Regular Second Appeal No. 2262 of 2007 ***** Krishan Kumar Versus Punjab State Electricity Board and others Present: Mr. Ashwani Talwar, Advocate for the appellant. Mr. P.S. Thiara, Advocate for the respondent. ***** The case set up by the appellant before the courts below was that the appearance in the examination could not be insisted upon as exemption was ought to have been granted to him, especially so, when it was granted to Mangal Dass, when case of the appellant was not different. This according to the appellant would violate the principle of equity. The appellate Court found that Mangal Dass was granted exemption from appearance in departmental examination and thereafter was promoted. It was noticed that the employee needs 13 marks for promotion but Mangal Dass had secured 17 marks and that is why he was granted exemption from appearance. Finding that there was nothing on record to suggest that the appellant even scored 13 marks, the prayer for being equated with Mangal Dass was not considered appropriate to observe that it will not violate the principle of equity. Faced with this situation, counsel for the appellant submits that he will not have grievance against this finding returned by the appellate Court. He, however, would submit that the special increment was wrongly denied to him even on completion of 23 years of service. The plea of the appellant was that exemption ought to have been granted as was in the case of Mangal Dass and Regular Second Appeal No. 2262 of 2007 -2- alternatively it appears to have been pleaded that as per the circular the employees of the Board were required to be considered for grant of exemption after completion of 50 years of age. This is what is referred in para 13 of the judgment, where it is noticed that case for granting exemption from appearance in departmental accounts examination after completion of age of 50 years is to be considered on merits by going through ACRs and other connecting records. The counsel for the appellant then has referred to circular dated 28.7.2000 to say that exemption was not material to be considered for grant of increment. This plea also cannot be accepted. The counsel has not been able to show if the circular dated 28.7.2000 had superseded the earlier circular where the requirement of exemption was provided on completion of 50 years of age and the same was to be considered on merit after going through the ACR. It may not be out of place to notice here that the appellant was also issued show cause notice for having caused a loss of Rs. 0.88 lakhs and no action was taken only because in the meantime the appellant had become due for retirement on attaining the age of superannuation. It was thus observed by the courts that the record of the appellant was also not such where he could claim for exemption from appearing in the examination. Reference is made to a judgment of this Court in Mahinder Pal Gupta versus Punjab State Electricity Board and another 2007 (4) RSJ 697, where it has been held on the basis of Regular Second Appeal No. 2262 of 2007 -3- Regulation 2(1)(a) of the Regulations 1965 that passing of departmental accounts examination is mandatory by interpreting the use of word 'shall'. It has been held that even if there is a regulation providing for relaxation of qualification then such concession of relaxation cannot be claimed as a matter of right. Counsel has not been able to show whether Regulation 2(1)(a) was ever superseded by any circular. Reliance placed by the counsel for the appellant on the judgment passed in RSA No. 572 of 2009 decided on 3.2.2009 and RSA No. 4521 of 2005 decided on 3.4.2006 would not come to his rescue because in both the judgments, no ratio of law is laid down and no question of law has been decided in these cases. These decisions are made on the basis of pleading in the said cases. No substantial question of law thus arises for determination in this case. The question of law that may have arisen for consideration in this case, in my view would stand decided by Mahinder Pal Gupta (supra) and hence would not call for re- consideration in any manner. The Regular Second Appeal is accordingly dismissed. January 18, 2010 ( RANJIT SINGH ) rts JUDGE