely swelled, due to intermittent fresh recruitments.
But
the quality of service rendered by the government servants was found to be,
rather, unsatisfactory. This situation, compelled the State Government to take
urgent measures needed to improve the quality in the performance of duties by
its government servants. The State Government, therefore, brought into force
from January 10, 1974 the Karnataka Civil Services (Service and Kannada
Language Examinations) Rules, 1974, to be hereinafter referred to as 'the
Rules', a measure which imposed an obligation on almost all government servants
in the State's Civil Services, the passing of the Kannada Language and
prescribed service examinations, within the prescribed period or extended
period. What consequences, should the government servants suffer for
non-passing of such examinations within the prescribed period or extended
period, were also specified in the Rules. Although the period so prescribed and
the period so extended for the passing of the required examinations by the
government servants elapsed, a considerable number of them did not pass one or
the other of such examinations.
Among
those who did not pass the examinations were a few, who had been promoted to
higher posts during the period prescribed and the period extended, therefor. At
the time of expiry of the period thus prescribed and the period thus extended
for passing of such examinations, the State Government was engaged in the
preparation of provisional seniority lists of government servants in all its
Departments. The question which was confronted by the State Government then
was' whether the government servants who were promoted to higher posts during
the period prescribed or the period extended under the Rules for passing the
required examinations should be reverted to lower posts occupied by them before
their promotions, due to their non- passing of one or the other of such
examinations. The State Government, on consideration of the question, since
took the view that non-passing of the examinations required to be passed under
the Rules by such promotees, did not entail their reversion, that view became
the basis for finalisation of provisional seniority lists of the government
servants, in its various Departments. However, several government servants, who
were juniors to such promotees, but who had passed the required 128 examinations
in time, in their bid to overtake their seniors, filed writ petitions in the
High Court challenging the correctness of the provisional seniority lists of
their respective departments. A learned Single Judge of the High Court, who
heard a batch of such writ petitions, came to hold the view, that the
government servants who had been promoted to the higher posts without passing
the required examinations, during the period allowed to them under the Rules to
pass such examinations, should be reverted to the posts held by them before
such promotion, yielding places to their juniors, who had passed the
examinations. That learned Judge, therefore, by his order dated November 15,
1979+, allowed the batch of writ petitions, quashed the impugned provisional
seniority list of the government servants of the department to which the writ
petitioners belonged and directed the State Government to redo the same in
consonance with his holding. Yet, another learned Single Judge of the High
Court, allowed two more similar writ petitions by his order dated December 6,
1979, based on the order made in the earlier batch of writ petitions. The State
Government and the Comptroller of the State Accounts Department, who were the
respondents in the said writ petitions, challenged the sustainability of the
orders made thereon by the said two learned Single Judges, by filing writ
appeals, to be heard by a Division Bench. Another writ petition W.P. No. 17720
of 1980, where the question involved was whether the writ petitioner therein, a
second Division Clerk in the Office of the Deputy Commissioner, who had passed
the examinations as per the Rules entitled him to displace his senior who had
been promoted to a higher post but had not passed the examination as per Rules,
was a matter referred for decision by the Division Bench, which was to hear the
writ appeals. The Division Bench constituted for the purpose, which heard the
writ appeals and the referred writ petition, rendered its common judgment dated
November 30, 1984+ thereon, upholding the view of the
learned Single Judge, that had led him to make the order under appeals. In that
judgment, the Division Bench made certain declarations and directions requiring
the State Government to apply them generally to all government servants in the
Civil Services of the State. Those declarations and directions read thus: (Kant
L.J p. 312) "1.
(a)We
declare that those that have been promoted 'Within the first period viz.,
November 1, 1956 to January 9, 1974 but have not passed the Kannada and Service
Examinations within the time allowed by the Rules except those that are
exempted under the Rules to the extent they are so exempted, are not entitled
for confirmation and increments in the promotional posts held by them only and
are not liable to be reverted to the lower posts solely on the ground that the
had not passed the Kannada language and service examinations prescribed under
the Rules.
(b) We
declare that those that were in Government service as on January 10, 1974 and
have been promoted on and after January 10, 1974 for vacancies arising during
the second period from January 10, 1974 to April 30, 1977 with or without a
condition to pass the Kannada language and service examinations, if any
prescribed on that day except those that are exempted by the Rules are liable
to be reverted on or after May 1, 1977 if they + Ed.: (1980) 1 Kant LJ 398 +
Ed.: (1985) 1 Kant LJ 300 129 have not passed the Kannada language and service
examinations so prescribed on or before April 30, 1977.
