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Madhya Pradesh High Court · body

2013 DIGILAW 1214 (MP)

Minakshi Singh v. State of M. P.

2013-10-04

M.K.Mudgal, S.K.Gangele

body2013
JUDGMENT Gangele, J. -- 1. The appellant has filed this appeal against the order dated 12.3.2013 passed by the learned Single Judge in Writ Petition No.8104/2003. 2. The appellant was appointed on the post of Deputy Collector in M.P. State Administrative Services in the pay-scale 2200-4000 vide order dated 12.8.1997. It was one of the condition of appointment that the appellant had to clear the required examination, in accordance withthe rule 13(3) of M.P. State Administrative Services (Classification, Recruitment and Service Conditions) Rules, 1975 (hereinafter referred to as the Rules of 1975). The appellant was required to pass prescribed departmental examination during the period of probation and thereafter she shall be confirmed on the post. If the appellant did not clear the examination, her services could be terminated. The probation period of the appellant was initially for two years. 3. Vide gazette notification dated 17.1.1977, the General Administrative Department prescribed three subjects which had to be cleared by the appellant namely (i) Criminal, Civil, Administrative and Revenue Law and Procedure, (ii) Hindi, (iii) Accounts. 4. As per the aforesaid circular, Deputy Collectors were required to clear all the three subjects with higher standard, within the period of probation i.e. two years. The appelant clelared three subjects at the end of her probation period i.e. 31.8.1999. Meanshile, vide gazette notification dated 19.3.1999, General Administrative Department prescribed a new subject “Panchayat Raj Administrative Law and Procedure” in the examination. It was added from the date of publication of the gazette i.e. 19.3.1999.. The appellant appeared in the examination of the aforesaid subject in the month of July 1999 as mentioned by the respondents in the return. She did not clear the examination of the subject “Panchayat Raj Administrative Law and Procedure”. Hence, the department extended period of probation of the appellant for a period of one year vide order dated 2.7.2000. Finally, the appellant cleared the aforesaid subject on 27.1.2001 and she was confirmed w.e.f. 28.1.2001 and assigned the seniority accordingly. Other five persons, who had been appointed along with the appellant on the post of Deputy Collector, cleared the examination of three papers prior to the gazette notification dated 19.3.1999, hence, it was not necessary for them to clear the newly added subject “Panchayat Raj Administrative Law and Procedure”, they were assigned the seniority above the appellant. 5. Other five persons, who had been appointed along with the appellant on the post of Deputy Collector, cleared the examination of three papers prior to the gazette notification dated 19.3.1999, hence, it was not necessary for them to clear the newly added subject “Panchayat Raj Administrative Law and Procedure”, they were assigned the seniority above the appellant. 5. The appellant submitted a representation before the authority in regard to her confirmation and assigning seniority w.e.f. 28.1.2001 on the ground that in accordance with scheme of examination two years period was prescribed to qualify the examination. The appellant cleared all the three papers within the aforesaid period except “Panchayat Raj Administrative Law and Procedure” which was introduced as an extra subject vide gazette notification dated 19.3.1999, hence, it was not necessary for the appellant to clear the examination upto 31.8.1999 because for clealring examination in the subjects, a period of two years was prescribed and four chances were given to a probationer to clear the exam, however, in the present case only one chance was given to the appellant to clear the exam, it is illegal. Representation of the appellant was rejected vide communication dated 16.1.2003. Thereafter, the appellant filed an application before M.P. State Administrative Tribunal Bench Gwalior. After abolition of the Tribunal, it was transferred to the High Court and the learned Single Judge vide impugned order dismissed the writ petition. 6. Rule 13(3) of the Rules of 1975 prescribes that a probationer has to pass prescribed departmental examination by higher standard during the period of probation. The relevant rule is as under : “The probationer shall undergo the prescribed training and pass the prescribed departmental examination by the higher standard during the period of his probation.” 7. Learned Single Judge has held that the prescribed depoartmental examination means all the four subjects, which were required to be passed by the appellant during two years period of probation, because the appellant did not pass the examination within the stipulated period, hence, the department has rightly fixed the date of confirmation of the appellant w.e.f. 28.1.2001. 8. Learned counsel for the appellant has contended that the appellant has been treated arbitrarily and discriminately in regard to passing the fourth subject of departmental examination, which was introduced in March 1999. 