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2002 DIGILAW 101 (JK)

Ranjit Singh Broca v. State Of J. &K.

2002-04-11

B.L.BHAT, V.K.JHANJI

body2002
1. LPA (SW) No. 404/2001 and LPA (SW) No. 122/2002 arc directed against the order date 23-04-2001 of the learned Single Judge passed in SWP No. 2249/99 SWP No. 2559/1999 and SWP No. 1513/2000 whereby the learned Single Judge has dismissed SWP No. 229/1999 and SWP No. 1513/2000 being without merit and SWP No. 1513/2000 has been disposed of as having been rendered infructuous. 2. In brief the facts are that private respondents were appointed Accounts Officers pursuant to the competitive examination conducted by the competitive examination conducted by the J&K Public Service Commission . They belong to the batches of the years 1992. 1993 and 1994 and respondents Manzoor Ahmed Geelani, Mohd Shafi Khan . Amarjit Singh and Rattan Chand are of 1984 batch. They were appointed as Account Officers against recruitment quota. As per Jammu and Kashmir Accounts Service (Gazetted) Rules, promotees and direct recruits have quota in the ratioof 50:50. Appellants ( writ petitioners ) are promotees and have been promoted against their quota. They are aggrieved of the appointment regularisation of the private respondents namely, the direct recruits because of the issuance of Govt. Order No .218 of 1998 dated: 29-07-1998. The direct re-cruits were put on probation for period of two years in the first instance, which was subsequently extended by two years more. As per the rules the probationers were supposed to qualify the compulsory departmental examinations i.e. SAC Part -1 and SAC Part - II as laid down in the J&K Accounts Sendee (Gazetted) Rules. The rules provide that at least two chances each are to be availed of for qualifying (lie said examinations. As such direct recruits during the period of their probation were supposed to be given minimum four chances to qualify SAC Part-1 and SAC Part-II examination. The Public Service Commission which is responsible for conducting the examination could not conduct the same within the period of probation. Rules also provide that if within the prescribed period of probation the probationer fails to pass departmental examinations or acquire such qualification the government shall order termination of the services of such probationer. The Public Service Commission which is responsible for conducting the examination could not conduct the same within the period of probation. Rules also provide that if within the prescribed period of probation the probationer fails to pass departmental examinations or acquire such qualification the government shall order termination of the services of such probationer. Accordingly action was initialed and show cause notice was issued and the probationers were asked to show cause as to why their services be not terminated on their failure to pass qualify the departmental examination within the prescribed period of probaliona us provided under Rule 22 of the J&K Accounts Service (Gazetted) Rules. The direct recruits represented to the government that they could not qualify the prescribed departmental examinations within the period of probation due to belated conducting of the examination by the Public Service Commission. Some probationers of 1992 batch from Kashmir valley also represented that they could not receive required/ theoritical practical training comprehensively due lo disturbances prevailing in the valley. The repesentations made by the probationers were examined by the Finance Department and the plea of the probationer relating to the belated conducting of examination by the Public Service Commission and delay in imparting of training due to the disturbed conditions in the Kashmir valley was accepted. Accordingly, sanction was accorded to the rcgularisation of the probationers without their having qualified the departmental examination. The government made clear in Order No. 218-Fofl998 dated: 29-07-1998 that this relaxation would be one time exception and shall not apply to any other officer who will be or has been appointed after the issuance of Govt. Order dated 14-06-94. The appellants being aggrieved of the order dated 29-7-1998. (Sic) regularising the service of the probationers ( direct recruits) without they having qualified the departmental examination filed writ petition out of which present appeal has arisen. Learned single judge relying on the judgment of the Supreme Court in state of Maharashtra Vs. Jagan Nath, AIR 1989 SC 1133 has dismissed the writ petition holding that the decision taken by the government cannot be faulted. 3. Learned single judge relying on the judgment of the Supreme Court in state of Maharashtra Vs. Jagan Nath, AIR 1989 SC 1133 has dismissed the writ petition holding that the decision taken by the government cannot be faulted. 3. In these appeals the learned counsel appearing on behalf of the appellants contended that five private respondents had appeared in the examination beyond the period prescribed including the extended period of four years and that some of the private respondents have not passed the departmental examination even beyond the prescribed period, yet their services have been regularised. Further according to the learned counsel some other probationers who were required to pass the examinations have not passed the examinations, yet they have been regularised retrospectively over and above the persons who have duly qualified the departmental examinations . Precise submission of the learned counsel for the appellants is that the regularisation of the private respondents with retrospective effect and the placement of the private respondents over and above the appellants is totally illegal, in as much as the regularisation of the private respondents depended on their qualifying examinations within the period prescribed. Learned counsel also contended that the appellants are the only persons eligible for being placed in the selection grade of accounts officers and there after to the post of chief accounts officers on the basis of their length of service, whereas the private respondents are not entitled to promotion or to be placed over and above the appellants. 