STATE OF KARNATAKA v. B. V. THIMAPPA — 1984 DIGILAW 365 (KAR)

PUTTASWAMY, J. ( 1 ) AS common questions of law arise for determination in all these cases, we propose to dispose of them by a common judgement. ( 2 ) AS on 1-11-1956, on which day the new State of Mysore, now called as -Karnataka, Comprising of the areas called 'bombay' Coorg District, Hyderabad, Madras and Mysore areas came into being under the States Reorganisation Act of 1956 ('sr Act') as a unified linguistic State for the alround development of Kannada speaking people, a large number of Service personnel from those areas with varying service conditions in their parent States stood allotted to the new State. The problem of integration of Services of those allottees and making uniform provisions relating to their conditions of services posed manifold and difficult problems to the new State. The new state also expanded its manifold activities inevitably resulting in the recruitment of a large number of personnel in the various departments of Government. ( 3 ) AS to the necessity to prescribe departmental or Service Examinations in various departments of Government with their own special requirements, there were no two opinions. But, on the modalities of prescribing them, the matter again became complex and even bewildering, some tunes by the Courts also rendering conflicting decisions on these questions. Every effort made by Government in that behalf was blocked and did not meet with success for more than 25 years. ( 4 ) ULTIMATELY with the previous approval of Government of India, obtained under the proviso to sub-Section (7) of Section 115 of the SR Act,, the Governor of Karnataka in exercise of the powers conferred by the proviso to Article 309 of the Constitution, in Notification No. GAD 12 SSR 72 dated 8-1-1974 (Published in the Kar- nataka Gazette dated 10-1-1974) Promulgated the Karnataka Civil Services (Service and Kannada Language Examinations) rules 1974, ('the Rules') prescribing Kannada Language and service examinations for all departments of Government. The rules. came into force on 10-1-1974 vide sub-rule (2) of Rule 1 of the Rules. ( 5 ) THE Rules prescribed uniform Kannada Language examination for the personnel of all departments and different service examinations for different departments of government detailed therein. The prescriptions made in the Rules were in supersession of all earlier Rules and orders on the subject. came into force on 10-1-1974 vide sub-rule (2) of Rule 1 of the Rules. ( 5 ) THE Rules prescribed uniform Kannada Language examination for the personnel of all departments and different service examinations for different departments of government detailed therein. The prescriptions made in the Rules were in supersession of all earlier Rules and orders on the subject. As a supplement to the Rules and to remove any lacuna, the State by virtue of the powers derived by Article 246 of the constitution and Entry 41 of List-II (State list) of the Seventh Schedule to the Constitution, enacted the Karnataka Service examinations Act of 1976 (Karnataka Act 40 of 1976) (the Act) giving it retrospective effect from 1-11-1956 vide sub-Section (2) of Section 1 of the Act 7 in D. Y. NADAGOUDA AND OTHERS V. STATE OF KARNATAKA" 1979 (2) Karnataka law Journal p. 117 a Division bench of this court of which one of us (Puttaswamy, J.) was a member, has upheld the constitutionality of the Act. ( 6 ) IN the State Accounts Department of government ('accounts Department') as in other departments of Government, promotions from various lower cadres to higher cadres like First Division Clerks, Superintendents, Assistant Controllers, Deputy controllers, from II Dn. Clerks, First Division clerks, Superintendents and Assistant controllers respectively had been made from 1-11-1956 and onwards till 9-1-1974. On the basis of various orders made by courts and Government, review of promotions in every cadre was undertaken by the controller, State Accounts Department, bangalore ('controller') and Government and on such review, seniority lists in the various cadres were prepared and published by the Controller and Government on 16-1-1975. On the basis of those lists and review, orders of reversions and promotions and necessarily to be issued by the controller and Government. A number of officials of the Accounts Department who faced immediate prospect of reversions approached this court in Writ petition. No. 3038, 3123 to 3149, 3258 to 3287, 3456 to 3470, 3869, 3870, 3997 to 4000, 4156 to 4158, 4421 and 4422 of 1975 ('first batch') and Writ petitions Nos. 5820, 5828, 5847, 5904, 5905, 6061 to 6006, 6010, 6011, 6104 to 6107, 6183, 6464, 5738 and 6305 of 1975 ('second batch') challenging the validity of the seniority lists issued on 16-6-1975 on diverse grounds. 5820, 5828, 5847, 5904, 5905, 6061 to 6006, 6010, 6011, 6104 to 6107, 6183, 6464, 5738 and 6305 of 1975 ('second batch') challenging the validity of the seniority lists issued on 16-6-1975 on diverse grounds. On 21-5-1979 a Division bench of this court disposed of the first batch with a declaration that the impugned seniority lists were only provisional or had not attained finality. ( 7 ) ON 15-11-1979 Chandrakantaraj Urs J. disposed of the second batch [since reported as B. V. THIMMAPPA AND others V. THE STATE OF KARNATAKA AND ANOTHER 1980 (1) karnataka Law journal 398] with certain directions and that order is assailed by the appellants/respondents namely the State of karnataka and the Controller in Writ appeals Nos. 756 to 776 of 1981. On 6-12-1979 Rama Jois, J. disposed of Writ petitions Nos. 68 of 1976 and 18465 of 1979 filed by two other officials of the same department in conformity with the order made by Chandrakantraj