8. Learned counsel for the appellant has contended that the appellant has been treated arbitrarily and discriminately in regard to passing the fourth subject of departmental examination, which was introduced in March 1999. The notification issued by the department was not applicable in the case of the appellant because it had been issued after commencement of probation period and the notification itself mentions that it would be applicable prospectively from the date of gazette notification, hence, the appellant was not required to clear the aforesaid paper within the limited two years’ probation period. 9. Contrary to this, learned Additional Advocate General has contended that in accordance with rule 13(3) ofr the Rules 1975, a probationer has to pass the prescribed departmental examination. It means that all the subjects which were prescribed by the department during the period of probation. Fourth subject was prescribed during two years of probation period of the appellant and because she did not clear the aforesaid subject, hence, the department has rightly fixed the date of confirmation of the appellant after passing the subject. Learned Additional Advocate General relied on the following judgments in support of his contentions : (i) M.S. Patil v. Gulabarga University [AIR 2010 SCW 6459]; (ii) Bhupendra Nath Hazarika v. State of Assam [ (2013)2 SCC 516 ]; (iii) Tej Prakash Pathak v. Rajasthan High Court [ (2013)4 SCC 540 ]; (iv) CMD/Chairman, Bharat Sanchar Nigam Ltd. v. Mishri Lal [ (2011)14 SCC 739 ]; (v) Punjab University v. Subhash Chander and another [AIR 1984 SC 1415]. 10. Question for consideration before this Court is whether fourth subject was included in the “prescribed departmental examination” within the tenure of probation period of the appellant of two years. 11. The period of probation of the appellant began w.e.f. 1.9.1997 when she was appointed to the post of Deputy Collector. Admittedly, at that time, the gazette notification dated 17.1.1977 was in existence. In accordance with the aforesaid gazette notification, a probationer has to clear three subjects within the period of probation of two years and four chances were granted to a probationer to clear the subjects. By way of gazette notification dated 19.3.1999 another subject “Panchayat Raj Administrative Law and Procedure” was included in the examination. It is mentioned in the gazette notification that this amended rule shall be made applicable from the date of publication in the gazette. By way of gazette notification dated 19.3.1999 another subject “Panchayat Raj Administrative Law and Procedure” was included in the examination. It is mentioned in the gazette notification that this amended rule shall be made applicable from the date of publication in the gazette. The procedure of examination in the case of the appellant had begun from the date of her appointment i.e. 1.9.1997. 12. Hon’ble Supreme Court in Tej Prakash Pathak and others v. Rajasthan High Court and others, reported in (2013)4 SCC 540 ], has considered the question in regard to change of rules by the authorities in the middle after the process of selection in public employment and held as under : “7. The question whether the “rule of the game” could be changed was considered by this Court on a number of occasions in different circumstances. Such question arose in the context of employment under the State which under the scheme of our Constitution is required to be regulated by “law” made under Article 309 or employment under the instrumentalities of the State which could be regulated either by statute or subordinate legislation. In either case of “law” dealing with the recruitment is subject to the discipline of Article 14. 8. The legal relationship between employer and employee is essentially contractual. Though in the context of employment under the State the contract of employment is generally regulated by statutory provisions or subordinate legislation which restricts the freedom of the employer i.e. the “State” in certain respects. 9. In the context of the employment covered by the regime of Article 309, the “law” -- the recruitment rules in theory could be either prospective or retrospective subject of course to the rule of non-arbitrariness. However, in the context of employment under the instrumentalities of the State which is normally regulated by subordinate legislation, such rules cannot be made retrospectively unless specifically authorised by some constitutionally valid statute. 10. Under the scheme of our Constitution an absolute and non-negotiable prohibition against retrospective law-making is made only with reference to the creation of crimes. Any other legal right or obligation could be created, altered, extinguished retrospectively by the sovereign law-making bodies. However, such drastic power is required to be exercised in a manner that it does not conflict with any other constitutionally guaranteed rights, such as, Articles 14 and 16, etc. Any other legal right or obligation could be created, altered, extinguished retrospectively by the sovereign law-making bodies. However, such drastic power is required to be exercised in a manner that it does not conflict with any other constitutionally guaranteed rights, such as, Articles 14 and 16, etc. Changing the “rules of game” either midstream or after the game is played is an aspect of retrospective law-making power. 