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2019 DIGILAW 1308 (KAR)

State of Karnataka v. Sabeera Patel C Biradar

2019-06-17

L.NARAYANA SWAMY, R.DEVDAS

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JUDGMENT : R. DEVDAS, J. 1. The State of Karnataka has preferred these writ petitions assailing the common order dated 04.06.2018 passed by the Karnataka State Administrative Tribunal (hereinafter referred to as 'the Tribunal' for the sake of brevity). 2. The brief facts of the case are that vide notification dated 25.06.2011, the Commissioner of Survey Settlement and Land Records, Department of Revenue, called for applications from eligible candidates to fill up 1834 posts of Surveyors. The respondents, who are qualified to be appointed as Surveyors were selected as Surveyors along with many other successful candidates. The selected candidates, including the respondents were appointed as Surveyors by Official Memorandum dated 09.10.2013. 3. The appointment was in terms of the Karnataka General Services (Survey Settlement and Land Records Branch) (Recruitment) (Amendment) Rules, 2009. The appointments were also subject to certain conditions, one of which was that after the appointment the candidates shall be on probation for a period of two years, during which period they shall successfully undergo basic training at the Training Institute for a period of six months. The condition further stipulates that after the basic training, the candidates shall undergo a test in which they are required to qualify. Where a candidate is not successful, another attempt shall be provided. Further, if the candidate is unsuccessful, the unsuccessful candidate shall be removed from service. 4. It is an admitted fact that the respondents were unsuccessful even after the second test/examination. It is also relevant to notice that as per the Government order dated 08.07.2015, the Government had prescribed passing marks for theory papers as 50% and for practicals at 60%. It is submitted at the Bar that since majority of the selected candidates did not get through the first attempt, the State Government issued Government Order dated 05.12.2015, reducing the passing marks at 40% and 50% respectively. Despite the said relaxation, 18 candidates remained unsuccessful even after the second attempt. The 2nd respondent-Commissioner issued show cause notices to the unsuccessful candidates/respondents. The respondents have submitted their replies. Thereafter, the Commissioner, appointing authority passed an order dated 13.03.2018, exercising powers under Rule 6 of the Karnataka Civil Services (Probation) Rules, 1977, discharging the respondents from service. The State Government, by order dated 14.03.2018 ratified the action of the Commissioner and confirmed the order of discharge. Being aggrieved, the respondents approached the Tribunal. The respondents have submitted their replies. Thereafter, the Commissioner, appointing authority passed an order dated 13.03.2018, exercising powers under Rule 6 of the Karnataka Civil Services (Probation) Rules, 1977, discharging the respondents from service. The State Government, by order dated 14.03.2018 ratified the action of the Commissioner and confirmed the order of discharge. Being aggrieved, the respondents approached the Tribunal. The Tribunal allowed the applications by a common order and quashed the orders of discharge dated 13.03.2018, while directing the State Government and the Commissioner to grant one more opportunity to the respondents herein to complete the basic survey training and if they fail again, annual increment shall be denied to them permanently till they successfully complete the basic survey training. 5. Sri I. Tharanath Poojary, learned Additional Government Advocate submits that the order of the Tribunal is based on the Government Order dated 05.12.2015, whereby the State Government had ordered not only relaxation of passing marks, but also directed, as a one-time settlement, that if the candidates are unsuccessful even on the second attempt, instead of discharging them from service, their annual increments shall be withheld. 6. Learned AGA submits that such an order could not have been passed by the State Government, which would run counter to Rule 2 of the Karnataka General Services (Survey Settlement and Land Records Branch) (Recruitment) (Amendment) Rules, 2009 (hereinafter referred to as the 'Rules, 2009' for short). 7. In this regard, the learned Counsel places reliance on a judgment of the Hon'ble Supreme Court in the case of Ajit Singh and Others Vs. State of Punjab and Another, (1983) 2 SCC 217 . The learned AGA would further submit that the Commissioner, having found that the directions issued by the State Government vide Government Order dated 05.12.2015 are contrary to Rule 2 as stated above, communicated to the State Government that the directions contained in the Government Order dated 05.12.2015 insofar as non-discharge of the unsuccessful candidates is concerned, cannot be accepted. It is the contention of the learned AGA that having realized the position of law, the State Government confirmed the orders of discharge passed by the Commissioner. The learned AGA therefore submits that the impugned order passed by the Tribunal deserves to be set aside. 8. It is the contention of the learned AGA that having realized the position of law, the State Government confirmed the orders of discharge passed by the Commissioner. The learned AGA therefore submits that the impugned order passed by the Tribunal deserves to be set aside. 