Urs, J. in the second batch and against the said order of Rama. Jois, J. the appellants/respondents would have filed writ appeals nos. 993 and 994 of 1982. ( 8 ) THE petitioner in Writ petition No. 17720 of 1980 joined service on 27-9-1965 as a II Division Clerk in the office of the deputy Commissioner, Hassan ('dc' ). He has asserted that he has passed all the examinations prescribed by the Rules within the permitted time and is eligible for promotion to the post of First Division Clerk. He has asserted that the DC and the other superiors , without undertaking a review as enjoined on them by the rules and the Act and reverting those that are ineligible, have denied him the benefit of promotion to which he is legitimately entitled, to the post of a I Division clerk, on these and other allegations, the petitioner has sought for appropriate directions to the respondents to review the earlier promotions, revert those that are ineligible to continue and consider his case for promotion to the post of I Dn. Clerk from such date he is entitled to with regard to the vacancy and other relevant factors. Clerk from such date he is entitled to with regard to the vacancy and other relevant factors. On 3-4-1981 Ram Jois, J. has referred this writ petition to a Division bench for disposal and on 31-2-1981 a division Bench of this court has directed this case to be heard along with the aforesaid writ appeals and that is how this case has come up before us for disposal along with the writ appeals. ( 9 ) AFTER alluding to the order made by the Division Bench in the first batch, chandrakantaraj Urs, J. dealing with a further contention urged before him in thimmappa's case-as to the necessity and modalities for review, adverting to the rules and the Act has expressed and directed as hereunder:". . . . . IF it is so understood then it becomes clear that in order to carry out the mandate of the 1976 Act, the Government is required to do the following: (i) Review all promotions made in the department of State Accounts Concerning first Division Clerks, Second Division clerks and Superintendents from 1-11-1956 to 9-1-1974 allocating proper places on the basis of seniority-cum-merit and the eligibility irrespective of the fact whether the concerned employee of the State Accounts department had passed the Departmental examination provided for such promotion in the relevant Cadre and Recruitment rules. (ii) Thereafter take up further review of the promotions so made in (i) above to test whether such persons holding the relevant posts have passed the prescribed examinations within the period allowed. This period has to be reckoned from 10-1-1974. In the 1974. Rules two years were prescribed. This would have resulted in the perios allowed coming to an end on the expiry of 9-1-1976. However, by an amendment to Rules 4 of the 1974 Rules brought about by the notification GSR 131 dated 1-7-1976 the period was extended with effect from 1st May 1976 for a further period of one year. Thus the last date provided in the total period prescribed for passing the prescribed examinations would be 30th April, 1977. 7. It is made clear that the prescribed examinations would be those provided for in Rule 2 (4) and 3 (1) (ii) and no other as the 1974 Rules are prospective in their operation. 8. It is Mr. Thus the last date provided in the total period prescribed for passing the prescribed examinations would be 30th April, 1977. 7. It is made clear that the prescribed examinations would be those provided for in Rule 2 (4) and 3 (1) (ii) and no other as the 1974 Rules are prospective in their operation. 8. It is Mr. Datar's contention that having regard to the plain language of sub-section (b) of Section 4 of the 1976 Act,' it should necessarily be done, otherwise the entire scheme of the 1974 Examination rules and the 1976 Act would be rendered futile. There is some force in this contention for the reasons already stated. In the review made, under (ii) above, it is found that some persons holding particular posts have not passed the prescribed service examinations under the 1974 Rules, then such persons are bound to face the Consequences of reversion provided for in those Rules. Therefore, a third "review becomes necessary to obtain a final decision as to who is entitled to hold a particular post in the relevant Cadre having regard to his position as on 10-1-1974 and on 30-4-1977. Therefore, in the light of the observations made, the State is directed to make the review accordingly. But, in M. SYED ZIAULLA v. THE drugs CONTROLLER IN THE STATE of KARNATAKA AND ANOTHER [writ petition No. 13117 of 1978 decide on 7121979,] Rama Jois, J. has expressed the view that a person promoted within the exempted period but has not passed the prescribed examinations under the Rules was not liable to be reverted solely on that ground. In Syed Ziaulla's case the rulling rendered by Chandrakantaraj Urs. J. In thimmappa's case was not brought to the notice of Rama Jois. , and thus there is real conflict in these two rulings. ( 10 ) SRI. V. C. Brahmarayappa, learned government Advocate has appeared for the appellants in the appeals and the respondents in the Writ petition. ( 11 ) SRI. H. B. Datar has appeared for the respondents in the appeals and Sri. E. G. Sridharan has appeared for the petitioner in the Writ petition. ( 12 ) SRI. Brahmarayappa has urged that the view expressed by Chandrakantaraj urs. ( 11 ) SRI. H. B. Datar has appeared for the respondents in the appeals and Sri. E. G. Sridharan has appeared for the petitioner in the Writ petition. ( 12 ) SRI. Brahmarayappa has urged that the view expressed by Chandrakantaraj urs. J. in Thimmappa's case that an official promoted prior to 30-4-1977 but had not