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2010 Supreme(Bom) 887
In the High Court of Bombay at Aurangabad
MR. JUSTICE B.R. GAVAI & THE HONOURABLE MR. JUSTICE S.V. GANGAPURWALA
Shri P.R. Shinde & Others
Versus
The State of Maharashtra & Others
WRIT PETITION NO. 2423 OF 1994
Decided on: 01-07-2010
Subject
Employment Law - Promotions
Headnote
Court finds, that the guidelines issued by the High Court, dated 6th August 1990, and particularly paragraphs 3 and 4 thereof, are not in conformity with the rules. The said guidelines require that if a Senior Clerk, who is junior in service and has not attained the age of 45 years, but passed HSDE and thereby eligible for promotion as Assistant Superintendent, should be considered after a Senior Clerk who has become eligible for promotion in the cadre of Assistant Superintendent only because he completes the age of 45 years. The guideline No. 4 which requires that if a Senior Clerk who was promoted on leave vacancy is reverted for want of vacancy, then exempted person should be given promotion first. Court is of the considered view, that both the guidelines are not in consonance with the rules.
As is evident from the affidavit in reply, the promotions to the respondents have been effected only on the ground that the said candidates had completed 45 years of age and what was required to be considered is only seniority and their fitness to shoulder the higher responsibility. As already discussed herein above, the promotions could not have been effected only on this ground. While effecting promotions, the learned District Judge was required to consider the cases of thrice the number of eligible candidates as per vacancies and then by taking into consideration the four factors which are stipulated in sub-paragraph "(ii)(c)" of paragraph 580, could have granted promotions to the most suitable candidates, Court give an illustration. If there were 5 vacancies, the learned District Judge was required to consider 15 eligible candidates and amongst 15 eligible candidates, 5 best candidates, by applying the test in sub-paragraph "(ii)(c)" of paragraph 580 of the Civil Manual, could have been promoted. The promotions could not have been given to the five senior most persons who had attained the age of 45 years, only on account of his subjective satisfaction that they were fit to shoulder the higher responsibility.
Court, therefore, finds that the promotions which were made are not in accordance with paragraph 580 of the Civil Manual. It is a settled principle, that a particular provision of a statute or rule cannot be read in isolation but has to be read in harmony with other provisions of the statute or rule. It appears that the respondents have, on reading sub-paragraph "3(i)" of paragraph 625 of the Civil Manual, in isolation, made the promotions in total disregard to the other provisions of paragraph 625 and paragraph 580 of the Civil Manual.
Court has, therefore, no option but to set aside the promotions of respondent Nos. 5 to 12 made by respondent No. 2.
In the result, the petition is allowed.
(i) Court directs the respondent No. 2 to re-determine the issue of promotion to the post of Assistant Superintendent, in the light of what has been observed by it herein above.
(ii) Court makes it clear, in the re-determination of the matter, if it is found that the petitioners are entitled for promotion to the post of Assistant Superintendent, prior to that of respondent Nos. 5 to 12, they shall be only given deemed date in the cadre of Assistant Superintendent and the deemed date shall be taken into consideration for their continuity in that cadre and for the pensionary benefits. However, they would be entitled for the salary in the higher cadre, only from the date of actual officiation.
(iii) Court further make it clear that in the event, if it is found that the respondent Nos. 5 to 12 were not entitled for promotion on the date they were given, no recovery shall be made from their salary of any excess payment made to them.
For the Petitioners:S.R. Barlinge, Advocate. For the Respondents: R1 to R4, R.K. Ladda, Assistant Government Pleader, R5 to R12, Serviced, (Absent).
B.R. Gavai, J.
1. By way of present petition, the petitioners have prayed for a declaration, that the promotions given to respondent nos.5 to 12 are illegal, ultra vires the Constitution and they should be reverted back to their respective posts. The petitioners have further sought a declaration, that the guidelines dated 6th August 1990, issued by the Additional Registrar, High Court, Bombay, are illegal. A further relief is sought, that amendment to Paragraph 625 of the Civil Manual, 1986, is illegal and, therefore, liable to be set aside.
2. The petitioners are working as Junior / Senior Clerk in the Judicial District of Jalgaon. The petitioners have passed Higher Standard Departmental Examination (For short, "HSDE"). According to the petitioners, the respondent nos.5 to 12 have been promoted as per amendment to paragraph 625 of the Civil Manual. It is the case of the petitioners, that though these respondents have not passed HSDE, they have been promoted to the post of Assistant Superintendent. It is the case of the petitioners, that all these respondents, only on the basis of their seniority, have been given promotion totally overlooking the merit. It is the contention of the petitioners, that only the petitioners who have passed the HSDE, are eligible to be considered for promotion and, as such, interest of justice requires that the promotion granted in favour of the respondents be quashed and set aside and the petitioners be directed to be promoted.
3. Mr. S.R. Barlinge, learned Counsel appearing for the petitioners, submits that the amendment to paragraph 625 of the Civil Manual, which gave an exemption to the members of the staff of the subordinate courts to appear and pass HSDE, if they have completed 45 years, has been deleted by an amendment in 2000. He, therefore, submits that the amendment, which was in vogue, and gave total go by to the merit and the persons, who have completed 45 years of age, were given advantageous position, though they had failed to appear and pass the HSDE, and the persons who have passed HSDE were denied their legitimate claim, is liable to be set aside.
4. Mrs. R.K. Ladda, learned Assistant Government Pleader appearing for respondent nos.1 to 4, on the contrary, submits that the promotions were given to such of the candidates who have completed 45 years, after considering their Confidential Reports and after satisfying that they were fit to shoulder the higher responsibility. She categorically states that the promotions were given on seniority-cum-merit basis.
5. Paragraph 580 of the Civil Manual deals with the principles to be followed by the District Judge, in the matter of promotions, which reads thus:
"In the matter of promotions and confirmations, the District Judge should take into consideration the following principles:-
(i) All clerks who pass the Lower Standard Departmental Examination should be confirmed immediately in the existing vacancies. Such confirmations should not be deferred till the passing of the said examination by their seniors (Vide High Court Circular No. B-10135/50, dated the December, 1950).
(ii)(a) Whenever vacancies to be filled by promotion are available, the District Judge shall consider for promotion thrice the number of eligible employees according to their seniority.
(b) The District Judge may, if for reasons to be recorded in writing, he 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.
(c) While selecting an employee for promotion, the District Judge shall take into consideration:-
(i) The entire service record, and more particularly annual confidential reports for the previous 5 years;
(ii) Leave and punctuality record, for the previous 5 years;
(iii) Special reports called from the officers under whom the employees within zone of consideration are currently working;
(iv) Nature of duties of the promotional
