Gauhati High Court
Subrata Deb Barma And Ors. vs State Of Tripura And Anr. on 8 February, 2002
JUDGMENT B.B. Deb, J.
1. By the aforesaid two writ petitions, the petitioners seek for a writ or order directing them to be exempted from participating a departmental examination and also releasing their increments and also for a direction that the petitioners shall be deemed to be confirmed on completion of period of probatic.
2. Case of the petitioners in WP(C) No. 35 of 2000.
The petitioners have been appointed in the Grade-II of Tripura Civil Services by promotion vide Notification No. F.2(1)-GA/90(iii) dated 6.7.1991 and put under probation for two years. They were allowed the annual increments up to 6th stage, i.e., upto 1997. Thereafter, their annual increment has been withheld without assigning any reason whatsoever. On the plea of non-passing the departmental examination, the authority withheld the said increment. The petitioner's initial promotion order prescribed for two years, probation but he has never been extended and, as such, on completion of two years, probation the petitioner became automatically confirmed. The condition of departmental training and examination is subject to exemption and the petitioner cited three examples were the Government exempted some incumbents from training and departmental examination. These are available under order dated 21.1.1985, these relates to three incumbents, namely, Shri Bhagirath Reang, Sri Malik Lal Raang and Shri Pallab Deb Barma. The Government was pleased to exempt the aforesaid three incumbents holder of T.C.S. Grade-11 post from appearing at the departmental examination. Vide Notification dated 8.1.1996 as many as 35 T.C.S. Grade-II officers were exempted from passing the departmental examination. Vide order dated 12.8.1985 as many as 57 T.C.S. officers are exempted from appearing in the departmental examination. Some of the petitioners have already attained the age of 55 years and having referred the examples of having allowed exemption the petitioners made representation to the authority on 28.11.1998 for releasing their increments. Since the petitioner have already completed two years of probation and during that period no extension of probation was ordered, no adverse comments has been communicated to them, they should be deemed to have been confirmed on completion of 2 years service and, as such, they cannot be asked to go for training or departmental examination and, as such, according to the petitioner withholding of their increments and non confirmation of their service appear to be illegal, arbitrary and, as such, they sought for the relief as has already been mentioned.
Case of the petitioners in W.P.(C) No. 198 of 2000 The petitioners of the aforesaid case, have been appointed in the Grade-II of Tripura Civil Service on promotion vide Notification No. 2(15)-GA/94 dated 29.8.1995. In their appointment letter there is a clause appended that they would be 2 years for probation. During their probation period they had never communicated with any adverse comments nor their probation period was extended and, as such, they completed their probationary period successfully and as such, they shall be deemed to be confirmed. The petitioners got annual increment up to the year 1997 and, thereafter, their annual increment was withheld without any reason whatsoever. On previous occasion more than once the authority exempted so many T.C.S. Grade-II officers from departmental examination so many officers had been declared confirmed. The petitioners furnished a list of such officers who were exempted from appearing in departmental examination vide notification dated 8.1.1996. The petitioner sought for a writ of mandamus directing to release of their increments and also declaring them to have been confirmed.
3. In both the cases the State respondent filed counter contending, inter alia, that as per Rule 20 of Tripura Civil Services (Training and Departmental Examination) Rules, 1975 (hereafter called the Rules, 1975) they are to undergo training and the pass departmental examination in order to get their second increment released pursuant to Rule 15 and Rule 20 of the aforesaid Rules, 1975. In terms of Rule 21 of Tripura Civil Service Rules, 1967 every incumbent appointed as per Tripura Civil Service Grade-II must remain on probation for a period of 2 years and that period is subject to extension or reduction as the case may be by order of the Governor and pursuant to Rule 22 of Tripura Civil Service Rules, a person appointed under Grade-II of Tripura Civil Service, must undergo such training and pass during the period of probation of such departmental examinations as the Government may from time to time prescribed and only on satisfactory completion of the period of probation one may be confirmed by the Government pursuant to Rule 23 of the aforesaid Rule.