passed the prescribed examinations under the Rules for the post held by him as also the lower post, was liable to be reverted solely on that ground, was not sound and the view expressed by Rama jois , J. in Syed Ziaulla's case was correct and the same calls for our acceptance. ( 13 ) SNYUTHS Datar and Sridharan have urged for accepting the views expressed by chandrakantraj Urs, J. in Thimmappa's case in their entirety. ( 14 ) WE have carefully read the order made by Chandrakantraj Urs. J. Thimmappa's case. We notice that the conclusions reached therein are without a full examination of all the Rules and the Act. We, therefore, propose to examine them in full necesssarily, independently. ( 15 ) A. preamble to an act generally opens the key to a proper understanding of that Act and that principle is also applicable to the Rules if there is a preamble to the Rules. The long preamble to the Rules states that for the purpose of ensuring that officials duties of persons appointed to public Services and posts in connection with the affairs of the State are satisfactorily performed, it was expedient to make provisions requiring them to pass Kannada language examination and prescribed service examinations. ( 16 ) RULE I deals with the title and commencement of the Rules. Rule 2 defines certain terms that are found in the Rules. ( 17 ) RULE 3 (1) makes it obligatory for every Government servant, except the one holding a class-IV post and the one that is expressly exempted, to pass (i) the Kannada language examination and (ii) prescribed service examinations if any, in respect of the post held by him. Rule 3 (2) (a) (i) allows a period, of two years from 10. 1. 1974 to Government servants who are in service on that day for passing the Kannada language examination and the prescribed examinations, if any in respect of the post held by him. Rule 3 (2) (a) (i) allows a period, of two years from 10. 1. 1974 to Government servants who are in service on that day for passing the Kannada language examination and the prescribed examinations, if any in respect of the post held by him. Rule 3 (2) (a) (ii) deals with the cases of those that are appointed to Government service after the rules came into force, for whom a period of two years was initially allowed from the date of their appointment. The proviso to rule 3 (2) (a) requires the passing of examinations by probationer within the period of his probation. Rule 3 (2) (b) deals with cases of prescription of examinations after the commencement of the rules or the creation of a new post. But, the Karnataka Civil services (Service and Kannada ' Language examinations Third Amendment) Rules, 1976, (the 1976 Rules') framed by the governor under the proviso to Article 309 of the Constitution published in the Notification No. GAD 30 SSR 76 dated 24. 4. 1976 (Published in the Karnataka gazette dated 29. 4. 1976) which came into force on 1. 5. 1976 (vide sub-rule (2) of rule 1 of the Said rules) making necessary amendments to Rule" 4 of the Rules, extended the period for passing the prescribed examinations by one more year from 1. 5. 1976 or till 30. 4. 1977. The 1976 rules also extended the period by one year for those for whom the service examinations were prescribed for the first time after the Rules came into force on 10. 1,1974. ( 18 ) AS seen from the long preamble, the act has been enacted to remove uncertainties and confusions in the matter of promotions and review of promotions, render the court decisions ineffective and further the object of the Rules framed on 10-1-1974. The Act has been given retrospective effect from 1-11-1956 [vide Section 1 (2) of the Act]. ( 19 ) THE term 'service Examinations' has been defined as the examinations prescribed by the rules. The term 'government Servant' has been defined as every one serving in connection with the affairs of the State of Karnataka either as an allottee or otherwise. ( 20 ) SECTION 3 of the Act that is material ' for our purpose reads thus: -"3. The term 'government Servant' has been defined as every one serving in connection with the affairs of the State of Karnataka either as an allottee or otherwise. ( 20 ) SECTION 3 of the Act that is material ' for our purpose reads thus: -"3. No service examination for the period from 1st November 1956 to 9th january 1974 (1) For the period commencing on 1st November 1956 and ending on 9th January, 1974, for the purpose of eligibility to promotion, no service examination shall be and shall ever be deemed to have been prescribed for Government servants. (2) A Government servant who, during the aforesaid period, was not promoted solely on the ground of not passing any service examination shall, if he has not already been promoted and if he is otherwise eligible, be promoted. (3) Every promotion under sub-Section (2) shall, notwithstanding anything in any judgement, decree or order of any court, be prospective only on and from a date after 10th January, 1974. Provided that- (1) The person promoted shall be entitled to initial pay on the date of actual promotion as if he was holding the promoted post from the date he would have been promoted but for not passing the service examination (hereinafter referred to as the eligiblity date) but such person shall not be entitled to payment of any arrears for the period prior to the date of actual promotion; (2) if the person to be promoted has retired from service prior to 10th January, 1974, he shall, if otherwise eligible, be deemed to have been promoted from the eligiblity date and his pension and Death-cum-retirement Gratuity shall be revised on the basis of the pay he would have drawn had he been so promoted from that date. "'section 3 (1) in clear and absolute terms declares that there were no service examinations whatsoever in between the period from 1. 