JUDGMENT
A.M. Ahmadi, J.
1. The petitioners were directly recruited as Government Labour Officers (GLO) in the Office of the Labour Commissioner, Gujarat State, sometime in 1971 after being interviewed by the Gujarat Public Service Commission. Their appointments were scrutinised and confirmed by an order dated 6th May, 1983, Annexure ‘A’ to the petition. Under the Gazetted Officers’ (Pre-Service Training and Examination) Rules 1970 (1970 Rules hereafter), the petitioners were required to go for pre-service training and examination which they admittedly did not undertake. The petitioners, however, contend that all the petitioners were always ready and willing to go for such training and examination and one of them, the petitioner No. 1, had actually applied for the same, vide Annexure ‘B’ to the petition. When the question of their pre-service training and examination cropped up, the Government issued a resolution dated 16th February, 1984, Annexure ‘C, staring that in view of the long experience of about thirteen years, the petitioners have been exempted from pre-service training and appearing at the examination. Simultaneously the petitioners were promoted to the Class I post of Assistant Labour Commissioners by order dated 16th February, 1984.
2. The petitioners contend that under the second proviso to Rule 3 of the 1970 Rules, Gazetted Officers of Class II posts selected for or appointed to Class I posts shall be exempted from undergoing training and passing the relevant examination, if they have rendered three years of service on the date of their appointment to Class I posts or have undergone the course and passed the relevant examination as Class II Officers or have passed the departmental examination, if any, meant for Class II Officers. According to the petitioners, since they had rendered more than the required service before they were promoted to Class I posts, the petitioners were exempted from pre-service training and examination. Hitherto there is no difficulty.
3. After the petitioners were promoted to Class I posts, under the Gujarat Labour Department (Conditions of Service relating to Gazetted Officers’ Examination) Rules, 1979 (hereinafter called ‘the 1979 Rules’) as amended in 1987, the petitioners were by virtue of Rule 3(1) required to pass the prescribed examination to be eligible for promotion to the next higher post of Deputy Commissioner of Labour. Rule HA of the said 1979 Rules reads as under:
Any person to whom these Rules apply and who, having passed an examination under the Gazetted Officers’ (Pre-Service Training and Examination) Rules, 1970. appears in an examination held under these Rules shall not be required to appear and pass Papers IV and V of the Examination.
Since the petitioners were exempt from passing the examination prescribed by the 1970 Rules, the petitioners contend that they were exempt from appearing and passing Paper IV and V of the said examination. One of the petitioners claimed exemption from appearing in Papers IV and V by his letter dated 18th August, 1987 while petitioners Nos. 4 and 5 stated in the examination form that they were exempt from appearing in Papers IV and V of the said examination. However, by letter dated 18th November, 1987 the concerned petitioners were informed that they were not entitled to any such exemption. According to the petitioners, since they were exempt from pre-service training and passing of examination under the 1970 Rules by virtue of Government Resolution dated 16th February, 1984. Annexure ‘C they must be deemed to have passed the said examination for the purpose of earning exemption from Papers IV and V by virtue of Rule 11A of the 1979 Rules. Any other view, contend the petitioners, would lead to absurdity. The petitioners, therefore, contend that the stand taken by the Government in its communication dated 18th November, 1987, viz., only those candidates who have cleared the pre-service training and examination prescribed under the 1970 Rules are entitled to the exemption under Rule 11A is unwarranted and untenable. The petitioners, therefore, pray that the impugned communication dated 18th November, 1987, Annexure ‘G’, be quashed and the petitioners be granted exemption from Papers IV and V of the examination to be held under the 1979 Rules.
4. Petitioner No. 1 had by his letter dated 4th September 1980, Annexure ‘B’, expressed a desire that he be sent for pre-service training and examination. Thereafter by Government Resolution dated 16th February, 1984, Annexure ‘C the petitioners were informed that having regard to their long service they are exempt from pre-service training and passing of examination but they will have to clear the examination prescribed for securing promotion. It is, therefore, obvious that the petitioners have to clear the departmental examination prescribed for securing promotion to the next higher post. The exemption does not excuse them from passing the examination prescribed under the 1979 Rules. Rule 11A quoted above came to be inserted by Rule 5 of the Gujarat Labour Department (Conditions of Service relating to Gazetted Officers’ Examination) (Amendment) Rules, 1987. Under the said newly added rule any person who has ‘passed’ the examination prescribed under the 1970 Rules and appears in an examination under the 1979 Rules shall not be required to appear and pass papers IV and V of the said examination. The short question then is, can exemption be equated to passing an examination?
5. When a person is exempted from doing a thing he is released from the obligation of doing that thing but he cannot be said to have done that thing. Exemption from payment of tax does not mean that the tax is paid. It only means that the person is freed from the liability or obligation to which others are subject, it does not mean that the person has actually discharged the obligation. If a person is exempt from a draft, it does not mean he has actually rendered service. Similarly when a person is granted exemption from pre-service training and passing of examination it cannot mean that he has fulfilled the obligation to which he was subject, it only means he is excused from the obligation. Fulfilling an obligation is a positive act, exemption is not. The passing of examination is a positive act, an act whereby the candidate subjects his knowledge and learning to test unlike a person who has secured an exemption. Exemption from passing the examination may be granted for diverse reasons, e.g., age, experience or default on the part of the management to hold an examination. In all such cases, the person does not actually appear and pass the examination, he is for one reason or the other excused from doing so. A person who has secured exemption can never be said to have ‘passed’ the examination in order to secure a further exemption from appearing in papers IV and V of the examination contemplated under the 1979 Rules. The newly inserted Rule 11A uses the expression ‘having passed’ an examination which can mean actual passing or clearing the examination and not having been excused from passing the examination. Examinations are prescribed under Service Rules at different levels with a view to finding out whether the candidate has sufficient knowledge to discharge his public duty at the higher level to which he seeks promotion. Unless a candidate goes through the prescribed test, it would be difficult for the superiors to test his suitability for the higher post. Insistence on appearing and passing the examination should therefore be a rule and exemption an exception. In the circumstances, even if two views are possible, the view which augers well for the health of the services, higher posts being manned by suitable persons, must naturally commend to us. Therefore, even if two views were possible, we would have preferred the view which has weighed with the Government.
6. This being the only submission made at the Bar, we have confined ourselves to interpreting the newly inserted Rule 11A of the 1979 Rules (as amended in 1987) and we hold that the petitioners cannot be said to have passed the pre-service training and examination prescribed by the 1970 Rules. We may make it clear that if the petitioners are entitled to exemption under any other rules or provisions the same would stand on a different footing and we express no opinion in that behalf. As the matter stands, on the reading of Rule 11A of the 1979 Rules as amended, we think that the view taken by the department in its communication dated 18th November, 1987, Annexure ‘G’, in this behalf is unassailable. We uphold the same.
In the result the petition fails and the rule is discharged with no order as to costs. Interim relief vacated.