Karsanbhai H. Parmar vs Director of Prohibition and Excise and Another

M.B. Shah, J.—The petitioner was promoted on 30th November, 1983 as Sub-Inspector of Prohibition & Excise from the post of Constable. As per Rule 2 of the Rules for the Departmental Examination of the Non-gazetted Prohibition & Excise Officers and Clerks of the Prohibition & Excise Department the petitioner was required to pass the departmental examination within the specified chances during the prescribed period. It is an admitted fact that the petitioner appeared in the examination six times and he has failed.

It is the contention of the learned Advocate for the petitioner that as the petitioner completed 50 years of age in the year 1987 under the proviso to Rule 2 of the Departmental Examination Rules the Government ought to have granted him exemption from appearing in the examination. Mr. Shah, learned Advocate for the petitioner, further contended that at the time of considering application for granting exemption the Government was required to consider only his service record. As against this, Mr. Joshi, the learned Assistant Government Pleader appearing on behalf of the respondents, pointed out that from 1983 to 1987 within specified years the petitioner has failed to pass the examination. Thereafter extra chances to appear in the examination were given to the petitioner. He further submitted that the reliance placed upon the proviso to Rule 2 is absolutely misconceived because as the time when the petitioner was promoted in the year 1983, he had not completed 50 years of age.

For deciding the said controversy, it would be necessary to consider Rule 2 of the Departmental Examination Rules and its proviso which reads as under:

Every person appointed to the clerical and non-gazetted executive service as Inspector or Sub-Inspector or Prohibition and Excise of the Prohibition and Excise Department who has not passed or who has not been exempted from passing either of the examinations prescribed (a) for the non-gazetted Prohibition and Excise Officers and Clerks of the Pre-Re-organisation. State of Bombay under Government Notification, Revenue Department No. 6416/39, dated the 20th April 1942, as amended from time to time, or (b) for the non-gazetted Executive and Clerical service of the Excise Department of the Ex-State of Saurashtra published under the Notification, Finance Department (Excise) No. FD./EX/E8-1/3386 dated the 6th January, 1953, as amended from time to time, shall unless specially exempted by Government, be required to pass an examination, in the subjects mentioned in Rule 4, within two chances during the period of 3 years from the date of his promotion or appointment (4 years in the case of Schedule Tribes, Schedule Castes and Other Backward Class persons).

Provided that Government, may in deserving cases, give one additional chance to appear for the Departmental Examination to a person who fails to pass the Examination within the period specified in this rule on the recommendations of the Director of Prohibition and Excise. No more chances shall be given to any person under any circumstances.

Provided further that the persons promoted to the clerical cadre or persons from the clerical cadre or constabulary cadre promoted to the non-gazetted executive cadre who are above 50 years of age and who are considered eligible for promotion on the basis of their record may be exempted by Government from passing the examination on the recommendation of the Director or Prohibition and Excise.

Note (i) :- The persons from the Ex-State of Saurashtra who have failed to pass the examination prescribed by the rules for the non-gazetted executive and clerical service of the Excise Department of the Ex-State of Saurashtra published under the Notification, Finance Department (Excise) No. FD./EX/E8-1/3386, dated the 6th January, 1953 inspite of the maximum permissible chances given to them and who have been debarred from further promotions under the said rules will not be required to appear and pase the examination under these rules, but they will continue to be debarred from further promotions.

Note (ii) :- The persons from the Ex-State of Kutch who were not required to pass any Departmental examination shall not be required to pass this examination.

Note (iii) :- In the case of the persons appointed after the formation of the State of Gujarat and prior to the date coming into force of these rules, who have not exhausted their chances for passing the examination, their time to pass the departmental examination within the prescribed number of years, under this rule will be regularised after deducting the number of completed years from the date of their promotion or appointment.

Note (iv) :- Being on leave does not exempt any persons from appearing for the departmental examination and failure to appear for such reason will be treated as a failure to pass the examination and he will not be entitled to additional chance under the first proviso to this rule.

Rule 2 in terms provides that those persons who have not passed the examination and who have not been exempted from passing either of the examinations prescribed shall unless specifically exempted by the Government, be required to pass prescribed examination, within two chances during the period of 3 years from the date of their promotion or appointment or 4 years in cases of Scheduled Tribes, Scheduled Castes and other Backward Class persons. The first proviso empowers the Government in deserving cases to give one additional chance to appear for the departmental examination. The second proviso provides that the persons promoted to clerical cadre or persons from the clerical cadre or constabulary cadre promoted to non-gazetted executive cadre who are above 50 years of age and who are considered eligible for promotion on the basis of their record may be exempted by the Government from passing the examination on the recommendation of the Director of Prohibition and Excise. This Rule, therefore, contemplates that-

(i) the persons promoted to clerical cadre of persons from the clerical cadre or constabulary cadre promoted to non-gazetted executive cadre who are above 50 years of age and

(ii) who are considered eligible for promotion on the basis of their record,

may be exempted by the Government from passing the examination on the recommendation of the Director of Prohibition and Excise. That means it gives discretion to the Government in certain cases to exempt persons who are promoted, who are above the age of 50 years and who are considered eligible for promotion at the age of 50 years or above on the basis of their service record. It nowhere provides that the Government can give exemption to those employees who after their promotion complete the age of 50 years or to those employees who have failed in the examination within the prescribed chances during the specified period but subsequently complete the age of 50 years. Therefore, it cannot be said that the petitioner was entitled to get exemption from appearing in the examination as soon as he completed the age of 50 years in 1987. Admittedly when he was promoted in the year 1983, he was below the age of 50 years.

Rule 3 of the Rules for the Departmental Examination provides as under:

In case a person fails to pass the examination within the number of chances allowed to him under Rule 2 he shall be reverted if he is a departmental promotee and discharged from Government service, if he was appointed by nomination.

Hence, this petition is rejected. Notice discharged. At the request of the learned Advocate for the petitioner, ad-interim relief to continue for a period of 15 days from today.