11. 1956 to 9. 1. 1974. Any service examination earlier prescribed in any Rule or by an executive order is declared as not prescribed for the purpose of eligiblity to promotion of every Government servant in every department of Government from 1. 11. 1956 to 9. 1. 1974. Section 3 (2) that furthers the object of section 3 (1) directs that those persons who had not been promoted earlier from 1. 11. 1956 to 9. 1. 11. 1956 to 9. 1. 1974. Section 3 (2) that furthers the object of section 3 (1) directs that those persons who had not been promoted earlier from 1. 11. 1956 to 9. 1. 1974 on the ground that they had not passed service examinations shall be promoted if they are otherwise eligible for such promotion. Section 3 (3) provides for prospective promotions for purposes of monetary benefits, though for other purposes like fixation of initial pay and seniority the person promoted gets a deemed date of promotion. The effect of these promotions are that they are promoted when there were no examinations prescribed by the State for all purposes. ( 21 ) SECTION 5 of the Act directs a review of all earlier promotions made from 1. 11. 1956 to 9. 1. 1974. In order to give effect to the Rules and the Act there has necessarily to be a review of earlier promotions as on 10. 1. 1974 and again there should be another review as on 1. 5. 1977. Both these are the resultant consequences of the Rules and the Act and cannot be avoided by Government and its subordinate authorities. We are of the view, that the conclusion of Chandrakantraj Urs, J. on this, aspect is, therefore, correct. ( 22 ) SECTION 4 of the Act that is material reads thus:-"4. Service Examinations for the period from 10th January 1974 on and from 10th january, 1974. (a) Service examinations shall be the same as the prescribed examinations provided in the Karnataka civil Services (Service and Kannada Language Examinations) rules, 1974; and (b) every Government servant including a government servant promoted under subsection (2) of Section 3 shall be required to pass the service examinations as provided and for the purposes specified therein. Failure to pass shall entail the consequences specified in the said Rules. "sub-Section (a) of this section first declares that the examinations on and from 10. 1. 1974 shall be the examinations prescribed by the Rules. Even without such a declaration that will be the effect of the rules. Then sub-Section (b) of Section 4 provides that every Government Servant including the one that is promoted under sub-Section (2) of section 3 of the Act shall pass the service examinations as provided and for the purposes specified in the rules. Even without such a declaration that will be the effect of the rules. Then sub-Section (b) of Section 4 provides that every Government Servant including the one that is promoted under sub-Section (2) of section 3 of the Act shall pass the service examinations as provided and for the purposes specified in the rules. In other words, every Government servant is required to pass the examinations prescribed by the Rules within the permitted time. As a necessary consequence the section finally provides that the failure to pass service examinations by a government servant shall entail the consequences specified in the Rules. The consequences' that ensure for non-passing of the examinations have to be ascertained from the Rules. ( 23 ) IN ascertaining the true scope and ambit of the Rules on this aspect, it is necessary to bear in mind what was said by Lord Denning LJ. in SEAFORD court ESTATES LIMITED v. ASHET (1949 (2) All E. R. 155 at p. 164) referred to with approval by our supreme court, though not by the House of Lords in state OF KARNATAKA AND OTHERS v. M/s HANSA CORPORATION (AIR 1981 supreme Court 643 ). Therein the learned judge observed thus:-"whenever a statute comes up for consideration it must be remembered that it is not within human powers to fore see the manifold sets of facts which may arise and, even if it were, it is possible to provide for them in terms free from all ambiguity. The english language is not an instrument of mathematical precision. Our literature would be much the poorer if it were, this is, where the draftsmen of Acts of parliaments have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen, have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. It would certainly save the judges trouble if Acts of parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on - the constructive task of finding the intention of parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature. That was clearly laid down (3 Co Rep 7b) by the resolution of the judges (Sir Roger Manwood, C. G. , and the other barons of the Exchequer) in Heydon's case (1584)3 Co. Rep 7a and it is the safest guide to day. Good practical advice on the subject was given about the same time by plowden in his note (2 Plowd 465) to Eyston v. Studd, (1574)2 plowd 463. Put into homely metaphor it is this, A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases. Another important principle that we should bear in mind is that in construing provisions that are likely to result in near penal or drastic consequences on whom such a provision operates, courts must place a strict construction on those provisions and ensure only those consequences the language requires the courts to do (vide 'statutes Encroaching on rights of Imposing burdens' at pages 251 to 263 of Maxwell on interpretation of Statutes - Twelfth Edition ). ( 24 ) WE propose to divide the periods from 1. 11. 1956 into three broad periods; the first period from 1. 11. 1956 to 9. 1. 1984; the second period from 10. 1. 