JUDGMENT
M.B. Shah, J.
1. The petitioner is working as Assistant District Inspector of Land Records which is a Class III post. He has filed this petition challenging the fixation of his seniority. The petitioner was promoted as Maintenance Surveyor with effect from 8th October, 1971. He passed Land Records Qualifying Examination (L. R. Q. E.) in November 1985. It is his say that he was promoted to the next higher post of Sheristedar on 23rd July, 1987. Thereafter how was further promoted to the present post of Assistant District Inpsector of Land Records on 1st October, 1988. By the orders Annexures “A” & “B” dated 18th March, 1989 and 10th April, 1989 seniority of certain employees in the cadre of Maintenance Surveyor/Sheristedar was fixed by giving deemed date of promotion on the basis of their seniority in lower cadre by the State Government. He has challenged the said orders Annexures “A” & “B”. He has also challenged the order Annexure “E” dated 23rd June, 1989 rejecting his application by stating that as the petitioner had passed Land Records Qualifying Examination, (hereinafter referred to as “L. R. Q. Examination”) in 1985, deemed date of promotion from 8th October, 1984 cannot be given. He has further challenged the order (Annexure “H” dated 27th September, 1989) passed by the Settlement Commissioner and Director, Land Records, Gujarat State dismissing his appeal.
2. In the Affidavit-in-reply, it has been pointed out that for getting promotion to the post of Head Clerk (Sheristedar) it was necessary for the petitioner as well as other employees to pass L.R.Q. Examination. The petitioner cleared the said examination only in 1985. Thereafter he was promoted on 23rd July, 1986. With regard to the other employees against whom allegations are made in the petition, it has been pointed out that one Mr. Parekh has cleared L.R.Q. Examination in 1978. Other employees who are referred to by the petitioner and to whom deemed date of promotion is given, have cleared the L.R.Q. Examination before 12-2-1980.
3. Mr. Anand, learned Advocate appearing on behalf of the petitioner, submitted that even though some of the employees junior to the petitioner might have passed L. R. Q. Examination before the petitioner passed the same in 1985, he would not lose his seniority in the cadre as he has passed L. R. Q. Examination after the specified three chances and prescribed period.
4. For deciding the contention of the learned Advocate for the petitioner, it would be necessary to consider the relevant rules of the Land Records Qualifying Examination Rules, 1970. Rule 3(1) provides that all persons belonging to the lower divisions of the subordinate Land Records Service who are eligible to appear in the Land Records Qualifying Examination under Rule 8 shall be required to pass the Examination within three chances during the period of three years after they have become eligible. Rule 8 provides that in order to be eligible for appearing at the L. R. Q. Examination, the person must have completed five years’ continuous service and passed sub-service Departmental Examination unless he is exempted from passing that examination. Sub-rule (2) of Rule 3 provides that all direct recruits to the post of District Inspector of Land Records shall be required to pass the L. R. Q. Examination in three chances during the probation period of two years from the date of joining service. At present the provisos to Sub-rule (2) of Rule 3 are not considered because those provisos are to be considered in light of Sub-rule (2) of Rule 5.
5. The most relevant rule which requires consideration is Rule 4 which reads as under:
4. (1) Where any person belonging to the lower division of the subordinate Land Records Service fails to pass the Examination within the prescribed, number of chances and during the prescribed shall lose his seniority and till he passes the Examination under Rule 5, he shall not be eligible for promotion to the higher post and confirmation therein.
(2) Where any direct recruit fails to pass the examination within the prescribed chances during the prescribed period, he shall be discharged from service.
(3) Where a person belonging to the division of the subordinate Land Record Services passes the Land Records Qualifying Examination within the prescribed chances during the prescribed period, he shall retain his original seniority even if a person junior to him has passed the said examination and promoted to the higher post earlier than he.
(Emphasis added)
In view of Sub-rule (1) it is that if a person belonging to the lower division of the subordinate Land Records Service fails to pass the Examination within the prescribed number of chances (three chances) and during the prescribed period (three years) after he became eligible, (a) he shall lose his seniority and (b) till he passes the Examination, he shall not be eligible for promotion to the higher post and confirmation therein. Sub-rule (2) provides that if a direct recruit fails to pass the examination within the prescribed chances during the prescribed period, he shall be discharged from service. So for the direct recruits, failure to pass the examination results in discharge from service. Further, the third proviso to Sub-rule (2) of Rule 3 provides that if the State Government is satisfied that he could not pass the examination on account of his missing his last chance for the reasons beyond his control, the State Government may after recording reasons in writing give him one more chance to appear at the examination. If he fails to pass the examination in additional chance, then he is required to be discharged from service.
