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2003 DIGILAW 1237 (BOM)

State of Maharashtra v. Fakira Shivlal Thakur

2003-12-04

F.I.REBELLO, N.V.DABHOLKAR

body2003
JUDGMENT - REBELLO F.I., J.:-Rule. Respondents waive service. By consent, heard forthwith. 2. The respondent had approached the Maharashtra Administrative Tribunal against the order dated 8-12-1994, by which his services came to be terminated. The respondent was relieved on 13-12-1994. His application before Maharashtra Administrative Tribunal, was numbered as original application No. 605 of 1995. Reliefs prayed for in the application were to set aside the order dated 8-12-1994 and for an order or direction, directing the respondents to reinstate the applicant in Government service and to given a further chance for clearing the departmental examination and in the alternative, to direct the respondents to exempt the applicant from clearing the paper in precis/Essay in English subject, by taking into consideration his academic records. During the pendency of the application, an interim order came to be passed by the Tribunal, on 16-2-2001. By the said interim order, the learned Tribunal has observed that the petitioner had made representations to the authorities. The learned Tribunal after noticing the various circulars in force, and the Rules observed that it appears that there is discretionary power to grant exemption and it would be appropriate that Government should dispose of the representation one way or other by taking into consideration all the relevant circumstances and pass appropriate orders. From the record, it appears that the representation was considered and rejected The main application then came up for consideration, which was disposed of by the impugned order dated 9-6-2003, alongwith another original application of Vinod Narsinhrao Patil, who is the respondent in Writ Petition No. 4149 of 2003. Relief was granted to the applicants as set out in the order namely that their case for exemption should be considered bearing in mind the tests to be applied as set out in the judgment. Aggrieved by the said order, the petitioner State of Maharashtra and others have preferred the said petition. At the hearing of the petition, on behalf of the petitioners, their learned Counsel has submitted that : (A) That, on a consideration of the rules in force, there is no power in the Government or in the authority to exempt a person, appointed by nomination to the Class-II of the Account services of the State of Maharashtra from the examination to be conducted in terms of the Rules in force. (B) Considering the Rules in force, the various directions given by the Tribunal in the manner in which the authorities of respondent No. 1 State should proceed to dispose of the representation, clearly amounts to exercise of jurisdiction not vested in law, there be no jurisdiction in the Tribunal to issue such directions, and (C) That, the order directing the respondent No. 1 and its offices to consider the representation in terms of the direction, is without jurisdiction and consequently order is liable to be set aside. 3. On behalf of the respondents, a reply has been filed. It is pleaded that considering the discretion exercised by the Tribunal, this Court should not interfere with exercise of discretion, in the exercise of that its extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. It is then contended that a perusal of the rules would indicate that there is power in respondent No. 1 to exempt a candidate, appointed by nomination from passing the examination, as required under the rules in force and lastly, it is contended that in so far as the papers on precis/essay writing is concerned, perusal of the rule in force will indicate that it has to be conducted in Marathi. In the instant case, it is pointed out that it was required to be answered in English. The respondent has cleared all the papers, except this paper and consequently, the action of the petitioners in declaring the respondent as failed, for failure to pass the paper in precis/essay writing, is without the authority of law and considering that the long period, the respondent is in service, this Court should, in the exercise of its extra ordinary jurisdiction, direct that the respondent is not required to pass the examination, as it was not conducted according to law and consequently, grant the relief of reinstatement. 4. From the above, a few facts may now be noted for the purpose of disposing of the issue, which arise in the present petition. From the record available before us, the respondent herein was appointed as a probationary Officer in MFAS Class II on 6-10-1980. The respondent failed to pass departmental examination within three years and six chances. 