ASHOK KUMAR & ORS. versus THE STATE OF JHARKHAND & ORS. on 11 May 2018

[2017] 7 S.C.R. 755

ASHOK KUMAR & ORS.

v.

THE STATE OF JHARKHAND & ORS.

(Civil Appeal No. 877 of 2018)

MAY 11, 2018

[J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]

Jharkhand Judicial Service (Recruitment) Rules, 2004 – rr.21,22 and 27 – Benefit of increment denied to the Judicial Officers tillclearance of “higher grade” Hindi examination – Challenged –Held: r.22 of 2001 Rules referred to the requirement of passingexaminations from time to time prescribed by the DepartmentalExamination Rules – When the 2004 Rules were enacted, they werein super-session of all earlier Rules and the 2001 Rules werespecifically repealed by virtue of r.27 of the 2004 Rules – Thus, theearlier position stood obliterated from the commencement of the2004 Rules – The 2004 Rules also made it clear that the said Rulesshall prevail for the purposes of selecting, recruiting and appointingMembers of the Jharkhand Judicial Service and regulating the termsand conditions of their service – r.21(b) of the 2004 Rules alsomade it abundantly clear that the successful passing of theexamination to be conducted by Judicial Academy under thedirections and guidance of High Court “shall alone” be the conditionprecedent for confirmation of the trainees – Thus, there is no doubtqua the 2004 Rules, i.e., that they alone prevail and they in turnhad not provided for the requirement of clearing the “higher grade”Hindi examination – The legal position prevalent as per the 2004Rules does not require passing of the Hindi examination as the 1963Bihar Rules cannot be read into the 2004 Rules – Therefore, orderof High Court holding that passing of Hindi Examination ismandatory is set aside – Jharkhand Judicial Service (Recruitment)Rules, 2001 – Judicial service.

Allowing the appeal, the Court

HELD: The reasoning of the impugned order cannot besustained nor can it be read into the 2004 Rules a mandatoryrequirement of clearing the “higher grade” Hindi examination.

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AThere is no quibble with the position till the 2001 Rules prevailed.This is so in view of the 1963 Bihar Rules applying on the creationof the Jharkhand State vide Act of 2000. The 2001 Rules alsoenvisaged the clearance of the Hindi Departmental Examination,which was a reference to the 1963 Bihar Rules. However, whenthe 2004 Rules were enacted, they were in supersession of allBearlier Rules and the 2001 Rules were specifically repealed videRule 27 of the 2004 Rules. Thus, the earlier position stoodobliterated from the commencement of the 2004 Rules. This doesnot imply that such a prescription cannot be made. Theappointment Notifications also, as per para 2, referred to theCrequirement of qualifying the test as prescribed in Rules 21 &22 in the Jharkhand Service (Recruitment) Regulations, 2005,which should actually read the 2004 Rules, which were, however,published on 31.3.2005. These Rules in turn prescribed that thesuccessful passing of the examination “shall alone” be thecondition precedent for confirmation of the trainees. No doubtDthere is a further condition that the High Court may prescribeany examination to be passed but then there is no suchexamination required to be passed by the High Court but ratherthen High Court sought to interpret the Rules as if the provisioncontained qua the passing of the Hindi examination under theE1963 Bihar Rules as per the provision of the 2001 Rules shouldalso be read into the 2004 Rules. Such a course of action isunsustainable. [Paras 21, 22 and 23][762-G-H; 763-B-D]

Rattan Lal & Co. and Anr. v. Assessing Authority, Patiala& Anr. [1969] 2 SCR 544 – referred to.

FCase Law Reference

[1969] 2 SCR 544referred to

Para 15

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 877 of

2018.

GFrom the Judgment and Order dated 03.03.2016 of the High Courtof Jharkhand at Ranchi in W. P. (S) No. 5186 of 2014.

Amit Gupta, Ms. Mansi Kukreja (For M/s. Mitter & Mitter Co.),Tapesh Kumar Singh, Mohd. Waquas, Aditya Pratap Singh, ChandraBhushan Prasad, Advs. for the appearing parties.

