Allahabad High Court
Heera Lal vs State Of U.P.Thru ... on 11 May, 2023
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:32470-DB Reserved Court No. - 1 Case :- WRIT - A No. - 5518 of 2021 Petitioner :- Heera Lal Respondent :- State Of U.P.Thru Addl.Chief/Prin.Secy.Revenue Lucknow Andors. Counsel for Petitioner :- Dinesh Kumar Pushpakar,Yogendra Singh Counsel for Respondent :- C.S.C.,Anil Kumar Yadav,Ashok Shukla,R K Upadhyay,Yaduvansh Mani Singh Yada connected with Case :- WRIT - A No. - 22293 of 2021 Petitioner :- Ram Shankar Respondent :- State Of U.P. Thru. Addl.Chief Secy. Revenue Lko. And Ors. Counsel for Petitioner :- Mohd. Mansoor,Mohammad Danish Counsel for Respondent :- C.S.C.,Ashok Shukla Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Om Prakash Shukla,J.
(1) The proceedings of the aforesaid two writ petitions under Article 226 of the Constitution of India have been instituted challenging the judgment and order dated 02.02.2021 passed by the U.P. State Public Services Tribunal in a bunch of Claim Petitions, leading Claim Petition being Claim Petition No. 716 of 2020.
The petitioner of Writ-A No. 5518 of 2021, Heera Lal instituted Claim Petition No. 998 of 2020 before the U.P. State Public Services Tribunal with the prayer that the respondents-State Authorities be directed to consider his case for confirmation on the post of Tehsildar with effect from 21.09.2017, i.e., the date of end of his probation and further that the respondents-State Authorities be directed to include his name in the eligibility list for selection by way of promotion to the post of Deputy Collector in the Selection Year 2018-19.
Claim Petition No. 817 of 2020 was instituted by the petitioner of Writ-A No. 22293 of 2021 with the similar prayers.
(2) Since the questions of facts and law involved in the aforesaid two writ petitions are same and challenge in both the writ petitions has been made to the judgment and order dated 02.02.2021 passed by the U. P. State Public Services Tribunal, hence with the consent of learned Counsel for the parties, both the writ petitions are being heard together and as such decided by the same judgment and order which follows:-
(3) Heard Shri Dinesh Kumar Pushpakar and Shri Yogesh Singh for the petitioner in Writ-A No. 5518 of 2021 and Shri Mohd. Danish holding brief for Shri Mohd. Mansoor, learned Counsel representing the petitioner in Writ-A No. 22293 of 2021. On behalf of the respondents-State Authorities, Shri Indrajeet Shukla, learned State Counsel has also been heard. We have also perused the records available before us on these two writ petitions.
(4) The facts of these two writ petitions lie in a narrow compass. As pleaded by the petitioners of both writ petitions, both were appointed on the post of Naib-Tehsildar on 30.11.2005 having been duly selected by the U.P. State Public Service Commission, Prayagraj. They were subsequently confirmed on the post of Naib-Tehsildar and were promoted simultaneously on the post of Tehsildar vide order dated 11.09.2015 on a probation for a period of two years. The name of the petitioner of Writ-A No. 5518 of 2021 in the order of appointment on the post of Tehsildar dated 11.09.2015 finds at Sl. No. 20, whereas name of the petitioner of Writ-A No. 22293 of 2021 is at Sl. No.60 of the said order. As per the order of appointment of the Tehsildar dated 11.09.2015, they were appointed on a probation for a period of two years, however, as per the stipulation contained in the appointment order dated 11.09.2015, these petitioners were directed to complete the departmental examination during the period of probation.
(5) Both the petitioners cleared all eight papers of departmental examination only on 20.09.2019 and accordingly, an order of confirmation was passed on 27.05.2020 whereby they were confirmed on the post of Tehsildar with effect from 20.09.2019. The petitioner-Heera Lal is mentioned in the said order of confirmation at Sl.No. 69, whereas other petitioner-Ram Shankar is mentioned at Sl.No. 31 of the said confirmation Order dated 27.05.2020. As already observed above, both the petitioners were confirmed on the post of Tehsildar on 20.09.2019, i.e., with effect from the date they passed all eight papers of the departmental examination.