(c) We
declare that the State Government and its subordinate authorities that are
competent, are bound to review the earlier promotions as on May 1, 1977 and
revert those that are ineligible to hold the promotional posts and promote
those that are eligible and suitable to hold the posts in their places in
accordance with law and the observations made in this order.
2. We
direct the appellants in the writ appeals and the respondents in the writ
petition to review all the earlier promotions in their respective departments/offices
in the respective cadres and make available all such benefits to which the
respondents in the writ appeals and the petitioner in the writ petition are
entitled to in accordance with law and the observations made in this order and
the orders in the original writ petitions to the extent they are affirmed by
this order, with all such expedition as is possible in the circumstances of the
cases and in any event within a period of 6 months from the date of receipt of
the order of this Court." 3.Feeling aggrieved by the said judgment of the
Division Bench of the High Court, the State of Karnataka, has preferred against
that judgment Civil Appeal Nos. 5339-5362 of 1985 and SLP (C) Nos. 14163 and
14876 of 1985, under consideration. SLP (C) No. 3394 of 1987 is that filed by a
Government servant who felt aggrieved by another Division Bench judgment of the
High Court in Writ Appeal No. 1790 of 1985 rendered following the judgment, now
under consideration in the civil appeals and special leave petitions of the State
of Karnataka.
4.Our
answer to the sole question formulated at the outset, is enough to decide all
these civil appeals and SLP'S, we propose to dispose of all of them by this
common judgment.
5.Mr
M. Veerappa, the learned counsel for the State of Karnataka, strenuously urged,
that the view taken by the Division Bench of the High Court in its judgment
dated November 30, 1984+ that government servants who had been promoted during
the period allowed to them under the Rules to pass the required examinations,
are liable to be reverted to the lower posts held by them before the
commencement of the Rules, because of their non-passing of the examinations
before the expiry of that period, being not at all a view warranted by the
Rules, the same was wholly incorrect and unsustainable. According to him, under
the 'examinations scheme' envisaged by the Rules, reversion of the government
servants from the higher posts to which they were promoted during the period
allowed to them, for non-passing of the required examinations in time, not
being a consequence envisaged by the Rules, the same was wholly alien to the
Rules. The Division Bench which found that there was no express provision in
the Rules providing for reversion of the government servants from higher posts
to which they were promoted during the period allowed to them to pass the
required examinations, to lower posts held by them before commencement of the
Rules, on account of their non-passing of such examinations, according to him,
could not have taken the view that the consequence of reversion of government
servants from the promoted higher + Ed.: (1985) 1 Kant LJ 300 130 posts to the
lower posts held by them before the commencement of the Rules on account of
their non-passing, was what was implicit in the Rules. Reversion of government
servants from higher posts to lower posts, he stressed, since amounts to award
of punishment to them, as if they were found guilty of official misconduct, the
Division Bench should have seen that such consequence would not have been a
matter on which Rules would have been silent, if such consequence was really
intended by the Rules. By specially drawing our attention to Rule 4 of the
Rules which imposes restrictions on promotions of government servants arising
due to their non-passing of the required examinations, he pointed out that
there was nothing in that rule which even remotely suggests reversion of
government servants from higher posts to which they were promoted during the
period in which they were required to pass the examinations in the event -of
their non-passing of such examinations. The Division Bench, he argued, could
not have, therefore, held that reversion of promoted government servants was
implicit in the Rules. The learned counsel for the petitioner in SLP (C) No.
3394 of 1987 supported the arguments of the learned counsel for the State.
However, learned counsel who appeared for respondents in the appeals and
Special Leave Petition Nos. 14163 and 14876 of 1985, sought to support the view
taken by the Division Bench of the High Court that the Rules impliedly required
the government servants promoted to higher posts during the period allowed to
them for passing the required examinations, to be reverted to the posts held by
them before the commencement of the Rules, if they had not passed the required
examinations before the expiry of the period allowed for the purpose and they
should make place for their juniors who were eligible to hold such promotional
posts because of their passing of the required examinations.
6.The
arguments of learned counsel on the question requiring our answer in deciding
these appeals and SLPs, if are to be appreciated in their right perspective,
reference to the Rules and their Preamble become essential. Hence, we shall
reproduce the Rules insofar as they bear on the question requiring our
decision.
Preamble:-
"Whereas for purposes of ensuring that the official duties of persons
appointed to public services and posts in connection with the affairs of the
State of Karnataka are satisfactorily performed, it is expedient to make
provision requiring them to pass appropriate service examinations and the
Kannada Language Examination;
Now,
therefore, the Governor of Karnataka hereby makes the following rules, namely:
1.Title
and commencement.- (1) These rules may be called the Karnataka Civil Services
(Service and Kannada Language Examinations) Rules, 1974.