1974 to 30. 4. 1977 and the last period from 1. 5. 1977 and onwards and accordingly examine the consequences that flow from the Rules. ( 24 ) WE propose to divide the periods from 1. 11. 1956 into three broad periods; the first period from 1. 11. 1956 to 9. 1. 1984; the second period from 10. 1. 1974 to 30. 4. 1977 and the last period from 1. 5. 1977 and onwards and accordingly examine the consequences that flow from the Rules. Our reason for this broad division is that during the first period in law, at any rate, there were no examinations prescribed for government servants as condition of service or as a condition precedent for promotions and that during the second period, there were examinations prescribed on 10. 11. 1974 but time bad been granted for passing examinations till 30. 4. 1977 and that from 1. 5. 1977 and onwards, there was no question of exemption for not passing the prescribed examinations under the Rules. ( 25 ) THE first important Rule 3 (3) of the rules regulating the consequences, omitting the very last proviso to clause (a) of that rule allowing exemption to blind reads thus:-"3. (3) (a) Notwithstanding anything contained in the Karnataka Civil Services rules the Karnataka Civil Services (General Recruitement) Rules 1977 and Karnataka Civil Services (Probation) Rules 1977, no Government 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 sub-rules (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 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 1st November, 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 purposes of earning annual increments only. 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 purposes of earning annual increments only. (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 forty five years be entitled to fixation of his pay in the time scale of pay at the appropriate stage under Rule 51a of the karnataka Civil Services Rules. "in clear and mandatory terms, Rule 3 (3) prohibits confirmation of a Government servant in the post held by him as on 1. 5. 1977 or thereafter, other than those that are specifically exempted to the extent of exemption provided in the 2nd proviso of the same rule and rule 5 of the Rules. The non-confirmation of a Government servant in the post held by him makes his tenure preearious and exposes him to various consequences, the details of which are unnecessary to notice. This mandate of rule 3 (3) (a) governs every one holding their posts as on 1. 5. 1977 and thereafter irrespective of the fact whether an appointment or promotion had occurred in any one of the three periods. The same rule, in the same way directs that increments in the time scale of pay held by a Government servant and subject to the first proviso should not also be allowed. What we have said as to non-confirmation also applies to increments subject to the first proviso of Rule 3 (3) (a) of the Rules. Except for these consequences, Rule 3 (3) (a) does not provide for the consequences of a reversion from the post held by a Government servant promoted during the period from 1. 11. 1956 to 9. 11. 1974, during which period there were no examinations prescribed by the State. We do not find any provision in any other rule of the rules or the Act to hold to the contrary. At any rate in respect of promotions secured during the period from 1. 11. 1956 to 9. 1. 1974 during which period there were no examinations. 11. 1974, during which period there were no examinations prescribed by the State. We do not find any provision in any other rule of the rules or the Act to hold to the contrary. At any rate in respect of promotions secured during the period from 1. 11. 1956 to 9. 1. 1974 during which period there were no examinations. ( 26 ) THE first proviso to Rule 3 (3) (a) provides for allowing increments during the period for which time had been granted for passing the departmental examinations, as if they are not in operation for the said period except in the case of probationers. The Second proviso to Rule 3 (3) (a) governs the allottees under the SR. Act. The post held by an allottee as on 1. 11. 1956 and the first stage of promotion secured by him after he is allotted to the new state are protected or are exempted from the perview of the Rules and, therefore, the non-passing of examinations prescribed by the Rules cannot be enforced against persons, if any holding those posts. Except for this, the other promotions' viz. , second stage and other subsequent stages will attract the consequences of Rule 3 (3) (a) of the Rules as interpreted by us earlier. ( 27 ) THE consequences of non-confirmation and on-earning of increments in the post held that ensues to a Government servant are by themselves sufficiently serious. But, that is a consequence that specifically flows from the plain language of the Rules and cannot be avoided. At any rate for those promoted during the first period from 1. 11. 1956 to 9. 1. 1974, the Rules no where provide for reversion of a Government servant from the post held by him, on the ground that he had not passed the examinations for the post held by him as also the lower post, if any that was previously held by him. Unless the language of the rules provide for such a drastic consequence or result, we will not be justified in interpreting the Rules in that way. We are of the considered opinion that on any principle of construction of statutes, we will not be justified in interpreting the Rules as leading to the consequence of a Government servant promoted during the first period from 1. 1. 1956 to 9. 1. We are of the considered opinion that on any principle of construction of statutes, we will not be justified in interpreting the Rules as leading to the consequence of a Government servant promoted during the first period from 1. 