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Judgment
Rama Jois, J.—The following question of law is referred for the opinion of the Full Bench:
"Whether the persons promoted to the next higher posts though they had not passed the service examinations prescribed for promotion to such posts, under the provisions of the Karnataka Civil Services (Service and Kannada Language Examination) Rules, 1974 during the period commencing from 10-11-974 up to 30-4-1977 in view of Rule 4 of, the Rules, are liable to be reverted on and after 1-5-1977 if by that time they had not passed the service examinations prescribed for the concerned promotional post under the: rule?"
The material facts necessary for answering the above question are these: the Governor of the State, in exercise of his powers under the proviso to Art 309 of the Constitution, promulgated the rules called ''The Karnataka Civil Services (Service and Kannada Language Examination) Rules, 1974, (hereinafter referred to as ''the Rules''), on 81-1974. The Rules came into force on 10-11-1974, the date on which the Rules were published in the Official Gazette. Rules 3 and 4 of the Rules read:
"3. Obligation On Government Servants To Pass Certain Examinations. - (1) Save as otherwise provided in these rules, every Government servant shall within the period prescribed in sub-rule (2) pass-
(i) the Kannada language examination, and
(ii) the prescribed examination, if any, in respect of the post held by him.
(2)(a) A Government servant, -
(i) in service on the date of commencement of these rules shall pass the said examinations within a period of two years from the said date;
(ii) appointed to any post on or after the date of commencement of these rules, shall pass the said examinations within a period of two years from the date of his appointment:
Provided that a person appointed to any post on probation shall pass the said examination within the period of his promotion.
(b) Where after the commencement of these rules, -
(i) a new service examination is prescribed for the holder of any post; or
(ii) a new post is created and service examinations are prescribed for the holder of the new post, by amending Schedules I and 11 pr in any other manner such holder shall pass the Kannada language examination and the said prescribed examination within a period of two years from the date of such amendment:
Provided that the State Government may by general or special order, and for reasons to be recorded in writing, extend the period under this sub-rule to such extent as it deems fit.
3(a) Notwithstanding anything contained in the Karnataka State Civil Services Rules, the Karnataka State Civil Services (General Recruitment) Rules, 1957, and the Karnataka Government Servants (Probation) Rules, 1957, no Government servant shall be confirmed in the post held by him, or shall earn an increment in the time scale of pay of the post held by him, unless he passes the Kannada Language examination and the prescribed examinations, if any, in accordance with the provisions of sub-rules (1) and (2),:
Provided that in the case of a Government servant other than a person appointed to any post on probation, the increment in the time scale of pay shall be granted during the period allowance under sub-rule (2) for passing the examinations.
Provided further that this sub-rule shall not be applicable to a Government servant who has been allotted or deemed to have been allotted to serve in connection with the affairs of the State of Karnataka u/s 115 of the States Reorganisation Act, 1956, while holding the post which he held on 1st Nov. 1956 or the higher post on first stage promotion.
(b) A Government servant who during any period does not earn increment in the time scale of pay of the post held by him under clause (a), shall on becoming eligible to such increment by passing the Kannada Language 1 examination and the prescribed examinations, i if any, be entitled to fixation of his pay in the time scale of pay at the appropriate stage under Rule 51A of the Karnataka Civil Services Rules.
Restriction On, Promotions And Appointments By Transfers - After the expiry of a period of two years from the of commencement of these rules, no Government servant shall be eligible.
(i) for promotion to any higher post unless he has passed the Kannada language examination and the prescribed examinations, if any, for the holder of such higher post.
Provided that this clause shall not be applicable in respect of the first stage promotion to the higher post on or after 1st November 1956, of a Government servant who has been allotted or deemed to have been allotted to serve in connection with the affairs of the State of Karnataka u/s 115 of the States Reorganisation Act, 1956,
(ii) for appointment by transfer to any post unless he has passed the Kannada language examination and the prescribed examinations if any, for the holder of such post."
The Rules prescribed the passing of Kannada language examination for every civil servant of the State except for those who were exempted on account of their having studied in Kannada language of the required standard in the course of their general education. In Schedule-I to the Rules, various service examinations were specified. In Schedule-II, the service examinations, which were required to be passed by civil servants belonging to the various cadres in different departments of the State Government, were specified. The examinations prescribed were for three purposes, namely, (i) for confirmation; (ii) for earning increments, and (iii) for promotion Every civil servant was required to pass the examinations prescribed for confirmation and for earning increments within the period of two years prescribed, unless the period was extended by any specific order of the State Government under the proviso to sub-rule (2) of Rule 3 of the Rules. However, the passing of examinations prescribed under R. 3 was subject to certain exceptions provided in the Rules and this is made clear by the opening words of Rule 3, namely, "Save as otherwise provided in these rules".
