REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 877 OF 2018 [Arising out of SLP(C) No.15852 of 2016]

ASHOK KUMAR & ORS.            ….APPELLANTS

Versus

THE STATE OF JHARKHAND & ORS.        ….RESPONDENTS

J U D G M E N T

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  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, after consultation with the High Court of Jharkhand

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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:-”

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2001 were specifically repealed in terms of Rule 27 of the 2004 Rules,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 Judicial  Service (Recruitment) Rules, 2001 issued vide notification no.185 dated the20thAugust, 2001 are hereby repealed.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 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

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 Civil  Judge,  Junior  Division  (Munsif)/Civil  Judge,  Senior

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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) – 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 (subordinate Judges).”

(emphasis supplied)

4. The effect of this is that the passing of this examination ‘alone’

was a condition precedent for confirmation.

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,  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

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may be prescribed for this purpose by the High Court. 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 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;

(ii)  he  has  passed  such  tests  as  may  from  time  to  time  be prescribed in the Departmental Examination Rules; and

(ii) he is recommended by the High Court for such permanent appointment.”

(Emphasis supplied)  

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 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

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Board of Revenue for being confirmed, which is the bone of contention

in the present appeal.

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:

“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

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  during  their  tenure  they  were  repeatedly

informed and advised that they were exempted from taking part in the

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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:

“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  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) 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:

“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 criminal and civil), as laid down in sub-rule (b) to this rule. The

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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- 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

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.

13. In view of the aforesaid position this rejection was challenged 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 of Jharkhand.  However, this position was prevalent under the

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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 &

Anr.1 where 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 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 Examination Rules,  i.e.,  1963 Bihar

Rules.

16. Insofar  as  Rule 27 of  the 2004 Rules is concerned,  the same

1(1969) 2 SCR 544

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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  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,  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 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”.

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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

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,

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  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

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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 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  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  they  in  turn  had  not

provided  for  the  requirement  of  clearing  the  “higher  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

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itself.  The appointment Notifications also, as per para 2, referred to the

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 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  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

respondents to amend the 2004 Rules, if they want to incorporate such

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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 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  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.

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.

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27. The  respondents  will  ensure  that  the  differential  mandatory

benefits are remitted to the appellants within a period of three months

from the date of the order.

28. The appeal  is  accordingly allowed leaving the parties  to  bear

their own costs.

..….….…………………….J. [J. Chelameswar]

              ...……………………………J. [Sanjay Kishan Kaul]

New Delhi. May 11, 2018.

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