6. Sub-rule (3) provides that where a person belonging to the lower division of the subordinate Land Record service passes the L. R. Q. Examination within the prescribed chances during the prescribed period, he shall retain his original seniority even if a person junior to him has passed the said examination and is promoted to the higher post earlier than he. Reading these Sub-rules (1) & (3) together, it is clear that if an employee passes the L. R. Q. Examination within the prescribed chances during the prescribed period, his seniority shall not be disturbed and he would retain the same seniority even if a person junior to him has passed the examination earlier and is also promoted to the higher post earlier. Failure to pass the examination within prescribed chances and period would mean that senior employee would lose his seniority for being promoted and shall not be eligible for promotion to the higher post and if he is already promoted, he shall not be eligible for confirmation. Rules 5 & 6 are as under:
5. (1) Whereas person who has passed the Departmental Examination or who is exempted from passing the same is not available for promotion to the higher post a person whose chances to pass the examination are not exhausted under Rule 3, may be promoted to officiate in the higher post subject to the condition that he shall be reverted on the availability of a person who has so passed the examination or on his failure to pass the examination within the prescribed chances during the period; whichever event occurs earlier.
(2) The person permitted to appear at the examination under the proviso second third and fourth to Sub-rule (2) of Rule 3, shall not rank in seniority higher than those who have already passed the relevant examination under the old rules and who continue on appointed day on the post to which they were promoted before that day.
6. Where a person belonging to the subordinate Land Records Service but not being a direct recruit has not passed the Land Record Qualifying Examination within the prescribed chances and during the prescribed period, shall also, if he so desires, be allowed to appear at such examination held subsequently on payment of examination fee of rupees thirty and if he passes such examination he shall be eligible for promotion to the higher post but he shall not be entitled to claim seniority over those persons who have been promoted before he become eligible for the promotion on account of their having passed the Land Records Qualifying Examination earlier than him notwithstanding that he was senior to the persons so promoted in the cadre from which promotion was given.
(Emphasis added)
So, under Sub-rule (1) of Rules 5 a person who has not passed the departmental examination but who has not exhausted all his chances to clear the examination can be promoted to officiate in the higher post if a person who has passed the departmental examination or a person who is exempted from passing the same is not available. However, this promotion would be subject to the condition that he shall be reverted on the availability of a person who has passed the examination or if he fails to pass the examination within the prescribed chances during the prescribed period.
7. Sub-rule (2) of Rule 5 again talks of seniority. As such it has no connection with Sub-rule (1) of Rule 5. It provides that the person who is permitted to appear at the examination under proviso, second, third and fourth to Sub-rule (2) of Rule 3, shall not rank in seniority higher than those who have passed the examination under the old rules and who continue on appointed day (30th July 1970) on the post on which they were promoted before that provisos second, third and fourth to Sub-rule (2) of Rule 3 read as under:
Provided further that, persons belonging to the Backward Classes may be given one more chance which shall have to be availed of within period of one year after the date of expiry of the period mentioned in Sub-rule (1) and (2).
Provided further that if in the case of any person mentioned in Sub-rule (2) the State Government is satisfied that he could not pass the examination on account of his missing his last chance for the reasons beyond his control the State Government may after recording reasons in writing give him one more chance to appear at the examination.
Provided further that the chances for passing relevant examination provided under the old rules shall be deemed to have been provided under these rules and the persons who, before the appointed date, have already been provided any chances under the old rules shall be allowed remaining chances available under these rules as if the period for passing the Examination was extended upto the date of declaration of the result of Examination which provides the person the last chances.
8. Rule 6 provides that a person belonging to the subordinate Land Records Service would be allowed to appear at the L. R. Q. Examination beyond the prescribed chances on payment of examination fee of Rs. 30/- and if he passes such examination (1) he shall be eligible for promotion to the higher post but (2) he shall not be entitled to claim seniority over those persons who have been promoted before he became eligible for promotion on account of their having passed the L.R.Q. Examination earlier than him notwithstanding that he was senior to the persons so promoted in the cadre for which promotion was given.