While no exception was made for passing the examinations prescribed for a post held by a Government servant for the purpose of earning increments and confirmation, as far as the passing of examinations prescribed for a higher promotional post was concerned, Rule4 expressly provided that no Government servant shall be eligible for promotion to higher posts unless he has passed the examination prescribed for such higher posts after a period of two years from the date commencement of the Rules. In view of this provision in respect of promotional posts in all the Department of the State Government, passing of such service examination was not a condition of eligibility for promotion even after 10- 1- 1974 up to 10- 1- 1976.
After the above Rules were framed, the Service Examinations Act, 1976, was I enacted by the Legislature. The passing of the Act became necessary in view of the confusion that had prevailed in the matter of prescription of departmental examinations particularly in respect of persons allotted from different integrating areas under S. 115 of the States Reorganisation Act with effect from 1-11-1956 on which date the new State was formed. There has been rules framed by the Government prescribing departmental examinations without securing the approval of the Central Government in respect of allottees as required under the proviso to I S. 115 of the States Reorganisation Act. In order to achieve uniformity and to put an end to the confusion that prevailed in the matter of prescription of service examinations for earning increments, confirmation and promotion right from 1-11-1956 and to ensure that all the civil servants are treated equally, the Act was enacted. Sections 3 and 4 of the Act read:
"3. No service examination for the period from Ist November 1956 to 9th January 1974(l). For the period commencing on Ist ill Nov. 1956 and ending on 9th Jan. 1974, for the purpose of eligibility to promotion service examination shall be and shall ever be deemed to have been prescribed for Government servants.
(2) A Government servant who, during the aforesaid period, was not promoted solely on the ground of not passing any service examination shall, if he has not already been promoted and if he is otherwise eligible, be promoted.
(3) Every promotion under sub-section (2) shall, notwithstanding anything in any judgment, decree or order of any court, be prospective only on and from a date after 10th Jan. 1974.
(4) Service Examinations for the period from 10th Jan. 1974. - on and from 10th Jan. 1974.
(a) Service examination shall be the same as the prescribed examination provided in the Karnataka Civil Services (Service and Kannada Language Examinations) Rules, 1974; and
(b) every Government servant including a Government servant promoted under subsection (2) of Section 3 shall be required to pass the service examinations as provided and for the purposes specified therein. Failure to pass shall entail the consequences specified in the said Rules."
As can be seen from S. 3 of the, Act, it provided that there were no service examinations with effect from 1-11-1956 tiff the date of the commencement of the Rules. Further S. 4 provided that the prescription of examination and their insistence shall be as prescribed in the Rules. The effect of the provisions of the Act was that the service examinations were to be insisted only in accordance with the Rules.
As stated earlier, the opening clause of R. 4 provided that no person shall be eligible for promotion unless he had passed the service examination prescribed for promotional post after the expiry of two years from the date of commencement of the Rules. The period of two years expired on 10-1-10976. Consequently on and after 10- 1- 1976 no person was eligible for promotion to the next higher post unless he had passed the service examination prescribed for such promotional post. However, an amendment was introduced to the Rules on 24-4-1976. The effect of the amendment was that R. 4, extracted earlier, was retained intact but it was re-numbered as sub-rule (1) and the following sub-rule (2) was inserted. It reads:
"(2) sub-rule (1) shall not have effect.
(a) for a period of one year from the first day of May 1976 in respect of holders of posts for whom service examinations were prescribed on 10-1-1974;
(b) for a period of one year from the date of expiry of two years from the date of such, prescription in respect of holders of posts for whom the service examinations have been prescribed after 10th January 1974."
The resultant position was that the period of exemption from passing the service examinations stood extended up to 1-5-1977. But a question arose as to whether the service examinations were to be insisted between 101- 1976, that is the date on which the period of two years prescribed in R. 4 came to an end, and 26-4-1976, that is, the date of amendment of the rules. The matter was referred ''to a Division Bench. A Division Bench of this Court in the case of K. Avinashchandra v. State Of Karnataka (1984) 2 Kant U 42, paragraph 10 held that the real intention of the rule making authority in introducing the amendment was to extend the period of exemption from passing the service examination without interruption up to lst May 1977. The resultant position was that the benefit of exemption from passing service examinations for promotion given under the rule, namely, the grant of eligibility for promotion without passing the service examination, which was originally up to 10- 11976, stood extended up to 1-5-1977. The said judgment has become final and it is common ground that till 1-5-1977 every civil servant who, according to his turn was entitled to be considered for promotion was eligible for promotion even if he had not passed the service examination prescribed for the promotional post concerned.