(6) For making promotion to the post of Deputy Collector in terms of the provisions contained in U.P. Civil Services (Executive Branch) Rules, 1982 [hereinafter referred to as 'Deputy Collector Service Rules'] framed under Article 309 of the Constitution of India, an exercise was undertaken to consider Tehsildars for their promotion to the said post for the Recruitment Year 2018-19. Since the names of the petitioners were not included in the eligibility list for promotion to the post of Deputy Collector, the petitioners instituted the aforesaid Claim Petitions with the prayer that they be treated to be confirmed on the post of Tehsildar on 21.09.2017, i.e., the date of end of probation of two years' period and accordingly, a direction be issued to the State Authorities to include their names in the eligibility list for making promotion to the post of Deputy Collector for the Recruitment Year 2018-19. The learned Tribunal clubbed both the claim petitions preferred by these two petitioners alongwith various other Claim Petitions and has decided by a common judgment and order dated 02.02.2021. It is this order dated 02.02.2021 passed by the U.P. State Public Services Tribunal which is under challenge before us in these two writ petitions.
(7) It has been argued by the learned Counsel for the petitioners that the provisions contained in Rules for the conduct of the Departmental Examinations and where specified herein, the training of Junior Officers in the United Provinces of Agra & Oudh [hereinafter referred to as 'Departmental Examination Rules'] are mandatory in nature and that the departmental examination will be held twice a year usually in April and October on such dates as may be determined by the Public Service Commission and since in the present case, the departmental examinations were not held timely, as such the petitioners could not have the opportunity to pass the same within the period of their probation which ended on 20.09.2017, as such for the lapse on the part of the State Authorities in not conducting the examination twice a year as per the mandate of the said Rules, the petitioners cannot be punished in the sense that they cannot be held responsible for not being confirmed prior to 20.09.2019.
(8) Drawing our attention to Rule 3 of the Departmental Examination Rules, it has been contended by learned Counsel for the petitioners that the same is mandatory. When a consequence is provided by a statute on failure to comply with the prescribed requirement, there can be no manner of doubt that such statutory requirement must be interpreted as mandatory.
(9) It has also been argued by learned Counsel for the petitioners that in view of the law laid down by the Privy Council in the case of Nazir Ahmed v. King Emperor [AIR 1936 P.C. 253] where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and since in the present case, the State Authorities have not followed the mandate of Rule 3 of the Departmental Examination Rules, as such there being no fault on the part of the petitioners in not clearing the departmental examination within the probation period, they should be treated to have been confirmed w.e.f. the date on which they completed the period of probation, i.e., 21.09.2017 and not w.e.f. 20.09.2019 when they cleared the departmental examination. In this regard, learned Counsel for the petitioners has also cited the judgment of Hon'ble Supreme Court in the case of Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala & Ors. decided on 18.10.2001 [C.A.No.004126-004150/2000].
(10) Learned Counsel for the petitioners have also submitted that where Service Rules fix a certain period of time beyond which the period of probation cannot be extended and an employee appointed or promoted is allowed to continue on the post even after completion of maximum period of probation without an express order of confirmation, such an employee is deemed to continue on his post as a probationer by implication. Reliance in this regard has been placed by the learned Counsel for the petitioners on the judgments in the cases of State of Punjab v. Dharam Singh [1968 AIR 1210] and Shamsher Singh & Anr. v. State of Punjab [1974 AIR 2192].
(11) Thus, in pith and substance, the submission of learned Counsel for the petitioners for assailing the validity of the judgment and order passed by the U.P. State Public Services Tribunal is that Rule 3 of Departmental Examination Rules are mandatory and since as per the said mandate, the departmental examinations were not held twice in a year, hence the petitioners could not clear all eight papers of departmental examination within the probation period and accordingly for the fault on the part of the State Authorities, the petitioners cannot be penalized. In this view, the submission is that the petitioners ought to be treated to have been confirmed w.e.f. 21.09.2017 when they completed two years probation period and not w.e.f 20.09.2019 when they passed all papers in the departmental examination.
(12) Shri Indrajeet Shukla, learned State Counsel has vehemently opposed and has submitted that as per the order of appointment by way of promotion of the petitioners from the post of Naib-Tehsildar to Tehsildar dated 11.09.2015, it was mandatory for the petitioners to have passed the departmental examination. He has further submitted that in terms of Rule 15 of U.P. Subordinate Revenue Executive (Tehsildar) Service Rules, 1966 [hereinafter referred to as the 'Tehsildar Service Rules'], a probationer can be confirmed on the post only if (i) he has passed the departmental examination prescribed for Tehsildar; (ii) the Commissioner certifies his integrity and gives a report that he is fit for confirmation and (iii) the appointing authority is satisfied that he is otherwise suitable and fit for confirmation.
