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1983 DIGILAW 310 (KAR)

K. AVINASHCHANDRA v. STATE OF KARNATAKA

1983-12-16

V.S.MALIMATH, VENKATACHALAIAH

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( 1 ) THIS Writ Petition has come up before us on a reference made by justice rama Jois by his order dated the 7th of July l983 on the ground that it involves important questions of law for consideration. ( 2 ) THE undisputed facts may briefly be stated as follow : the petitioner joined service as a second Division Clerk and was posted to the office of the Deputy Commissioner, dakshina Kannada, on 29th of january 1,965. The next promotional post is the post of First Division C/erk. Under the cadre and Recruitment Rules, the second Division Clerks are required to pass certain departmental examinations for earning eligibility for promotion to the cadre of First Division Clerks. The Karnataka Civil Services (Service and Kannada Language Examinations) rules, 1974, (hereinafter referred to as the Rules), came into force with effect from 10th of January 1974. Rule 3 of the Rules imposes certain obligations on the Government servants to pass certain examinations. Rule 4 of the Rules imposes restrictions on promotions and appointments by transfers, and it provides that after the expiry of a period of two years from the date of commencement of the rules no Government servant shall be eligible for promotion to any higher post unless he has passed the Kannada language examination and the prescribed examinations if any for the holder of such higher post and the post already held by him. The effect of these Rules was that for a period of two years from 10th of january 1974, Second Division Clerks could be promoted to the cadre of First division Clerks even though they had not passed the prescribed examinations. The petitioner did not pass the prescribed examinations within a period of two years from 10th of January 1974. The effect of these Rules was that for a period of two years from 10th of january 1974, Second Division Clerks could be promoted to the cadre of First division Clerks even though they had not passed the prescribed examinations. The petitioner did not pass the prescribed examinations within a period of two years from 10th of January 1974. ( 3 ) RULE 4 of the Rules was amended by Notification Dated 24th of April 1976 published in Karnataka Gazette dated 29th of April 1976 as follows :- amendment of rule 4 :- Rule 4 of the Karnataka Civil Services (Service and Kannada Language Examinations) rules, 1974, shall be re-numbered as sub rule [1] there of and after the sub-rule [1] so re-numbered, the following sub-rules shall be inserted, namciy :- "[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 10th january 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 show the service examinations have been prescribed after 10th January 1974. The said amended Rule 4 came into force on the 1st day of May 1976. ( 4 ) ON 24th of April 1976 the State government issued an official Memorandum (Exhibit-A) clarifying the position arising out of the amendment to Rule 4 brought about with effect from 1st May 1976. The effect of the said Official memorandum is to convey that between 10th of January 1976 and 30th of April 1976 there being no exemption from passing the prescribed examinations, those who had not passed the prescribed examinations could not be considered for promotion between those two dates. ( 5 ) SEVERAL promotions were made to the cadre first Division Clerks in the revenue Department in Dakshina Kannada district and they were reviewed with a view to bring them in conformity with the Rules. The result of such efforts was the publication of a Final review Cum Graduation List of First division Clerks / First Grade Revenue inspectors from 1-11-1956 to 1-7-1976 by the Deputy Commissioner of Dakshina kannada. An extract of the said Graduation list containing details from SI. Nos. The result of such efforts was the publication of a Final review Cum Graduation List of First division Clerks / First Grade Revenue inspectors from 1-11-1956 to 1-7-1976 by the Deputy Commissioner of Dakshina kannada. An extract of the said Graduation list containing details from SI. Nos. 262 to 276 is produced as Exhibit- B. In Exhibit-B the date of eligibility of the petitioner to the Cadre of First Division clerks is shown as 22-5-1976. The dates of eligibility given to the other officials are between 16-1-1976 and 22-5-1976. According to the petitioner, some of the officials in the cadre of second Division clerks who are juniors to him have been given dates of eligibility to the cadre of First Division clerks earlier than the petitioner and placed above him and this has been done in obedience to Official Memorandum, exhibit-A, which in turn has been issued misconstruing the scope and ambit of sub-rule [2] of Rule 4 of the Rules. By way of illustration, sri Murlidher Rao learned Counsel for the petitioner, invited our attention to exhibit-B and pointed out that N. Ramakrishna rao who is at SI. No. 262 and who entered service as Second Division clerk on 3-2-1965 has been given the date of eligibility for promotion to the cadre of First Division Clerks as 16-1-1976 where as the petitioner who is at SI. No. 275 and who entered service as Second division Clerk on 29-1-1965 and is thus senior to the said Ramakrishna Rao, has been given a later date i. e. 22-5-1976 as the date of eligibility for