Ram Kishore v. State of Rajasthan — 1993 DIGILAW 163 (RAJ)

Honble SINGHVI, J.—Petitioners, Ram Kishore and Heera Lal, who have attained the age of 54 and 48 years respectively and who are presently holding the posts of Assistant Town Planner, have jointly filed this writ petition with a prayer for issue of direction to the respondent to make year-wise determination of vacancies in the cadre of Deputy Town Planner and also that the respondents be restrained from compelling the petitioners to appear in the departmental examination which are being held under the Rajasthan Civil Services (Departmental Examinations) Rules, 1959. (2). On the recommendations of the Departmental Promotion Committee which met in the year 1991, petitioner Ram Kishore has been assigned the promotion quota of 1979 and petitioner Heera Lal has been assigned promotion quota of the year 1981-82 in the cadre of Assistant Town Planner. Both the petitioners have claimed that they fulfill the conditions of eligibility for promotion to the post of Deputy Town Planner because with their retrospective promotion, they have a right to count their experience with reference to the year in which they have been treated as promoted. The petitioners have pleaded that although Rule 9 of the Rajasthan Town Planning Service Rules, 1966 imposes a mandatory obligation on the appointing authority to make year-wise determination of vacancies, such determination has not been made for number of years and this has resultedn in non consideration of the candidature of petitioners for promotion as Deputy Town Planner. (3). The petitioners have also stated that vide Circular dated 12.3.1992 the Director-cum-Registrar, Departmental Examinations, has declared the time-table of departmental examination for Assistant Town Planners of the Urban Planning Department and the petitioners are being compelled to appear in the departmental examination. The petitioners have stated that they made representations to various authorities of the Government for exempting them from appearing in the departmental examination in view of decision of this Court in Basti Ram Mangal vs. State, (1). However, the departmental authorities are still insisting that the petitioners should appear in the departmental examination. (4). In their reply the respondents have stated that for the purpose of promotion to the post of Deputy Town Planner the petitioners have to pass the departmental examination and to undergo such training as the Government may from time to time prescribe. However, the departmental authorities are still insisting that the petitioners should appear in the departmental examination. (4). In their reply the respondents have stated that for the purpose of promotion to the post of Deputy Town Planner the petitioners have to pass the departmental examination and to undergo such training as the Government may from time to time prescribe. While admitting that the petitioners have been allotted years 1979 and 1981-82 respectively, the respondents have pleaded that the petitioners cannot be considered for promotion because they have not passed the departmental examination as required by Rule 29(2) of 1966 Rules. Regarding determination of the vacancies, the respondents have pleaded that they are always prepared to comply with the provisions of the Rules. Year-wise vacancies have been determined and the petitioners cannot made a grievance against their so-called non-promotion. Petitioners are not confirmed on the post of Assistant Town Planner and, therefore, they cannot claim any right to be considered for promotion. Respondents have also stated that Basti Ram Mangals case (supra) is of no help to the petitioners because the petitioners have not passed departmental examination envisaged by Rule 29(2) and Rule 31 of 1966 Rules. The petitioners do not want to appear in the examination and only for that reason they have approached to this Court. Shri Sanjay Pareek, learned counsel for the petitioners, has argued that in Basti Ram Mangals case this Court has struck down a part of Rule 18(1) of 1959 Rules and once that has happened, all those persons who attain the age of 45 years are exempted from passing the departmental examination. Shri Pareek argued that the exemption envisaged by Rule 18 applies to Rules 29 and 31 of 1966 Rules as well and, therefore, the petitioners cannot be compelled to appear in the departmental examination and no adverse action can be taken against them for their alleged failure to pass departmental examination. Shri B.L. Awasthi, learned Deputy Govt. Advocate, has on the other hand laid stress on the requirement of passing of departmental examination as laid down in Rules 29 and 31 of 1966 Rules. (5). For the purpose of appreciating the rival submissions it would be appropriate to refer to Rule 18(1) of 1959 Rules as it stood prior to 20.1.84 and as it stands after 20.1.84. Advocate, has on the other hand laid stress on the requirement of passing of departmental examination as laid down in Rules 29 and 31 of 1966 Rules. (5). For the purpose of appreciating the rival submissions it would be appropriate to refer to Rule 18(1) of 1959 Rules as it stood prior to 20.1.84 and as it stands after 20.1.84. It is also necessary to refer to Rules 22(1) and 22(5) of 1959 Rules as well as Rules 29 and 31 of 1966 Rules. These rules read as under:– 1959 Rules Prior to 20.1.84 After 20.1.84 "18.(1) Government employees, born before 1.01.1928 are exempted from appearing at the Departmental Examinations. After 20.1.84 18(1) Government employees who have attained the age of 45 years on or before 1.01.1982, are exempted from appearing at the departmental examination. 1959 Rules 22(1) A Government servant appointed on probation will not be confirmed unless he passes, in not more than 3 attempts, the Departmental Examinations prescribed for the service to which he belongs unless he is exempted under rule 18. 22(5) Notwithstanding anything contained in any other Service Rules, no person shall be considered for promotion to the next higher post or category of posts, except on an urgent temporary or officiating basis, unless he has passed the prescribed Departmental Examination for promotion, if any, held prior to such selection, or he has been exempted from appearing in such examination under rule 18 of these rules. If the prescribed Departmental Examination is not held during a year or before such promotions are considered, whichever is later, persons otherwise eligible for promotion may be considered provisionally for promotion on officiating basis, but they shall not be appointed on substantive basis unless they pass such examination in the first available opportunity and on failing to do so they shall be reverted to the post held by them prior to such promotion. If an official is prevented from appearing in such examination in the first available opportunity due to reasons beyond his control, and the concerned Appointing Authority is satisfied about such reasons, he may be allowed one more opportunity only. In such an event the person concerned shall be entitled to the restoration of his original seniority on passing the prescribed Departmental Examination. In such an event the person concerned shall be entitled to the restoration of his original seniority on passing the prescribed Departmental Examination. 