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The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J. 1. The Jharkhand Judicial Service(Recruitment) Rules, 2004 (hereinafter referred to as the ‘2004 Rules’)dated 31.3.2005 were published in the Gazette of 4.4.2005, having beenframed in the exercise of powers conferred by Article 234 read withArticle 309 of the Constitution of India. The relevant portion of thepreamble is extracted as under:

“Now therefore in exercise of the powers conferred by Article234 read with Article 309 of the Constitution of India and allprovisions of law enabling him in that behalf, and in supersessionof all earlier Rules on the subject, the Governor of Jharkhand,after consultation with the High Court of Jharkhand and JharkhandState Public Service Commission, is pleased to make the followingRules so as to select, recruit and appoint Members of theJharkhand Judicial Service and regulate terms and conditions oftheir service:-”

2. Thus, the Rules specifically provided that they were insupersession of all earlier Rules on the subject. The earlier Rules of2001 were specifically repealed in terms of Rule 27 of the 2004 Rules,which reads as under:

“27. Repeal and Savings: (i) Jharkhand Judicial Service(Recruitment) Rules, 2001 issued vide notification no.185 datedthe20[th]August, 2001 are hereby repealed.

(ii) Notwithstanding such repeal, anything done or any action takenunder the2001 Rules shall be deemed to have been taken underthese Rules and any selection process initiated or appointmentsmade pursuant to 2001Rules shall be deemed to have been doneunder these Rules.”

3. The appointment was to be made after due process and interms of Rule 21 of the 2004 Rules, a mandatory one year training periodwas envisaged with the Judicial Academy whereafter the trainees wereto appear in an examination to be conducted by the Judicial Academyunder the directions and guidance of the High Court. The relevant clause21(b)of the 2004 Rules is as under:

“21 (b). For a period of one year from the date of appointment, orfrom such other date as the High Court may prescribe, that the B

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ACivil Judge, Junior Division (Munsif)/Civil Judge, Senior Division(Subordinate Judge) shall be admitted in the one year trainingcourse at the Judicial Academy of Jharkhand at Ranchi or suchother place as the High Court may prescribe. After completionof one year training course, the Civil Judge, Junior Division(Munsif) trainee Civil Judge, Senior division (subordinate Judge)B– trainee shall appear in the examination to be conducted by theJudicial Academy under the directions and guidance of the HighCourt and the successful passing of this Examination shall alonebe the condition precedent for confirmation ofthe trainees asCivil Judges, Junior Division (Munsif)/Civil Judges, Senior DivisionC(subordinate Judges).”

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(emphasis supplied)

4. The effect of this is that the passing of this examination ‘alone’was a condition precedent for confirmation.

D5. The duration of the training period could be extended but notmore than two years, and such of the trainees, who did not qualify theexamination as required in the clause aforesaid, on representation, theHigh Court could suitably afford another chance of taking theexamination. The total probation period envisaged under Rule 22 of the2004 Rules is three years starting from the date of appointment. However,Ethis period could be extended by the High Court in individual cases,depending upon the performance and other parameters as may be fixedby the High Court from time to time or depending upon the passing ofsuch examination during the service as may be prescribed for this purposeby the High Court.

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6. Insofar as the controversy before this Court is concerned, it isrelevant to note that the earlier 2001 Rules were slightly different in thecontext of what was specified in Rule 22, which reads as under:

“22. Notwithstanding anything to the contrary contained in theserules a Munsif appointed on temporary basis shall be eligible forGpermanent appointment to the service without there being anyupper age limit subject to the condition that:

(i) he has completed two years of service from the date of hisfirst appointment; H

(ii) he has passed such tests as may from time to time be prescribedin the Departmental Examination Rules; and

(ii) he is recommended by the High Court for such permanentappointment.”

(Emphasis supplied)

7. A bare reading of the aforesaid clause, thus, makes it clear thatwhile the requirement in this Rule was to pass such test as may beprescribed from time to time in the “Departmental Examination Rules”,there is no such corresponding provision in the 2004 Rules.

8. It is also relevant to note that during the period of probation, itis not as if any additional conditions were prescribed by the High Courtfor confirmation. Contextual to the issue at hand, there was no conditionprescribed to pass any exam in Hindi to be conducted by the Board ofRevenue for being confirmed, which is the bone of contention in thepresent appeal.

9. The appellants before this Court have been recruited throughtwo sets of Notifications – the first one dated 5.1.2011; and the secondone dated 28.3.2011, being the successful candidates in the recruitmentprocess. In the Notifications so issued, an identical para 2 reads asunder:

“2. The appointment shall be subject to qualifying the test and theextension of test period and confirmation shall be subject toJharkhand Judicial Service (Recruitment) Regulation 2005 Rule21 and 22 and as per recommendation of Jharkhand High Court.”