1. 1956 to 9. 1. 1974 when there were no examinations but had not passed the Kannada language and service examinations within the period allowed by the Rules was liable to be reverted from the post held by him, if any. With respect we are of the view that the conclusion reached by Chandra Kantraj Urs, J. to the contrary, which does not flow from the rules is hot sound and correct. ( 28 ) WE will now deal with the effect of the Rules for the period from 10. 1. 1974 to 30. 4. 1977. ( 29 ) THE Rules prescribing examinations for all- departments of Government were published on 10. 1. 1974 and came into force from that day, however, allowing a reasonable time of two years in the first instance, which was extend till 30. 4. 1977 to pass the. prescribed examinations to the very post held by Government servants and the promotional posts if any to which their cases had to be considered for promotion. The Rules and the Act, made it obligatory for every Government servant to pass the examinations prescribed by the Rules during the said period. The period from 10. 1. 1974 to 30. 4. 1977 cannot be compared to the period from 1. 11. 1956 to 9. 1. 1974 during which period there were no examinations at all. The period from 10. 1. 1974 to 30. 4. 1977 should necessarily be read as the period during which there were examinations and all promotions made for vacancies arising during the said period, were subject to a condition that such a Government servant had to pass the prescribed examinations, if he had not already passed within the time allowed by the Rules. We must necessarily read such a condition when the promoting authority had not imposed a specifice condition to that effect in the very order of promotion. We must necessarily read such a condition when the promoting authority had not imposed a specifice condition to that effect in the very order of promotion. ( 30 ) WHEN a Government servant promoted during the aforesaid period passes the prescribed examinations, within the time allowed by the Rules, his promotion subject to all other relevant factors would become secure and will not be subject to the reversion or the other consequences contemplated by rule 3 of the Rules. But, when a Government servant promoted during the aforesaid period does not pass the prescribed examinations within the time allowed by the Rules, then such a Government servant is exposed to the consequences that ensure from the Rules. What then are the consequences that ensures for the said period calls for our examination. ( 31 ) THE consequences of non-confirmation and non-earning of increments in the time scale of the post held by a Government servant, which we have discussed earlier will ensure against such a person does not admit of any doubt. But, so far as his reversion, the Rules and the Act do not expressly provide for the same. Whether that can be the sole ground to hold otherwise is the next question. ( 32 ) WE have earlier held that from 10. 1. 1974 to 30. 4. 1977 there were examinations prescribed by the rules and all promotions made for vacancies arising in that period were subject to a condition that such a Government Servant should pass the prescribed examinations within the permitted time. If that be the true effect of the rules for the second period, it should necessarily follow from the same that when a Government servant does not pass the prescribed examinations within the time permitted by the Rules, then the very basis for his promotion stands removed or his promotion, necessarily becomes an 'ineligible' promotion. That must necessarily result in the reversion of such a Government servant from the promotional post, however hard that may appear to him. After all courts cannot avoid legal consequences to ensure on grounds of sympathy and hardship. That must necessarily result in the reversion of such a Government servant from the promotional post, however hard that may appear to him. After all courts cannot avoid legal consequences to ensure on grounds of sympathy and hardship. When a Government servant who is made aware of the necessity to pass the examinations, does, not pass them, with all the concessions of three years and three months and encouragement of grant of an additional increment for mere passing the examinations, he cannot lay the blame for his failures at the doors of others and contended that he will not suffer the inevitable consequences of reversion from the ' post held by him. Any other construction for the second period will make the Rules and the Act a mockery and will not be in accord with the scheme and object of the rules and the Act. We are therefore, of the considered opinion that Government servants promoted for the vacancies arising during the second period are liable to be reverted, if they do not pass the prescribed examinations within the time permitted by the Rules. ( 33 ) IN Syed Ziaulla's case the facts, in brief, were these; Syed Ziaulla who was working as a II Dn. Clerk in the Drugs control Department of Government from 2. 3. 1970 was promoted on 28. 3. 1977 as a i Dn clerk by the Drugs controller with the following conditions:-"the following incumbents are provisionally promoted on officiating basis against temporary vacancies in the interest of public service, without conferring any claim on them until further orders: this order comes into effect from 1. 4. 1977 forenoon. If any official has not yet passed the department examinations prescribed for previous posts, it is strictly instructed that they should pass the departmental examination prescribed for their promoted posts within a period of one year from this date failing which this promotion will be made invalid without any further notice. "syed Ziaulla did not pass the Kannada language Examination on or before 30. 