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2011 DIGILAW 435 (PNJ)

Yashpal v. State Of Haryana

2011-02-03

M.M.KUMAR, T.P.S.MANN

body2011
Judgment M.M.Kumar, J. 1. This order shall dispose of LPA Nos. 57, 65 and 71 of 2007 filed by the unsuccessful petitioner-appellants under Clause X of the Letters Patent challenging judgment dated 25.1.2007 rendered by the learned Single Judge dismissing CWP No. 9808 of 2005 filed by them. 2. The petitioner-appellants were selected as Sub Inspectors in the Police Department, Haryana, by the Haryana Staff Selection Commission. On 15.9.2003 they were offered appointments and deputed to one year basic training at the Haryana Police Academy, Madhuban w.e.f. 1.10.2003. They were required to pass the outdoor and indoor examination which were conducted from 13.7.2004 to 23.7.2004. On 24.8.2004, the result was declared and out of 83 candidates only 10 could pass the examination. It has been claimed that under Rule 3.8 of the Police Training Manual, the Board of Examination granted 30 grace marks and thus, 20 more candidates were declared pass. Thereafter, from 15.9.2004 to 27.9.2004 second examination was conducted and out of 53 candidates who had appeared, 46 were declared to have passed the examination. The petitioner- appellants are the unsuccessful candidates. Subsequently, in pursuance to an order dated 15.6.2005 passed by the Director General of Police, Haryana, the services of the petitioner-appellants were terminated by invoking Rule 12.8(1) read with Rule 19.25(1) of the Punjab Police Rules, 1934 (as applicable to Haryana) [for brevity, the Rules] by the respective Superintendent of Police. 3. Challenging their orders of termination, the petitioner appellants filed CWP No. 9808 of 2005 before this Court claiming that they were entitled to four chances to clear the said examination, which have not been afforded to them. It was also pleaded that even the examination were held before completion of one years training and sufficient time was not granted to them. The last submission made by them was that they have been discriminated in the matter of grant of grace marks because the Board of Examination has recommended grant of 3.5 and 5.5 grace marks in favour of Sarvshri Anoop Kumar and Sanjay Kumar, which has not been acceded to by the Director General of Police. Even if 20 grace marks were awarded to them in the second chance they would qualify the examination. 4. Even if 20 grace marks were awarded to them in the second chance they would qualify the examination. 4. The learned Single Judge, however, repelled the contentions raised by the petitioner-appellants by observing that Rule 12.8 and 19.25(1) of the Rules, which governs the directly appointed Sub Inspectors, nowhere prescribes the tenure of training and number of chances to be given to pass the prescribed examination. It is only in the cases of Deputy Superintendent of Police, Inspectors of Police and Probationary Prosecuting Sub Inspectors that under Appendix No. 3.4(2)(ii) of the Police Training College, Manual Phillour, Punjab, four chances could be given to pass the examination (R-5) which is not applicable in the case of the petitioner-appellants. In the opinion of the learned Single Judge the competent authority has already granted two chances to the petitioner-appellants but they could not qualify the prescribed examination, therefore, this Court cannot issue any direction. 5. We have heard learned counsel for the parties at a considerable length. It would first be necessary to analyse Rule 12.8 and 19.25 of the Rules and rule 3.8 of the Police Training Manual, which are relevant to the controversy. The same are set out below for a ready reference :- "12.8(1) Inspectors, Sergeants, Sub-Inspectors and Assistant Sub- Inspectors who are directly appointed will be considered to be on probation for three years and are liable to be discharged at any time during or on the expiry of the period of their probation if they fail to pass the prescribed examinations including the riding test, or are guilty of grave misconduct or are deemed, for sufficient reason, to be unsuitable for service in the police. A probationary inspector shall be discharged by the Inspector- General and all other Upper Subordinates by Range Deputy Inspector-General and Assistant Inspector-General, Government Railway Police, Assistant Inspector-General, Provincial Additional Police (designated as Commandant, Provincial Additional Police) and Assistant Inspector-General of Police (Traffic). No appeal lies against an order of discharge. A probationary inspector shall be discharged by the Inspector- General and all other Upper Subordinates by Range Deputy Inspector-General and Assistant Inspector-General, Government Railway Police, Assistant Inspector-General, Provincial Additional Police (designated as Commandant, Provincial Additional Police) and Assistant Inspector-General of Police (Traffic). No appeal lies against an order of discharge. Provided that the competent authority may, if it so thinks fit in any case, extend the period of probation by one year in the progress to and pass such orders at any time during or on the expiry of the extended period of probation as it would have passed during or on the expiry of original period of probation." "19.25 (1) Sub-Inspectors and Assistant Sub Inspectors, who are directly appointed, shall be deputed to the Police Training School to undergo the course of training laid down for such officers in the Police Training School Manual and are liable to discharge if they fail to pass the prescribed examinations or are badly reported on." "3.8(1) The functions of the Board shall be to conduct the examinations including the printing of question papers and the marking of answering books under their supervision. In the case of Probationary Prosecuting Sub Inspectors examination, however, the board shall hear and award marks for the opening speech. They shall also hold the viva voce test of the directly appointed non-gazetted officers after the compilation of their results; consider the college progress report of each probationer and communicate their opinion as to his suitability or otherwise for retention in service to the appointing authority. (2)(i) After compilation, the results of the final examinations shall be laid before the Board by the Principal for taking decision as to the success or failure of each examinee. While determining the same, the Board may hold oral examination or take into consideration his previous results of periodical tests and conduct during the course of training. (ii) The Board may award grace marks in deserving cases." 6. A conjoint reading of the Rules would show that if an Inspector, Sub- Inspector or Assistant Sub-Inspector etc. fails to pass the prescribed examination including the riding test then it can constitute a valid ground of their discharge apart from the ground of grave misconduct etc. Even the authorities may grant grace marks in deserving cases. A conjoint reading of the Rules would show that if an Inspector, Sub- Inspector or Assistant Sub-Inspector etc. fails to pass the prescribed examination including the riding test then it can constitute a valid ground of their discharge apart from the ground of grave misconduct etc. Even the authorities may grant grace marks in deserving cases. Thus, it is within power of competent authority as per Rule 3.8 and 12.8(1) to terminate the services of an employee if the employee concerned has failed to pass the departmental examination within the stipulated period. In that regard reliance may be placed on a Three-Judge Bench judgment of Honble the Supreme Court rendered in the case of State of Haryana v. Pankaj Choudhary, 2001 Supp (1) JT 529. 7. In these appeals, the petitioner-appellants have again sought to raise the same pleas which have already been dealt with by the learned Single Judge. An unsuccessful attempt has been made to persuade us to take a contrary view than the one taken by the learned Single Judge. However, we are not impressed by the submissions made by the learned counsel for the petitioner appellants. The learned Single Judge has rightly held that under the Rules, which are applicable to the petitioner-appellants there is no mention that four chances are to be afforded to them to clear the prescribed examination. Learned counsel for the petitioner appellants, have failed to point out any rule or some other piece of subordinate legislation applicable to the appellants for us to conclude that there is a provision for more chances. We cannot by judicial legislation introduce a provision. It seems that the competent authority by taking a lenient view has already granted them an opportunity to pass the examination by granting them second chance. But this does not give them an indefeasible and a vested right to claim more chances. Similarly, the petitioner appellants also cannot claim as a matter of right that they should also be granted grace marks. It may be true that on earlier occasion grace marks were granted but every time the competent authority may not deemed it proper to give grace marks to the petitioner-appellants. It would not arm the petitioner-appellants with a legal right to seek mandamus directing the respondents to grant grace marks once again. 8. It may be true that on earlier occasion grace marks were granted but every time the competent authority may not deemed it proper to give grace marks to the petitioner-appellants. It would not arm the petitioner-appellants with a legal right to seek mandamus directing the respondents to grant grace marks once again. 8. As a sequel to the above, there is no merit in these appeals warranting interference of this Court. Accordingly, the appeals fail and the same are dismissed. 9. A photocopy of this order be placed on the files of connected appeals.