9. Relying upon this Rule 6, learned Advocate Mr. Anand vehemently submitted that this rule talks only of seniority in higher post. According to his contention it nowhere provides that a senior person who has failed to pass examination within prescribed chances and prescribed period shall become junior to those persons who have passed examination within prescribed chances and period. In my view, this contention is without any substance because Rule 4 in terms provides that where any person belonging to the lower division of the subordinate Land Records Service fails to pass examination within the prescribed number of chances and during the prescribed period, he shall lose his seniority meaning thereby that he shall lose seniority for getting promotion to the higher cadre. That is, loss of seniority would be for limited purpose of being promoted to the higher cadre. Rule 6 talks of a different situation i.e. a situation where a person belonging to lower division of the subordinate Land Records Service is promoted to a higher post after he has passed the qualifying examination beyond the prescribed chances and period, then he would not rank senior to a person who has passed the examination within prescribed chances and period and is promoted to a higher cadre. Sub-rule (1) of Rule 4 further provides that a person shall not be eligible for promotion to the higher post and confirmation therein if he fails to pass the examination within the prescribed number of chances and during the prescribed period. Sub-rule (3) of Rule 4 clarifies that if a junior person is promoted to a higher post earlier because he has passed the examination but thereafter if a senior person passes the examination within the prescribed chances and during the prescribed period, then he shall retain his original seniority and a junior person who is promoted would be his junior.
10. Mr. Anand relied upon the decision in the case of Chandrakant v. State of Gujarat 1977(2) SLR 605. In that case the Court dealt with Rules 7 & 8 of the Gujarat Sales Tax Department (Conditions of Service Relating to Sales Tax Officers Examination) Rules, 1967 which as quoted by the Court are as under:
7. Where an inspector who has failed to pass the examination within the period specified in Rule 4 and according to the chances available to him under Rule 5, he shall notwithstanding such failure, be eligible to appear at any time in such examination on payment of an examination fee of thirty rupees and if he passes the examination, he shall be eligible for promotion to the post of a Sales Tax Officer;
Provided that he shall not be entitled to claim preference to those persons who may have passed the examination earlier.
8. An Inspector who passes the examination within the specified period and in specified chances shall, on his promotion to the post of Sales Tax Officer, be assigned seniority over a person, if any, who although being junior to him in the cadre of inspector may have been promoted as a Sales Tax Officer earlier by reason of his having passed the examination earlier.
At the outset it must be stated that there is no rule in STO Examination Rules which is similar to Rule 4(1) of the Land Records Qualifying Examination Rules and the Court was not required to consider the said question. Sub-rule (3) of Rule 4 of L. R. Q. Examination Rules is similar to Rule 8 of the STO Examination Rules of 1967. Rule 7 of STO Examination Rules is similar to part of Rule 6 of L. R. Q. Examination Rules. In that case the Court interpreted proviso to Rule 7 of STO Examination Rules which provided that a person who has passed the examination beyond prescribed chances on payment of an examination fee of Rs. 30/-, shall be eligible for promotion to the post of Sales Tax Officer but shall be entitled to claim preference to those who may have passed the examination earlier. The Court held that one who passes the examination earlier naturally and understandably gets a preference and by necessary implication it follows that one who passes the examination along with or later on, such Inspector would not be entitled to preference. Therefore, the Court held that if a person passes the examination later on, may be within the prescribed chances but subsequently to the persons who have passed the examination during additional chances on payment of examination fee, yet the persons who had passed the examination later on could not claim any preference for being promoted to the higher post. The Court, therefore, held as under:
To uphold the interpretation canvassed on behalf of the State is to hold that notwithstanding the clear provision made in Rule 7, the person who passed the examination subsequently (and not earlier) will be entitled to preference merely because the persons who passed the examination subsequently passed it within the stipulated time and stipulated chances. Such an interpretation cannot be accepted unless one is to read Rule 7 by adding thereto a further proviso to the effect that notwithstanding the fact that, if a person concerned passes the examination within the stipulated time and prescribed chances, he would be deemed to have passed the examination earlier. No known cannon of construction would permit one to place such distorted interpretation on Rule 7. Besides it would lead to an absurd situation. A person who might be 10 or 11 places below the petitioners would become senior to the petitioners at the point of time of being considered for promotion merely by reason of the fact that he passed the examination within the prescribed time and prescribed chances. Once both the candidates are qualified and become eligible for being considered for promotion, they are in the same stream and on par in all respects. Then they belong to the same class. By distorting the interpretation of Rule 7, a new sub-class of those who pass the examination within the prescribed time and prescribed chances cannot be introduced. Once the petitioners are held to be eligible under the rules, they stand in the same queue as the others according to seniority. Unless the rule in terms provides that those who pass the examination within the prescribed time and within the prescribed chances will be deemed to be standing in a separate privileged queue, those persons could not have been accorded a preference in the matter of appointment.