4. Since the petitioner did not participate in the training nor could pass the departmental examination they are not entitled to get the second increment released nor they are entitled to confirmed and as such, in withholding the second increment and in not declaring them confirmed authority committed no illegal and as such, the petitions filed by the petitioner being devoid of merits is liable to be dismissed in limine.
5. Heard the learned counsel appearing on behalf of both parties.
6. Before taking up the case for discussion, the related provisions governing the probation, confirmation training, examination etc. are required to be reproduced for ready reference :
Tripura Civil Service Rules, 1967 :
21. Period of probation.--(1) Every person appointed under Rule 5 or Rule 17 to Grade-II of the Service shall be on probation for period of two years.
(2) The Administrator may in the case of any person extend or reduce the period of probation.
(3) A person on probation shall be liable to be discharged from service at any time without assigning any reason, provided that if he holds a lien on any permanent post under the Central Government, a State Government or Government of Tripura, he shall be liable to be reverted to that post.
(4) A person on probation who holds a lien on any permanent post under the Central or a State Government may, if he so desires during the period of probation, have the option to revert back to his parent Department or Government after giving such notice as may be prescribed by the Administrator.
22. Training and departmental examination.--A person appointed under Rules 5 or Rule 17 to the service shall undergo such training and pass during the period of probation such departmental examinations as the Administrator may from time to time prescribe :
Provided that the Administrator may exempt, subject to such conditions as it may impose, either wholly or partly from such training or departmental examinations, any person appointed under Clause (b) or Sub-rule (1) or Rule 5 or Rule 17.
23. Confirmation in Service.--A person who has been declared to have satisfactorily completed his period of probation may be confirmed in the service."
"Tripura Civil Services (Training and Departmental Examination) Rules, 1975.
15. All I.A.S. officers on probation and officers of the Tripura Civil Services Grade-II and the Tripura Junior Civil Service on appointment shall be required to undergo training and pass the departmental examinations as hereunder :-
(i) Training under Sub-Divisional Officer and Ist Class Magistrate One calendar month.
(ii) Training in Treasury One Calendar month. (iii) Training in Secretariat One calendar month.
(iv) Attending 9 cases and preparing memorandum, judgments, evidences, civil, three criminal and three sessions cases to be completed within the period of probation.
(v) "Passing of departmental examination fully by the higher standard by all officers of the I.A.S. and of the T.C.S. Grade-II and by the Lower Standard by the Officers of the T.J.C.S. as per rules and syllabus prescribed by the State Government."
(vi) Training in Survey and Settlement.
Note : The qualification for passing the examination in Bengali and Hindi for all affairs will be by the ....
16. All temporary officers born on the cadre mentioned above or holding ex-cadre posts notified as such from time to time shall be required to undergo the training and to pass the departmental examinations, prescribed in Rule 15 above.
18. If an officer has undergone a training or passed the departmental examinations similar or equivalent to the training or departmental examinations as prescribed in Rule 15, he would be exempted from undergoing training or passing the examination.
19. If an officer has already undergone a training or passed the departmental examinations prescribed, while holding any other post under the Government, he shall not be required to undergo that training or pass that examination against.
20. No officer would be allowed his 2nd increment if he has not passed the departmental examinations in full and completed the training prescribed in the rules within two years of his appointment:
Provided that the State Government may, in special cases, allow him to get the usual increment in cases where officers have already completed two years of service in the respective grade where no departmental examination was prescribed by the State Government prior to coming into force of this rules :
Provided further that upon fulfilling the requirements in this rule an officer whose increment had been withheld will draw the increment at the stage at which he would have increment had not been withheld, subject to the condition that no arrears of pay and allowances will be admissible for the period for which the increment had remained withheld."
Note : The date of passing the departmental examination shall be the date following the last date on which the examination was held.