2.
Definitions.- In these rules, unless the context otherwise requires,- (1) * (2)
'Government servant' means a person to whom Parts 1 and 11 of the Karnataka
Civil Services Rules, for the time being in force, are applicable, except a
person working as a Local Candidate or holding a Class IV post;
131
(3) 'Kannada language examinations' means the Kannada language examination
specified in Schedule 1;
(4)
'Prescribed examinations' with reference to any post means the service
examinations prescribed for the holder of the said post as specified in
Schedule II;
(5)
'Schedule' means a Schedule to these rules;
(6)
'Service examination' means a service examination specified in Schedule I.
3.
Obligation of government servants to pass certain examinations.- (1)Save as
otherwise provided in these rules, every Government servant shall within the
period prescribed in sub-rule (2) pass,- (i) the Kannada Language Examination,
and (ii)the prescribed examinations, if any, in respect of the post held by
him.
(2)(a)
A Government servant,- (i) in service on the date of commencement of these
rules shall pass the said examinations within a period of two years from the
said date;
(ii)appointed
to any post on or after the date of commencement of these rules, shall pass the
said examinations within a period of two years from the date of his
appointment:
Provided
that a person appointed to any post on probation shall pass the said
examinations within the period of his probation.
(b)
Where after the commencement of these rules,- (i) a new service examination is
prescribed for the holder of any post; or (ii)a new post is created and service
examinations are prescribed for the holder of the new post; or (iii)provision
is made for promoting the holder of a post to a higher post for which service
examinations are already prescribed, by amending Schedules I and II or in any
other manner such holder shall pass the said prescribed examinations within a
period of two years from the date of such prescription, or from the date such
provision is made, as the case may be:
Provided
that the State Government may by general or special order, and for reasons to
be recorded in writing, extend the period under this sub-rule to such extent as
it deems fit.
(3)(a)
... no Government servant shall be confirmed in the post held by him, or shall
earn an increment in the time scale of pay of the post held by him, unless he
passes the Kannada Language Examination and the prescribed examinations, if any
in accordance with the provisions of subrules (1) and (2):
Provided
that in the case of a Government servant other than a person appointed to any
post on probation, the increment in the time scale of pay 132 shall be granted
during the period allowed under sub-rule (2) for passing the examinations:
Provided
further that this sub-rule shall not be applicable to a Government servant who
has been allotted or deemed to have been allotted to serve in connection with
the affairs of the State of Karnataka under Section 115 of the States Re-organisation
Act, 1956 while holding the post which he held on November 1, 1956 or the
higher post on first stage promotion:
Provided
also that nothing in clause (a) shall be applicable to a Government servant who
has attained or who attains the age of 45 years for the purpose of earning
annual increments only.
Provided
also that a Government servant who is blind and whose job does not require him
to read and write shall be exempt from passing any written service examination
or the Kannada Language Examination for purposes of confirmation and earning
annual increments, but shall however pass the Kannada Language Viva Voice
Examination.
(b)A
Government servant who during any period does not earn increment in the time
scale of pay of the post held by him under clause (a), shall on becoming
eligible to such increment by passing the Kannada Language Examination and the
prescribed examinations, if any, or attaining the age of 45 years be entitled
to fixation of his pay in the time scale of pay at the appropriate stage under
Rule 51-A of the Karnataka Civil Services Rules.
4.Restriction
on promotions and appointments by transfers.- (1) After the expiry of a period
of two years from the date of commencement of these rules, or from the date of
prescription of the service examinations, whichever is later (or from the date
on which provision is made for promoting the holder of a post to higher post
for which service examinations are already prescribed), no Government servant
shall be eligible- (i)for promotion to any higher post, unless he has passed,
if not exempted under the proviso to sub-rule (1) of Rule 3, the Kannada
language examination or the test in Kannada language referred to in the said
proviso and the prescribed service examinations, if any, for the holder of such
higher post and the post already held by him.
(ii)for
appointment by transfer to any post unless he has passed, if not exempted under
the proviso to sub-rule (1) of Rule 3, the Kannada language Examination or the
test in Kannada language referred to in the said proviso and the prescribed
examinations, if any, for the holder of such post.
(2)
sub-rule (1) shall not have effect- (a) for a period of one year from the first
day of May, 1976 in respect of holders of posts for whom service examinations
were prescribed on January 10, 1974; and (b) for a period of one year, from the
date of expiry of two years from the date of such prescription in respect of
holders of posts for whom the service examinations have been prescribed after
January 10, 1974:
133
Provided that, if the same examination has been prescribed on different dates
to the holders of a lower post and of a higher post, sub-clauses (a) or(b)
shall have effect from the earlier of such dates. 5.