In the meanwhile, in the case of Thimmappa v. State Of Karnataka (1980) 1 Kant LJ 398, the question as to whether persons promoted without insisting on the passing of the service examinations during the period allowed by R. 4 were liable for reversion immediately after 1-5-1977, if they had not passed the service examinations prescribed for the promotional post, came for consideration. This case was decided by Chandrakantaraj Urs. J, on 6-11-1979. The learned Judge took the view that R. 4 only gave time till 1-5-1977 to pass the examinations and therefore if any person who has not passed the service examinations prescribed for the higher post was promoted during the said period and he did not pass the examination prior to 1-5-1977, he was liable for reversion immediately after 1-5-1977. Accordingly, a direction was issued to the State Government to take action for reviewing promotions made between 10- 1- 1974 and 1977 and to revert all those persons who had not passed the service examinations and to make promotions only of persons who had passed the service examinations.
Shortly thereafter, similar question came up for consideration in the case of M. Syed Ziaulla v. State of Karnataka, W. P. No. 13117/1978, D/- 7-12-1979, before one of us (Rama Jois, J.). In the said case the petitioner therein who had been promoted during -the exempted period, that is prior to 1-5-1977 to a higher post and who had been reverted to the lower post only on the ground that he had not yet passed the service examination, had challenged the order of reversion. The case was decided on 7-121979. The decision rendered earlier in Thimmappa''s case by another learned single Judge was not brought to the notice of the Court. In Syed Ziaulla case it was held that having regard to the express wordings of R. 4, the service examinations prescribed for promotion would become enforceable only after the expiry of the period prescribed in R. 4 and therefore a person promoted during the period of exemption granted by R. 4 of the Rules could not be reverted to the lower post solely on the ground that he had not passed service examinations prescribed for promotional post. The reversion was set aside.
The Government accepted the interpretation of R. 4 of the Rules in the case of Syed Ziaulla and did not prefer any appeal against that decision. The order made in that petition became final. The State did not accept the view taken by Chandrakantaraja Urs, J, in Thimmappa''s case (1980 (1) Kar LJ 398). It preferred an appeal against the judgment in Thimmappa''s case. The said batch of appeals were disposed of by a Division Bench of this Court. (1985) 1 Kar LJ 300. The Division Bench upheld the view taken by Chandrakantaraja Urs, J.
When these writ appeals came up for hearing before the Division Bench, the learned counsel for the State as also the learned Thimmappa''s case required reconsideration. They submitted that in the different departments of the State Government and in respect of various cadres, large number of persons were promoted in between 10-1-1974 and 1-5-1977 on the basis that the prescription of service examinations for promotion was not a condition of eligibility during that period and all of them have been continuing in the respective higher posts and have been promoted further also, and the implementation of the view taken in Thimmappa7s case would create considerable administrative dislocation and also hardship to large number of civil servants. They also submitted that in view of the plain language of S. 4 of the Act and the opening words of Rr. 3 and 4 of the Rules, the passing of service examination as a condition of eligibility for promotion became effective only with effect from 1-5-1977 and the rules did not contemplate the reversion of persons who were at the time of promotion eligible for promotion and who were found fit for promotion and had been promoted. It is in these circumstances, the Division Bench has referred the question, set out first, for the opinion of the Full Bench.
Sri. S. V. Jagannath, the learned High Court Government Pleader, Sriyuths K. S. Savanur, B.G. Sreedharan, and K. R. D. Kararit learned counsel for the appellants and Sri N. S. Prasad, learned counsel for respondent No. I in W.A.No. 2084/1980, have addressed arguments. All the learned counsel except Sri N. S. Prasad submitted that the interpretation of R. 4 in Thimmappa''s case (1980(1) Kar LJ 398) requires reconsideration and that the view taken in Syed Ziaulla''s case was correct and it should be accepted. Sri N. S. Prasad, learned counsel however, submitted that R. 4 must be interpreted as giving three years'' time for passing the examination and subject to reversion thereafter, if the service examinations were not passed within the time allowed.