4. From the above, a few facts may now be noted for the purpose of disposing of the issue, which arise in the present petition. From the record available before us, the respondent herein was appointed as a probationary Officer in MFAS Class II on 6-10-1980. The respondent failed to pass departmental examination within three years and six chances. As the respondent failed to pass the departmental examination, within prescribed time limit and considering the terms and conditions of service, the services of the respondent No. 4 came to be terminated vide order dated 10-10-1986. The respondent herein filed writ petition before this Court being Writ Petition No. 5127 of 1986. Pursuant to the order passed by this Court, the respondent was reinstated in service w.e.f. 10-10-1986 vide order dated 23-4-1987 and was also given three more chances to appear in the examination. Respondent availed of all the three chances in October 1987, April 1988 and October 1988. He was, however, declared to be unsuccessful. The writ petition came to be subsequently transferred to the Maharashtra Administrative Tribunal, Mumbai and was numbered as Transfer Application No. 12 of 1995. That has been disposed of alongwith Original Application No. 605 of 1995 by order dated 9-6-2003 by the Aurangabad Bench of the Maharashtra Administrative Tribunal. The Original Application bearing No. 605 of 1991 as also similar applications were filed by various persons, wherein certain rules were challenged. The learned Tribunal, by its order dated 6-11-1992 held that Rule 3 of Rules dated 3-12-1967 of the Maharashtra Finance Accounts Service, Class II Examination Rules, 1967 was legal and valid. However, on the facts and circumstances of the case, directed that persons who had approached the learned Tribunal as well as those who have not approached, should be granted one additional chance to pass the concerned examination and if they fail to do so and if they fail in the examination, they ought not to be granted any further chance. In order to avoid repetition, we may advert to the relevant directions issued by the learned Tribunal to the extent that they are relevant. Direction No. (i) reads as under : "All the petitioners in the petition pending before this Tribunal either at Bombay, Nagpur and Aurangabad, should be given an opportunity to appear at the examination scheduled to be held in April 1993. Direction No. (i) reads as under : "All the petitioners in the petition pending before this Tribunal either at Bombay, Nagpur and Aurangabad, should be given an opportunity to appear at the examination scheduled to be held in April 1993. This is the last chance which is granted to them, and if they fail to pass in this examination then the Government will be entitled to terminate their services." Direction No. V reads as under : "The employees who are not in the employment will not be paid any wages for the intervening period even after regularisation on the principle of "no work on pay", though on regularisation intervening period will be counted for all other purposes." Directions vi and vii reads as under : "vi. No further opportunity will be granted to anybody hereafter." "vii. the Government to extend the concession to other employees also who are similarly situated but have not filed the petitions before the courts. They should also be allowed to appear at the examination scheduled to be held in April 1993." As the respondent failed to pass the departmental examination, his services were terminated by order dated 8-12-1994, which was the subject matter of challenge in Original Application No. 605 of 1995, before the learned Tribunal. As adverted to earlier, by that order dated 16-2-2001, the petitioner No. 1 was directed to decide the representation of respondent. The petitioner No. 1 reconsidered the representation and rejected the same and it was communicated by order dated 17-8-2001 to the respondent. 5. We may now consider the relevant Rules for the purpose of deciding the controversy, which is in issue. We may first advert to Recruitment Rules, which are known as Maharashtra Finance Accounts Service Class II Rules. These Rules were notified on 1-2-1965. For the first time by that notification, a new account service, to be known as The Maharashtra Finance and Accounts Service (State and Subordinate) was constituted. The details of the posts, included in each class of service and the respective recruitment Rules are shown in Annexures A to E to the resolution. In so far as Class II is concerned, the recruitment Rules are shown in Annexure "D". Rule 1(b) of the said Rules, reads as under : "1(b) by nomination-- Recruitment to the posts by nomination shall be made on the basis of a competitive examination and viva voce and Personality Test. In so far as Class II is concerned, the recruitment Rules are shown in Annexure "D". Rule 1(b) of the said Rules, reads as under : "1(b) by nomination-- Recruitment to the posts by nomination shall be made on the basis of a competitive examination and viva voce and Personality Test. To be eligible for admission to the examination a candidate shall be Chartered or Associate Chartered or Incorporated or Registered Accountant or should possess a degree in Arts, Science, Commerce, Law, Agriculture or Engineering of a recognised University and should be not less than 21 years and not more than 30 years of age." Rule 4 reads as under : "4. A candidate appointed by promotion or by nomination will be required to pass the departmental examination and the examinations in Hindi and Marathi according to the prescribed rules unless he has already passed or has been exempted from passing such examinations". 