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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
F.I. REBELLO & R.M. SAVANT, JJ.
Ramesh Samhari More - Petitioner
Versus
The Registrar, Dist. Court, Solapur and Ors. - Respondents
WRIT PETITION NO. 3642 OF 2007
Ravindra Dattatraya Waknis - Petitioner
Versus
The Registrar, District Court, Solapur and Ors. - Respondents
WRIT PETITION NO. 3643 OF 2007
Rajendra Vishwanath Kharade - Petitioner
Versus
The Registrar District Court, Solapur and Ors. - Respondents
WRIT PETITION NO. 3644 OF 2007
Keshav Govind Jahagirdar - Petitioner
Versus
The Registrar, District Court, Solapur & Ors. - Respondents
WRIT PETITION NO. 3645 OF 2007
Haridas Narayan Potabatti - Petitioner
Versus
The Registrar, District Court, Solapur and Ors. - Respondents
WRIT PETITION NO. 3641 OF 2007
DATED: JUNE 29, 2007
Civil Manual (Maharashtra), 1986 - Para 580-Permanent bar for promotion-Those who could not succeed during three attempts-Challenged validity of bar-Held that we are unable to read such a power under Clause 580 of Civil Manual or any other provision.- The third aspect of the matter is the decision of selection committee to bar the candidates if they had appeared for three times from appearing for further examinations. We are unable to read such a power under Clause 580 of the Civil Manual or any other provision as to how a selection committee, which is only constituted for the purpose of selecting candidate, could go beyond the scope of the Rules. In service jurisprudence, once there are Rules framed and if there be any lacuna, the same can be rectified by administrative instructions, to the extent the administrative instructions are not inconsistent with Rules made under Article 309 of the Constitution of India or any other provisions of law. The selection committee having not being conferred power to issue such administrative instructions could not have exercised a power not vested in them. The Committee presided over by the learned District Judge, therefore, could not have debarred the representationists from appearing for further examinations.
Thus, considering Clause 580 the decision of the committee in debarring those candidate after three attempts to appear for the examination for promotion will be clearly arbitrary and violative of Article 14 of the Constitution of India. That decision therefore, taken at the meeting of the committee which was held on 8th March, 2005 though has not been challenged in these petitions, none the less considering the relief as sought for and the same having been brought to our attention, can be said to be contrary to Rule 580 of the Manual. It is not open to the committee to act contrary to Para 580 of the Manual and to lay down any condition barring candidates for being considered for promotion.
Civil Manual (Maharashtra), 1986 - Para 580(ii)(b)-Non selection of-Candidate unable to dear written test-Barred from promotion latter also-Challenge-Due to passing high and low level departmental test-No need of written test-Challenged in petition-Held-Petition is liable to be allowed.-On a reading of the Rule, it is not possible to say that the appropriate test excludes written test.
However, this Court on the administrative side considering that the candidate for consideration have already passed the LSDE and HSDE examinations has taken a decision that the test would not include a written statement. That interpretation or clarification at the highest can be from the date the clarification was issued and cannot affect the promotions already done as those employees had a vested right unless on the face of the Rule, the Rule excluded holding of a written examination. On a perusal of the Rule, as it stood, we are of the considered view that holding of a written test cannot be said to be not within the meaning of the expression "appropriate test". The expression therefore, could not mean only a viva voce test and not a written test. The selection committee presided over by the District Judge therefore, could have taken a decision to hold a written test along with viva voce. The procedure for selection therefore, did not suffer from any illegality. The communication therefore, by the respondents in directing withdrawal of promotion of the petitioners in each of the petitions, cannot be sustained.
Both the representationists had appeared for the examination. It was not their case that the written examination could not have been held. They in fact appeared for the test and were not selected. In our opinion, once having taken a chance of appearing for the test and not challenging the same before the test was held, would mean participating in the selection process without demur or protest. In these circumstances, at least at the instance of the representationists, no order should have been passed to revert the petitioners who were promoted to the post of Assistant Superintendent and Sr. Clerks. A candidate who voluntarily participates in a selection process, pursuant to a Rule, which can include a written examination, should not after such candidate has not passed the examination, be entitled to contend that the process was illegal. In fact the two candidates had not made such a representation. The decision on that count on the administrative side cannot be supported.