Savings........
SCHEDULE
I
1.
Kannada Language Examination 11. Service Examinations:
1.
Accounts (Higher) Examinations.
2.
Accounts (Lower) Examinations.
3.
Revenue (Higher) Part I & II Examinations.
4. to 48.
SCHEDULE
II
In
respect of posts or category of posts specified in column (2) of the Table
below in the Services specified in column (1) thereof the service examinations
prescribed shall be those specified in the corresponding column (3) thereof.
TABLE
Service Posts Service Examinations 1 2 3 1 . The Karnataka ---- --
Administrative Service
2. The
Karnataka (1) Deputy Tahsildars (1)Revenue Higher General Service (2)Accounts
Higher (Revenue Sub- (3)General Law ordinate (Parts I and II) Branch) (2) Sheristedar
(1)Revenue Higher (2) Accounts Higher (3) General Law (Parts 1 and 11) (3)I
Division Clerks (1) Revenue Higher (2) Accounts Higher (3) General Law (Parts I
and II) (4)1 Grade Revenue Inspector and (5) Stenographers II Division Clerks
(1) Revenue Lower II Grade Revenue (2) Accounts Lower Inspectors Village Accoun-
tants
3. to
74
7.
When, the Preamble to the Rules, as could be seen therefrom, declares that the
provisions made therein requiring the government servants to pass the Kannada
Language Examination and the Service Examinations, are meant for 134 ensuring
the performance of their duties satisfactorily, it becomes obvious, that the
object sought to be achieved by the Rules, is the improvement in the quality of
performance of government servants in discharge of their respective duties
attached to the civil posts held by them.
8. If,
sub-rule (1) of Rule 3, definition clauses (2) to (6) of Rule 2 and Schedules I
and II, of the Rules are read together, they make it clear, that every
government servant is obligated to pass Kannada Language Examination and
Service Examinations set down respecting the civil post held by him within the
period prescribed therefor under sub-rule (2) of Rule 3, save otherwise
provided for by the Rules.
9. The
period prescribed for passing of the required examination under clause (a) of
sub-rule (2) of Rule 3, by a government servant (i) who was already in civil
service is two years from the date of commencement of the Rules (January 10,
1974); (ii) who was appointed in any post of civil service after the
commencement of the Rules is two years from the date of such appointment; and
(iii) who was appointed in any civil service on probation is the period of his
probation, also becomes clear from that clause.
10.
Then, sub-rule (2) of Rule 3, by its clause (b) prescribes two years as the
period within which a holder of a civil post has to pass the examinations
required of such post - (i) where new service examination is prescribed for the
holder of such post; or (ii) where a new post is created and service
examinations are prescribed for holder of such post; or (iii) where provision
is made for promoting the holder of a post to a higher post for which service
examinations are prescribed by amending Schedules I and II or in any other
manner, from the date of such prescription or from the date such provision is
made, as the case may be.
11.
These sub-rules (1) and (2) of Rule 3 do not, however, provide for reversion of
a government servant promoted to a higher post within two years' period allowed
for him to pass the examinations required to hold that post, for his non-
passing of examinations required of the higher post because of either the
prescription made therefor or the provision made therefor, becomes apparent
from the plain and unambiguous language in which they are couched. The proviso
to clause (a) of sub-rule (2), since states that a person appointed to any post
on probation shall pass the said examinations within the period of his
probation, it is made obvious, that service of a person appointed as a
probationer in civil post cannot come to an end merely for the reason of
non-passing by him of the examinations prescribed for the holder of such post.
12.
From the proviso to clause (b) of sub-rule (2), which empowers the State
Government to extend the period prescribed under the sub-rule for passing of
such examinations, it becomes clear that Government was enabled to extend the
period prescribed under the sub-rule where such extension was warranted and the
period fixed under the sub-rule was not intended to be a rigid requirement. In
fact, it is undisputed, that the period of two years prescribed for government
servants to pass the examinations required of them as holders of such posts was
extended up to May 1, 1977, that is, by as long a period as a year and four
months.
13.
What are the consequences which a government servant suffers for non-passing of
the examinations required of the post held by him, within the 135 prescribed
period or extended period, as to (i) his confirmation in the post held by him,
(ii) earning of an increment in the time scale of the post held by him, and
(iii) on his promotion and appointment by transfer, are specified with
exactness in sub-rule (3) of Rule 3 and Rule 4 of the Rules, cannot go,
unnoticed.
