Kuldip Singh vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 961 Del

JUDGMENT

S.B. Sinha, C.J.

The core question, which arises for consideration in this petition, is the applicability of Rule 167 of Indian Railway Establishment Manual.

1.0 The petitioner was appointed as Junior Accounts Assistant in the office of Senior Divisional Accounts Office. Northern Railway, Ambala Cantt. with effect from 19.4.1991 in terms of an offer of appointment dated 19.4.1991. The said offer of appointment contained a stipulation to the effect that he was required to pass Appendix II Examination in two chances within three years, failing which has services would be liable to be terminated.

1.2 The petitioner appeared at the said examination in the year 1992 and 1993 but was not successful therein. Again in 1994, he made his 3rd attempt in the said examination but did not succeed. On 2.12.1994, on his failure to pass the said examination in his third attempt, his services were terminated by the Senior Divisional Accounts Officer, Northern Railway, Ambala Cantt. The impugned order of the Senior Divisional Accounts Officer, Northern Railway, Ambala Cantt. is in the following term:

"O/O Sr. Divl. Accounts Officer, N. Railway, Ambala Cantt.

NOTICE

No. 93/Adm/DAO/UMB/II-A/39 Dated: /12/1994

Sh. Kuldeep Singh S/O Sh. Hera Lal, 74, Mati Dass Nagar, Mahesh Nagar, Ambala Cantt - 133001

Sub:- Termination of services

You are hereby informed that L.S.O.O. No. 46 dated 02-12-94 served to you through 'Regd Post' has been received back undelivered. The above noted LSOO reads as under:-

Sub:- Termination of services

You have failed to clear the Appendix-II-A (IREM) Exam. in terms of Rly. Bd's letter No. 84/ACIII/.20/17, dt. 24.6.86 as you have not qualified in the Appendix II-A Exam within the prescribed No. of chances & year.

Your services as J.A.A. grade 1200-30-1560-EB-40- 2040 (RPS) on temporary basis are hereby terminated with immediate effect in terms of appointing authority S.O.O. No. NG-398 dt. 2.12.94.

You may however apply for appointment for the post of CG-II as a fresh entrant in the Rly. services in terms of para 3 of Rly. Boards letter No. 84/AC III/20/17, dt. 24.6.86."

This is for your information.

Sr. Divl. Accounts Officer, N. Railway, Ambala Cantt."

1.3 Aggrieved thereby, the petitioner filed the Original Application before the learned Tribunal where a contention had been raised on behalf of the respondents herein that the Rule 301 of Indian Railway Establishment Code Vol. 1 (1985 Edition) did not contain any provision that no further opportunity can be given to the candidates to appear in the said examination more than thrice.

1.4 The learned Tribunal came to the conclusion that the said provision being mandatory, the petitioner is not entitled to a fourth chance to appear at the said examination, in as much as the subjects contained in the earlier Edition to that extent has been stood superceded in the 1989 Edition. In the aforesaid backdrop it declined to accept the contention raised on behalf of the Petitioner herein that the provisions of 1986 Edition would apply.

1.5 Before the learned Tribunal as also before us a decision of the Apex Court in Union of India v. R.K. Gupta, rendered on 3.3.1995 was pressed into service by the petitioner with a view to show that the Apex Court had directed grant of a fourth chance in a similar matter.

2. The learned counsel appearing on behalf of the Petitioner would contend that the records of the case will reveal that the respondents herein had given effect to the said judgment of the Apex Court in several case and in support thereof, this Court's attention had been drawn to office orders dated 15.9.1995 and 23.4.1995. The learned counsel appearing on behalf of the petitioner would submit that in the aforementioned premise there is absolutely no reason as to why he be not afforded the fourth chance to appear at the examination.

2.1 The learned counsel appearing on behalf of the petitioner would contend that the petitioner is still in employment and in fact in the meantime he was already qualified for the examination. The learned counsel appearing on behalf of the petitioner would contend that in any event on humanitarian ground should be considered as a relevant factor in granting appropriate relief in this case of the nature.

2.2 The learned counsel appearing on behalf of the respondent, on the other hand, would contend that keep in view the fact that the relevant provisions have been amended in the year 1989 and the petitioner having been appointed in the year 1991 he was required to pass the prescribed test in terms of the offer of appointment as also the extent rules prevailing thence. The learned counsel would urge that there is nothing to show that the order of the Supreme Court in R.K. Gupta's case (supra) covered a case where an appointment had been made after the 1989 edition of Indian Railway Establishment Manual came into force. In any event the learned counsel would contend that no case has been made out in favor of the petitioner that if fails to pass the examination in two chances, he may file an appropriate representation which may be reconsidered on its own merits

2.3 The petitioner was offered service in April 1991. The said offer of appointment contained the following stipulations:

(a) you will be on probation for a period of one year from the date of your appointment and will be eligible for confirmation after passing the appendix -II IREM Examination.

(b) If you fail to pass the Appendix II-A Examination referred to in Clause 'A' or your progress is found unsatisfactory, the period of probation can be extended, but if you fail to pass the Appendix II Examination in two chances in 3 years, you are liable to be terminated.

2.4 Strong reliance has been placed by the learned counsel appearing on behalf of the petitioner on Indian Railway Establishment Manual (1986) Edition relevant part of which is in the following terms:

"2(b) As regards candidates who have availed of two chances within three years of service, who still apply for being given a third chance, within or beyond three years, their cases if found justified, could be referred to the Board with the personal approval of the FA & CAO Along with details of performance of the candidates in earlier Examination."

