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2008 Supreme(Bom) 128
BOMBAY HIGH COURT
(Aurangabad Bench)
Before : N.V. DABHOLKAR AND P.V. KAKADE, JJ.
Ulhas s/o Yadavrao Somwanshi and others .. Petitioners
Versus
The State of Maharashtra and others .. Respondents
Writ Petition No. 4197 of 2007, alongwith Writ Petition No. 6461 of 2007,
decided on 30th January, 2008.
Shri S.B. Talekar, advocate for the petitioners.
Shri N.B. Khandare, Govt. Pleader for respondents
No. 1 and 2.
Shri A.S. Deshpande, advocate for respondent No. 3.
Shri G.V. Mohekar, advocate holding for Shri V.D.
Salunke, advocate for respondent No. 7.
Shri S.V. Kurundkar, advocate for respondent
No. 8 (absent).
Respondents No. 4, 5, 6 and 9 are served and absent.
Shri V.D. Sapkal, advocate for the petitioners.
Shri N.B. Khandare, Govt. Pleader for both respondents
Headnote:Constitution of India, 1950 - Articles 14 and 16-Maharashtra Development Service Class-I and Class-II (Departmental Examinations) Rules, 1991, Rules 2(1), 35(2) and 7-Whether promotion of Class-II officer to Class-I who had failed to pass examination even in four attempts and attained the age beyond 45 years should be considered for promotion-Firstly, the name of these employees were included in promotion list but later Government issued circular dated 14.7.2003 that Rule 7 should be strictly followed-Due to it name of the employees were deleted-Writ against it, writs failed and hence, dismissed.-Although both provisions i.e. Rule 5(a) regarding exemption from passing examination on attaining age of 45 years and Rule 7(a) regarding consequences of failure to pass examination, are worded by inclusion of "shall be" thereby indicating no option/discretion with the department, neither of the two is so worded as to have an overriding effect over the other. Both the provisions are therefore required to be so construed or operated that neither supersedes/nullifies the other.
All these questions would not protrude their heads if Court consider and interpret Section 7(a) as a provision imposing passing of examination as a condition for confirmation/continuation in Class-II or Class-I as the case may be, as also as eligibility for promotion from Class-Il to Class- I. So far as seniority is concerned, if a person fails to pass inspite of enjoying all his chances, he would be liable to reversion, not having acquired eligibility for confirmation and continuation in Class-II on promotion. Naturally, the individual would not be borne on Class-II to clash with those who have passed the Examination or with those who are yet to exhaust all their chances. So far as promotion from Class-II to Class-I, passing of examination should be treated as eligibility condition, automatically, because not passing it would deprive an individual right of confirmation/continuation in Class-II and thus he would not be part of Class-II cadre. Naturally, he cannot be considered for promotion to Class-I. And then the questions posed as arising, if a person is promoted from Class-Il to Class I without passing examination while in Class-II would not arise at all.
N.V. DABHOLKAR, J.
1. Both these writ petitions although by different writ petitioners, raise the same challenge to the proposed promotions from Class-II to Class-I in Maharashtra Development Services. For the purpose, they challenge Government Circular dated 14-03-2007, issued by the Secretary to the Government of Maharashtra in the Department of Rural Development and Water Conservation as ultra vires the Articles 14 and 16 of the Constitution of India and also being contrary to the Maharashtra Development Services Class-I and Class-II (Departmental Examinations) Rules, 1991. Both the writ petitions also pray for quashment of the action of the Government deleting/excluding the names of petitioners from the select list prepared by the Departmental Promotion Committee for promotion to the posts in Maharashtra Development Services Class-I (which was the result of action based on impugned Circular). Both the writ petitions also pray for directions to the respondents No. 1 and 2 to consider the claim of the petitioners for promotion to Class-I posts in Maharashtra Development Services, as per the original select list prepared by the Departmental Promotion Committee.
2. Petitioners are employees presently serving in Class-II posts of Maharashtra Development Services (hereinafter referred to as "MDSs"). Learned counsel for the petitioners, during the course of their submission, having admitted certain positions, which we are referring immediately hereinbelow, other details as to when petitioners were appointed in MDSs and their present postings and journey upto Class-II Services, are not required to be recorded for the purpose of this judgement.
. Admittedly, all the petitioners have crossed age of 45 years at present and even on the date of subject promotions. Admittedly, all petitioners have entered Class-II MDSs after the Gazette date as contemplated by Rule 2 (c) of the Maharashtra Development Services, Class-I and Class-II (Departmental Examinations) Rules, 1991 (hereinafter referred to as "the said Rules") i.e. after 18th July, 1991. Admittedly, all the petitioners have exhausted all their chances for passing Departmental Examination as required by Rule-3 of the said Rules and yet, they did not pass the Departmental Examination. Inspite of not having passed the Departmental Examination before completion of age of 45 years, none of the petitioners was reverted by orders as required by Rule 7 (a) of the said Rules.
On the contrary, there are orders passed in favour of the petitioners as required by Rule 5 (2) of the saidRules regarding entitlement of the petitioners to exemption from passing the Departmental Examination. Copies of some such orders are filed at paper-book pages 50 to 53 in Writ Petition No. 4197/2007 and at Exhibit-A of the other writ petition. The powers to issue such orders were delegated to the Divisional Commissioners and such orders are passed by respective Divisional Commissioners. This position is not disputed by the learned Government Pleader.
. It is the contention of the petitioners that in the month of December, 2006, the Departmental Promotion Committee (hereinafter referred to as "DPC" for the sake of brevity) prepared and finalized a list of 103 (in fact 133) officers of Class-II MDSs for promotion to Class-I MDSs. This list included 28 individuals who had crossed age of 45 years and therefore, were exempt from the condition of passing Departmental Examination. Subsequently, by taking into consideration the Circular dated 14th March, 2007, petitioners are deleted from that select list, by interpreting the said Circular that if the employees have exhausted all their chances of passing Departmental Examination before crossing age of 45 years, they are not entitled to benefit of Rule 5 of the said Rules which exempts the employees from passing the Examination prescribed by the said Rules.
3. Submissions for the petitioners in first writ petition were advanced mainly by learned advocate Shri Talek