14. As
to confirmation of government servant envisaged under clause (a) of sub-rule
(3), it says that he shall not be confirmed in the post held by him unless he
passes the Kannada Language Examination and the prescribed examinations. It
requires a clarification here that 'the post held by him' (a government
servant) adverted to in the sub-rule is not restricted to the post held by him
immediately before the date of commencement of the Rules on January 10, 1974
but has to apply necessarily to the post held by him immediately after April
30, 1977, on the expiry of the prescribed period or extended period under the
Rules for passing of the required examinations by him as holder of a
promotional post, for he was entitled to promotion to higher post
notwithstanding the requirement under the Rules as to passing of certain
examinations as a holder of a lower post or as a holder of a higher promotional
post. It cannot be said otherwise, for to say so, would mean that a government
servant who becomes a holder of a higher post during the period allowed for him
to pass the examinations, could be confirmed in that higher post, if he passes
the examinations of the holder of lower post held by him immediately before the
commencement of the Rules. The effect of the sub-rule, therefore, as to
confirmation of a government servant in the post held by him before
commencement of the Rules is, that he cannot get confirmed even in that post,
if he has not passed the examinations required of the holder of the post under
the Rules. In other words, he cannot get confirmed in that post, unless he
passes the examinations required of the holder of that post.
The
effect of the sub-rule, then, as to government servant's confirmation in the
promotional post which depend on the examinations required to be passed by
holder of such higher post, would be the same as applicable to the lower post
held by him before the commencement of the Rules.
15.
The effect of sub-rule (a) as to confirmation of a government servant cannot be
anything other than what we have indicated above, becomes clear, since the
sub-rule refers to confirmation in a post held by the government servant in the
context of non-passing of his examinations required under subrules (1) and (2)
thereof which require passing of examinations by the government servant in the
post held by him before the commencement of the Rules and in the promotional
post, if any, held by him before the expiry of the period allowed to him to
pass such examinations.
16.
Now, government servant's non-earning of the increment in the time scale of pay
of the post held by him, unless he passes the Kannada Language Examination and
the prescribed examinations, if any, in accordance with the provisions in
sub-rules (1) and (2) envisaged by clause (a) of sub-rule (3), refers to
non-earning of increments in the higher post held by him during the period
allowed to him to pass the examinations required of the holder of the higher
post, as well as of the holder of the lower post, if he had not already passed
such examinations or is exempted from passing them. Indeed, first proviso to
clause (a) of sub- rule (3), obligates the Government to grant to government
servants except in the case of a probationer, the increments in the time scale
of pay 136 during the period allowed to him under sub-rule (2) for passing the
examinations. The increment in the time scale of pay, required to be granted by
the Government to its government servant during the period allowed to him to
pass the examinations, has to necessarily relate to the time scale of pay held
by him before the commencement of the Rules or the time scale of pay of the
higher post, if any, to which he was promoted during the period allowed to him
to pass the examinations. Clause (b) of sub-rule (3), then provides for grant
of increments not earned on account of non-passing of the required
examinations, as and when, such examinations are passed by him or when he
attains the age of 45 years.
17.
Then, comes Rule 4 of the Rules. This rule, as seen from it, imposes a
restriction on promotions or appointments by transfer of government servants
after the expiry of the period allowed to them to pass the examinations
required to be passed by them under the Rules as holders of such posts for the
reason of their failure to pass the examinations.
When
clause (i) of the sub-rule (1) makes such government servant ineligible for
promotion to any higher post unless he has passed the examinations required to
be passed under the Rules to become the holder of higher post, from the post
already held by him, 'the post already held by him' is referable in the context
to the promotional post held by him, if he was promoted to such promotional
post during the period allowed to him for passing the examinations required to
be passed by the holder thereof. However, this clause is made inapplicable to
those who were exempted from passing such examinations. Clause (ii) which is
similar to clause (i) applies to appointments by transfer.
18.
Sub-rule (2) of Rule 4, as seen therefrom suspends the operation of subrule (1)
for further periods depending on the examinations required to be passed by
government servants as holders of such posts, prescribed on or after January 10, 1974. Proviso to sub-rule (2) of Rule 4
refers to the date from which subclauses (a) and (b) shall have effect.
19. It
would be useful to refer here, to two provisions in the Karnataka Services
Examinations Act, 1976 - 'the Act', since the clarifications (i) on the matter
of promotion of government servants who had not passed service examinations, if
any, prescribed for them before January 10, 1974, the date on which the Rules
came into force and (ii) on the matter of consequences which entail, if the
government servants fail to pass the examinations required to be passed under
the Rules, are found there.