From the aforesaid discussion it is clear that this decision could not render any assistance in interpreting Rules 4, 5 & 6 of the L. R. Q. Examination Rules. As such it has no bearing on the question which is required to be considered in this case.
11. Learned Advocate Mr. Anand further relied upon the decision of this Court in the case of Kiritkumar v. State 1985 (2) 26(2) GLR 1077. In that case the Court considered the amended Rule 7 of the STO Examination Rules which is reproduced as under:
7. Where an inspector who has failed to pass the examination within the period specified in Rule 4 and according to the chances available to him under Rule 5, he shall, notwithstanding such failure, be eligible to appear at any time in such examination, on payment of an examination fee of thirty rupees and if he passes the examination, he shall be eligible for promotion to the post of Sales Tax Officer according to his original seniority in the cadre of Sales Tax Inspector.
Provided that he shall not be entitled to claim seniority over those who have been promoted as Sales Tax Officers before he became eligible for promotion to the post of Sales Tax Officer on account of their having passed the Departmental Examination earlier than he notwithstanding that he was senior to the persons so promoted in the cadre from which promotion was given.
(Emphasis added)
To some extent Rule 6 of the L. R. Q. Examination Rules is similar to Rule 7 of the STO Examination Rules. But Rule 7 specified provides that a person who has passed the examination by appearing in extra chances also shall be eligible for promotion to the post of Sales Tax Officer accordingly to his original seniority in the cadre of Sales Tax Inspector while in the case of Rule 6 of L. R. Q. Examination Rules there is no such specific provision. On the contrary Rule 4 of the said Rules in terms provides that on failure to pass the examination within the prescribed number of chances and during the prescribed period, he shall lose his seniority. In paragraph 6 of the aforesaid judgment the Court considered the amended proviso to Rule 7 of STO Examination Rules which is quoted above. The Court held that all those employees who pass the examination beyond the specified chances and period may be eligible for promotion according to his original seniority in the cadre of Sales Tax Inspectors as per substantive part of Rule 7 but the proviso tells them that they will not be given seniority in higher cadre qua all those who have been already promoted prior to acquiring eligibility for promotion to the post of Sales Tax Officer on their having passed departmental examination earlier. This would be clear from the following observations:
All it says is that Late Latifs’ earning eligibility beyond the specified chances and period may be eligible for promotion according to his original seniority in the cadre of Sales tax Inspectors as per the substantive part of Rule 7 quoted above, but the proviso tells him that “You, Mr. Late Latif, we will not give you seniority in the higher cadre qua all those who have been already promoted prior to your acquiring eligibility for promotion to the post of Sales tax Officer on their having passed departmental examination earlier than you and we shall not give countenance to your seniority in the lower cadre of Sales Tax Inspector”. This is the normal, natural and patent interpretation that can be held on the bare reading of the text. It is the settled legal principle of interpretation, and the foremost one also, that words of a statute or any sale are to be interpreted within their ordinary, natural meaning, unless there is something in the scheme which militates against the acceptance of that natural, ordinary, normal meaning of the text of the law. Treating this as the yardstick and finding it resting firmly on the historical background and the obvious reasons that promoted the Government to issue the circular of April 1975, Annexure E followed by the amendment of the year 1981 and the so-called mischief or agony or frustration sought to be remedied by way of giving a locus peonitentiae to the Late Latif, it is to be held prima facie, and in our view inevitably, that the idea behind this metamorphosis so to say is that those Late Latifs, may be abounding in good number as per the standards prevailing in public life, might not rot and be a drug on the administration. Out of this compassionate ground, the benefit is extended, but its operation is sought to be restricted by providing that a Late Latif will not be entitled claim seniority, banking on his earlier seniority in the lower cadre, over those who have been fortunate enough to be promoted earlier than he because of their having passed the departmental examination earlies than he.
