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2002 DIGILAW 1232 (RAJ)

Badan Singh Meena v. State of Rajasthan

2002-07-16

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - The petitioner seeks to quash the order dated October 30, 2001 whereby the services of the petitioner were discharged under Explanation (2) of Rule 39 of the Rajasthan Police Subordinate Service Rules, 1989 (in short 1989 Rules). 2. Contextual facts depict that the petitioner came to be appointed as Sub- Inspector (AP) on probation vide order dated November 11, 1999 after being declared successful in the examination conducted by the RPSC. On December 1, 1999, the petitioner reported on duty in Rajasthan Police Academy for Basic training. The petitioner thereafter appeared in the departmental examination but out of 22 papers he failed in two papers i.e. Out door papers and Qualifying paper as well as in aggregate. The petitioner was granted second attempt to clear departmental examination but on account of illness he could not appear in the examination and was declared failed and thus discharged from the services. The contention of the petitioner is that the respondents have flouted the procedure prescribed under Standing Order No. 14/92 in discharging the petitioner from the services. The petitioner was entitled to appear in supplementary examination but instead he was directed to make a second attempt and for that also adequate opportunity was not provided. Very action of the respondents in calling the petitioner to avail second attempt within short span was against the mandate of Standing Order No. 14/92. 3. The respondents in their written reply averred that the Standing Orders are only executive directions and they cannot override the Statutory Rules. Standing Order No. 14/92 dated June 6, 1992 does not help the petitioner in any way as the petitioner could not clear the requisite examination in two attempts and he was liable to be discharged form the service. Any interpretation of the Standing Order which goes contrary to the statutory rules cannot be said to be correct. Such interpretation will make the standing orders void. The Rajasthan Civil Services (Departmental Examination) Rules, 1959 were not applicable to those services which are governed by the special rules. The employees of the police department cannot claim three chances to pass the departmental examination. The language of Rule 39(2) of the 1989 Rules is mandatory. The petitioner was given second attempt to clear the departmental examination and the date of examination was notified to him but he did not appear. The employees of the police department cannot claim three chances to pass the departmental examination. The language of Rule 39(2) of the 1989 Rules is mandatory. The petitioner was given second attempt to clear the departmental examination and the date of examination was notified to him but he did not appear. The examination of firing was held on June 11, 2001. Instead of appearing in examination the petitioner left the place of his posting on June 10, 2001 and returned back on June 13, 2001. The petitioner in his application did not demand fresh chance to appear in the examination but only prayed that his presence may be recorded on June 13, 2001. As the petitioner absented himself from the examination he was rightly declared failed and in view of Explanation (2) of Rule 39 he was discharged from the service. 4. I have given my anxious consideration to the rival submissions. 5. It will be useful at the outset to refer extract of Rule 39 of 1989 Rules which reads thus "39. Confirmation, extension of probation and discharge. - A member of the service who successfully completes his probation period and passes the Departmental Examination prescribed by Director General of Police shall be eligible for confirmation at the end of the probation period, provided the Appointing Authority is satisfied that his integrity is unquestionable and that he is otherwise fit for confirmation. Explanation - (1) In case the Departmental Examination could not be held due to unavoidable circumstances even after completion of two years period, the candidate will become due for confirmation after passing of the departmental examination with effect from the date on which he completed the probation period. (2) In case a candidate of service under probation fails to pass the prescribed examination in two attempts, he shall be liable to be discharged from such post in the manner as a probationer or reverted to a lower post, if any, to which he may be entitled : Provided further that no person shall be debarred from confirmation after the said period of service if no reasons to the contrary about the satisfactory performance of his work are communicated to him within the said period. (3) to (5) ** **** *** *** **" 6. Under Explanation (2) of the Rule 39, a candidate of service under probation is required to pass the prescribed examination in two attempts. (3) to (5) ** **** *** *** **" 6. Under Explanation (2) of the Rule 39, a candidate of service under probation is required to pass the prescribed examination in two attempts. The question therefore arises as to whether a candidate who on account of unavoidable circumstances did not appear in the examination would it be deemed that he did not make attempt yet failed to pass the examination ? 7. It is well settled that statute should be so interpreted that the same can be made applicable fairly and reasonably. A beneficial Legislation must be interpreted liberally. In Magor & St. Meelons R.D.C. v. New Port Borough Council, 1951(2) All E. R. 839 Lord Denning indicated that the duty of Court is to interpret the words that the legislature has used. Although a Court cannot supply a real casus omissus it is equally clear that it should not so interpret a statute as to create a casus omissus when there is really none. 8. Meaning of word "attempt" as would appear from The Law Lexicon 1997 Edition (Page 165) is "to make an effort or endeavour" or "a trial or physical effort to do a particular thing". It thus follows that if no effort made, such 'non-action' would not come within the ambit of 'attempt'. But if action of not making attempt is intentional it would mean that the effort to do a particular thing was deliberately abandoned. 9. In the case on the hand the petitioner could not appear in the examination on account of his illness. He himself did not abandon the examination therefore it cannot be said that any attempt was made by him to appear in the examination. Looking to the unavoidable circumstance i.e. illness of the petitioner the respondents were required to provide second attempt to the petitioner to pass the prescribed examination. The petitioner could not have been declared failed on account of his unintentional absence. The words "failed to pass the prescribed examination in two attempts" ought to have been interpreted liberally. "Unintentional absence" from the examination can not be interpreted as "making an attempt to appear in the examination." Ratio of Shiv Kumar v. Director Board of Technical Education, 2000(1) WLC (Raj.) 744 : (AIR 2000 Rajasthan 138) is not applicable in the facts and circumstances of the instant case. "Unintentional absence" from the examination can not be interpreted as "making an attempt to appear in the examination." Ratio of Shiv Kumar v. Director Board of Technical Education, 2000(1) WLC (Raj.) 744 : (AIR 2000 Rajasthan 138) is not applicable in the facts and circumstances of the instant case. In Shiv Kumar's case opportunity of two attempts was not availed deliberately in one year. In that case three year Diploma Course could be completed within a maximum period of Nine years. The petitioner in that case earned 139 credits in his eleven attempts but he could not earn required 140 credits. The petitioner had to earn full 140 credits within 12 attempts in maximum period of six academic years from the date of enrolment which expired long back therefore his enrolment was cancelled. This court observed thus:- " --- when there is specific regulation that within a particular period, a student has to complete the attempt then even if he availed that opportunity or not will be of no consequence. If he has not availed of an opportunity of two attempts in one year then it has to be counted in attempts...." 10. In view of what I have discussed hereinabove, the impugned order dated October 30, 2001 whereby the petitioner was discharged from the services, cannot be sustained. 11. In the result the writ petition succeeds and stands allowed. The order dated October 30, 2001 is set aside and the respondents are directed to forthwith (preferably within two months) conduct the prescribed examination for the purpose of providing the petitioner second attempt to pass the said examination. If the petitioner gets success in the examination, appropriate orders may be passed under Rule 39 of 1989 Rules in regard to confirmation of the petitioner. No order as to costs.Petition allowed. *******