Also provided that the State Government can relax these rules in case of officer who have already completed two years' service in the respective grades prior to coming into force of these rules."
7. In departmental examination, the incumbents are to appear in the papers/subjects specified under Rule 9 and 10 of the Tripura Training and Departmental Examination Rules, 1975. Under Rules 9 & 10, the incumbents T.C.S. Grade-II probationers are to appear in 27 law papers in addition to other 10 allied service matter like, F.R.S.R. CSR, Accounts etc. with regard to training, the incumbents are required to undergo training must be like apprenticeship being attached with Sub Divisional Officer and 1st class Magistrate for a period of one month, training in the Treasury for one month, training in the Secretarial affairs for one month and they are to attend the hearing of 9 cases and to prepare memorandum of judgment, evidence, charge, issue etc. three in civil, three in criminal and three in session cases and that must be completed within the period of probation. They are to pass departmental examination and they are required to undergo training in Survey and Settlement for six weeks. All the aforesaid prerequisite must be completed within the period of probation.
8. The learned counsel for the petitioners submits that at no point of time, they were asked to undergo such training as contemplated under Rule 15 of the Tripura Civil Service Training and Departmental Examination Rules, 1975.
9. The respondents in their counter have not annexed and document showing that during the period of probation the petitioners at any point of time were asked to undergo training pursuant to Rule 15. Unless the facilities are provided to the officers for undergoing training during the period of probation, how could it be expected that the probationer would complete the training within the time frame prescribed. The learned Senior Government Advocate submits that departmental examination is a separate chapter and not connected with training and, according to the learner Senior Government Advocate unless one could pass the departmental examination in full and complete the training prescribed in the Rules within 2 years, he cannot be allowed second increment pursuant to Rule 20 of the Training and Departmental Examination, Rules, 1975.
10. On careful perusal of the Rule 20 of Training and Departmental Examination Rules, 1975 it appears that passing of departmental examination in full and the completion of training prescribed are ordinarily required for allowing the second increment to be released provided the training facilities are to be made and that is also subject to relaxation. But for training, the arrangement must be done by the department and incumbent cannot go at his own volition to the Sub Divisional Officer or Treasury officer or the Secretariat for training, how an officer would attend the trial of 9 cases, how an officer would prepare memorandum of judgment and evidence etc. unless one is asked to be attached with any judicial officers dealing with such nature of cases. But the counter affidavit remain silent as to whether such facilities and provisions had been made available to the incumbents.
11. Learned counsel for the petitioners referred the annexed Notifications bearing No. (1) F. 25(13)-GA/77 dated 21.1.1985, (2) F. 25(13)-GA/77 dated 12.8.1985 & (3) No. F. 12(2)-GA/79 dated 8.1.1986.
From the aforequoted notification dated 21.1.1985 it appears that in exercise of power under Rule 20 of the Training and Departmental Examination Rules, 1975, the State Government exempted three officers from appearing in the departmental examination. Like in the aforesaid manner vide notification dated 12th August, 1985 the Government exempted as many as 57 officers from appearing in departmental examination and vide notification dated 8.1.1986 the Government also exempted as many as 35 officers from appearing in the departmental examination and they were declared to have satisfactorily completed the period of probation even without passing the departmental examination. No reason has been spelt out in the aforesaid notification/order justifying the exemption granted to them. The State respondents made an attempt to justify the aforesaid exemption contending, inter alia, that "on the strength of the provision of Rule 20 of the T.C.S. Training and Departmental Examination Rules, 1975 which empowered the respondent to exercise reasonable discriminatory power in individual cases and not in general," issued such exempted order, (emphasised word is supposed to be "discretionary").