(13) Shri Indrajeet Shukla has thus submitted that in terms of the provisions contained in Rule 15 of Tehsildar Service Rules, if a Tehsildar does not complete the departmental examination as prescribed by the State Government, he cannot be confirmed for the reason that one of the conditions for confirmation to the post of Tehsildar is that the incumbent concerned should have passed the departmental examination. According to him, the said provision is mandatory and admittedly, the petitioner could pass the departmental examination only on 20.09.2019 and hence they have rightly been confirmed on their post of Tehsildar w.e.f. the said date, i.e., 20.09.2019.
(14) Shri Indrajeet Shukla has further argued that the appointment by way of promotion to the post of Deputy Collector in terms of the provisions contained in the Deputy Collector Service Rules, the year of recruitment means the period of twelve months commencing from the first day of July of a calendar year and that promotion to the post of Deputy Collector from amongst the Tehsildars is made on the basis of criteria of merit in accordance with The Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 [hereinafter referred to as the 'Procedure Rules']. His submission further is that in terms of Rule 6 of the Procedure Rules, the relevant date with reference to which a candidate shall be deemed fulfilled such condition shall be the date of commencement of year of recruitment and in this case, the relevant date will be 1st July, 2019 and since admittedly, the petitioners were not confirmed on the post of Naib-Tehsildar and as such their names could not have been included in the eligibility list of promotion to the post of Deputy Collector. He has drawn our attention to Rule 5 of Deputy Collector Service Rules, according to which promotion from the post of Tehsildar is to be made only from amongst permanent Tehsildars and since on the date of relevant recruitment year, i.e., 01.07.2019, the petitioners were not permanent Tehsildars, hence they have rightly been excluded from the eligibility list prepared for making promotion to the post of Deputy Collector. Shri Shukla has further argued that in view of law laid down by the Supreme Court in the case of C. Bright v. Deputy Collector and others [(2021) 2 SCC 392], provisions of Rule 3 of the Departmental Examination Rules are to be held directory. Thus, it has been argued by learned State Counsel that the submissions made by the learned Counsel for the petitioners are not tenable and no infirmity or fault can be found with the judgment and order passed by the U.P. State Public Services Tribunal which is under challenge in these writ petitions. He has thus urged that the writ petitions are liable to be dismissed.
(15) We have carefully considered the rival submissions made by the learned Counsel for the respective parties. The facts as narrated in the writ petitions are not in dispute. The question which arises for our consideration in these writ petitions is as to whether Rule 3 of the Departmental Examination Rules is mandatory and in case the departmental examinations were not convened as per the said mandate, the petitioners ought to be treated to have been confirmed on the post of Tehsildar w.e.f. 21.09.2017, i.e., w.e.f. the date when they completed their two years probation period. The consequential question which falls for our consideration is as to whether the exclusion of the petitioners from the eligibility list for promotion to the post of Deputy Collector for the Recruitment Year 2018-19 was illegal.
(16) The conditions of service on the post of Tehsildar are governed by the Tehsildar Service Rules. As per Rule 5 of the said Rules, one of the sources of recruitment to the post of Tehsildar is by way of promotion from amongst Naib-Tehsildars. Rule 12 prescribes that all the appointees on the post of Tehsildar shall be kept on probation for a period of two years. Rule 13 provides that the Board of Revenue can extend the period of probation for a period of less than a year and in case the probation is extended, such order of extension shall clearly indicate the date by which the probation is extended. Sub-Rule (2) of Rule 13 provides that in case the incumbent is not utilized his chances in the extended period of probation or he has not passed the departmental examination or he is otherwise unable to satisfy the authority concerned, such Tehsildar appointed on probation can be reverted to the post from where he was promoted. Rule 14 provides that any appointee on the post of Tehsildar shall be required to pass such departmental examination as may be determined by the State Government. The note appended to Rule 14 provides that the syllabus and Rules for departmental examination are available in the book of Rules for the conduct of Departmental Examinations and the Training of Junior Officers in Uttar Pradesh.
(17) Rule 15 provides that a Tehsildar shall be confirmed on his post at the end of period of probation or on the extended period of probation if (i) he has passed the departmental examination prescribed for Tehsildar; (ii) the Divisional Commissioner furnishes a report that such a candidate is fit and suitable for being confirmed and that his integrity is not doubtful and (iii) the appointing authority is satisfied that the candidate concerned is suitable for being confirmed.