20.
Section 4 of the Act requires that a government servant who was not promoted
solely on the ground of not passing a service examination between November 1,
1956 (the date of coming into force of the S.R. Act) and January 10, 1974 (the
date of coming into force of the Rules) shall, if has not already been promoted
and if he is otherwise eligible, be promoted.
21.
Section 4 of the Act clarifies that every government servant, including a
government servant promoted under Section 3 of the Act, shall be required to
pass the service examinations as provided for and for the purposes specified in
the Rules. However, it declares that failure to pass shall entail the
consequences specified in the said Rules.
22.
The Preamble to the Rules as we have pointed out earlier, while states the
objective of the Rules to be to ensure improvement in the quality of 137
performance of the government servants of Karnataka State in discharge of
duties attached to their jobs by making them pass certain examinations, 'the
examinations scheme' as is reflected in the Rules analysed by us, comprises
explicit provisions on the following matters:
(1)
Several examinations required to be passed by government servants having regard
to the nature and complexity of duties to be performed by them as holders of
civil posts in various departments of State Government.
(2)
The period allowed for government servants to pass the examinations required to
be passed by them as holders of State's civil posts, depending upon the posts
held by them at the commencement of the Rules or promotional posts held by them
on their promotion during the period allowed to pass examinations required of
the holders of such posts.
(3)
The consequences, that entail the government servants, if they do not pass the
examinations required to be passed for holding the posts which they held at the
time of commencement of the Rules and the promotional posts which they held at
the end of the period allowed for them to pass such examinations.
23.
The Act which came into force in the year 1976, as is also pointed out by us
earlier, required that a government servant who was not promoted solely on the
ground of not passing a service examination between November 1, 1956 (the date
of coming into force of the S.R. Act) and January 10, 1974 (the date of coming
into force of the Rules) shall, if he has not already been promoted and if is
otherwise eligible, be promoted. Such promotions, therefore, were required to
be made after the commencement of the Rules which specify the examinations
required to be passed by holders of such promotional posts and before the
expiry of the time allowed to government servants to pass such examinations.
However, the Act by its Section 4, as already pointed out by us, when refers to
consequences which entail, for non-passing by government servants of
examinations required to be passed by the Rules, refers to them as those
,specified' in the Rules. When the Act, therefore, clearly envisaged that
failure to pass the examinations by the government servants shall entail only
those consequences which were 'specified' in the Rules and not those which
could be 'implied' from the Rules, no room was left to imply from the Rules a
consequence which was not specified there. Further, what could be stated on the
basis of express provisions in the Act and in the Rules, as to the consequence
to be suffered by government servants who do not pass, the required
examinations as holders of higher posts got by promotion or the required examinations
as former holders of lower posts from which they were promoted, before the date
allowed for the purpose, is the stagnation in their service career. Such
government servants, therefore, are stuck where they were, immediately after
the last day allowed to them to pass the examinations is over, without (i)
confirmation in the posts held by them then or formerly, (ii) earning increment
in the time scales of pay of the posts held by them then, and (iii) further
promotion from their posts held by them, unless they are either exempted from
passing such examinations or unless they pass them. To put it pithily, such
government servants' position will be that of 'you are, as you were'
immediately after the last day within which they had to pass the required 138 examinations,
until of course, they pass such examinations or are exempted from passing them.
24.When
the State Government finalised the provisional seniority lists of its
government servants in various departments, it appears to have proceeded on the
basis that there was nothing in the Rules or the Act, which could even remotely
suggest that the consequence of non-passing of required examinations by
government servants within the period allowed under the Rules entailed the
consequence of their reversion from the higher posts to which they were
promoted during that period, to that of lower posts held by them before the
commencement of the Rules. However, when writ petitions were filed in the High
Court, impugning such provisional seniority lists prepared by the State
Government on the ground that in the preparation of those lists the State
Government should have regarded the government servants who were promoted after
the commencement of the Rules but who had not passed required examinations
within the period allowed for them, as those reverted to the posts held by them
before their promotions and their juniors who had passed the required
examinations of the higher posts should have been regarded as eligible for
promotion to higher posts because of the reversion of their seniors, that
ground weighed not only with the learned Single Judges who decided the writ
petitions, but also with the learned Judges of the Division Bench, who decided
the writ appeals arising from the orders of learned Single Judges and referred
writ petitions.
25.According
to learned Judges of the Division Bench, as could be seen from their common
judgment, the sustainability of which is under challenge by the State, that the
consequence of non-passing of examinations by the government servants who were
promoted to higher posts during the period allowed to them by the Rules, if was
not to be their reversion to the lower posts held by them before such
promotion, the same "will make the Rules and the Act a mockery and will
not be in accordance with the scheme and object of the Rules and the Act".
