ASHOK KUMAR & ORS.versusTHE STATE OF JHARKHAND & ORS.

                         [2017] 7 S.C.R. 755                             755


                     ASHOK KUMAR & ORS.                                  A
                                  v.
             THE STATE OF JHARKHAND & ORS.
                   (Civil Appeal No. 877 of 2018)
                           MAY 11, 2018                                  B
  [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 till
clearance of “higher grade” Hindi examination – Challenged –
                                                                         C
Held: r.22 of 2001 Rules referred to the requirement of passing
examinations from time to time prescribed by the Departmental
Examination Rules – When the 2004 Rules were enacted, they were
in super-session of all earlier Rules and the 2001 Rules were
specifically repealed by virtue of r.27 of the 2004 Rules – Thus, the
earlier position stood obliterated from the commencement of the          D
2004 Rules – The 2004 Rules also made it clear that the said Rules
shall prevail for the purposes of selecting, recruiting and appointing
Members of the Jharkhand Judicial Service and regulating the terms
and conditions of their service – r.21(b) of the 2004 Rules also
made it abundantly clear that the successful passing of the
                                                                         E
examination to be conducted by Judicial Academy under the
directions and guidance of High Court “shall alone” be the condition
precedent for confirmation of the trainees – Thus, there is no doubt
qua the 2004 Rules, i.e., that they alone prevail and they in turn
had not provided for the requirement of clearing the “higher grade”
Hindi examination – The legal position prevalent as per the 2004         F
Rules does not require passing of the Hindi examination as the 1963
Bihar Rules cannot be read into the 2004 Rules – Therefore, order
of High Court holding that passing of Hindi Examination is
mandatory is set aside – Jharkhand Judicial Service (Recruitment)
Rules, 2001 – Judicial service.
                                                                         G
      Allowing the appeal, the Court
      HELD: The reasoning of the impugned order cannot be
sustained nor can it be read into the 2004 Rules a mandatory
requirement of clearing the “higher grade” Hindi examination.
                                                                         H
                                 755
756             SUPREME COURT REPORTS                        [2018] 7 S.C.R.


A     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 the Jharkhand State vide Act of 2000. The 2001 Rules also
      envisaged the clearance of the Hindi Departmental Examination,
      which was a reference to the 1963 Bihar Rules. However, when
      the 2004 Rules were enacted, they were in supersession of all
B
      earlier Rules and the 2001 Rules were specifically repealed vide
      Rule 27 of the 2004 Rules. Thus, the earlier position stood
      obliterated from the commencement of the 2004 Rules. This does
      not imply that such a prescription cannot be made. The
      appointment Notifications also, as per para 2, referred to the
C     requirement 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 the
      successful passing of the examination “shall alone” be the
      condition precedent for confirmation of the trainees. No doubt
D
      there is a further condition that the High Court may prescribe
      any examination to be passed but then there is no such
      examination required to be passed by the High Court but rather
      then High Court sought to interpret the Rules as if the provision
      contained qua the passing of the Hindi examination under the
E     1963 Bihar Rules as per the provision of the 2001 Rules should
      also be read into the 2004 Rules. Such a course of action is
      unsustainable. [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.
F                              Case Law Reference
              [1969] 2 SCR 544                 referred to      Para 15
              CIVIL APPELLATE JURISDICTION: Civil Appeal No. 877 of
      2018.
G           From the Judgment and Order dated 03.03.2016 of the High Court
      of 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, Chandra
      Bhushan Prasad, Advs. for the appearing parties.
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        ASHOK KUMAR v. THE STATE OF JHARKHAND                               757