Sri N. S. Prasad, learned counsel, invited our attention to the following paragraphs of the Division Bench judgment in Thimmapps''s case (1980(1) Kant U 398). It reads:
"24. We propose to divide the periods from 1-11-1956 into three broad periods; the first period from 1-11-1956 to 9-1-1974; the second period from 10-1-1974 to 30-4-1977 and the last period from 1-5-1977 and onwards and accordingly examine the consequences that flow from the Rules. Our reason for this broad division is that during the first period in law, at any rate, there were no examinations prescribed for Government servants as condition of service or as a condition precedent for promotions and that during the second period, there were examinations prescribed on 10-1-1974 but time had been granted for passing examinations till 30-4-1977 and that from 1-5-1977 and onwards, there was no question of exemption for not passing the prescribed examinations under the Rules.
xxx xxx xxx 29. The Rules prescribing examinations for all departments of Government were published on 10-1-1974 and came into force from that day, however, allowing a reasonable time of two years in the first instance, which was extended till 30-4-1977 to pass the prescribed examinations to the very post held by Government servants and the promotional posts if any to which their cases had to be considered for promotion. The Rules and the Act, made it obligatory for every Government servant to pass the examinations prescribed by the Rules during the said period. The period from 10- 1- 1974 to 30-4-1977 cannot be compared to the period from 1-11-1956 to 9-1-1974 during which period there were no examinations at all. The period from 10-1-74 to 30-4-1977 should necessarily be read as the period during which there were examinations and all promotions made for vacancies arising during the said period, were subject to a condition that such a Government servant had to pass the prescribed examinations, if he had not already passed within the time allowed by the Rules. We must necessary read with a condition when the promoting authority had not imposed a specific condition to that effect in the very order of promotion."
(Underlining by us)
The learned counsel submitted that the view taken by the Division Bench to the effect that R. 4 only gave time till 1-5-1977 for passing examinations and non-passing therefore entailed reversion, was, correct.
All the other learned counsel appearing for the parties and the learned Government Advocates for the State, however, maintained that having regard to the wording of R. 4 the only interpretation that was plausible was that the passing of service examination prescribed for promotional post as a condition of eligibility came into force only with effect from 1-51977 and this was in the form of an exception to R. 3 and the opening words of R. 3 expressly stated that it would have effect save as otherwise provided in the Rules.
After giving careful consideration to the rival submissions, it appears to us that the combined effect of the opening words of R. 3 and the opening clause of R. 4, is that while the prescription of service examination for the purposes of earning increments and confirmation came into effect immediately on the coming into force of the Rules, the condition of eligibility of passing the examination prescribed, for higher promotional post as a condition for promotion, was to come into effect only from 10-1-1976, which was later postponed to 1-5-1977. In other words, the effect of R. 4 was that after 10-1-1974 till 1-5-1977 every civil servant was eligible for promotion on the date when according to his turn in the seniority he was entitled to be considered for promotion, even though he had not passed - the service examination prescribed for the, higher promotional post and that after 1-51977 a civil servant would not be eligible for promotion unless he had passed those service examinations. It was not a case of bringing the prescription of service examination as a condition of eligibility for promotion with immediate effect, that is, on 10-1-1974, and giving time for passing the examination and in the meanwhile permitting temporary promotions to be effected subject to reversion after the period allowed for passing the examination came to an end. If that was the intention of the rule making authority the rule would have been on the following lines:
"During the period of two years from the date of commencement of the rules a civil servant may be temporarily promoted subject to his passing the service examination prescribed for the promotional post within the said period and subject to the condition that he shall be liable for reversion after the expiry of two years if he failed to pass the service examination before that date."
But the opening clause of R. 4 says that no civil servant will be eligible for promotion after the expiry of two years unless he passed the service examination prescribed for the promotional post. This clause clearly means that for a period of two years from the date of commencement of the Rules, which was subsequently extended up to 1-5-1977, civil servants would be eligible for promotion without passing the service examinations prescribed for the promotional post concerned. This clause has not received due consideration in Thimmappa''s case (1980 (1) KarLJ 398) and (1985(l) Kar LJ 300). Therefore, we are of the view that the saving clause incorporated in the opening part of R. 3 and the opening clause of R. 4 do not admit of the interpretation given in Thimmappa''s case.
For these reasons, we respectfully disagree with the interpretation of the Rules by the learned Judge and the Division Bench in Thimmappa''s case (1980 (1) KarLJ 398) and - (1985(l) KarLJ 300) and answer the question referred for our opinion as follows:
"The persons promoted to the next higher posts though they had not passed the service examinations prescribed for promotion to such posts, under the provisions of the Karnataka Civil Services (Service and Kannada Language Examinations) Rules, 1974, during the period commencing from 10- 1- 1974 up to 30-4-1977, in view of Rule.4 of the Rules, are not liable to be reverted on and after 1-5-1977 on the ground that they had not passed the service examinations prescribed for the concerned promotional post under the Rules."
Answered accordingly.