The said view of the Division Bench, if is correct, it may not be sufficient to
revert such government servants from higher promotional posts to lower posts
held by them earlier but they are to be removed from even the lower posts to
which they were directly recruited, if they had not passed the examinations
required to be passed by the holders of such lower posts.
The
Rules, as we have pointed out earlier, no doubt require of a government servant
newly appointed or appointed on probation, to pass the examinations required of
the holders of such posts but they do not provide for removal of them from the
posts to which they were appointed for the reason of non-passing of the
examinations required to be passed by the holders of such posts. Moreover, if
there were, at the commencement of the Rules, government servants who had been
promoted to higher posts, it cannot be said that the consequence of non-passing
of examinations required of the holders of such posts under the Rules, is their
reversion to lower posts. Thus, it becomes difficult for us to think as to how
there could arise any difference as to consequence in non-passing of
examinations of promotional posts between those who had been promoted to higher
posts before commencement of the Rules and those who had been promoted to such
posts after the commencement of the Rules. If, that be so, non-reversion of
government servants from the posts to which they were promoted during the
period allowed to them to pass the examinations required 139 of the holders of
either the lower posts or promotional higher posts, within the period allowed,
can never be regarded to be a consequence which will not be in accord with the
scheme and object of the Rules nor "as a consequence which will make the
Rules and the Act a mockery", as is observed by the Division Bench. The
Division Bench which rightly observed in its judgment that the Rules and the
Act do not expressly provide for reversion of government servants from the higher
posts to which they were promoted during the period allowed to them by the
Rules for non-passing of the examinations required of the holders of such
posts, in our view, should not have disregarded the express provisions in the
Rules, in holding that such reversion was to be regarded as the consequence
implied in the Rules. It is rather unfortunate, that the Division Bench in
saying so, has failed to notice that it was not even open to it, to imply from
the Rules, such consequence, when Section 4(b) of the Act, by saying 'Failure
to pass shall entail the consequences specified in the said Rules', had
forbidden the drawing of any inference relating to any consequence, as that
implied in the Rules.
26.
Even so, in the facts of the present cases, it will be our endeavor to find
whether there is anything in the Rules which could form the basis for the
inference that the non- passing of required examinations by the government
servants promoted to higher posts during the period allowed to them under the
Rules would entail the consequence of reversion from promotional posts
presently held by them to the lower posts which they held before the
commencement of the Rules.
Earlier,
while analysing the provisions of the Rules as to consequences of non-passing
of examinations required under the Rules, by government servants, we have
pointed out that such consequences are relatable to government servants'
confirmation, earning of increments in time scales of pay held by them and
promotion from the posts held by them. As non -confirmation in the posts held
by government servants and the non-earning of increments by them in time scales
of their posts, cannot be hurdles in the way of government servants' promotion
to higher promotional posts in their respective Departments of the Government,
we propose to confine our enquiry to find out, whether there is anything in the
Rules which bear on the promotion of government servants for non-passing of
examinations required of them by the Rules.
27.The
only provision in the Rules which, if we may say so, contains an embargo on
promotion of government servants for their non-passing of examinations required
to be passed under the Rules within the periods allowed thereunder, is Rule 4
of the Rules. However, it is only sub-rule (1)(i) thereof, which we have
excerpted earlier, that relates to the embargo on promotion, as such. As could
be seen from the said sub-rule, it no doubt makes a government servant
ineligible for promotion to any higher post unless he has passed the
examinations required by the Rules to be passed for the holder of such higher
post and the post already held by him. Then the point that assumes importance,
is the exact time at which such ineligibility for promotion of a government
servant to a higher post, arises. Since the answer to the said point becomes
available in the sub-rule itself, no need arises to search for the answer
elsewhere.
Such
ineligibility of a Government servant to a higher post, as could be seen from
sub-rule (1), arises - after the expiry of a period of two years from the date
of commencement of the Rules or from the date of the 140 prescription of the
service examinations, whichever is later or from the date on which provision is
made for promoting the holder of a post to a higher post for which service
examinations are prescribed. The two years' period specified in sub-rule (1)
after which a government servant becomes ineligible for promotion to a higher
post does not by operation of sub-rule (2) come into effect - (a) for a period
of one year from the first day of May 1976 in respect of holders of posts for
whom service examinations have been prescribed on January 10, 1974, which takes
the expiry period to April 30, 1977 and (b) for a period of one year, from the
date of expiry of two years from the date of such prescription in respect of
holders of posts for whom service examinations are prescribed after January 10,
1974 which takes the expiry period in such cases beyond January 10, 1977.