4. 1977 or even within one year from the date he was promoted and, therefore, the drugs controller by his order dated 30. 9. 1978 reverted him from the post of a i Division Clerk to the post of a II Dn. Clerk. "syed Ziaulla did not pass the Kannada language Examination on or before 30. 4. 1977 or even within one year from the date he was promoted and, therefore, the drugs controller by his order dated 30. 9. 1978 reverted him from the post of a i Division Clerk to the post of a II Dn. Clerk. Syed Ziaulla challenged the said order of reversion before this court in Writ petition No. 13117 of 1978 in which he urged that the non-passing of the prescribed examinations did not entail reversion from the post held by him. On 7. 12. 1979 Rama Jois, J. accepted the said contention and while allowing the said writ petition, expressed thus:-"5. Sub-rule (3) of Rule 3 of the Rules provides that 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 examinations prescribed for promotion. In view of sub-rule (3), it is, no doubt true that the petitioner would not be entitled to any increments in the post of first Division clerk unless he passes bothi the Kannada language examination and prescribed examinations. But, there is no provision in the Rules providing for reversion of candidates who have been promoted prior to 1,5. 1977 on the ground that passing of Kannada language examination or prescribed examinations is a condition of eligibility for promotion after 1. 5. 1977. With respect to High Lordship, we are of the view that this construction placed by his Lordship is too literal and is opposed to the scheme and object of the Rules and the Act examined by us earlier at length. With respect, we, therefore, find it difficult to pursuade ourselves to subscribe to this view expressed by his Lordship. " ( 34 ) IN sustaining the reversion order in syed Ziaulla's case, it was urged for the state that the reversion was in terms of a condition imposed in the order of promotion. But, that contention was repelled by his Lordship by expressing thus:-"when according to Rule 4 of the rules passing of Kannada Language examination was not a condition of eligibility for promotion up to 1. 5,1977, the promotion secured by the petitioner before that date cannot be nullified by insisting the said condition immediately after 1. 5. 1977. But, that contention was repelled by his Lordship by expressing thus:-"when according to Rule 4 of the rules passing of Kannada Language examination was not a condition of eligibility for promotion up to 1. 5,1977, the promotion secured by the petitioner before that date cannot be nullified by insisting the said condition immediately after 1. 5. 1977. If the argument advanced on behalf of the respondents is accepted, a person who has been promoted without insisting on the passing of the Kannada language- examination or the departmental examinations on 30. 4. 1977 on the ground that the time for passing these examinations was amended upto 1. 5. 1977 on the ground that he has not passed the examinations. That is not the intention of the rule If a person, who has already secured promotion prior to 1. 5. 1977 failed to pass the Kannada language examination or the prescribed examinations, sub-rule (3) of Rule 3 of the rules will operate against him and he will not be entitled to earn increments. The person so promoted officiating basis though liable for reversion for administrative reasons, such as want of vacancy or unsuitability of the concerned official, cannot be reverted on the ground that he has not passed the Kannada language examination or the prescribed examinations. That is the only ground on which the petitioner was reverted. Therefore, the impugned order cannot be sustained. Earlier we have noticed the true effect of the Rules during the second period. The rules had given time till 30. 4. 1977 for passing the Kannada language examinations to those who were in service as on 10. 1. 1974. Even when new service examinations are prescribed in any department, time for passing them is prescribed by rule 3 (b) of the rules and the computation of time for the same must be with reference to the date of prescription of that Rule. But, such prescription also has no relevance in the passing of Kannada language examination made on 10. 1. 1974 for every department of government. After all the prescription of kannada language was to further the cause of efficient administration in the State. For those who were in service as on 10. 1. But, such prescription also has no relevance in the passing of Kannada language examination made on 10. 1. 1974 for every department of government. After all the prescription of kannada language was to further the cause of efficient administration in the State. For those who were in service as on 10. 1. 1974 and promoted on and after that day, there is no question of anybody granting any further time, at any rate, for passing Kannada language examination, either as a condition for promotion or otherwise. When that is no, the situation contemplated for a promotion made on 30. 4. 1977 and a reversion on the next day by His Lordship was of a nonexistent fact situation and opposed to the Rules. We are of the view that even this reason given - by His Lordship, with respect, is opposed to the Rules and is not sound. Unfortunately all these aspects were not highlighted before His Lordship and if they had been done, we have no doubt that His lordship would have reached the same conclusion as we have reached in these cases for all these reasons, with respect. We cannot pursuade ourselves to subscribe to the views expressed by. Rama Jois. In syed Ziaulla's case and we, therefore, over-rule the same. " ( 35 ) SO far as the third period from 1. 