11. Those various cases deal with situations where the State sought to alter (1) the eligibility criteria of the candidates seeking employment, or (92) the method and manner of making the selection of the suitable candidates. The latter could be termed as the procedure adopted for the selections, such as, prescribing minimum cut-off marks to be secured bny the candidates either in the written examination of viva voce as was done in Manjusree or the present cse or calling upon the candidates to undergo some test relevant to the nature of the employment (such as driving test as was in Maharashtgra SRTC).” 13. In para 11 of the aforesaid judgment, Hon’ble Supreme Court has considered all the previous judgments on the subject i.e. C.Channabasavaih v. State of Mysore [ AIR 1965 SC 1293 ]; State of Haryana v. Subhash Chander Marwah [(1974)3 SCC (L&S) 488]; P.K. Ramachandra Iyer v. Union of India [ (1984)2 SCC 141 :1984 SCC (L&S) 214], Umesh Chandra Shukla v. Union of India [ (1985)3 SCC 721 :1985 SCC (L&S) 919]; Durgacharan Mishra v. State of Orissa [ (1987)4 SCC 646 :1988 SCC (L&S) 36:(1987)5 ATC 148]; State of U.P. v. Rafiquddin [1987 Supp. SCC 401:1988 SCC (L&S) 183:(1987)5 ATC 257]; Maharashtra SRTC v. Rajendra Bhimrao Mandve [ (2001)10 SCC 51 :2002 SCC (L&S) 720]; Pitta Naveen Kumar v. Narasaiah Zangiti [ (2006)10 SCC 261 :(2007)1 SCC (L&S) 92]; K. Manjusree v. State of A.P. [ (2008)3 SCC 512 :(2008)1 SCC (L&S) 841]; Hemani Malhotra v. High Court of Delhi [(2008)7 SCC 11:(2008)2 SCC (L&S) 203]; K.H. Siraj v. High Court of Kerala [ (2006)6 SCC 395 :2006 SCC (L&S) 1345]; RameshKumar v. High Court of Delhi [ (2010)3 SCC 104 :(2010)1 SCC (L&S) 756]; Rakhi Ray v. High Court of Delhi [ (2010)2 SCC 637 :(2010)1 SCC (L&S) 652]; Hardev Singh v. Union of India [ (2011)10 SCC 121 :(2012)1 SCC (L&S) 390]. Where procedural rules were altered and held in para 15 that the State or its instrumentalities could not be permitted to tinker with the rules of the game in so far as the discretion of eligibility criteria is concerned. It means that the eligibility criteria is not permissible to be changed after the commencement of selection process. 14. Hon’ble Supreme Court further observed in para 7 of the aforesaid judgment that the law dealing with the recruitment is subject to discipline of Article 14. 15. Keeping in mind the aforesaid principle, it has to be examined that whether the case of the appellant is covered by Class I of the criteria formulated by the Hon’ble Supreme Court in Tej Prakash Pathak (supra), that the eligibility criteria of the candidate seeking employment is not permissible to be changed after commencement of selection process. 16. Rule 13(8) of the Rules of 1975 mandates that a probationer shall undergo the prescribed training and pass the prescribed departmental examination by higher standard during the period of probation. Vide notification dated 17.1.1977, three subjects were prescribed in the departmental examination namely; (i) Criminal, Civil, Administrative and Revenue Law and Procedure, (ii) Hindi, (iii) Accounts. It means that a probationer has to pass the prescribed departmental examination by higher standard in three subjects. Rule is mandatory in nature and without passing the prescribed examination within the period the probationer could not be confirmed and even his or her service could be terminated in accordance with rule 13(5) of the Rules of 1975, which mandates that “the service of a probationer, who does not pass the prescribed departmental examination, may also be terminated by the end of period of probation. Hence, for confirmation or continuing in service after expiry of probationary period passing of departmental examination with three subjects is essential condition for continuation in service. Fourth subject was added vide notification dated 19.3.1999. It was mentioned in the notification that it shall come into force from the date of publication in the gazette notification. In our opinion, the fourth subject could not be added after commencement of probationary period because it is condition of service and essential qualification which has to acquire by a probationer. Fourth subject was added vide notification dated 19.3.1999. It was mentioned in the notification that it shall come into force from the date of publication in the gazette notification. In our opinion, the fourth subject could not be added after commencement of probationary period because it is condition of service and essential qualification which has to acquire by a probationer. In accordance with the judgment passed by Hon’ble Supreme Court in Tej Prakash Pathak and others v. Rajasthan High Court and others, reported in (2013)4 SCC 540 , it would come under the purview of criteria No.1 fixed by the Hon’ble Supreme Court. 17. It is also a well settled principle of law that in interpreting the rule or statute or a circular, hardship inconvenience, injustice absurdity and anomaly be avoided. In this regard, we would like to quote some judgments of the Hon’ble Supreme Court. In Tirath Singh v. Bachittar Singh and others, reported in AIR 1955 SC 830 , Hon’ble Supreme Court has held as under : “Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.” 