      The Judgment of the Court was delivered by                            A
      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 been
framed in the exercise of powers conferred by Article 234 read with
Article 309 of the Constitution of India. The relevant portion of the       B
preamble is extracted as under:
      “Now therefore in exercise of the powers conferred by Article
      234 read with Article 309 of the Constitution of India and all
      provisions of law enabling him in that behalf, and in supersession
      of all earlier Rules on the subject, the Governor of Jharkhand,       C
      after consultation with the High Court of Jharkhand and Jharkhand
      State Public Service Commission, is pleased to make the following
      Rules so as to select, recruit and appoint Members of the
      Jharkhand Judicial Service and regulate terms and conditions of
      their service:-”
                                                                            D
      2. Thus, the Rules specifically provided that they were in
supersession of all earlier Rules on the subject. The earlier Rules of
2001 were specifically repealed in terms of Rule 27 of the 2004 Rules,
which reads as under:
      “27. Repeal and Savings: (i) Jharkhand Judicial Service               E
      (Recruitment) Rules, 2001 issued vide notification no.185 dated
      the20thAugust, 2001 are hereby repealed.
      (ii) Notwithstanding such repeal, anything done or any action taken
      under the2001 Rules shall be deemed to have been taken under
      these Rules and any selection process initiated or appointments       F
      made pursuant to 2001Rules shall be deemed to have been done
      under these Rules.”
      3. The appointment was to be made after due process and in
terms of Rule 21 of the 2004 Rules, a mandatory one year training period
was envisaged with the Judicial Academy whereafter the trainees were
                                                                            G
to appear in an examination to be conducted by the Judicial Academy
under the directions and guidance of the High Court. The relevant clause
21(b)of the 2004 Rules is as under:
      “21 (b). For a period of one year from the date of appointment, or
      from such other date as the High Court may prescribe, that the
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758            SUPREME COURT REPORTS                           [2018] 7 S.C.R.


A           Civil Judge, Junior Division (Munsif)/Civil Judge, Senior Division
            (Subordinate Judge) shall be admitted in the one year training
            course at the Judicial Academy of Jharkhand at Ranchi or such
            other place as the High Court may prescribe. After completion
            of 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 the
            Judicial Academy under the directions and guidance of the High
            Court and the successful passing of this Examination shall alone
            be the condition precedent for confirmation of the trainees as
            Civil Judges, Junior Division (Munsif)/Civil Judges, Senior Division
C           (subordinate Judges).”
                                                           (emphasis supplied)
            4. The effect of this is that the passing of this examination ‘alone’
      was a condition precedent for confirmation.
D            5. The duration of the training period could be extended but not
      more than two years, and such of the trainees, who did not qualify the
      examination as required in the clause aforesaid, on representation, the
      High Court could suitably afford another chance of taking the
      examination. The total probation period envisaged under Rule 22 of the
      2004 Rules is three years starting from the date of appointment. However,
E     this period could be extended by the High Court in individual cases,
      depending upon the performance and other parameters as may be fixed
      by the High Court from time to time or depending upon the passing of
      such examination during the service as may be prescribed for this purpose
      by the High Court.
F           6. Insofar as the controversy before this Court is concerned, it is
      relevant to note that the earlier 2001 Rules were slightly different in the
      context of what was specified in Rule 22, which reads as under:
            “22. Notwithstanding anything to the contrary contained in these
            rules a Munsif appointed on temporary basis shall be eligible for
G           permanent appointment to the service without there being any
            upper age limit subject to the condition that:
            (i) he has completed two years of service from the date of his
            first appointment;

H
        ASHOK KUMAR v. THE STATE OF JHARKHAND                                   759
               [SANJAY KISHAN KAUL, J.]

      (ii) he has passed such tests as may from time to time be prescribed      A
      in the Departmental Examination Rules; and
      (ii) he is recommended by the High Court for such permanent
      appointment.”
                                                     (Emphasis supplied)
                                                                                B
       7. A bare reading of the aforesaid clause, thus, makes it clear that
while the requirement in this Rule was to pass such test as may be
prescribed 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, it   C
is not as if any additional conditions were prescribed by the High Court
for confirmation. Contextual to the issue at hand, there was no condition
prescribed to pass any exam in Hindi to be conducted by the Board of
Revenue for being confirmed, which is the bone of contention in the
present appeal.
                                                                                D
       9. The appellants before this Court have been recruited through
two sets of Notifications – the first one dated 5.1.2011; and the second
one dated 28.3.2011, being the successful candidates in the recruitment
process. In the Notifications so issued, an identical para 2 reads as
under:
                                                                                E
      “2. The appointment shall be subject to qualifying the test and the
      extension of test period and confirmation shall be subject to
      Jharkhand Judicial Service (Recruitment) Regulation 2005 Rule
      21 and 22 and as per recommendation of Jharkhand High Court.”
       10. Despite the aforesaid position, the appellants before this Court
                                                                                F
were not confirmed after three years’ continuous service. The appellants
had passed the examination conducted by the Judicial Academy,
Jharkhand at the end of the Induction Programme. The ostensible reason
for the same was that they are not clearing a departmental Hindi
examination held by the Board of Revenue. The appellants, thus, made
a representation dated 29.4.2014, in which inter alia it was stated that        G
during their tenure they were repeatedly informed and advised that they
were exempted from taking part in the Hindi examination as per the
Rules of 2004 and, thus, they had not appeared for the departmental
Hindi examination. This representation was, however, rejected by the
High Court in the following terms:
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760            SUPREME COURT REPORTS                           [2018] 7 S.C.R.