6. For the purpose of conducting examination, rules were notified on 3-2-1967, which are known as Maharashtra Finance and Accounts Service Class II Officers Examination Rules, 1967. Rule 2 of the said rules reads as under: "2. The departmental examination prescribed for the officers appointed by promotion or nomination to the posts in the Maharashtra Finance and Accounts Service Class II shall be the Maharashtra Finance and Accounts service Class III Examination which is conducted by the Maharashtra Public service Commission in April/May and October/November every year." Rule 3 read as under-- "3. All candidates appointed by nomination to the posts in the Maharashtra Finance and Accounts Service Class II shall appear for and pass the examination before the completion of their period of probation. In the event of failure to pass the examination during the period of probation, Government may, at its discretion, dispense with the services of the candidates or deal with them in such manner as it deems fit". We may now advert to Rule 5, which confers discretion on the Government, to give more chances to a candidates, as set out in the said rule. The consequence of failure to pass the examination within the extended period, would entail once again the consequences of Rule 3, in so far as nominated candidates are concerned. Rule 6 then reads as under : "6. The consequence of failure to pass the examination within the extended period, would entail once again the consequences of Rule 3, in so far as nominated candidates are concerned. Rule 6 then reads as under : "6. Government may at its discretion grant exemption to the candidates appointed by promotion from passing the examination in special circumstances after recording the reasons therefor." Rule 7 reads as under : "7. Rules 2, 10, 11, 12 and 13 of the Maharashtra Finance and Accounts Service Class III examination Rules as contained in Annexure G to Government Resolution, Finance Department No. DAT 1064/584-C/XII, dated the 1st February, 1965, also apply to the officers in the Maharashtra Finance and Accounts Service Class II taking the examination." The examination rules for Maharashtra Finance and Accounts Service Class II Examination and which are known as The Maharashtra Finance and Accounts Service Class III Examination Rules, 1965 were also notified on 1-2-1965. Rule 10 of the said Rules reads as under : "10. The syllabus prescribed for this examination, the duration and the marks for each paper shall be as indicated in Appendix C to this Annexure." In Appendix C in Part II, V reads as under: V. Precis and draft-- (a) Passage or correspondence to be summarised .. 50 (b) Drafting of a letter .. 30 (c) Usage of words and correction of sentences .. 20 By a notification dated 9-11-1987, petitioner No. 1, in the exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, and in supersession of all existing rules, orders or instruments made in this behalf the Government of Maharashtra was pleaded to frame the Maharashtra Finance and Accounts Service, Class III Competitive Examination Rules, 1987. In these Rules, V, again reads as under: "V. Precis and Drafts-- (a) Passage or correspondence to be summarised .. 50 (b) Drafting of a letter .. 30 (c) Usage of words and correction of sentences .. 20 At the end, there are notes of which the relevant note reads as under: "Paper V(a) and V(b) shall be in Marathi only." 7. 50 (b) Drafting of a letter .. 30 (c) Usage of words and correction of sentences .. 20 At the end, there are notes of which the relevant note reads as under: "Paper V(a) and V(b) shall be in Marathi only." 7. Having set out the facts and the relevant Rules, and what has been contended by the respective parties, the questions for determination, which arise, will be as under: (A) Whether there is power in respondent No. 1 or its officers in terms of the Rules framed and adverted to earlier, to exempt a candidate, appointed by nomination from passing the departmental examination? (B) Whether the papers of Passage or Correspondence to be summarised and drafting of a letter, as contained in V(a) and V(b) of the Rules of 1987, and Note 1 thereto, would apply in so far as Class II Officers of the Maharashtra Finance and Accounts Service Class II Officers? (C) If yes, what is the relief that this Court can grant to the respondent. 