(Emphasis added)
Considering the ratio of the aforesaid decision it is clear that it goes contrary to the contention raised by the petitioner. It specifically lays down that those who have failed to pass examination within chances and period shall lose their seniority in the higher cadre qua all those who have been already promoted prior to their acquiring eligibility for promotion to the higher post on their having passed departmental examination earlier. Further, this decision interprets Rule 7 and its proviso of the STO Examination Rules. As stated above, Rule 7 in terms provides that employees who have passed their examination beyond specified chances and period as provided in Rule 7 will be eligible for promotion to the post of Sales Tax Officer according to his original seniority in the cadre of Sales Tax Inspector. The proviso provides that they shall not be entitled to claim seniority over those who have been promoted as Sales Tax Officers before they became eligible for promotion. Hence this judgment would not in any way advance the contention of the petitioner because the interpretation is given by the Court as per the specific provision in the said rule. In the present case L.R.Q. Examination Rules there is no provision that those persons who have passed the examination beyond specified chances and period are not entitled to claim promotion according to their original seniority in the cadre of subordinate Land Records Service. Rule 6 provides that they shall be eligible for promotion but they shall not be entitled to claim seniority over those who have been promoted before they became eligible for promotion on account of their having passed L.R.Q. Examination earlier. Apart from this difference in Rule 6, as stated earlier, there is no rule which is similar to Rule 4(1) which unambiguously provides that any person belonging to the lower division of the subordinate Land Records Service fails to pass examination within prescribed number of chances and during the prescribed period shall lose his seniority. That losing of seniority would be limited only for the purpose of being promoted to the higher cadre. Those persons who have passed examination within prescribed chances and prescribed period would get seniority or preference for being promoted to the higher cadre qua those persons who have not passed the examination within prescribed chances and prescribed period even though they are senior in the cadre.
12. Learned Advocate Mr. Anand further relied upon the decision of the Division Bench of this Court in Special Civil Application No. 2360 of 1983 and Ors. decided on 10th December, 1983. In the Gujarat Lower Revenue Qualifying Examination Rules, 1978. The Court was required to consider the case of those petitioners who were working as Deputy Mamlatdars in the subordinate revenue service of the State of Gujarat who were apprehensive of a possibility of their being reverted to the lower posts of Clerks which are borne on the lower division of subordinate revenue service of the State of Gujarat on the ground of alleged misinterpretation of the Examination Rules. It was also required to deal with the constitutional validity of the said rules and their proper interpretation. The Court considered the relevant Rules 6(2) & 7 of the Gujarat Lower Revenue Qualifying Examination Rules, 1978, hereinafter referred to as “Revenue Qualifying Examination Rules”, which are as under:
6. (2) An incumbent of Lower Division of the subordinate Revenue Service who does not pass the examination within the prescribed period shall lose his seniority as provided in Rule 7. He shall not be eligible for promotion to the Upper Division and for confirmation therein until he passes the examination as provided in Rule 9.
7. A person (other than a direct recruit) who has failed to pass the examination within the specified period and chances during the prescribed period, shall, notwithstanding such failure, be eligible to appear at any time in such examination, on payment of an examination fee of Rs. 15 and on passing of such examination he shall be eligible for confirmation and promotion to the higher post; Provided that he shall not be entitled to claim seniority over those persons who have been promoted before he became eligible for promotion post, on account of their having passed the Departmental Examination earlier than he, notwithstanding that he was senior to the persons promoted in the cadre from which promotion was given.
At the outset it should be noted that Rule 4(1) of the R. Q. Examination Rules and Rule 6(2) of the Revenue Qualifying Examination Rules are to some extent similar, but one material distinction is that Rule 4(1) provides that if any person fails to pass-examination within prescribed number of chances and prescribed period, he shall lose his seniority. It does not provide in which cadre he would lose seniority while Rule 6(2) of the Revenue Qualifying Examination Rules specifically provides that he shall lose his seniority as provided in Rule 7. That means the loss of seniority would be limited as provided in Rule 7 i.e. a person who has failed to pass examination within specified chances and prescribed period, he can pass the examination by appearing in the examination on payment of examination fees and if he passes the examination, he would be eligible for promotion to the higher post. Proviso to the said Rule 7 provides that he shall not be entitled to claim seniority over those who have been promoted before he became eligible for promotion on account of their having passed departmental examination earlier than he notwithstanding that he was senior to the persons promoted in the cadre from which promotion was given. On this point the relevant discussion is as under:
It is true to say that so far as seniority in lower cadre of clerks is concerned, no question of losing the same arises as per the combined working of Rules 4(1), 5(1), 6(1) and 7. Question assumes importance when inter-se seniority is to be considered amongst clerks who get promoted to higher cadre of Deputy Mamlatdars after passing the Departmental Examination as per the examination rules. Thus, the question of lose of seniority as mentioned in Rule 6(1) pertains to seniority for the limited purpose of promotion to higher cadre of Deputy Mamlatdar. This rule follows the same pattern as was followed by earlier rules which were considered by the Division Bench in the case of K. A. Patel (supra). Thus, the mandate of Rule 6(2) is that a Clerk who does not clear the lower revenue qualifying examination within three chances within specified period will have to suffer his juniors stealing a march over him not only in the matter of seniority for promotion in the higher cadre but in the matter of their being promoted earlier to the higher cadre of Deputy Mamlatdar.