A           “After consideration of the representation of some of the Civil
            Judges (Junior Division) regarding their confirmation in service
            and to get increments by this Court, I am directed to inform that
            passing of the Hindi Examination as well as the Departmental
            Examination by Civil Judge (Junior Division) is a condition
            precedent for their increment as well as confirmation in terms of
B
            Rule 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 (Judicial
            Branch) Training and Departmental examination Rules, 1963.”
             11. The respondents, thus, relied upon the same very Rule 21(b)
C     of the 2004 Rules read with Rule 7 of the Bihar Government Servant
      (Hindi Examination) Regulation, 1968 and Rule 27(a) of the Bihar Civil
      Service (Judicial Branch) Training and Departmental Examination Rules,
      1963 (hereinafter referred to as the ‘1963 Bihar Rules’). The latter
      reads as under:
D           “Liability of Probationers to Examinations
            27. (a) Every probationer is required to pass an examination in
            the following subjects :-
            (i) the High Court’s General Rules and Circular Orders (both
E           criminal and civil), as laid down in sub-rule (b) to this rule. The
            examination in the High Court’s General Rules and Circular Orders
            will test in particular the extent to which the examinee has acquired
            practical facility in applying the rules.
            (ii) Procedural Law and Law of Evidence as laid down in sub-
F           rule (c) to this Rule.
            (iii) Hindi by the lower and higher standards as described in
            Appendix-I of this Rule.”
                                                           (emphasis supplied)
            12. The accepted factual position is that the Jharkhand State was
G     carved out of the State of Bihar in terms of the Bihar Reorganisation
      Act, 2000 on 15.11.2000. Rule 22 of the 2001 Rules refers to the
      requirement of passing examinations from time to time prescribed by
      the Departmental Examination Rules, which in turn is Rule 27(a) of the
      1963 Bihar Rules.
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          ASHOK KUMAR v. THE STATE OF JHARKHAND                                761
                 [SANJAY KISHAN KAUL, J.]

       13. In view of the aforesaid position this rejection was challenged     A
by filing writ petitions, which have been dismissed by the common
impugned order dated 3.3.2016.
      14. On behalf of the appellants, it was contended that in view of
Sections 84 & 85 of the Bihar Reorganisation Act, 2000, the 1963 Bihar
Rules were deemed to have been operating in the newly created State            B
of Jharkhand. However, this position was prevalent under the 2001
Rules but when the 2001 Rules were repealed after the framing of the
2004 Rules, it is the 2004 Rules, which would prevail.
       15. The High Court took note of the judicial pronouncement of
this court in Rattan Lal & Co. and Anr. v. Assessing Authority, Patiala        C
& Anr.1where it was opined that on the creation of a new State after
reorganisation, the original Act cannot be amended from a date anterior
to the appointed date and the original Act would apply as an independent
Act to each of the States and the new State is within its legislative
competence to amend the original Act in relation to the area of the new
State. Thus, the pre-existing laws in the unified State of Bihar, it was       D
opined as per the High Court, would continue to apply to the new State
created under the Bihar Reorganisation Act, 2000 only until otherwise
provided by the competent legislature or other competent authority. The
2001 Rules, it is observed, thus, specifically provide in Rule 22 for a test
to be taken from time to time as may be prescribed by the Departmental         E
Examination Rules, i.e., 1963 Bihar Rules.
       16. Insofar as Rule 27 of the 2004 Rules is concerned, the same
repealed the 2001 Rules. It was acknowledged in the impugned judgment
that there was no reference of the 1963 Bihar Rules in the 2004 Rules
nor is there a similar reference as in Rule 22(ii) of the 2001 Rules. It       F
was thus opined that the 1963 Bihar Rules, which were applicable to the
2001 Rules, cannot be considered as inoperative or superseded or
repealed by the 2004 Rules. The expression used- ‘alone’, in Rule 21(b)
of 2004 Rules was, thus, held not to imply that the Hindi examination
could not be prescribed as a condition precedent for confirmation. The
control by the High Court under Article 235 of the Constitution of India,      G
it was held, empowered and allowed the High Court to prescribe the
passing of Hindi examination and departmental examination for the
members of the Subordinate Judiciary. Thus, the passing of the Hindi
examination was held to be mandatory. It was also observed that this is
1
    (1969) 2 SCR 544                                                           H
762             SUPREME COURT REPORTS                             [2018] 7 S.C.R.


