Naran Raiya Sindhal vs State of Gujarat

C.L. Soni, J.—This appeal under Clause 15 of the Letters Patent is at the instance of the original petitioner who had preferred petition under Article 226/ 227 of the Constitution of India seeking to quash and set aside the order dated 14.6.2012 passed by the respondent No. 1 whereby the appellant was ordered to be reverted to his original post of Gram Sevak on the ground that the appellant failed to pass departmental examination within the prescribed chances and prescribed time limit.

Learned Single Judge rejected the petition by observing that the promotion given to the appellant to the post of Extension Officer (Panchayat) was subject to the condition that the appellant was required to pass the departmental examination as prescribed by the statutory Rules within the specified chances and was liable to be reverted on failure of passing such departmental examination. Learned Judge has further observed that the appellant was given prescribed chances to pass the examination but he could not clear the same and thus, he failed to comply with the condition of order of promotion dated 19.8.1996.

We have heard learned advocates for the parties.

Learned advocate Mr. Nirav Sanghavi for the appellant submitted that though it is true that the appellant could not pass the departmental examination within the prescribed chances under the old rules, however before reversion of the appellant was effected by the impugned order, the Rules for departmental examination, called as The Extension Officer, Class-III (Panchayat)/Taluka Panchayat Officer, Departmental Examination Rules, 2009 (''the Rules) came into force and in these Rules, it is clearly provided that employees who were appointed by promotion to the post of Extension Officer and had not passed departmental examination, held under the old rules shall unless he had been exempted from passing such examination under these rules be required to pass the said examination within specified chances from the date of his completing five years'' continuous service from the date of promotion or within 3 years from the date of commencement of these rules whichever is later. Mr. Sanghavi submitted that after the above-said Rules came into force, no departmental examination was held. Mr. Sanghavi submitted that since no examination was held, the appellant could not avail any chance and therefore, consequence provided in these Rules would not ensue. Mr. Sanghavi thus submitted that the impugned order of reversion passed against the appellant was in clear breach of Rule-6 of the Rules and therefore, learned Single Judge ought to have allowed the petition and quashed and set aside the order impugned in the petition. Mr. Sanghavi submitted that only before few days of the retirement, the order of reversion came to be passed against the appellant which would deprive the appellant of all the consequential benefits of promotional post. Mr. Sanghavi thus urged to allow the petition.

Learned Assistant Government Pleader Mr. P.P. Banaji and learned advocate Mr. H.S. Munshaw for the respondents submitted that there is no dispute about the fact that the appellant availed of 8 chances under the old rules, still could not pass the departmental examination. They submitted that the new Rules will have no application to the case of the appellant as the appellant was required to pass departmental examination under the old rules and the appellant once having failed to pass departmental examination within the prescribed chances and prescribed time limit under the old rules, he had incurred disqualification of continuing on the promotional post. Learned advocates for the respondents submitted that since the appellant failed to comply with the condition of the promotional order, there is no illegality in the impugned order whereunder the petitioner was ordered to be reverted to his original post. They, therefore, submitted that this Court may not interfere with the judgment rendered by the learned Single Judge.

Having heard learned advocates for the parties, it appears that when the appellant was promoted by order dated 19.8.1996 to the post of Extension Officer (Panchayat), one of the conditions in the order of promotion was to pass the departmental examination within the prescribed time limit and prescribed chances. It is mentioned in the said condition that on failure of passing such examination, the appellant shall be reverted to his original post or the appellant shall remain bound by prevailing rules or instructions of the Government.

It appears from the order dated 22.10.1996 at page 21-A that the promotion of the petitioner was regularized but it was subject to other terms and conditions of the original order of promotion. The appellant was, therefore, required to pass departmental examination within the prescribed time limit and prescribed chances.

There is no dispute about the fact that the petitioner did not pass the requisite departmental examination within the prescribed time limit and prescribed chances. In fact, as pointed out by learned advocate Mr. Munshaw, though the petitioner availed of 8 chances, he could not pass the departmental examination. The last and 8th chance availed by the petitioner was in the year 2000.

It appears that the rules for passing qualifying examination came to be repealed in the year 2002 and till the date the new Rules came into force in the year 2009 and even thereafter, the appellant continued to serve on promotional post.

