Bhola Nath Sharma, Saroj Suri vs State of J & K

T.S. Doabia, J.—Order dated 29.7.1998 whereby powers has been exercised by the State Government under Rule 23 of the Jammu and

Kashmir Services (Classification, Control and Appeal) Rules, 1956, and in relaxation of the condition of passing examination as found enshrined in

the Jammu and Kashmir Accounts Services (Gazetted) Rules, is subject matter of challenge in this petition.

The petitioners in writ petition No. 2249/1999 represent the cadre of promotees. Same is the position in writ petition No. 2559/1999 preferred

by Bhola Nath Sharma and another. They are challenging the order passed by State Government on the plea that the officers mentioned in the

order and who figure as private respondents in the writ petitions on the ground that they could not be given relaxation. Once such person is Saroj

Suri. She has filed a separate writ petition No. 1513/2000. As controversy in all the petitions revolves round the interpretation of Rules quoted in

the order dated 29.7.1998 i.e. Rule 23 of the Jammu and Kashmir Services (Classification, Control and Appeal) Rules, 1956 and Rules 22 and

23 of the Jammu and Kashmir Accounts Services (Gazetted) Rules, these petitions have been taken up together for decision.

As indicated above, petitioners in writ petition No. 2249/1999 and writ petition No. 2559/1999 are promotees, whereas officials mentioned in

order dated 29.7.1998 are direct recruits, and so is the petitioner in writ petition No. 1513/2000.

The officials in whose favour order dated 29.7.1998 came to be issued, were appointed as Accounts Officers. Orders were issued from time to

time. In the case of respondents No. 4 to 7, appointment orders were issued on 21.2.1984. This was done vide Government order No. 333GAD

of 1984. In the case of other officials, whose names are mentioned from S. No. 5 to 16 in the order dated 29.7.1998, their orders were issued on

13.11.1992 vide Government Order No. 1065GAD of 1992. Ali Mohammad Ganai and Chaman Lal Ganjoo came to be appointed vide

Government order No. 62GAD of 1993 dated 21.1.1993. Those persons who were mentioned as S. Nos. 19 and 20 came to be appointed on

14.7.1994 vide Government Order No. 547GAD of 1994. The relevant Rules which are required to be dealt with are Rule 23 of Jammu and

Kashmir Services (Classification, Control and Appeal) Rules, 1956 and Rules 22 and 23 of the Jammu and Kashmir Accounts Services

(Gazetted) Rules, 1972. For facility of reference, these Rules are reproduced below :

Rule 23 of the Jammu and Kashmir Services (Classification, Control and Appeal) Rules, 1956 reads as under :

Appointment of members (1) A probationer shall, if substantive vacancy in the permanent cadre of the category for which he was selected

exists, be appointed to the service at the earliest possible opportunity in order of seniority and if such vacancy existed from a date previous to the

issue of the order of appointment, he may be so appointed with retrospective effect from such date or, as the case may be, from such subsequent

date from which he was continuously on duty as a member of the service.

(2) Where recruitment to any service shall normally be both by direct recruitment and by transfer or promotion, the provisions of subrule (1) shall

apply separately as regards :

(a) vacancies against which persons have recruited direct, and

(b) other vacancies.

(3) No probationer shall be required to produce a medical certificate of physical fitness before appointment as a member of the service :

Provided that in the case of a probationer who is not a member of any other service, the appointing authority may, if it has reason to believe that

the probationer's physical fitness has seriously deteriorated since he satisfied the authority under clause (c) of rule 17 require him to undergo a fresh

medical examination. If on such examination he is found to be physically unfit for the service for which he was selected the appointing authority shall

discharge him from the service.

(4) No person shall at the same time be member of more than one service.

Rules 22 and 23 of Jammu and Kashmir Accounts Services (Gazetted) Rules, 1972 reads as under :

Probation All persons appointed to the service by direct recruitment or otherwise to any class or category of the Service shall be on probation

for two years and their confirmation will be according to the provisions of the Jammu and Kashmir Services (Classification, Control and Appeal)

Rules, 1956.

Note : On occurrence of vacancies selection has to be made from amongst the direct recruits as well as promotees, and for unavoidable reasons it

may not be possible for the Commission to select the candidates from both the categories simultaneously. At such occasions the persons selected

against the promotion quota ahead of direct recruits will be appointed in an officiating capacity and their probation will commence from the date the

appointment of recruits against the direct quota is made.