The relevant part of para 167 of IREM as noticed by the Hon'ble Supreme Court reads thus:

"Directly recruited clerks Grade I will be on probation for one year and will be eligible for confirmation only after passing the prescribed departmental examination in Appendix II. Necessary facilities will be given to them to enable them to acquire the knowledge of the rules and procedure."

Para 4(a) of Appendix-II reads thus:

"4(a) Normally no railway servant will be permitted to take the examination more than thrice, but the Financial Adviser and Chief Accounts Officer may in deserving cases permit a candidate to take the examination for a fourth time, and in every exceptional cases the General Manager may permit a candidate to take the examination for the fifth and the last time."

The circular dated 24.6.1986 reads as under:

"Under the extent orders on the subject, directly recruited clerks grade I are required to be given maximum of two chances, to appear at the Appendix 2(IREM) examination within a period of three years from the date of entering service, and those who fail to qualify themselves within these two attempts render themselves liable for discharge from service. In a few cases, additional chance was given to some candidates on the basis of the recommendation of the FA & CAO/GM of the Railways. However, with a view to bring in uniformity, as also to make the concerned employees fully aware of the extent rules in this respect (so that the availability of additional chance is not taken for granted) Board under their letters No.84-AC.III/20/34 dated 4.9.1985 and 10.2.1986, reiterated the position, and directed the Railways that they may approach the Board for retaining the staff in service beyond three years, or for permitting them to sit in Appendix 2 (IREM) examination beyond three years or for the third time in the said examination in relaxation of the extent rules, provided there were compelling reasons for such relaxation."

The question which arose before the Apex Court was as to whether the circular letter dated 24.6.1986 was contrary to the Statutory rules or not.

2.5 The Apex Court having regard to the conditions specified in the offer of appointment as also the purpose for which the circular letter has been issued held under:

"Thus the circular is not in conflict with the para 167. it is not in supersession but supplemented the yawning gaps therein. It came to be issued for that purpose which envisages that direct recruit Accounts Clerks Grade-I are eligible for two chances to pass the examinations prescribed in Appendix-II within a period of three years from the date of entering into service. Thus failure to qualify in the examination within the two attempts render them ineligible for confirmation. Thereby, they become liable to be discharged from service. It is true that Appendix II in para 4(a) as a general rule gives three normal chances to the railway servants to take the examinations and exceptions have been provided giving power to the Financial Adviser and Chief Accounts Officer to permit a candidate to take the examination for the fourth time and in deserving cases and in very exceptional circumstances the General Manager is given discretion to permit to take the examination for the fifth time and the last time. The last two chances cannot be taken to be automatic or as of right. They are exceptial and are within the discretionary zone. In the counter affidavit file,d the appellants sought to explain exceptional circumstances in which the power could be exercised by the Financial Adviser and the Chief accounts Office and the General Manager with which we are not concerned in these cases. The question is whether the circular is in conflict with para 168 of IREM. On a conjoint reading of the relevant rules, we find that there is not conflict and the circular is to supplement the rule to fill in the yawning gaps in para 167 of IREM.

It would appear that all the, except a few, respondents had availed of three chances and they did not pass the examinations prescribed in Appendix II of the Manual. It is not possible to accept the contention of Shri Rao that despite their failure to pass the test, they would continue as non-confirmed probations and that the authority have not power to terminate or discharge their services. The letters of appointment clearly indicate that in the event of their failure to pass the prescribed examination within the time prescribed under the relevant para of IREM and the circular, they are labile to be discharged. The right to continue in service would arise only on their confirmation after passing the examination. Therefore, making an order of confirmation, on their passing the examination, would give a right to the direct recruit Accounts Grade I clerk to continue in serve. On his failure to pass the examination within the prescribed chances, he becomes liable to be discharged from service."

However, having regard to its jurisdiction under Article 142 of the Constitution of Inida, the Apex Court directed the Union of India to give another chance to the respondent as an exception so that the respondent may take the examination.

3. The Constitution has conferred upon the Apex Court an extraordinary power by way of Article 142 of the Constitution of India. By that power the Apex Court can pass any order in order to do complete justice to the parties. The High Court is not possessed of that power.

3.1 The ratio laid down by the Apex Court in R.K. Gupta's case (supra) is absolutely clear and unambiguous. It in no uncertain terms held that even in terms of 1986 Edition of the Indian Railway Manual, 3rd chance can be given only in exceptional circumstances. Furthermore in exercise of its jurisdiction, the High Court could not usurp the power of the Statutory Authority.

The Statutory authority must, at the first instance, be asked to exercise its jurisdiction.

In State of W.B. and Ors. v. Nuruddin Mallick and Ors. [ ] the Apex Court held as under:

"28... submission for the respondents was that this Court itself should examine and decide the question in issue based on the material on record to set at rest the long-stanidng issue. We have no hesitation to decline such a suggestion. The courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be appropriate for the Court to substitute itself for the statutory authorities to decide the matter."

3.2 The benefit of the judgment of the Apex Court might have been extended to some employees who are similarly situated and in the aforementioned situation we are of the opinion that the petitioner should file an appropriate representation which may be determined on its own merit by the appropriate authority.

3.3 We, therefore, are of the opinion that although there is no merit in the writ petition as we do not find any illegality, irrationality and procedural impropriety in the order of the Tribunal, keeping in view the fact that the petitioner is still in service and in the meantime he has passed the examination, the competent authority of the respondent may consider his representation on its own merit.

In the fact and circumstances of the case, this writ petition is accordingly disposed of.

However, in the fact and circumstances of the case, their shall be no order as to costs.