8. With the above, we may answer the first contention. There is no dispute that the Recruitment Rules are in terms of Annexure "D" to the notification dated 1-2-1965. Since we are dealing only with the case of nomination, we will advert to the Rules to the extent that it applies to nomination only. A candidate, who is appointed and on probation, is required to pass the departmental examination and the examinations in Hindi and Marathi according to the prescribed Rules unless he has already passed or has been exempted from passing such examinations. The question then would be, whether this power is conferred on the petitioners to exempt a candidate from passing the departmental examination, as also the examination in Hindi and Marathi or it is only restricted to the examination in Hindi and Marathi. This Rule is relied upon on behalf of the respondent, who contends that there is power of exemption in petitioner No. 1 and as such the order of the learned Tribunal ought not to be interfered with. Rule 3 of the Officers Examination Rules, 1967, provides that in the event of failure to pass the examination during the period of probation, the Government may, at its discretion dispense with the services of the candidates or deal with them in such a manner, as it deems fit. Rule 3 of the Officers Examination Rules, 1967, provides that in the event of failure to pass the examination during the period of probation, the Government may, at its discretion dispense with the services of the candidates or deal with them in such a manner, as it deems fit. The question is what is the meaning of the expression "or deal with them in such a manner, as it deems fit". In so far as promotees are concerned, there is a specific rule, which provides that Government may, at its discretion, grant exemption to the candidate appointed by promotion from passing the examination in special circumstances after recording the reasons therefore. In other words, it is clear that in so far as promotees are concerned, there is a specific rule under which they can be exempted from passing the examination. If therefore, by a specific rule, in so far as promotees are concerned there is power to exempt and no Rule in so far as those appointed by nomination, is it possible to read into Rule 3, the power of exemption under the expression, deal with them in such manner as it deems fit. We may here point out that in the case of a candidate appointed on probation, such a candidate has to appear and pass the examination before the completion of period of probation. Rule 5 permits extension of the said period to pass the examination. In other words, a cojoint reading of Rules 3 and 5 would indicate that the expression deal with them in such a manner, as they deem fit, is that it is not necessary that the Government shall terminate a candidate appointed by a nomination, if he does not pass the examination within the period of probation but it has discretion to extend the period. Considering that it is open to the Government to extend the period for passing the examination. In case, where the probation period is extended and the candidate is allowed additional opportunity to pass the examination, then under Rule 3, instead of terminating the services, the Government can extend the period and permit him to pass the examination within such extended period. It is not possible to read into Rule 3, which is the power of termination, the power of exemption. It is not possible to read into Rule 3, which is the power of termination, the power of exemption. Rule 3, if read harmoniously with Rule 5, would reveal that it is to give more chances to a candidates to appear for the examination and on failing to do so, to terminate his services as can be seen from the language of Rule 5 itself. Apart from that, when specifically in so far as promotees are concerned a specific power has been conferred to exempt a promotee from passing the examination, what this would clearly reveal is that in so far as nomination on the reading of the Rules together, there is no provision to exempt such a candidate from passing the examination. Therefore, in so far as Rule 3 is concerned, it will not be possible for us to read the power of exemption as contended on behalf of respondent. 