Training and Departmental Examinations. All persons recruited direct to the Junior Scale shall have to undergo the Northern Zonal

Accountancy Training Institute (Theoretical and Practical) in SAC Part I and Part II examinations in accordance with the syllabus and rules

prescribed for the said examinations in Schedule XI of the Jammu and Kashmir CSRs. Government in the Administrative Department may, by a

special or a general order make suitable modifications with regard to practical training of the probationers direct recruits and also relax in their case

the condition of minimum service of 11/2 years as Junior Accountant prescribed for eligibility for appearing in Part II examination.

The training shall have to be completed by the direct recruits during the period of their probation which may be extended (but not beyond total

period of four years) to enable the probationers to complete their courses and examinations. The maximum chance in which each examination may

be completed successfully by the probationers will be two; provided that the total period of probation before successful completion of the

examination (Part I and Part II) shall not exceed four years. The probationer who fails to complete successfully the said examinations within the

period of probation including extensions, if any, granted shall be discharged or reverted to the post, if any, held by him substantively, as the case

may be. A person thus discharged or reverted shall not be entitled to any compensation.

The further fact is that all the incumbents who came to be appointed directly in the manner indicated above, were supposed to qualify the

departmental examinations compulsorily i.e. SAC PartI and SAC PartII. It is not in dispute that some of their officers have not passed these

examinations. It is also not in dispute that after completion of period of probation, the Government did not exercise the power to bring an end to

their service tenure. So far as rules are concerned, it has been categorically mentioned that if there was failure to pass the examinations, then the

appointing authority has to snap the relationship of master and servant within ninety days. This, however, did not happen. The officers belonging to

the category of direct appointees and whose names are mentioned in the order dated 29.7.1998 represented to the State Government and pointed

out that on account of disturbances in Kashmir Valley, the were not in a position to take part and clear the departmental examinations. This fact

was taken note of. Again the fact that even the J&K Public Service Commission conducted examinations belatedly, was also taken note of.

Ultimately, sanction was accorded to the regularisation of all the aforementioned officers as Accounts Officers without insisting upon the

requirement of passing the departmental examinations. One time exception was given. Paragraphs 8, 9 and operative part of the order are

reproduced below :

Whereas some officers of 1992 batch from Kashmir Valley have also represented that they could not receive required theoretical/practical

training comprehensively due to disturbances prevailing in the valley.

Whereas the representations made by the officers were examined in the Finance department and the department has accepted the plea of the

officers relating to the belated conducting of examinations by the Public Service Commission and delay in imparting of training to the probationers

due to disturbed conditions in the Valley.

In the light of the aforementioned facts sanction is hereby accorded to the regularisation of the aforementioned officers as Accounts Officers

without qualifying the departmental examinations as a one time exception by virtue of Rule 23 of Jammu and Kashmir Services (Classification,

Control and Appeal) Rules. This relaxation shall not apply to any other officer who will be or has been appointed after issuance of Government

Order No. 547GAD of 1994 dated 14.6.1994.

The petitioners in writ petition No. 249/1999 and 2559/1999 submit that chance was given to the officials mentioned in the order to clear the

examination(s) but they were unable to do so. For this, reliance is being placed on annexure ""B/2"". It has been indicated therein that respondents

No. 4 to 7 have not qualified the examination till date. It is stated that they did avail chances from 1985 to 1989. Similar is the position with regard

to Abdul Rahim Rather and Mushtaq Ahmad Mir. They have failed in the examination. so far as Ravinder Singh, Usha Kiran, Karan Dewan and

Krishan Singh are concerned, they have passed the examination, but it was passed beyond the period of two years. So far as Naresh Kumar

Sharma, Suresh Kumar Sharma and Kulbir Kour Gujral are concerned, they were given three chances but did not qualify. So far as Raj Singh

Didwal is concerned, he passed the examination beyond the period of two years. Saroj Suri was given three chances. She has failed. Ashok

Kumar Sharma has passed beyond the period of two years. Ali Mohammad Ganai has failed. Chaman Lal Ganjoo has passed, but he has passed

this examination after four years. Bacchan Singh has failed. Bacchan Singh has passed the examination on 2.2.1999. Barnarsi Lal and Ram Kumar

have again failed in the examination.