(18) Thus, one of the conditions precedent for confirmation of a Tehsildar who is initially appointed on the post of Tehsildar, he should have passed the departmental examination of Tehsildar. Thus, passing of the departmental examination of Tehsildar is sine qua non for his confirmation. We have no doubt in our mind that once the statutory Service Rules framed under Article 309 of the Constitution of India prescribe a condition precedent for confirmation, the incumbent concerned cannot be confirmed on his post, unless he fulfills such a condition that the probationer has to pass the departmental examination for his confirmation can be found at two places in the Tehsildar Service Rules. In Rule 13, it has clearly been prescribed that in case the incumbent concerned fails to pass the departmental examination, he may be reverted from the post which he has been promoted to the post of Tehsildar. Rule 15 provides that a probationer Tehsildar can be confirmed on his post on fulfillment of three conditions, one of such condition is that he should have passed the departmental examination of Tehsildar. Thus from the Scheme of Tehsildar Service Rules, it is abundantly clear that a Tehsildar having been appointed on probation to be confirmed, he has to necessarily pass the departmental examination failing which he can even be reverted to the post from which he is promoted.
(19) So far as the eligibility of the petitioners for being considered for promotion to the post of Deputy Collector is concerned, we may note relevant prescriptions available in the Deputy Collector Service Rules. One of the sources of recruitment to the post of Deputy Collector as per the Deputy Collector Service Rules is by way of promotion from amongst permanent Tehsildars. Rule 5 (1) in this regard is very clear which stipulates that recruitment to the ordinary grade in service shall be (i) by direct recruitment on the result of a competitive examination conducted by the U.P. Public Service Commission and (ii) by promotion from amongst permanent Tehsildars. Thus any Tehsildar who has not been made permanent on his post is not eligible to be considered for promotion to the post of Deputy Collector as per the prescription available in Rule 5 of Deputy Collector Service Rules. We may also note that as per prescription available in Deputy Collector Service Rules, promotion to the post of Deputy Collector is made on the basis of criteria of merit in accordance with Procedure Rules. Rule 4 (f) of Procedure Rules defines the 'year of recruitment' to mean the period of twelve months beginning the first day of July of a calendar year. Rule 6(1) of the Procedure Rules as amended in the year 1971 is as under:-
"6. Other conditions of eligibility : (1) Nothing in these rules shall affect any provision in any service rule in respect of the conditions of eligibility for promotion relating to age, educational or technical qualifications nature of experience or length of service except to the extent that the relevant date with reference to which a candidate shall be deemed to have fulfilled such conditions shall be the date of commencement of the year of recruitment."
(20) Accordingly, for the purposes of the issues involved in this case the date of commencement of year of recruitment is 01.07.2019 and accordingly, the eligibility of Tehsildars for the purpose of making promotion to the post of Deputy Collector was to be determined on 01.07.2019. It is not in dispute that on 01.07.2019, the petitioners were not confirmed on the post of Tehsildar; rather they were confirmed vide order dated 27.05.2020 with effect from 20.09.2019. In this view, for the reason that the petitioners were not confirmed Tehsildars on 01.07.2019, in our considered opinion, they were rightly not included in the eligibility zone for the purpose of making promotion to the post of Deputy Collector.
(21) So far as the argument of the learned Counsel for the petitioners that the departmental examinations are mandatory and in case the departmental examinations were not conducted, during their probation period, they could not pass all eight papers of the departmental examination and as such they could not be penalized is concerned, we may consider as to whether such Rule is mandatory or directory.
(22) Rule 3 of the Departmental Examination Rules is quoted hereunder:-
"An examination will be held twice a year, usually in April and October on such dates as may be determined by the Public Service Commission."
(23) Thus, as per the aforequoted Rules, the departmental examination has to be conducted twice in a year usually in April and October on such dates as may be prescribed by the Public Service Commission.
(24) The submission of the learned Counsel for the petitioners is that the occurrence of the word 'will' in Rule 3 as aforequoted makes the same mandatory. In this regard, we may refer to the judgment of Hon'ble Supreme Court in the case of C. Bright (supra) wherein it has been clearly held that the use of the word 'shall' in a statute does not necessarily mean that in every case it is mandatory that unless the words of the statute are literally followed, the proceeding or the outcome of the proceeding, would be invalid. Hon'ble Supreme Court has further held that it is not always correct to say that if the word 'may' has been used, the statute is only permissive or directory in the sense that non-compliance of such provisions would not render the proceeding invalid. The Court in fact has to ascertain the intention of the Rule Making Body for carefully attending the scope of the statute in question. In C. Bright (supra), Hon'ble Supreme Court referring to T.V. Usman v. Food Inspector, Tellicherry Municipality [(1994) 1 SCC 754] has held in para - 13 of the report as under:-
"13. This Court distinguished between failure of an individual to act in a given time-frame and the time-frame provided to a public authority, for the purposes of determining whether a provision was mandatory or directory, when this Court held that it is a well-settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified."