1966 Rules 29 Period of Probation- (1) Every person appointed against a substantive vacancy in the service by direct recruitment shall be placed on probation for a period of two years and those appointed by promotion/special selection to any post against such a vacancy shall be on probation for a period of one year ; Provided that — (i) Such of them as have, previous to their appointment by promo-tion/special selection or by direct recruitment against a substantive vacancy, officiated temporarily on the post which is followed by regular selection may be permitted by the Appointing Authority to count such officiating or temporary service towards the period of probation. This shall, however, not amount to involve supersession of any senior person or disturb the order of their preference in respective quota or reservation in recruitment; (ii) any period after such appointment during which a person has been on deputation on a corresponding or higher post shall count towards the period of probation. (2) During the period of probation specified in sub-rule (1), each probationer may require to pass such Departmental Examination and to undergo such training as the Government may, from time to time specify. 31. Confirmation: - A probationer shall be confirmed in his appointment at the end of his period of probation, if - (a) he has passed the departmental examination and has successfully undergone such training as Government may from time to time specify; (b) he has passed a departmental test of proficiency in Hindi ; (c) Government is satisfied that his integrity is unquestionable and that he is otherwise fit for confirmation." (6). In Basti Ram Mangals case (supra) a Division Bench of this Court examined the validity of the expression on or before 1.1.82 appearing in Rule 18(1) of 1959 Rules as it stands amended vide Notification dated 20.1.84. In Basti Ram Mangals case (supra) a Division Bench of this Court examined the validity of the expression on or before 1.1.82 appearing in Rule 18(1) of 1959 Rules as it stands amended vide Notification dated 20.1.84. After considering the various submissions advanced before it, the Division Bench held that limiting the benefit of exemption from appearing at the departmental examination only to those persons who have attained the age of 45 years on or before 1.1.82 is illogical and irrational and it results in hostile discrimination between persons who have attained the age of 45 years on or before 1.1.82 and those attaining the age of 45 years after 1.1.82. The Division Bench has struck down the expression on or before 1.1.82 by declaring it to be unconstitutional. Once the Division Bench has struck down the expression on or before 1.1.82, the inescapable conclusion is that a government servant who has attained the age of 45 years is exempted from appearing at the departmental examination. It is, therefore, logical to hold that once the petitioners have attained the age of 45 years, they cannot be asked or compelled to appear in the departmental examination and no action to their prejudice can be taken by the respondents for their alleged failure to pass the departmental examination. (7). Argument of the learned Deputy Government Advocate that the petitioners have not cleared the departmental examination as envisaged in Rules 29 and 31 of 1966 Rules and, therefore, they cannot be considered for promotion, is wholly misconceived. It is not the case of respondents that departmental examination envisaged by Rules 29 and 31 of 1966 Rules is some examination which is other than the departmental examination held under 1959 Rules. That apart, a perusal of Rule 22(1) of 1959 Rules show that a government servant appointed on probation is not entitled to be confirmed unless he passes the departmental examination prescribed for the service to which he belongs in three attempts. The only exception is where the government servant is exempted under Rule 18. Likewise Rule 22(5), which begins with a non-obstante clause, lays down that no person shall be considered for promotion to the next higher post unless he has passed the prescribed departmental examination for promotion. The only exception is where the government servant is exempted under Rule 18. Likewise Rule 22(5), which begins with a non-obstante clause, lays down that no person shall be considered for promotion to the next higher post unless he has passed the prescribed departmental examination for promotion. Again an exception has been curved out namely where the government servant is exempted from appearing in such departmental examination under Rule 18 of 1959 Rules. It is thus clear that if 1959 Rules and particularly Rules 18 and 22 are read together with Rules 29 and 31 of 1966 Rules, it becomes absolutely clear that the departmental examination contemplated by Rules 29 and 31 of 1966 Rules is the same examination which is held under 1959 Rules. This being the legal position, there is no manner of doubt that when the petitioners have crossed the age of 45 years, they can neither be required to appear in the departmental examination, nor can they be denied consideration for promotion to the posts of Deputy Town Planner on the ground that they have failed to pass the departmental examination. (8). In the result, the writ petition succeeds and it is hereby allowed. It is declared that the petitioners are not obliged to pass the departmental examination in view of the exemption contained in Rule 18(1) of 1959 Rules, as it stands alter Basti Ram Mangals. case (supra). It is also declared that the petitioners are eligible for promotion to the post of Deputy Town Planner notwithstanding the fact that they have not passed the departmental examination. The respondents are directed to consider the case of petitioners for promotion on the post of Deputy Town Planner along with other eligible persons. If promotion has already been given to any junior person, then the petitioners cases shall be considered for such promotion with retrospective effect and necessary orders be passed within four months of submission of copy of this order. Costs made easy.