18. Hon’ble Supreme Court in New India Assurance Company Ltd. v. Nusli Neville Wadia and another, reported in (2008)3 SCC 279 , has held as under : “For proper interpretation not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein. With a view to read the provisions of the Act in a proper and effective manner, it is opined that literal interpretation, if given, may rise to an anomaly or absurdity which must be avoided. So as to enable a superior Court to interpret a statute in a reasonable manner, the Court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to whichwould require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled, which in turn would lead the beneficiary under the statutory scheme to fulfil its constitutional obligations. So done, the rules of purposive construction have to be resorted to whichwould require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled, which in turn would lead the beneficiary under the statutory scheme to fulfil its constitutional obligations. The provisions of the Act and the Rules in this case, are, thus required to be construed in the light of the action of the State as envisaged under Article 14 of the Constitution. With a view to give effect thereto, the doctrine of purposive construction may have to be taken recourse to.” 19. Constitutional Bench of the Hon’ble Supreme Court in Nasiruddin v. State Transport Appellate Tribunal, reported in AIR 1976 SC 331 , has held as under : “If the precise words used are plain and unambiguous, they are bound to be construed in their ordinary sense. The mere fact that the result of a statute may be unjust does not entitle a Court to refuse to give it effect. If there are two different interpretations of the words in an Act, the Court will adopt that which is just, reasonable and sensible rather that which is none of those things. If the inconvenience is an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if it is read in a manner in which it is capable, though not in an ordinary sense, there would not be any inconvenience at all; there would be reason why one should not read it according to its ordinary grammatical meaning. Where the words are plain the Court would not make any alteration.” 20. Hon’ble Supreme Court in State of M.P. v. M/s. Azad Bharat Finance Co. and another, reported in 1967 JLJ 153= AIR 1967 SC 276 , has held as under : “It is well recognised that if a statute lead to absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence.” 21. Hon’ble Supreme Court in Tej Prakash Pathak (supra), has held that the Court can also consider the rule in the light of Article 14 of the Constitution. 22. Hon’ble Supreme Court in Tej Prakash Pathak (supra), has held that the Court can also consider the rule in the light of Article 14 of the Constitution. 22. In the present case, the appellant was required to clear three subjects within a period of two years of probation and for that purpose four chances were given to the appellant in accordance with the rule. The probationer period of the appellant began from 1.9.1997 when she was appointed to the post of Deputy Collector and she had been given time of two years to clear all the three subjects of prescribed examination. She cleared all the three subjects within the aforesaid period four subject was added by way of gazette notification dated 19.3.1999. The examination of the aforesaid subject was held on 9.7.1999. The appellant was given only four months to clear the aforesaid subject. The other persons, who were appointed after the appellant after coming into force of the gazette notification dated 19.3.1999 were given two years to clear the fourth subject also. If the meaning of prescribed examination be interpreted that it would mean the prescribed examination with the subjects which were part of the examination at the time of holding examination would create anomaly and absurdity because suppose if the subject was introduced before one month of completion of probation period then also a probationer has to clear the subject within one month. It would be unjust and the interpretation in this fashion would lead absurdity and injustice. Hence, in our opinion, the interpretation of prescribed examination would mean the clearing of examination prescribed only with the subjects at the time of beginning of probationary period. It is also in consonance with the provisions of Article 14 of the Constitution because in that case every probationer would have equal opportunity and equal time to clear all the subjects prescribed in the examination. It is also in consonance with the principles enunciated to in Tej Prakash Pathak (supra), that the eligibility criteria is not permissible to be changed after initiation of selection process. 23. The arguments advanced by the learned Advocate General that the appellant could not challenge the examination on the principle of acquisance and estoppel because she participated in the examination is not tenable because the appellant did not appear in the examination voluntarily, it was mandatory. 23. The arguments advanced by the learned Advocate General that the appellant could not challenge the examination on the principle of acquisance and estoppel because she participated in the examination is not tenable because the appellant did not appear in the examination voluntarily, it was mandatory. Hon’ble Supreme Court has clearly held that if the fundamental rights of a person is affected, then he could not be ousted or debarred from challenging the action of the State on the principle of acquiescence or estoppal. 