9. The only other Rule which has to be considered is Rule 4 of the Recruitment Rules of 1987. Rule 4 of the recruitment Rules, which we have adverted to earlier is in respect of both candidates, who are promotees as also those selected by nominations and it requires that candidates have to pass the departmental examination as also the exemption in Hindi and Marathi, we may note that the notification for recruitment Rules is dated 1-2-1965 and in so far as the examination rules are concerned, it is notified on 3-2-1967. If Rule 4 meant exemption from passing the departmental examination, we see no reason as to why there was need of a specific rule, namely Rule 6 in the Examination Rules of Class II Officers to confer a power on the petitioners to exempt promotees from passing the examination. Therefore a harmonious construction of Rule 4 of the Recruitment Rules and the Examination Rules of Class II Officers would mean that under Rule 4 what can be exempted, are exemptions from passing the examination in Hindi and Marathi and not departmental examination. So read, it is, therefore, clear that in so far as direct recruits are concerned, there is no power in the petitioners to exempt a candidate, appointed by nomination from passing the qualifying examination. So read, it is, therefore, clear that in so far as direct recruits are concerned, there is no power in the petitioners to exempt a candidate, appointed by nomination from passing the qualifying examination. Once that be the case, clearly the learned Tribunal exceeded its jurisdiction in issuing directions to the petitioners to consider the case of the petitioners for exemption and for retaining him in service. 10. We may now come to the next contention namely whether the papers in passage of correspondence to be summarised; and Drafting of a letter, have to be in Marathi and if not held in Marathi, what are the consequences. We have earlier adverted to the Rules. In the rules, notified in the year 1965, there is no note to the Rules or any provision, which says that the said papers have to be conducted in Marathi. For the first time, it has come under the Rules framed in the year 1987, pursuant to Note I. The question, therefore, is whether the Rules of 1987, which have superseded all existing rules, including the Class III Examination rules of 1967 are applicable or whether in case of Class II Officers, it is only the rules of 1967, which still govern them. We may at once note Rule 7 of the Examination Rules, 1967, which we have reproduced earlier. By virtue of these rules, what is made applicable in so far as Class III Rules are concerned, are only Rules 2, 10, 11, 12 and 13. The other rules have not been made applicable. In other words, by virtue of Rule 7 of the Rules of 1967, Rules 2, 10, 11, 12 and 13 of the Maharashtra Finance and Accounts Services Class III became incorporated or adopted as a part of the Rules of the Maharashtra Finance and Accounts Service Class II Officers Examination Rules, 1967. In other words, they become part and parcel of the said Rules and thus, the question arises as to whether the subsequent rules are applicable. In our opinion, the answer would be a clear No. Rules of 1987 are subsequent to the Rules of 1967. In terms of the recruitment Rules framed in the year 1965 what was made applicable were the recruitment Rules for Class III Officers, which were then in force. The Recruitment Rules for Class II Officers were also framed in the year 1965. In terms of the recruitment Rules framed in the year 1965 what was made applicable were the recruitment Rules for Class III Officers, which were then in force. The Recruitment Rules for Class II Officers were also framed in the year 1965. Thereafter in the year 1967, specific Rules were made for Class II Officers, whereby some of the Rules of Class III Officers were adopted in so far as Class II Officers are concerned. One of the Rules was of the examination. Therefore, a subsequent supersession of the Rules of 1967 by the Rules of 1987 considering the Rules of construction, in our opinion, would not result in the Examination Rules, which have been adopted or incorporated in the Rules of 1967, being superseded and substituted by the Rules of 1987. Such a construction is not possible. We have to read Rule 4 of the Regulation and the Examination Rules 1967 for the purpose of consideration. So construed, there is no provision for conducting the examination in Marathi in so far as two papers, adverted to earlier, in so far as Class II Officers are concerned. That being the case, we are of the opinion that the second contention, as advanced and argued on behalf of respondent, must also be rejected. 11. Considering that the contentions advanced on behalf of respondent are rejected, the question of grant of any relief would not arise. The order of the Tribunal, therefore, in our opinion, is clearly without jurisdiction in asmuch as there was no power under the Rules, conferred on the petitioners to exempt the candidate appointed by nomination from appearing for the departmental examination in terms of the 1967 Rules. In the light of that, the petition has to be allowed and Rule has to be made absolute in terms of prayer Clause "B". In the circumstances of the case, there shall be no order as to costs. Petition allowed. -----