28.However,
it cannot go unnoticed, that the proviso to sub- rule (2) says: "if the
same examination has been prescribed on different dates to holders of a lower
post and of a higher post, sub-clauses (a) and (b) shall have effect from the
earlier of such dates". Therefore, what is said in the proviso is that when
the same examinations are prescribed to a lower post as well as a higher post
on different dates, the earlier of such dates, should be the date after which
ineligibility of a government servant for promotion under sub-rule (1) would
arise and nothing beyond.
29.Then,
when we come to sub-rule (1)(i) where ineligibility for promotion of a
government servant to a higher post (sic) after the expiry of certain period,
which period also gets suspended under sub-rule (2), the higher post envisaged
therein is that which is higher than the one which he might have held on
promotion during the period allowed by the Rules for passing the examinations
required to be passed thereunder, by holders of posts. Therefore, passing of
examinations required 'for the holder of such higher post' used in clause (i)
while has reference to the higher post to which he is eligible for promotion,
the passing of examinations required 'for the holder of the post already held
by him' used in clause (i) could only have reference to the post held at the
time he becomes eligible for promotion to a higher post. From this, it becomes
obvious that the 'post already held by him' in the context of the Rules
includes the post held by a government servant on promotion from a lower post
during the period allowed to him by the Rules for passing the examinations
required to be passed under the Rules by holders of posts in the civil services
of the State.
30.Thus,
Rule 4 of the Rules which is intended to be an embargo on promotion of
government servants governed by the Rules, does not say anything, even
remotely, to suggest that a government servant who had been promoted to higher
post during the period allowed to him by the Rules to pass the examinations
required to be passed by holders of such higher posts, should suffer the
consequence of reversion, due to non-passing of such examinations by him. In
this situation, the consequence of reversion of a government servant from the
promotional post held by him to a lower post, for non- passing of examinations
by him, cannot be implied from the Rules, on a mere assumption that the object
and the purpose of the Rules, will otherwise, become a mockery. It is no doubt
true, that in the process of interpretation of certain Statutes, Rules or
Regulations, a Court is under a duty to draw certain inference as implied in
them, if such inference is warranted in the context of the provisions contained
in the concerned Statute, Rules or Regulations but when such an inference to be
141 drawn is likely to result in imposition of penalty on any person, much
less, a government servant, known canons of statutory interpretation do not
permit drawing of such inference solely on the supposed object or purpose to be
served by the Statute, Rules or Regulations without any support derived therefor
from the textual provisions.
31.
Hence, when the Rules covering the whole "Scheme of Examinations for
Government Servants", contain exhaustive provisions on all matters
relating to examinations to be passed by government servants as holders of
civil posts, the period within which such holders of civil posts have to pass
the examinations required to be passed by them and the consequences which the
government servants suffer in the event of their non-passing of the required
examinations, and yet do not contain any provision which would suggest that
government servants who had been promoted to higher posts during the period
allowed for them to pass the examinations required to be passed by the holders
of such promotional posts under the Rules should be reverted to the lower posts
which they held before the commencement of the Rules, the same cannot be a
matter to be implied from the Rules on the basis of so-called object of the
Rules. Consequently, the view taken by the learned Judges of the Single Judge
Benches and the Division Benches of the High Court, that it could be implied
from the Rules and the Act that the consequence of non-passing by government
servants who had been promoted to higher posts during the period allowed to
them by the Rules, of the examinations required to be passed by them in time,
rendered them liable to reversion from the higher promotional posts to lower
posts held by them at the commencement of the Rules, cannot be regarded as that
warranted or justified by the Rules. Our answer, therefore, to the question
considered hereinbefore, is that the non- passing of Service and Kannada
Language Examinations by government servants of Karnataka required to be passed
by them under the Rules within the period allowed thereunder for the purpose,
does not render them liable to reversion, from the higher posts to which they
were promoted during that period, to the lower posts held by them before such
promotions.
32.As
the orders and judgments of the High Court under appeals and special leave
petitions are based on an unwarranted and unjustifiable view taken on the
question considered by us, the same become unsustainable and warrant
interference.
33.In
the result, we grant leave in the special leave petitions and allow all the
civil appeals, set aside the orders and judgments of the High Court under
consideration in the present appeals, dismiss the Writ Petition Nos. 756- 777
of 1981, Writ Petition Nos. 993 and 994 of 1982 and Writ Petition No. 11720 of
1980 presented before the High Court.
However,
in the circumstances of these appeals, we do not propose to make any order as
to costs.
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