24. Constitutional Bench of Hon’ble Supreme Court in Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and others, reported in AIR 1961 SC 564 , has held as under in this regard : “14. Learned counsel for the respondent 4 has also submitted that the petitioner cannot be permitted to assert the invalidity of section 6(1) of the Act when he himself made an application for appointment as Village Munsif under the Act. He has drawn our attention to the decision in Venkata Subba Rao v. Ramakrishna Rao [ AIR 1958 A.P. 322 ]. That was a case where the appellant was appointed as a hereditary Karnam under the Act and but for the Act, he would not have had any claim to be appointed to the office of Karnam. It was held that he could not be permitted to contend for the first time in appeal that the very Act but for which he would not have had any right to the office, was unconstitutional. Apart from the question whether a fundamental right can be waived, a question which does not fall for consideration in this case, it is clear to us that the facts here are entirely different. The petitioner had the right to make an application for the new village office and he was accepted by the Revenue Divisional Officer. Respondents 1 to 3, however, passed orders adverse to him and in favour of respondent 4, acting on the principle of discrimination on the ground of descent only as embodied in section 6(1) of the Act. It is, we think, open to the petitioner to say that section 6(1) of the Act in so far as it violates his fundamental right guaranteed under Article 16 of the Constitution is void and his application for appointment must, therefore, be decided on merits.” 25. It is, we think, open to the petitioner to say that section 6(1) of the Act in so far as it violates his fundamental right guaranteed under Article 16 of the Constitution is void and his application for appointment must, therefore, be decided on merits.” 25. Hon’ble Supreme Court in Shree Mahavir Oil Mills and another v. State of J & K and others, reported in (1996)11 SCC 39 , has held as under : “We are unable to see any substance in the objection raised by Shri Verma that not having attacked the exemption notification when the rate of tax was four per cent, the appellants should not be allowed to question the same when the rate of tax has climbed to eight per cent. There can be no question of any acquiescence in matters affecting constitutional rights of limitations.” 26. Hon’ble Supreme Court in S. Sethuraman v. R. Venkataraman, reported in (2007)6 SCC 382 , has held as under : “The jurisdiction of the appellate authority pursuant to the order of the Division Bench, which it will bear repetition to state, was passed on consent of the parties is not in dispute but only because the appellate authority pursuant to the order of the Division Bench, which it will bear repetition to state, was passed on consent of the parties is not in dispute but only because the appellant consented to re-examination of the matter by the appellate authority, which it was otherwise entitled to, the same by itself could not have been found to be a ground for his becoming ineligible to challenge the final order passed by the appellate authority when a large number of jurisdictional errors were committed by it and were otherwise apparent on the face of the record. The Division Bench of the High Court in our opinion, therefore, was not correct in taking the aforementioned view.” 27. In view of the aforesaid judgments of the Hon’ble Supreme Court and the legal proposition of law, in our opinion, on the principle of acquiescence, the appellant could not be debarred or it could not be said that she has no locus standi to challenge the criteria or applicability of fourth subject introduced subsequently by way of gazette notification in the writ petition. 28. 28. Learned Additional Advocatge General further contended that the question raised in this petition has been referred by the Hon’ble Supreme Court in Tej Prakash Pathak (supra), to a Larger Bench. We have considered the judgment of the Hon’ble Supreme Court in Tej Prakash Pathak (supra). It is clear from the aforesaid judgment that the first proposition of law in regard to change of essential qualification has not been referred by the Hon’ble Supreme Court to a Larger Bench. We have already held that the inclusion of subjects in the prescribed examination comes within the meaning of essential qualification. Hence, the aforesaid contention is also hereby rejected. 29. In this view of the matter the judgments cited by the learned Additional Advocate General in support of his arguments have no applicability in the present case. 30. Consequently, the appeal filed by the appellant is hereby allowed. The order passed by the learned Single Judge is hereby quashed. The writ petition filed by the appellant is allowed. Orders (A-1 and A-2) are hereby quashed. It is ordered that the appellant shall be entitled her confirmation accepting that she had passed prescribed departmental examination within a period of two years of probation. She be assigned seniority and date of confirmation accordingly at par with similarly situated employees, who were appointed along with the appellant. The appellant shall also be entitled consequential benefits. The order be complied with within a period of three months from the date of receipt of copy of the order. Looking to the facts of the case no order as to costs. .............