Civil Manual (Maharashtra), 1986 - Para 580 - Permanent bar for promotion - Those who could not succeed during three attempts - Challenged validity of bar - Held that we are unable to read such a power under Clause 580 of Civil Manual or any other provision. -
The third aspect of the matter is the decision of selection committee to bar the candidates if they had appeared for three times from appearing for further examinations. We are unable to read such a power under Clause 580 of the Civil Manual or any other provision as to how a selection committee, which is only constituted for the purpose of selecting candidate, could go beyond the scope of the Rules. In service jurisprudence, once there are Rules framed and if there be any lacuna, the same can be rectified by administrative instructions, to the extent the administrative instructions are not inconsistent with Rules made under Article 309 of the Constitution of India or any other provisions of law. The selection committee having not being conferred power to issue such administrative instructions could not have exercised a power not vested in them. The Committee presided over by the learned District Judge, therefore, could not have debarred the representationists from appearing for further examinations.
Thus, considering Clause 580 the decision of the committee in debarring those candidate after three attempts to appear for the examination for promotion will be clearly arbitrary and violative of Article 14 of the Constitution of India. That decision therefore, taken at the meeting of the committee which was held on 8th March, 2005 though has not been challenged in these petitions, none the less considering the relief as sought for and the same having been brought to our attention, can be said to be contrary to Rule 580 of the Manual. It is not open to the committee to act contrary to Para 580 of the Manual and to lay down any condition barring candidates for being considered for promotion.
Civil Manual (Maharashtra), 1986 - Para 580 (ii)(b) - Non selection of - Candidate unable to dear written test - Barred from promotion latter also - Challenge - Due to passing high and low level departmental test - No need of written test - Challenged in petition - Held - Petition is liable to be allowed. - On a reading of the Rule, it is not possible to say that the appropriate test excludes written test.
However, this Court on the administrative side considering that the candidate for consideration have already passed the LSDE and HSDE examinations has taken a decision that the test would not include a written statement. That interpretation or clarification at the highest can be from the date the clarification was issued and cannot affect the promotions already done as those employees had a vested right unless on the face of the Rule, the Rule excluded holding of a written examination. On a perusal of the Rule, as it stood, we are of the considered view that holding of a written test cannot be said to be not within the meaning of the expression "appropriate test". The expression therefore, could not mean only a viva voce test and not a written test. The selection committee presided over by the District Judge therefore, could have taken a decision to hold a written test along with viva voce. The procedure for selection therefore, did not suffer from any illegality. The communication therefore, by the respondents in directing withdrawal of promotion of the petitioners in each of the petitions, cannot be sustained.
Both the representationists had appeared for the examination. It was not their case that the written examination could not have been held. They in fact appeared for the test and were not selected. In our opinion, once having taken a chance of appearing for the test and not challenging the same before the test was held, would mean participating in the selection process without demur or protest. In these circumstances, at least at the instance of the representationists, no order should have been passed to revert the petitioners who were promoted to the post of Assistant Superintendent and Sr. Clerks. A candidate who voluntarily participates in a selection process, pursuant to a Rule, which can include a written examination, should not after such candidate has not passed the examination, be entitled to contend that the process was illegal. In fact the two candidates had not made such a representation. The decision on that count on the administrative side cannot be supported.
Civil Manual - Clause 580(ii)(a)(b) - Expression "appropriate test" - Meaning of. - Clause 580 of Civil Manual left it to the discretion of the District Judge to subject the employee within the zone of consideration to an appropriate test. Holding of a written test, on a perusal of the rule, as it stood, cannot be said to be not within the meaning of the expression "appropriate test". The expression therefore, could not mean only a viva voce test and not a written test. The selection committee presided over by the District Judge therefore, could have taken a decision to hold a written test along with viva voce. The procedure for selection therefore, did not suffer from any illegality. The communication therefore, by the respondents in directing withdrawal of promotion of the petitioners in each of the petitions, cannot be sustained.