12.1 have carefully gone through the averment of counter affidavit, to ascertain the reason shown by the State respondents for granting such exemption in favour of a large number of incumbents, but I found no convincing reason has been spelt put by the respondents. It is correct that only on two contingencies such exemption could be allowed. These are available under Rule 20 of the Training and Departmental Examination Rule 20 of the Training and Departmental Examination Rules, 1975. Firstly, withholding of second increment would not be applicable to the incumbents when there was no departmental examination prescribed by the State Government prior to coming into force of Rules, 1975, meaning thereby those who having been appointed earlier completed the 2 years probation prior to 22nd July, 1975 (the date when the T.C.S. Training Rules came into force), and secondly, the State Government could relax the Rule withholding the second increment in case of officers, who have already completed 2 years service in the respective grades prior to the aforesaid appointed date. There is no other provision allowing the State Government to relax the condition embodied in Rule 20 of the Training and Departmental Examination Rules, 1975. Neither in the counter affidavit nor in course of argument learned Senior Government Advocate could justify the reason whey the aforesaid as many as 95 T.C.S. officers had been allowed the exemption from appearing in the departmental examination under the aforequoted three notifications/orders.
13. In view of Rule 22 of Tripura Civil Service Rule, 1967, the incumbent appointed under Rule 5 or Rule 17 shall have to undergo training as prescribed under the Tripura Civil Service (Training and Departmental Examination) Rules, 1975 and to pass departmental examination during the period of probation. On perusal of the scheme of Tripura Civil Services (Training and Departmental Examination) Rules, 1975 it appears that unless training facilities and provisions are made available to the incumbents to get themselves trained regarding the subjects enumerated therein, it would not be possible for them to appear in the examination. The training and examination having close nexus must be treated to be integrated unit not separable from each other. Unless one is provided with all facilities for undergoing the trainings, he cannot gather knowledge and experience for the subjects for which he is to sit for departmental examination. During training one incumbent is to attend the trial of 9 cases, he is to prepare memorandum of judgment, he is to be equiped with the skill of recording evidence, framing charge and issues both civil criminal and session trial matters and that must be completed within the probation period. He is to sit departmental examination according to the syllabus prescribed and also is to go for training for Survey and settlement. Unless proper arrangement for training is made it would not be possible for any incumbent to gather knowledge regarding subjects for which he is to sit for examination. In the present case admittedly the department/authority never arranged for imparting any training to the petitioners nor, the petitioners at any point of time during probation had been directed to go for training according to the syllabus prescribed under Rule 15 of the Training and Departmental Examination Rules, 1975 and, as such, appearance in the departmental examination would be useless.
14. Learned Senior Government Advocate Mr. U.B. Saha, having referred the Notification dated 31.7.1991, 13.8.1991, 22.1.1992, 3.2.1992, 20.7.1992, 6.2.1993, 216.1.1995, 31.1.1995, 11.7.1995, 18.1.1996, 24.7.1996, 24.1.1997, 29.7.1997, 3.2.1998, 15.7.1998, 11.7.1999, 16.9.1999, 14.1.2000, 3.7.2000 and 2.1.2001, and submits that every calendar year twice or thrice notifications has been issued from Public Service Commission inviting applications from intending probationers I.A.S. /T.C.S. Grade-II officers for making application in prescribed form for the purpose of appearing the departmental examination. A specimen notification is reproduced below:
"It is notified that the next departmental examination of all Probationer IAS and TCS Gr.-II officers under the Government of Tripura will be conducted by the Tripura Public Service Commission commencing on and from .... All probationer IAS and T.C.S. Grade-II officers desirous to appear at the said examination should apply in the prescribed form given in annexure 'A' below through Appointment and Services Department, Govt. of Tripura to reach the Commission on or before .........with an advance copy direct to the Secretary, T.P.S.C. to reach Commission's Secretariat by ...... The closing date for receiving of application is ......Application received after closing date and incomplete applications will not be entertained."