4. We have heard the learned counsel for the parties at length and gone through the record. Rule 22 of the J&K Accounts Service (Gazetted) Rules provides that all persons appointed to the service by direct recruitment or otherwise to any class or category of the service shall be put on probation for two years and their confirmation will be according to the provision of J&K. Civil Service (Classification Control and Appeal) Rules 1956 thereinafter to be referred as CCA Rules. Rule 23 of the J&K Accounts Service (Gazetted ) Rules further provides that all persons recruited directly to the junior scale shall have to undergo the accountancy training in northern zonal accountancy training institute (theoretical& practical) in SAC part -land part-II Examinations in accordance with the syllabus and rules prescribed for the said examinations in Schedule-XI of the J&K Civil Service Regulations. Rule also provide that training has to be completed by the direct recruits during the period of probation, which may be extended by two years more so as to enable the probationers to complete their courses and examinations. The maximum chance in which each examinations may be completed successfully by probationers will be two provided that the total period of probation before successful completion of examination (part - I & part -II) shall not exceed four years. 5. Record has revealed that the Public Service Commission conducted SAC part -1 examination in Oct., 1993 of which result was declared on 28-11-1994 . Second examination was held in Sept. 1995 and the result was declared on 8-8-1996. third examination was held in Aug. 1997 and the result was declared on 3-7-1998, later SAC part- II examination was held in March 1994 result of which was declaredon 6-1-1995, second examination of SAC part - II examination was conducted in Nov. 1995 and result was declared on 23-10-1996. like-wise third examination was conducted in April 1998 and the result was declared on 2-2-1999. This clearly shows that the private respondents were not provided with the requisite chance to qualify the examination during the probation period, which was extended by anther two years. The non holding of the examinations during the period of probation or within the extended period cannot be attributed to the private respondcnts. A s a matter of fact for the initial 2 years of probation, the public service commission did not conduct examination even once. The examinations held in 1993,1995 .& 1997 of SAC part-1 and in 1994. 1995 .& 1998 of SAC part - II did not provide chances which were to be made available to the private respondents during the period of probation or within the extended period. The private respondents were thus deprived of appearing and taking first and second chance as envisaged under rule 22 of J & K accounts service rules. It was for the public service commission to conduct the examinations at regular intervals and provide two chances to appear in each paper during the period of probation. Public service commission was bound to conduct departmental examination at regular intervals but failed to conduct the said examinations and provide requisite chances to the private respondents. It was for the public service commission to conduct the examinations at regular intervals and provide two chances to appear in each paper during the period of probation. Public service commission was bound to conduct departmental examination at regular intervals but failed to conduct the said examinations and provide requisite chances to the private respondents. The government with a view to remove hardship created to the probationers on account of non holding of the examinations by the public service commission and disturbed conditions prevailing in the valley on account of militancy acted tinder its plenary powers and regularised the services of the private respondents by relaxing the rules. Reason detailed in the Govt. order for giving relaxation in our view cannot be faulted. Reference in this regard may be made to the judgment of the Supreme Court in State of Maharashtra Vs. Jagan Nath Karindikar. AIR 1989 SC 1133. In the case before the supreme court passing of" departmental examinations was a condition precedent for promotion to the post ofsuperintendent. The State Government for the reasons best known to it could not hold the examination every year. This resulted into anomaly in as much as the juniors who qualified were promoted over looking the case of seniors . Taking this into consideration Stale Government took a decision that the persons who could not pass the examination be given the seniority. Their Lordships of the Supreme Court up held the decision of the State Government. The facts of this case are similar to the case before the supreme court. In view of the above no ground is made out to interfere with the order of the learned single judge. Therefore both these appeals are dismissed.