(25) When we examine the submissions of the learned Counsel for the petitioners in light of the law laid down, as discussed above, what we find is that even if as per Rule 3 of Departmental Examination Rules, the departmental examinations are not held twice a year, such failure will not entitle a Tehsildar appointed on probation to claim confirmation even if he has not passed the departmental examination for the reason that Rules 13 and 15 of Tehsildar Service Rules, both mandate that confirmation is subject to passing of the departmental examination. As already discussed above, Rule 13 of the Tehsildar Service Rules stipulates a situation where a Tehsildar appointed on probation fails to pass the departmental examination and he can be reverted to the post from which he is promoted.
(26) The concept of confirmation in the service jurisprudence has its own consequences. Confirmation of a probationer on his post is subject to satisfaction of the competent authority regarding his fitness and suitability and in terms of Tehsildar Service Rules, passing of the departmental examination is one of the conditions for confirmation. Accordingly, in any circumstances, no probationary Tehsildar can be promoted to be confirmed on his post unless he passes the departmental examination. Passing of the departmental examination as a condition precedent for confirmation to the post of Tehsildar has a rationale nexus with the object sought to be achieved. Participation in the departmental examination and passing of the same has a purpose and the purpose is to better equip with the Probationary Tehsildar to perform his duties of the post of Tehsildar more efficiently and upto the expectations. In case for any reason whatsoever, if a probationary Tehsildar does not pass the departmental examination and is allowed to be confirmed on the post of Tehsildar, the same will result in depletion of the abilities of such a Tehsildar in performance of his duties assigned to the post.
(27) Accordingly, we have no hesitation to hold that any probationary Tehsildar for being confirmed has to necessarily pass the departmental examination and for whatever reason if he has not passed the departmental examination he cannot be confirmed.
(28) It is also be noticed that between the period the petitioners were promoted on the post of Tehsildar on probation and the date when they pass the departmental examination, the U.P. Public Service Commission has conducted the departmental examinations six times. The details of the departmental examination conducted by the Commission are as follows:-
Sl. No. Date of conduct of departmental examination Date of declaration of result
1. 19.09.2008 to 29.09.2008 10.02.2009
2. 04.03.2010 to 13.09.2010 23.07.2010
3. 30.01.2012 to 11.02.2012 23.05.2012
4. 11.08.2014 to 21.08.2014 14.05.2015
5. 28.09.2015 to 09.10.2015 12.02.2016
6. 23.06.2016 to 02.07.2016 07.04.2017 (29) It is also the case of the State-Authorities that the departmental examinations need not be necessarily passed once an incumbent is promoted on probation basis to the post of Tehsildar; rather Naib-Tehsildars can also appear in the departmental examination.
(30) At this juncture we may also notice that so far as the petitioner-Heera Lal is concerned, he had cleared certain papers of departmental examination while posted on the post of Naib-Tehsildar and as per the statement made by learned State Counsel, he had ample opportunity to have appeared in the departmental examination in the years 2008, 2010, 2012, 2014, 2015 and 2016. However, he did not avail of the said opportunities.
(31) Having said so, it cannot be said that adequate and ample opportunities were not available to the petitioners to have appeared in the departmental examinations prior to completion of their probation period, i.e., prior to 20.09.2017. The learned Tribunal while dismissing the Claim Petitions filed by the petitioners has taken into account the relevant provisions contained in the statutory Service Rules which have been referred here-in-above by us in the preceding paragraphs and has rightly come to the conclusion that on the first date of recruitment year, i.e., 01.07.2019, the petitioners were not confirmed Tehsildars and hence, they were rightly excluded from the eligibility zone for promotion to the post of Deputy Collector.
(32) For the discussion made and reasons given above, we find that both the writ petitions are misconceived, which are resultantly dismissed.
(33) However, there will be no order as to costs.
(Om Prakash Shukla, J.) (Devendra Kumar Upadhyaya, J.) Order Date :-11.5.2023 lakshman