Rule 3 and Rule 6 of the Rules, which are relevant for the purpose of deciding the challenge to the impugned order of reversion read as under:-

"3. Requirement of passing of the examination.-

(1) Subject to the provisions of these rules a Gram Sevak and Circle Inspector (Panchayat) who, before the commencement of these rules, was appointed by promotion to the post of Extension Officer (Panchayat Service)/Taluka Panchayat Officer, and had not passed the Departmental examination held under the old rules, shall, unless, he had been exempted from passing such examination under these rules, be required to pass the said examination within specified chances from the date of his completing Five year''s continuous service from the date of promotion, or within 3 years from the date of commence of these rules, whichever is later.

(2) A person who has completed three year''s continuous service in the cadre of Gram Sevak or Circle Inspector shall be eligible for appearing in the departmental examination under these rules.

(3) If the specified period expires before the date of commencement of the examination in which a candidate had his last chance, in such cases, such period shall be deemed to have been extended upto the date of the declaration of the result of the examination so held.

(4) Where a person does not seek permission to appear in the examination or after granting such permission, he does not appear in the examination held after commencement of these rules, he shall be deemed to have exhausted a chance to appear at the examination.

Consequences of failure to pass the examination.-

(1) If a person appointed to a post of extension Officer (Panchayat)/Taluka Panchayat Officer by promotion before commencement of these rules, fails to pass the examination within the specified chances, he shall be reverted to his original post.

(2) Every person who does not pass the examination within specified chance shall not be eligible for promotion to the post of Extension Officer (Panchayat)/Taluka Panchayat Officer."

As could be seen from Rule 3, it appears that the Government intended that those employees who got promotion and were required to pass departmental examination under the old rules and failed to pass such examination shall have further time and prescribed chances of passing the examination under the rules.

It is not in dispute that till the impugned order reverting the appellant to his original position was passed, no departmental examination was held under the Rules. Rule 6 provides for consequences of failure to pass the examination, as per which, a person appointed to the post of Extension Officer (Panchayat)/Taluka Panchayat Officer by promotion before commencement of the Rules, fails to pass examination within specified chances, he shall be reverted to his original post. Such eventuality has not taken place in the case of the appellant as no examination was held. However, the impugned order dated 14.6.2012 was passed by the respondent No. 3 on the ground that the appellant had not passed departmental examination within the prescribed chances. From the impugned order, it appears that for reverting the appellant, the respondent No. 3 has relied on the old Rules as well as the present Rules.

Rule 6 of the Rules could be resorted to only when a person appointed to the post of Extension Officer (Panchayat)/Taluka Panchayat Officer by promotion before commencement of the Rules, fails to pass the examination within specified chances made available to him under Rule-3. Thus, an employee who got promotion to the post of Extension Officer (Panchayat)/Taluka Panchayat officer before coming into force of the Rules and did not pass the requisite departmental examination within the prescribed chances, is not to be reverted unless he gets further specified chances to pass examination and fails in such chances. But if no examination after the Rules is held, no order reverting such employee could be made. It would have been a different matter if the order of reversion was passed before coming into force of the Rules. However, under the statutory Rules, if there is no power to revert the employee who got promotion to the post of Extension Officer (Panchayat)/Taluka Panchayat Officer before the Rules came into force in absence of availability of the chances to pass departmental examination under the Rules, he cannot be reverted as, such the action would run contrary to the Statutory Rules.

At this stage, it is required to be mentioned that only before about 15 days of the retirement of the petitioner, the impugned order reverting him came to be passed. Therefore, it could be said that till nearly the date of retirement, i.e. 30.6.2012, the petitioner served on the promotional post as Extension Officer (Panchayat).

We find that the learned Single Judge has not considered the legal effect of the Rules on the impugned order dated 14.6.2012 reverting the appellant to his original post. Though learned Single Judge has observed that the employee who got promotion to the post of Extension Officer (Panchayat) could be reverted to his original post if he fails to pass the departmental examination as even under the new Rules, passing of departmental examination is necessary. However, such consequence of reversion would entail only when actual chance is made available of passing the departmental examination as mentioned in Rule 3 of the Rules. In such view of the matter, we are of the view that the impugned order 14.6.2012 passed by the respondent No. 3 and the impugned judgment of the learned Single Judge are required to be quashed and set aside.

For the reasons stated above, the appeal is allowed. The impugned judgment passed by the learned Single Judge dated 11.10.2012 is quashed and set aside. The petition, being Special Civil Application No. 10962 of 2012, is allowed and the impugned order dated 14.6.2012 passed by the respondent No. 3 is quashed and set aside. As the appellant has retired, the consequential financial benefit including re-fixation of pension, gratuity etc., if any, shall be paid within THREE MONTHS from the receipt of the order of this Court.

In view of the order passed in the Letters Patent Appeal, Civil Application would not survive and shall stand disposed of accordingly. No order as to cost.