15. Mr. Saha, learned senior Government Advocate confidently submits that in every year more than one opportunity had been allowed all the incumbents including the petitioner to take part in the departmental examination, but none of them availed the said opportunity and, as such, pursuant to Rule 20 of the Training etc. Rules, 1975 they were not entitled to claimed for release of the second increment and also they are not entitled to be confirmed pursuant to Rule 23 of Tripura Civil Service Rules, 1967. Under Rule 22 of the Tripura Civil Service Rules, 1967 though it is prescribed that a person appointed under Rule 5 or Rule 17 to the service shall undergo such training and pass during the period of probation such departmental examinations as may be prescribed of course, the Governor has been vested with the power to exempt, subject to any such conditions as it may impose, either wholly or partly from such training or departmental examinations, any person appointed under Clause (b) or Sub-rule (1) or Rule 5 or Rule 17. For filling up substantive vacancies in the post under Grade-II Tripura Civil Services, there are two sources of appointment. Under Rule 5(1)(a) 50 per cent of such substantive vacancies are to be filled from open market by a competitive examination to be conducted by the Tripura Public Service Commission while under Clause (b) of the said Rule remaining vacancies are to be filled up by a selection from the feeder post holds as specified in Part V of the Rules. Rule 17 of the Tripura Civil Service Rules, 1967 dealt with absorption at the members at the initial constitution of the rule.
16. From an analysis of Rules 5 & 17 of the T.C.S. Rules, 1967 it reveals that at the initial constitution of the Service Rule, some incumbents specified there under had been absorbed and under Rule 5 fifty per cent of the substantive vacancies are to be filled up by direct recruits, of course, through competitive examination and remaining vacancies are to be filled up from amongst the feeder posts hold by way of selection which is commonly called "promotion" by selection and, as such, there are two types of officers in Grade-II of Tripura Civil Service commonly called "Promotee officers" and "Direct recruitee officers". So far promotee officers are concerned who are appointed pursuant to Rule 5(1)(b) of Rules, 1967 or the members who were absorbed at the initial constitution of the service passing of departmental examination and or imparting training for them appears to be optional because of the fact that the Governor may exempt any one or all of them from discharging such obligation as has been available under proviso to Rule 22, but so far direct recruitees are concerned there is no provision for exemption. Petitioners of W.P.(C) No. 35 of 2000 had been allowed increments for six years and, thereafter, the increment was withheld. State respondents in counter affidavit simply averred that it was done inadvertently, no other explanation has been put forward, ofcourse, in the other case the second increment was stopped.
17. In the proceeding paragraph of the judgment it has been shown how a good number of 95 officers had been allowed to be confirmed without having passed the departmental examination and that was done by the Government without referring the provision of law nor that had been done in the name of the Governor of Tripura. Under Rule 20 of the Training & Departmental Examination Rules, 1975 withholding of second increment could be waived by the State Government in case it was found that the officer concerned had already completed 2 years of service in the grade where no departmental examination was prescribed by the State Government prior to coming into force of this rule. In the present case, it appears that the Training Rules, 1975 came into force on the date when it was notified in Gazette viz., 22.7.1975 and the officers who were allowed exemption as his already been mentioned had been appointed as member to the service after coming into force 01 the Training & Examination Rules, 1975 and as such, no exemption and or relaxation could be allowed to them pursuant to Rule 20 of the Training & Examination Rules, 1975, but in my considered opinion, they were allowed exemption/relaxation benefit pursuant to proviso to Rule 22 of the T.C.S. Rules, 1967. Under the said rule 22 of T.C.S. Rules, 1967 it was the Administrator, now the Governor who is to exercise the power to exempt any members from the liability of training and or relax the condition of passing the departmental examination, but curiously, those officers as has already been mentioned were allowed the said concessional relaxation benefit by the Government by not in the name of the Governor. Be that as it may, that is a curable defect, but fact remains that those officers though similar situated with the petitioners were allowed the relaxation and exemption benefit, they were exempted from passing the departmental examination and declared to have satisfactorily completed the period of probation of 2 years with effect from the date mentioned against each of their names.