A     so, even though it may cause hardship to the appellants, who would be
      disentitled to grant of increments till they pass the examination.
            17. It is in the aforesaid context that the High Court confirmed
      only 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 Hindi
      Examination with “lower grade”, which was not taken into account.
             19. The factual development subsequently is that all the appellants
      have cleared the examination in the “higher grade” and thus, to that
      extent the lis does not survive. However, the lis does survive to the
C     extent 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 they
      cleared the examination in “higher grade” Hindi.
             20. We have given opportunities to the State of Jharkhand to look
      into this issue from the correct perspective on various dates. However,
D     that has not borne fruit and we were called upon to adjudicate the issue
      in question.
             21. On having heard learned counsel for the parties and examining
      the records, we are of the view that the reasoning of the impugned order
      cannot be sustained nor can it be read into the 2004 Rules a mandatory
E     requirement 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 the
      Jharkhand State vide Act of 2000. The 2001 Rules also envisaged the
      clearance of the Hindi Departmental Examination, which was a reference
F     to the 1963 Bihar Rules. However, when the 2004 Rules were enacted,
      they were in supersession of all earlier Rules and the 2001 Rules were
      specifically repealed vide Rule 27 of the 2004 Rules. Thus, the earlier
      position stood obliterated from the commencement of the 2004 Rules.
      The 2004 Rules also make it clear that the said Rules shall prevail for
      the purposes of selecting, recruiting and appointing Members of the
G
      Jharkhand Judicial Service and regulating the terms and conditions of
      their service. Rule 21(b) of the 2004 Rules also makes it abundantly
      clear that the successful passing of the examination “shall alone” be the
      condition precedent for confirmation of the trainees. This leaves no
      manner of doubt qua the 2004 Rules, i.e., that they alone prevail and
H
        ASHOK KUMAR v. THE STATE OF JHARKHAND                                    763
               [SANJAY KISHAN KAUL, J.]

they in turn had not provided for the requirement of clearing the “higher        A
grade” Hindi examination by the Board of Revenue.
        23. We make it clear that this does not imply that such a prescription
cannot be made. The fact remains that such a prescription has not been
made. It was always open to include such a prescription in the Rules
itself. The appointment Notifications also, as per para 2, referred to the       B
requirement 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 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 prescribe          C
any examination to be passed but then there is no such examination
required to be passed by the High Court but rather then High Court
sought to interpret the Rules as if the provision contained qua the passing
of the Hindi examination under the 1963 Bihar Rules as per the provision
of the 2001 Rules should also be read into the 2004 Rules. Such a course         D
of action is unsustainable.
       24. We are, thus, of the view that the legal position prevalent as
per the 2004 Rules does not require passing of the Hindi examination
held by the Revenue Department as the 1963 Bihar Rules cannot be
read into the 2004 Rules. We also clarify that it is always open to the          E
respondents to amend the 2004 Rules, if they want to incorporate such a
stipulation or the High Court may itself conduct a Hindi examination
towards that objective by prescribing so. This is so as proficiency in the
Hindi language is possibly a necessity arising out of the judicial work
conducted in the State of Jharkhand. In any case, as noticed above, all
the appellants have passed the examination and, thus, the only question          F
of giving them the benefit of the increments and other mandatory benefits
even for the period when they had not cleared the “higher grade” in the
Hindi examination.
      25. Learned counsel for the appellants has also pointed out another
ramification of the stand of the respondents, i.e., that though the appellants   G
joined in the year 2011 and, thus, came under the old pension scheme if
what the respondents say is accepted then their subsequent confirmation
would result in their not being covered under the old pension scheme but
under the new contributory pension scheme, which came into force in
terms of Notification dated 22.12.2013.                                          H
764              SUPREME COURT REPORTS                        [2018] 7 S.C.R.


A           26. We, thus, also hold that the appellants would be entitled to be
      covered under the old pension scheme relatable to their entry into the
      service in the year 2011.
            27. The respondents will ensure that the differential mandatory
      benefits are remitted to the appellants within a period of three months
B     from the date of the order.
             28. The appeal is accordingly allowed leaving the parties to bear
      their own costs.


C     Devika Gujral                                               Appeal allowed.




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