10. Despite the aforesaid position, the appellants before this Courtwere not confirmed after three years’ continuous service. The appellantshad passed the examination conducted by the Judicial Academy,Jharkhand at the end of the Induction Programme. The ostensible reasonfor the same was that they are not clearing a departmental Hindiexamination held by the Board of Revenue. The appellants, thus, madea representation dated 29.4.2014, in which inter alia it was stated thatduring their tenure they were repeatedly informed and advised that theywere exempted from taking part in the Hindi examination as per theRules of 2004 and, thus, they had not appeared for the departmentalHindi examination. This representation was, however, rejected by theHigh Court in the following terms:

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760SUPREME COURT REPORTS

A“After consideration of the representation of some of the CivilJudges (Junior Division) regarding their confirmation in serviceand to get increments by this Court, I am directed to inform thatpassing of the Hindi Examination as well as the DepartmentalExamination by Civil Judge (Junior Division) is a conditionprecedent for their increment as well as confirmation in terms ofBRule 21(b) of Jharkhand Judicial Service Recruitment Rules 2004,Rule 7 of Bihar Government servant (Hindi Examination)Regulation, 1968 and Rule 27(a) of the Bihar Civil Service (JudicialBranch) Training and Departmental examination Rules, 1963.”

11. The respondents, thus, relied upon the same very Rule 21(b)Cof the 2004 Rules read with Rule 7 of the Bihar Government Servant(Hindi Examination) Regulation, 1968 and Rule 27(a) of the Bihar CivilService (Judicial Branch) Training and Departmental Examination Rules,1963 (hereinafter referred to as the ‘1963 Bihar Rules’). The latterreads as under:D“Liability of Probationers to Examinations

27. (a) Every probationer is required to pass an examination inthe following subjects :-

(i) the High Court’s General Rules and Circular Orders (bothEcriminal and civil), as laid down in sub-rule (b) to this rule. Theexamination in the High Court’s General Rules and Circular Orderswill test in particular the extent to which the examinee has acquiredpractical facility in applying the rules.

(ii) Procedural Law and Law of Evidence as laid down in sub-rule (c) to this Rule.F(iii) Hindi by the lower and higher standards as described inAppendix-I of this Rule.”

(emphasis supplied)

12. The accepted factual position is that the Jharkhand State wasGcarved out of the State of Bihar in terms of the Bihar ReorganisationAct, 2000 on 15.11.2000. Rule 22 of the 2001 Rules refers to therequirement of passing examinations from time to time prescribed bythe Departmental Examination Rules, which in turn is Rule 27(a) of the1963 Bihar Rules.H

13. In view of the aforesaid position this rejection was challengedby filing writ petitions, which have been dismissed by the commonimpugned order dated 3.3.2016.

14. On behalf of the appellants, it was contended that in view ofSections 84 & 85 of the Bihar Reorganisation Act, 2000, the 1963 BiharRules were deemed to have been operating in the newly created Stateof Jharkhand. However, this position was prevalent under the 2001Rules but when the 2001 Rules were repealed after the framing of the2004 Rules, it is the 2004 Rules, which would prevail.

15. The High Court took note of the judicial pronouncement ofthis court in Rattan Lal & Co. and Anr. v. Assessing Authority, Patiala& Anr.[1]where it was opined that on the creation of a new State afterreorganisation, the original Act cannot be amended from a date anteriorto the appointed date and the original Act would apply as an independentAct to each of the States and the new State is within its legislativecompetence to amend the original Act in relation to the area of the newState. Thus, the pre-existing laws in the unified State of Bihar, it wasopined as per the High Court, would continue to apply to the new Statecreated under the Bihar Reorganisation Act, 2000 only until otherwiseprovided by the competent legislature or other competent authority. The2001 Rules, it is observed, thus, specifically provide in Rule 22 for a testto be taken from time to time as may be prescribed by the DepartmentalExamination Rules, i.e., 1963 Bihar Rules.

16. Insofar as Rule 27 of the 2004 Rules is concerned, the samerepealed the 2001 Rules. It was acknowledged in the impugned judgmentthat there was no reference of the 1963 Bihar Rules in the 2004 Rulesnor is there a similar reference as in Rule 22(ii) of the 2001 Rules. Itwas thus opined that the 1963 Bihar Rules, which were applicable to the2001 Rules, cannot be considered as inoperative or superseded orrepealed by the 2004 Rules. The expression used- ‘alone’, in Rule 21(b)of 2004 Rules was, thus, held not to imply that the Hindi examinationcould not be prescribed as a condition precedent for confirmation. Thecontrol by the High Court under Article 235 of the Constitution of India,it was held, empowered and allowed the High Court to prescribe thepassing of Hindi examination and departmental examination for themembers of the Subordinate Judiciary. Thus, the passing of the Hindiexamination was held to be mandatory. It was also observed that this is 1 (1969) 2 SCR 544

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Aso, even though it may cause hardship to the appellants, who would bedisentitled to grant of increments till they pass the examination.