So far as the failed candidates are concerned, they submit that they were not given any chance within the period of probation, and if any chance

was given to them that was after this period or probation expired. It is again submitted that even that was not a complete chance. They were

supposed to be given chances with regard to SAC PartI and SAC PartII examinations. This was never done.

The short question which arises for determination is whether on account of the nonclearance of the examination in the manner indicated by the

petitioners and even though this position is accepted as it is, the Government order dated 29.7.1998 can be declared as ultra vires of the Rules.

The statement made by the beneficiaries of this order is that no chance was given to them during the period of probation and in any case, it is

submitted that once after the initial period of probation was over and also after the extended period of probation came to an end, then this

requirement of passing examination(s) would be of no consequence. This is not mandatory now.

This precise question was considered by the Supreme Court in the case reported as State of Maharashtra v. Jagannath Achyut Karindikar, AIR

1989 SC 1133. In the above case, the State Government of Maharashtra had prescribed passing of departmental examination as a condition

precedent for promotion to the post of Superintendent. The examination was required to be conducted every year and the officials were to pass

the same within the stipulated period. Those who could not pass within the time frame were to lose their seniority and were to be promoted as and

when the qualified. The State Government of Maharashtra for reasons best known to it could not hold the examination every year. The

Government did not pass an order of extending the period prescribed for passing the examination nor promoted the seniors subject to their passing

the examination. The juniors who qualified were promoted overlooking the case of seniors. Ultimately, the State Government took a decision that a

person who has not passed the examination be given and restored his seniority. This decision was challenged. The High Court of Bombay

accepted the contention put across by those who had passed the examination. The matter was taken to the Supreme Court of India by the State of

Maharashtra. The decision of the High Court was reversed. It was observed that if the State Government had taken a decision to restore the

legitimate seniority of those persons who had not passed the examination, then no fault could be found with the same. The position in this case is

similar. As a matter of fact, the stand of the State Government is that rules do provide that if a probationer failed to complete his period of

probation successfully, then the State Government could terminate the services of such probationer. Action was initiated in October, 1996. The

probationers were asked to show cause as to why their services be not terminated. The aggrieved persons approached this court and the State

Government was directed to examine the case of the petitioners and also to examine as to whether in the matter of discharging the statutory

functions under the Rules, whether it was remiss or not. The State Government, accordingly, considered the matter and as after the period of

probation came to an end no action was taken to terminate the relationship of master and servant within 90 days, the view expressed was that the

officials mentioned in the order under challenge would be deemed to have completed their period of probation satisfactorily. It was on this

reasoning requirement to pass examination was waived.

I am of the opinion that this decision taken by the State Government cannot be faulted. This view taken by the State Government is fully

supported by the decision of the Supreme Court referred to above. Therefore, the exercise of power by the State Government in giving benefit of

Rule 22 of the J&K Accounts Service (Gazetted) Rules, to the officials mentioned in the order and further exercising power in terms of Rule 23 of

the J&K Civil Services (Classification, Control and Appeal) Rules 1956, cannot be faulted.

Independently of the above, if a probationer is allowed to continue beyond the period of probation, and if he has been working against a

permanent vacancy, then the presumption is that he would be deemed to have been confirmed. Such was the view expressed by the Supreme

Court in the case reported as State of Punjab v. Dhram Singh, AIR 1968 SC 1210.

From the above discussions it becomes apparent:

(I) That no examination was conducted within the initial period of probation;

(II) That after the period of probation was over, the State Government did not exercise the option to bring an end to the service tenure of the

direct appointees. This was supposed to be done within 90 days;

(III) That later decision taken with a view to exempt the direct appointees from taking part in the process of examination is in accordance with law.

This power could be exercised under the Rules quoted above. This exercise of power is again in consonance with the decision given by the

Supreme Court reported as State of Maharashtra v. Jagannath (supra);

(IV) That the above decision is in line with the decision given by the Supreme Court in case reported as State of Punjab v. Dharam Singh in which

the proposition laid down is that in case probation is not extended and the vacancies are available then an employee would be deemed to have

been confirmed.

In view of this, writ petition No. 2249/1999 and 2559/1999 are found to be without merit and are dismissed. So far as writ petition No. 1513

of 2000 is concerned, that is rendered infructuous, which shall stand disposed of accordingly.

Petitions dismissed.