5. 1977 and onwards is concerned, the matter hardly admits of any controversy, rule 4 of the Rules that regulates the same reads thus. "4. Restriction on promotions and appointments by transfers. (1) After the expiry of a period of two years from the date of or from the date of prescription of the service examinations 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 examinations if any, for the holder of such higher post and the post already held by him. (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 examinations if any, for the holder of such higher post and the post already held by him. Provided that this clause shall not be applicable in respect of the first stage promotion to the higher post on or after 1st November, 1956, at 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. (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 10th January, 1974 and (b) for a period one year, from the date of expirty of two years from the date of such prescription in respect of holders of posts for whom the service examinations have been prescribed after 10th January 1974. 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 ates". On and from 1. 5. 1977 a Government servant cannot be promoted unless he has passed the Kannada Language and service examinations for the post held by him as also the promotional post. The passing of the prescribed examination for both the posts becomes a condition precedent or eligibility and there cannot be any relaxation in their compliance on any ground. The proviso to Rule 4 (1) exempts alloutees to the first stage promotion only an no other. The passing of the prescribed examination for both the posts becomes a condition precedent or eligibility and there cannot be any relaxation in their compliance on any ground. The proviso to Rule 4 (1) exempts alloutees to the first stage promotion only an no other. It is in the enforcement of Rule 4, the requirement of a Government servant passing the examinations for the post held by him and the higher post to which his case has to be considered for promotion on and after 1. 5. 1977 becomes important and not for effecting reversions for all the periods, as expressed by Chandrakantaraj urs. J. we need hardly say that this is not sound. An appointment by transfer from one post to another cannot be made unless the person to be transferred has passed the kannada language and service examinations prescribed to the transferee post. ( 36 ) WE have so far dealt with the only contention that was urged before us in all these cases. What now remains to be considered is only the reasonable time that should be fixed for the implementation of the order of this court by the authorities. ( 37 ) AS a result of the pendency of the writ petitions and writ appeals arising thereto before this court, review of promotions in the accounts Department in various cadres has not so far been undertaken and completed. The petitioner in Writ petition No. 17720 of 1980 has been seriously complaining that ineligible persons are not reverted and his case for promotion has not been considered though he is eligible and suitable and has already put in more than 15 years of service. In law and otherwise, a review of promotions and consideration of the cases of eligible persons cannot indefinitely be postponed which will only cause frustration to those that are legitimately antitled for consideration of their cases for promotion which is also the mandate of the Rules and the Act. We are, therefore, of the view that it would be proper to direct the appellants in the writ appeals and the respondents in the Writ petition to review the promotions with expedition. ( 38 ) IN the light of our above discussion, we make the following orders and directions:- (1) We modify the orders made by chandrakantaraj Urs. J. In Writ petitions nos. ( 38 ) IN the light of our above discussion, we make the following orders and directions:- (1) We modify the orders made by chandrakantaraj Urs. J. In Writ petitions nos. 5820, 5828, 5847, 5905, 6001 to 6006, 6010, 6011, 6104, to 6107, 6183, 6464, 5738 and 6305 of 1975 and Rama jois, J. in Writ petitions Nos. 68 of 1976 and 18465 of 1979 and in modification of those orders we make the following orders and directions :- (a) We declare that those that have been promoted within the first period viz. , 1. 11. 1956 to 9. 1. 197. 4 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 hot liable to be reverted to the lower posts solely on the ground that they 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 10. 1. 1974 and have been promoted on and after 10. 1. 1974 to 30. 4. 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 , 1. 5. 77 if they have not passed the Kannada language and service examinations so prescribed on or before 30. 4. 1977. (c) We declare that the State Government and its subordinate authorities that are competent, are bound to review the earlier promotions as on 1. 5. 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. 5. 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 appeal 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 even within a period of 6 months from the date of receipt of the order of this court. ( 39 ) WRIT appeals and writ petition are disposed of in the above terms. But, in the circumstances of the cases, we direct the parties to bear their own costs. ( 40 ) LET this order be communicated to the appellants in the writ appeals and the respondents in the Writ petition, within 15 days from this day. Let a copy of this order be also furnished to Sri. V. C. Brahmarayappa learned Government Advocate within the same time. --- *** --- .