17. It is in the aforesaid context that the High Court confirmedonly such of the officers who had passed the Hindi Examination in the“higher grade”.B

18. It may be noticed that some of the persons cleared the HindiExamination with “lower grade”, which was not taken into account.

19. The factual development subsequently is that all the appellantshave cleared the examination in the “higher grade” and thus, to thatextent the lis does not survive. However, the lis does survive to theCextent that the appellants are sought to be denied the benefit of increment,which is due to them for continuity of service till such time as theycleared the examination in “higher grade” Hindi.

20. We have given opportunities to the State of Jharkhand to lookinto this issue from the correct perspective on various dates. However,Dthat has not borne fruit and we were called upon to adjudicate the issuein question.

21. On having heard learned counsel for the parties and examiningthe records, we are of the view that the reasoning of the impugned ordercannot be sustained nor can it be read into the 2004 Rules a mandatoryErequirement of clearing the “higher grade” Hindi examination.

22. There is no quibble with the position till the 2001 Rules prevailed.This is so in view of the 1963 Bihar Rules applying on the creation of theJharkhand State vide Act of 2000. The 2001 Rules also envisaged theclearance of the Hindi Departmental Examination, which was a referenceFto the 1963 Bihar Rules. However, when the 2004 Rules were enacted,they were in supersession of all earlier Rules and the 2001 Rules werespecifically repealed vide Rule 27 of the 2004 Rules. Thus, the earlierposition stood obliterated from the commencement of the 2004 Rules.The 2004 Rules also make it clear that the said Rules shall prevail forthe purposes of selecting, recruiting and appointing Members of theGJharkhand Judicial Service and regulating the terms and conditions oftheir service. Rule 21(b) of the 2004 Rules also makes it abundantlyclear that the successful passing of the examination “shall alone” be thecondition precedent for confirmation of the trainees. This leaves nomanner of doubt qua the 2004 Rules, i.e., that they alone prevail and H

they in turn had not provided for the requirement of clearing the “highergrade” Hindi examination by the Board of Revenue.

23. We make it clear that this does not imply that such a prescriptioncannot be made. The fact remains that such a prescription has not beenmade. It was always open to include such a prescription in the Rulesitself. The appointment Notifications also, as per para 2, referred to therequirement of qualifying the test as prescribed in Rules 21 & 22 in theJharkhand Service (Recruitment) Regulations, 2005, which should actuallyread the 2004 Rules, which were, however, published on 31.3.2005. TheseRules in turn prescribed that the successful passing of the examination“shall alone” be the condition precedent for confirmation of the trainees.No doubt there is a further condition that the High Court may prescribeany examination to be passed but then there is no such examinationrequired to be passed by the High Court but rather then High Courtsought to interpret the Rules as if the provision contained qua the passingof the Hindi examination under the 1963 Bihar Rules as per the provisionof the 2001 Rules should also be read into the 2004 Rules. Such a courseof action is unsustainable.

24. We are, thus, of the view that the legal position prevalent asper the 2004 Rules does not require passing of the Hindi examinationheld by the Revenue Department as the 1963 Bihar Rules cannot beread into the 2004 Rules. We also clarify that it is always open to therespondents to amend the 2004 Rules, if they want to incorporate such astipulation or the High Court may itself conduct a Hindi examinationtowards that objective by prescribing so. This is so as proficiency in theHindi language is possibly a necessity arising out of the judicial workconducted in the State of Jharkhand. In any case, as noticed above, allthe appellants have passed the examination and, thus, the only questionof giving them the benefit of the increments and other mandatory benefitseven for the period when they had not cleared the “higher grade” in theHindi examination.

25. Learned counsel for the appellants has also pointed out anotherramification of the stand of the respondents, i.e., that though the appellantsjoined in the year 2011 and, thus, came under the old pension scheme ifwhat the respondents say is accepted then their subsequent confirmationwould result in their not being covered under the old pension scheme butunder the new contributory pension scheme, which came into force interms of Notification dated 22.12.2013.

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A26. We, thus, also hold that the appellants would be entitled to becovered under the old pension scheme relatable to their entry into theservice in the year 2011.

27. The respondents will ensure that the differential mandatorybenefits are remitted to the appellants within a period of three monthsBfrom the date of the order.

28. The appeal is accordingly allowed leaving the parties to beartheir own costs.

CDevika Gujral

Appeal allowed.

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