18. Having regard to the facts that large number of officers had been exempted from appearing in the departmental examination as have already been quoted above, I am of the considered opinion that withholding of second increment of the petitioner is discriminatory and, as such, it cannot be allowed to stand or continue. The petitioners are entitled the second increment to be released.
19. Having applied the Constitutional doctrines, equility of law and equal application of law among the equally situated persons, I find no reasonable ground to give approval to a discriminatory treatment meted out to the petitioner as compared to the one done to the as many as 95 similarly situated T.C.S. Grade-II officers. Those officers have been allowed to earn second increment a were also declared to have successfully completed the probation period without any departmental training/examination and, as such, in my considered opinion, the same treatment the petitioners are entitled to be allowed.
20. From the aforesaid it appears that the requirement of training and departmental examination have not been followed strictly in respect of the officers under Grade-II of Tripura Civil Service who were appointed pursuant to Rule 5(1)(b) and thus, it could be held that the requirement of the compliance of Rule 22 of Tripura Civil Services, 1967 is not mandatory for them and, as such, the Governor was authorised to exempt and or relax the same without recording any reason thereof, and in exercise of that power of the relaxation/exemption has been adhered to as many as 95 officers similarly situated and, thus, I am constrained to hold that non-passing of departmental examination cannot be a bar either for releasing the second increment or for declaring the incumbents confirmed if otherwise eligible.
21. Precisely 1 have surveyed the related provisions available under Tripura Civil Service Rules, 1967 and Tripura Civil Services (Training and Departmental Examination) Rules, 1975, and in my considered opinion, unless the facilities and provisions are made available to the members for undergoing training as prescribed, under Rule 15 of the Training etc. Rules, 1975 the incumbent deserved to be exempted from training by implication and so far departmental examination is concerned, I am of the opinion that the members appointed in accordance with the Rule 5(1)(b) of T.C.S. Rules, 1967 provision of Rule 22 of the T.C.S. Rule is not a must for them and having applied the said ratio to be a correct one, the authority already exempted as many as 95 similarly situated officers and, thus, the different treatments meted out to the petitioners appear to be hostile discrimination which cannot be recognised under the constitutional scheme in view of the Article 14/16 of the Constitution of India.
22. In that view of the matter both the writ petitions succeed. The petitioners are entitled to be released with their second increment.
For non-passing of departmental examination and/or having not undergone departmental training, no increment of the petitioner could be withheld. The petitioner confirmation cannot be withheld and kept pending for non-passing of departmental examination,
23. The learned counsel for the petitioners having relied upon the decision (The State of Punjab appellant v. Dharama Singh, Respondent) reported in AIR 1968 SC 1210, submits that since the fixed period of probation of 2 years had never been extended by the competent authority, the petitioners shall be deemed to have been confirmed on completion of 2 years.
24. On the other hand, the learned senior Government Advocate Mr. U.B. Saha, having referred a case law in Satya Narayan Athya, petitioner v. High Court of M.P. and Anr. Respondents (reported in AIR 1996 SC 750), submits that even in absence of any order extending the period of probation unless one is declared confirmed he shall be deemed to be continued as probationer.
25. In a recent decision available in High Court of M.P. v. Satya Narayan Jhavar, reported in (2001) 7 SCC 161, the Hon'ble Supreme Court in para 11 held the "There are three lines of Cases decided by Supreme Court on the question of deemed confirmation. One line of cases is where in the service rules or in the latter of appointment of period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation.
26. Having regard to the aforesaid legal position, in the present case though the petitioners completed the period of probation and though there was no order of extension yet, in my considered opinion one positive order from the competent authority declaring petitioners to be confirmed is required. Petitioners cannot claim to have been automatically confirmed. Equally, from the facts and circumstances and the findings arrived at, I am of the considered opinion that the petitioners are entitled to be confirmed in the same manner as that had been done in case of as many as 95 similarly situated T.C.S. Grade-II officers, and I direct the authority to do the same within a period of 45 days.
27. The writ petitions are accordingly allowed as indicated above. No order as to costs.