promotion to the cadre of Division Clerks. It is the case of the petitioner that he should have been given the same date of eligibility as the one given to his immediate junior namely ramakrishna Rao, He therefore asserts that he should nave been placed at si. No. 262 according him the date of eligibility as 16-1-1976 and that the other in Exhibit-B should have been placed below him. The case of the petitioner is that his juniors have been placed above him in the Gradation List, Exhibit - B on the ground that he not having passed the prescribed examinations could not have been considered for promotion to the cadre of First Division Clerks between 10-1-1976 and 30-4-1976. The case of the petitioner is that his juniors have been placed above him in the Gradation List, Exhibit - B on the ground that he not having passed the prescribed examinations could not have been considered for promotion to the cadre of First Division Clerks between 10-1-1976 and 30-4-1976. ( 6 ) IT is not disputed that the petitioner had not passed the prescribed examinations till 30th of April 1976. According to the petitioner, Ramakrishna Rao and others in Exhibit-B even though they are juniors to him have been accorded dates of eligibility for promotion to the cadre of First Division Clerks earlier than that of the petitioner, merely because they had passed the prescribed examinations and were therefore eligible for promotion between 10th of January 1976 and 30th of April 1976. The exemption from passing the prescribed examinations for earning eligibility for promotion has been assumed by the department as being available for a period of one year from 1st of May 1976 the date on which the amended Rule 4 of the Rules came into force, and not from 10th of January 1976. ( 7 ) SRI Murlidher Rao contended that on a proper construction of clause [a] of sub-Rule [2] of Rule 4 it should be held that the exemption from passing the prescribed examinations in respect of holders of posts for whom service examinations were prescribed on 10th of January 1974 stood extended upto 30th of April 1977 and that if the said clause [a] is not so understood it will bring about a very unreasonable situation resulting in infraction of Articles 14 and 16 of the Constitution of India. ( 8 ) THE original period for passing the prescribed examinations in accordance with Rule 4 of the Rules as it stood before amendment was two years from 10th of january 1974. In other words, officials could be promoted even though they had not passed the prescribed examinations from 10th of January 1974 to 9th of january 1976. Sri Chandangoudar, learned government Advocate, does not dispute the position that as a result of amendment to Rule 4 of the Rules which came into force from 1st of May 1976, the period of exemption was further extended. Sri Chandangoudar, learned government Advocate, does not dispute the position that as a result of amendment to Rule 4 of the Rules which came into force from 1st of May 1976, the period of exemption was further extended. According to him exemption was granted by clause (a) of Sub-Rule (2) of Rule 4 for a period of one year from 1st of May 1976, If clause (a) is interpreted in that way it would follow that for a short period between 10th of January 1976 and 30th of April 1976 the officials were required to pass the prescribed examinations to earn eligibility for promotion to the next higher cadre whereas there was exemption from passing the prescribed examinations for a period of two years prior to 10th of January 1976 and for a period of one year from 1st of May 1976. ( 9 ) IF clause (a) of Sub-Rule (2) of rule 4 of the Rules is to be interpreted as suggested by the learned Government advocate, it would bring about a discriminatory situation in respect of the period between 10th of January 1976 and 30th of april 1976. Unless this discrimination is justified on valid grounds the petitioner would be justified in contending that infraction of Articles 14 and 16 of the constitution stands clearly established. No reason or justification has been pleaded as to why exemption was denied for this short period when admitedly exemption was accorded for a period of two years prior to 10th of January 1976 and for a period of one year with effect from 1st of May 1976. As there is no rational basis for classification and no valid grounds have been pleaded or proved for denying exemption for the short period between 10th of January 1976 and 30th of April 1976, if the interpretation suggested by the learned Covt. Advocate is accepted we will have no other alternative but to strike down the rule as offending Articles 14 and 16 of the Constitution. If, however, a reasonable interpretation as suggested by sri Murlidher Rao is accepted, there would be no infraction of fundamental rights guaranteed by Articles 14 and 16. of the constitution. Advocate is accepted we will have no other alternative but to strike down the rule as offending Articles 14 and 16 of the Constitution. If, however, a reasonable interpretation as suggested by sri Murlidher Rao is accepted, there would be no infraction of fundamental rights guaranteed by Articles 14 and 16. of the constitution. ( 10 ) WHEN a rule is capable of being interpreted in two ways, - one which has the effect of rendering it null and void and the other which has the effect of sustaining the rule, it is well settled principle of law that interpretation which has the effect of sustaining