8. Per contra, Sri Jayakumar S.Patil, learned Senior Counsel appearing for the respondents would submit that the Commissioner cannot overlook the Government Order dated 05.12.2015, moreso, since the Government Order dated 05.12.2015 has not been revoked or modified by the State Government. 9. The learned Senior Counsel further submits that the decision of the State Government in G.O. dated 05.12.2015 has been passed bearing in mind similar such provision as found in the Karnataka Civil Services (Service and Kannada Language Examinations) Rules, 1974. It is also contended that the orders of discharge were rightly set aside by the Tribunal since they suffer from a basic infirmity, in that, they have been given effect to before it was confirmed by the next higher authority. 10. Heard the learned AGA and Sri Jayakumar S.Patil, learned Senior Counsel and perused the writ papers. 11. Rule 2 of the Karnataka General Services (Survey Settlement and Land Records Branch) (Recruitment) (Amendment) Rules, 2009 reads as under: 1. Method of Recruitment and minimum qualification:- In respect of each category of posts specified in column (1) of the schedule below, the method of recruitment and minimum qualification, if any, shall be as specified in the corresponding entries in column (2) and (3) thereof. SCHEDULE Category of posts Method of Recruitment Minimum Qualification Director, Survey, Settlement and Land Records XXXXX XXXXX XXXXX XXXXX Second Division Surveyors For Direct recruitment: (a) XXXx (b) XXXx (c) XXXx (d) XXXx (1) XXXx (2) ...... After appointment; candidate shall be on probation of TWO years during which period all officials shall successfully undergo basic Survey Training at departmental training institute, for a period of SIX months and candidates selected under category (b) shall undergo training for a period of NINE months. However unsuccessful officials shall be given one more opportunity to appear and pass the examination. If they fail again, they shall be discharged, from service. 12. The condition stipulated in the order of appointment, is therefore in terms of Rule 2 of Rules, 2009. 13. It is by now well settled principle of law that an executive order must be in conformity with the rules. If they fail again, they shall be discharged, from service. 12. The condition stipulated in the order of appointment, is therefore in terms of Rule 2 of Rules, 2009. 13. It is by now well settled principle of law that an executive order must be in conformity with the rules. Power of the State Government to issue executive instructions is confined to filling up of the gaps or covering the area which otherwise has not been covered by the existing rules [see Union of India Vs. Central Electrical & Mechanical Engineering Service (CE&MES) Group A (Direct Recruits) Assn. CPWDA and Others, (2008) 1 SCC 354 . 14. This Court is of the opinion that the Government Order dated 05.12.2015 which directed the Commissioner not to discharge unsuccessful candidates, but withhold the annual increments, cannot be sustained in the light of the Rules formulated under Article 309 of the Constitution of India. This Court therefore holds that the portion of the Government Order dated 05.12.2015 which directed the Commissioner/appointing authority not to discharge the unsuccessful candidates, cannot be sustained. Reliance placed on similar provision contained in Karnataka Civil Services (Service and Kannada Language Examinations) Rules, 1974, is misplaced. The relaxation contained in the Rules, 1974, is not available in Rules, 2009. Therefore, the argument that Government Order dated 05.12.2015 is based on similar provision contained in Rules, 1974, is misconstrued and unacceptable. 15. The next contention of the learned Senior Counsel that the impugned orders of discharge suffer from a basic infirmity, requires to be considered in the light of Rule 6 the Karnataka Civil Services Probation Rules, 1997. Rule 6 of the Karnataka Civil Services Probation Rules, 1997, reads as follows: "6. Discharge of a probationer during the period of probation:- Notwithstanding anything in Rule 5, the appointing authority may, at any time during the period of probation, discharge from service a probationer on grounds arising out of the conditions, if any, imposed by the Rules or in the order of appointment, or on account of his unsuitability for the service or post; but the order of discharge except when passed by the Government shall not be given effect to, till it has been submitted to and confirmed by the next higher authority." 16. The impugned orders of discharge are dated 13.03.2018. The impugned orders of discharge are dated 13.03.2018. It is an admitted fact that the orders along with the file notings were forwarded to the Government and the State Government put its seal of approval on 14.03.2018. Technically, the impugned orders are not in consonance with Rule 6(1) of the Probation Rules. In this regard, this Court upholds the opinion of the Tribunal that the impugned orders of discharge are hit by Rule 6 of the Probation Rules. 17. However, taking the overall facts and circumstances into consideration, on humanitarian grounds, this Court is of the opinion that another opportunity may be given to the respondents to successfully complete the test/examination as required by Rule 2 of Rules, 2009 and the conditions stipulated in the orders of appointment. To that extent the order of the Tribunal stands modified, while directing the State Government and the Commissioner to provide one more opportunity to the respondents to complete the basic survey training and the examination, failing which the Commissioner/appointing authority may proceed in accordance with law. It is ordered accordingly. In view of the disposal of the main matters, all pending interlocutory applications stand disposed of.