LPA No.549 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No.549 of 2011 (O&M) Date of decision 22 .3.2011 Brahm Dev Sharma ... Appellant Versus State of Haryana and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. RS Sihota, Sr. Advocate with Mr. B.R. Rana, Advocate for the appellant 1. To be referred to the Reporter or not ? 2. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. 1. The instant appeal filed under Clause X of the Letters Patent is directed against judgement dated 2.2.2011 rendered by the learned Single Judge holding that the appellant could not be granted exemption from clearing the departmental examination as per Rules 16 and 19 of the Haryana Excise and Taxation Department (Group 'B') Service Rules, 1988 (for brevity 'the Rules'). The respondents have apprised the learned Single Judge that power to grant exemption has been withdrawn by amending Rule 16 of the Rules and the time for passing the examination could alone be extended. The argument that power to relax was still available with the Government by virtue of Rule 19 of the Rules has been rejected by the learned Single Judge. The view of the learned Single Judge is discernible from following para of the judgement which reads thus: “ After hearing learned counsel for the parties, I am of the considered opinion that the petition is without any merit. By LPA No.549 of 2011 (O&M) 2 virtue of the notification dated 25.2.2010 Rule 16 stands amended and the period of two years as provided in the said rule for clearing the examination stand extended to three years. While the first proviso stands omitted and Rule 16 (b)(2) also stands omitted while in sub-rule (3) unless exempted words have been omitted. The impact of the amendment is thus that the power to exempt any person from clearing examination stands withdrawn and only the period of clearing such an examination stands extended. The intent is thus clear that the respondents do not want any person to be promoted unless departmental examination has been cleared. Learned counsel for the petitioner while falling back on the argument that Rule 19 should have been invoked has not been able to convince this Court on this score as well as a bare perusal of this rule reflects only a limited power with the Government to relax in case of a class or a category. There are thus two situations envisaged by Rule 16 and 19 that in the case of individuals, Government does not have the power to exempt or relax the condition of passing of the departmental examination whereas the time for passing such an examination has been extended. In so far as Rule 19 is concerned as observed earlier it pertains to relaxation granted to class or category of person considering certain eventualities that a given class or category of person may face or may be required to overcome in order to enable them to be considered for promotion which eventualities are to be justified by the LPA No.549 of 2011 (O&M) 3 Government, while exercising the power to relax. “ 2. The only argument of Mr. Sihota is that power to relax still continues by virtue of Rule 19 of the 'Rules' and therefore the same could be exercised for relaxing any of the provisions of the 'Rules' with regard to any class or persons. According to the learned counsel in the absence of amendment of Rule 19 of the Rules, the power to exempt would continue to be available and appropriate directions should have been issued by the learned Single Judge. 3. Having heard the learned senior counsel, we are of the considered view that the appeal is wholly mis-conceived and is liable to be dismissed. In order to appreciate the controversy we would set out Rules 16 and 19 of the Rules, as it stood before amendment, and the same reads thus: “ 16. Departmental examination (1) Every member of the Service shall within two years of his appointment, pass the departmental examination in accordance with the syllabus and other conditions as specified in Appendix E to these rules; Provided that in the case of persons appointed to the service immediately before the issue of Punjab Government, Excise and Taxation Department Notification No. 7249 E&T- 11-64/1080, dated 8th February, 1965, period of passing the departmental examination shall be three years; Provided further that it shall not be necessary for a member to take the departmental examination if he has already qualified in the higher standard in any or in all subjects a similar examination as Excise Sub Inspector, Excise Inspector or Taxation Inspector or Assistant Excise and Taxation Officer LPA No.549 of 2011 (O&M) 4 by obtaining not less than 66 per cent marks in individual subject. (2)The Government may exempt any member from passing the whole or any part of the examination after recording reasons for so doing. (3)If any member unless exempted fails to pass the departmental examination within the prescribed period, he shall be liable to be removed from service or reverted to his former appointment, as the case may be.” (Italic supplied) “ 19. Power of relaxation.- Where the Government is of the opinion that it is necessary or expedient to do so, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons.” 4. A perusal of the above quoted un-amended Rule 16 of the rules would reveal that it specifically deals with the departmental examination and it obliges every member of service to pass the examination within a period of two years of his appointment. Rule 16(2) of the 'Rules' used to clothe the Government with the power to exempt any member from passing the examination or any part of the examination after recording reasons for doing so and sub rule (3) makes it abundantly clear that if any member fails to pass the departmental examination within the prescribed period of two years then he could be removed from service or reverted to his former appointment. However, Rule 16 of the Rules was amended on 25.2.2010 vide Haryana Excise and Taxation Department (Group B) Service LPA No.549 of 2011 (O&M) 5 (Amendment) Rules, 2010 and the power of exemption given to the Government under sub rule (2) of Rule 16 of the Rules has been taken away by omitting rule 2 and the expression 'unless exempted' in sub rule has also been deleted. The amendment dated 25.2.2010 reads as under: “ 2. In the Haryana Excise and Taxation Department (Group B) Service Rules, 1988,in rule 16,- (a) in sub rule (1)- (i)for the words 'two years', the words 'three years' shall be substituted; (b) sub rule (2) shall be omitted; and (c ) in sub rule (3), the words 'unless exempted' shall be exempted.” 5. A perusal of the amendment made in Rule 16 of the 'Rules' would show that power to exempt from passing departmental examination has been deleted although relaxation could be granted in respect of any class or category of persons in case the Government forms the opinion that it was necessary or expedient to do so. The question is whether power of exemption can still be read under Rule 19 of the 'Rules' after specific omission of that power by deleting sub rule(2) of Rule 16 of the Rules and other omission from sub rule (3) of Rule 16. Once by necessary intendment power of exemption has been deleted then under the garb of Rule 19 of the Rules the same power cannot be assumed by the government. There is manifest intendment highlighting that exemption from taking departmental examination is not to be granted as sub rule(2) of Rule 16 of the Rules stand deleted w.e.f. 25.2.2010. On account of the amendment the legislative intent has become evident and power of exemption from taking departmental LPA No.549 of 2011 (O&M) 6 examination would no longer be available. To take shelter of Rule 19 of the Rules would amount to nullifying the legislative intent which has been expressed by deletion of the power of exemption under sub rule(2) of 16 of the Rules. Therefore, we are of the considered view that power of exemption from taking departmental examination cannot once again be read into Rule 19 of the Rules as is sought to be argued by the learned senior counsel for the appellant. The conclusion reached by the learned Single Judge does not suffer from any legal infirmity warranting interference of this Court for the supplementary reasons. The appeal is without merit and does not warrant admission. 6. As a sequel to the above discussion, the appeal fails and the same is dismissed. (M.M.Kumar) Judge (T.P.S. Mann) 22.3.2011 Judge okg