the rule should be preferred. The question for considerations as to whether the interpretation suggested by Sri Murlidher Rao is reasonable having regard to the language employed in sub-Rule (2) of rule 4 of the Rules. The object of the rule, it is obvious, was to extend the period of exemption. Rule 4 as it originally stood before amendment, gave exemption for a period of two years from 10th of January 1974. The rule making authority felt that the said exemption should be further extended. When that was the intention of the rule making authority, it is not reasonable to assume that the rule making authority would have intended that there should be no exemption for the truncated period between 10th of January 1976 and 30th of April 1976. Clause [a] of sub-rule [2] of rule 4 provides that sub-rule (1) of rule 4 shall not have effect for a period of one year from the first day of May 1976 in respect of holders of post for whom service examinations were prescribed on 10th" January 1974. The period of one year has no doubt to be counted, having regard to the language of the rule, from 1st of May 1976. Thus the terminus would be 30th of April 1976. It is only for the purpose of determining the terminus that the rule adverts to the 1st day of May 1976. Reference to 1st of May 1976, in our opinion, is not for the purpose of indicating the starting point of exemption but only for the purpose of enabling the determination of the terminus, and there is no dispute that the terminus is 30th of april 1976 as that is the stand taken by the learned Government Advocate also. Reference to 1st of May 1976, in our opinion, is not for the purpose of indicating the starting point of exemption but only for the purpose of enabling the determination of the terminus, and there is no dispute that the terminus is 30th of april 1976 as that is the stand taken by the learned Government Advocate also. Whereas the learned Government advocate wants us to hold that the period of exemption commences from 1st of may 1976. Sri Murlidher Rao in the other hand contends that the commencement of the period of exemption is from the expiry of the period of exemption fixed under the original Rule 4 as it stood before amendment. The period of exemption fixed under the original rule 4 expired on the completion of two years on 9th of January 1976. As the object was only to extend the exemption up to 30th of April 1977 the exemption must be deemed to have been extended after the expiry of the period of two years from 10th of January 1976 upto 30th of April 1976. Though the language of clause (a) of sub-rule (2) of Rule 4 of the Rules is not very happy, having regard to the object and intendment of the rule we have no hesitation in taking the view that it is only for the purpose of determining the terminus of the period of extension that reference has been made to the date, 1st of May 1976, and not for the purpose of indicating that the exemption commences only from that date. The language employed in clause [b] of sub-rule (2) of Rule 4 also shows that the rule making authority intended to refer to the relevant dates for the purpose of determining the terminus. Clause (b) deals with cases where the service examinations have been prescribed after 10th of January 1974 and it provides that sub-rule (1) shall not have effect 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 have been prescribed after 10th January 1974. The rule making authority has employed an involved language to convey a very simple idea. The rule making authority has employed an involved language to convey a very simple idea. The rule making authority intended to give exemption for a period of three years from the date of prescription of examinations if such prescription was made for the first time after 10th of january 1974. We have, therefore, no hesitation in accepting the contention of sri Murlidher Rao that clause (a) of sub rule (2) of Rule 4 of the Rules should be understood as having the effect of extending the period of exemption prescribed by original Rule 4 as it stood before amendment, upto 30th of April 1976. The resultant positions that with effect from 10th of January 1974 upto 30th of april 1976 sub-rule (1) of Rule 4 shall not have any effect for holders of posts for whom service examinations were prescribed on 10th of January 1974. ( 11 ) IN view of the interpretation given by us to cluse (a) of Sub-Rule (2) of Rule 4 of the Rules as aforesaid, it follows that the State Government was not right in issuing the Official Memorandum, exhibit-A, which was the Effect of taking the view that between 10 of january 1976 and 30th of April 1976 there is no exemption from passing the prescribed examinations in respect of the holders of posts for whom service examinations were prescribed on 10th of January 1974. Hence, Exhibit-A is liable to be quashed. The final Gradation List published as per exhibit-B is required to be re-done in accordance with the interpretation which we have given by this order. ( 12 ) FOR the reasons stated above, this writ petition is allowed and the Official memorandum, Exhibit-A, is quashed respondent-2 shall take immediate steps to redo the final Gradation List of First division Clerks / First Grade Revenue inspectors in the Revenue Department in dakshina Kannada District from 1-11-1956 to 1-7-1976, in the light of the construction which we have placed on clause (a) of Sub-Rule (2) of Rule 4 of the Rules. --- *** --- .