KULDIP SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The core question, which arises for consideration in this petition, is the applicability of Rule 167 of Indian Railway Establishment Manual. 1.0 The petitioner was appointed as Junior Accounts Assistant in the office of Senior Divisional Accounts Office. Northern Railway, Ambala Cantt. with effect from 19.4.1991 in terms of an offer of appointment dated 19.4.1991. The said offer of appointment contained a stipulation to the effect that he was required to pass Appendix II Examination in two chances within three years, failing which his services would be liable to be terminated. 1.2 The petitioner appeared at the said examination.in the years 1992 and 1993 but was not successful therein. Again in 1994, he made his 3 attempt in the said examination but did not succeed. On 2.12.1994, on his failure to pass the said examination in his third attempt, his services were terminated by the Senior Divisional Accounts Officer, Northern Railway, Ambala Cantt. The impugned order of the Senior Divisional Accounts Officer, Northern Railway, Ambala Canll. is in the following terms :

(2.) . The learned counsel appearing on behalf of the Petitioner would contend that the records of the case will reveal that the respondents herein had given effect to the said judgment of the Apex Court in several cases and in support thereof, this Court's attention had been drawn to office orders dated 15.9.1995 and 23.4.1995. The learned counsel appearing on behalf of the petitioner would submit that in the aforementioned premise there is absolutely no reason as to why he be not afforded the fourth chance to appear at the examination. 2.1 The learned counsel appearing on behalf of the petitioner would contend that the petitioner is still in employment and in fact in the meantime he has already qualified for the examination. The learned counsel appearing on behalf of the petitioner would contend that in any event on humanitarian ground should be considered as a relevant factor in granting appropriate relief in this case of the nature. 2.2 The learned counsel appearing on behalf of the respondent, on the other hand, would contend that keeping in view the fact that the relevant provisions have been amended in the year 1989 and the petitioner having been appointed in the year 1991 he was required to pass the prescribed test in terms of the offer of appointment as also the extent rules prevailing thence. The learned counsel would urge that there is nothing to show that the order of the Supreme Court in R.K. Gupta's case (supra) covered a case where an appointment had been made after the 1989 edition of Indian Railway Establishment Manual came into force. In any event the learned counsel would contend that no case has been made out in favour of the petitioner that if fails to pass the examination in two chances, he may file an appropriate representation which may be reconsidered on its own merits. 2.3 The petitioner was offered service in April 1991. The said offer of appointment contained the following stipulations: (a) you will be on probation for a period of one year from the date of your appointment and will be eligible for confirmation after passing the appendix - II IREM Examination (b) If you fail to pass the Appendix II-A Examination referred to in clause 'A' or your pi ogress is found unsatisfactory, the period of probation can be extended, but if you fail to pass the Appendix II Examination in two chances in 3 years, you are liable to be terminated 2.4 Strong reliance lias been placed by the learned counsel appearing on behalf of the petitioner on Indian Railway Establishment Manual (1986 Edition) relevant part of which is in the following terms :

(3.) . The Constitution has conferred upon the.Apex Court an extraordinary power by way of Article 142 of the Constitution of India, By that power the Apex Court can pass any order in order to do complete Justice to the parties. The High Court is not possessed of that power. 3.1 The ratio laid down by the Apex Court in R.K. Gupta's case (supra) is absolutely clear and unambiguous. It in no uncertain terms held that even in terms of 1986 Edition of the Indian Railway Establishment Manual, 3 chance can be given only in exceptional circumstances. Furthermore in exercise of its jurisdiction, the High Court could not usurp the power of (he Statutory Authority. The Statutory authority must, at the first instance, be asked to exercise its Jurisdiction. In State of W.B. & Ors. vs. Nuruddin Maliick & Ors. [(1998) 8 SCC 143] the Apex Court held as under :