Constitution of India - Articles 14 and 309 - Civil Manual, Clause 580(ii)(a)(b) - Lacuna in framing of rules - Rectification of. - In service jurisprudence, once there are rules framed and if there be any lacuna, the same can be rectified by administrative instructions, to the extent the administrative instructions are not inconsistent with rules made under article 309 of the Constitution of India or any other provisions of law. The selection committee having not being conferred power to issue such administrative instructions could not have exercised a power not vested in them. The committee presided over by the District Judge, therefore, could not have debarred the representationists from appearing for further examinations. Considering Clause 580 the decision of the committee in debarring those candidates after three attempts to appear for the examination for promotion will be clearly arbitrary and violative of Article 14 of the Constitution of India.
Rule in all the petitions. As the Petitions raise a common question of law they are being decided by this common judgment. All the Petitioners herein pursuant to the test conducted by the Committee headed by the District Judge were promoted. The Petitioners in Writ Petition Nos. 3641 of 2007, 3643 of 2007 were promoted to the post of Assistant Superintendent. The Petitioners in Writ Petition No. 3642 of 2007, 3644 of 2007 and 3645 of 2007 were promoted to the post of Senior Clerks.
2. The selection procedure for promotion for these posts is governed by Clause 580 of the Civil Manual. The relevant clause for our purpose is clause (ii)(b) which reads as under :
" The District Judge may, if for reasons to be recorded in writing, considers it to be so desirable, appoint a Committee to subject the employees within the Zone of consideration to an appropriate test, and may also consider the result of such test."
For the purpose of setting the procedure for filling in the vacancies, the Advisory committee met on 8.3.2005. The committee unanimously decided to call thrice the number of eligible candidates according to their seniority for the test to be taken in terms of Clause 580 (ii)(a)(b) of the Civil Manual, 1986. All employees who were eligible and in the zone of consideration were to be called for the interview which included both written test and oral interview. The committee decided that in the written test one should obtain minimum 17 marks out of 50 marks. Marks were also allotted under other heads. There was also a decision taken that while calling an incumbent to appear for the test for the promotional post, incumbent should be allowed only three chances and if they are not selected to the promotional post, they should be debarred permanently for consideration in the said post. The committee also decided that the oral test should be held of only those candidates who pass written test. . The committee once again met on 19.3.2005 to consider marks obtained at the written examination. Two candidates who had obtained 12 and 15 marks respectively were not called for the oral interview. The committee also on that date considering that these two employees had already availed of three attempts directed that they were barred from further consideration for promotion. It was further decided that any of the persons who were barred to apply for further promotion including the aforesaid two employees if they had completed 12 years of service and had been granted higher pay scale under the Assured Progress Scheme that should be withdrawn as they are not eligible for further promotion. Accordingly, an order came to be passed on 22.3.2005 withdrawing the higher pay scale granted under the Assured Progress Scheme.
3. The two candidates Mr. V.R. Kulkarni and Mrs. P.P. Paithankar made representations no 20.7.2005 and 11.08.2005 respectively against they being barred from further consideration for promotion and withdrawal of scale under Assured Progress Scheme (A.P.S.). On receipt of the representations comments were invited of the District Judge Solapur and to set out in detail the reasons for non selection of the two representationists as also withdrawal of the payscale under A.P.S.
4. It appears that on 16.11.2005, the District & Sessions Judge, Latur who had sought some clarification on the Administrative side of this court in the manner of conducting the examinations was informed that this court had taken a decision to hold oral test only of the candidates within the zone of consideration of promotion to the post of senior clerks, Assistant Superintendents and Superintendents. The promotion of the Petitioners in the instant case were done by Order dated 22.3.2005. The representations of the two representationists were considered on the Administrative side of this court and after considering the same, the District Judge, Solapur was informed that the promotions of the promottees to the post of Superintenden
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