From the aforesaid observations of the Division Bench of this Court it is clear that it is a mandate of Rule that a persons who does not clear the qualifying examination within the specified chances and prescribed period will have to suffer his juniors stealing a march over him not only in the matter of seniority for promotion in the higher cadre but in the matter of their being promoted earlier to the higher cadre. So a person who has not passed the examination within the specified chances and during the prescribed period, the consequences would be two : (1) he would lose seniority for promotion in the higher cadre and (2) he would also lose seniority in the higher cadre to which his juniors are promoted after passing the examination. After considering the contentions of the parties in detail the Division Bench inter alia held as under:
To recapitulate, Rule 4(1) read with Rules 5 and 6(2) clearly lays down a mandate as expressed by the rule making authority that a clerk in the lower division of revenue subordinate service cannot aspire to get promoted in higher cadre unless he passes the qualifying examination within prescribed period and as per specified chances. If he fails to clear the said examination within legally permissible limits as laid down by Rules 4(1) and 5, even though he might be senior in the lower cadre of clerks, he would be pushed back so far as the question of his seniority for the purpose of being promoted to the higher cadre is concerned. Having been pushed to the rock bottom his position would get improved only as provided by Rule 7 and all that Rule 7, its proviso does is to lift the concerned clerks who were otherwise pushed at the rock bottom of the queue of eligible clerks aspiring to be promoted to the posts of Deputy Mamlatdars and to restore the inter se seniority in the lower cadre amongst only those clerks who were otherwise Late Latiffs and who had failed to clear the examination within specified chances to the extent mentioned in the proviso. But that does not mean that position of those clerks who had passed the examination beyond specified chanches on the utilisation of locus paenitentise offered by Rule 7 would in any way improve as compared to the position of those clerks who passed the examination within specified chances and who got eligibility for being promoted earlier as compared to their seniors who could not pass within specified chances and who had otherwise missed the bus for promotion. In this connection, it would be profitable to once again look at Rule 8 and the mandate contained therein. Rule 8 in terms provides that if a vacancy occurs in the higher cadre and there are no qualified persons available for promotion to the higher post, meaning thereby that the persons who have passed the concerned examination are not visible in the queue of aspiring clerks awaiting promotion to the higher cadre even unqualified persons whose chances are not exhausted under Rules 4 and 5, may be promoted as a stop gap arrangement. If such clerks who were not qualified be given promotion on ad hoc basis, moment they failed to clear the examination within specified chances or if qualified persons were available, such ad hoc promotees have to make room for the eligible persons and have to get reverted to the lower cadre. Thus, vis-à-vis clerks who have passed the examination within specified chances, those clerks who have not passed the qualifiying examination, within specified chances have no footing whatsoever so far as right to occupy the posting in the higher cadre viz., cadre of Deputy Mamlatdars is concerned. The clerk who does not pass the examination but whose chances are not exhausted, cannot put forward a better claim to retain the promotion post as compared to a clerk who has passed within specified chances. This is the mandate of Rule 8. If that is so, much less, it can be said that the clerk who has not only passed the examination within chances permitted under Rules 4 and 5, meaning thereby his chances under these rules are exhausted but who has got a mere concession by way of locus paenitentise to clear the examination in extra chances as per Rule 7 can ever have a better claim to retain the promotion post as against a clerk who passed the examination in specified chances and that he would not lose his seniority against those who have passed within specified chances as per Rules 4 and 5. Such a clerk even though he might be senior in the lower cadre would obviously be pushed back as compared to those of his juniors who have passed the examination within specified chances by combined operation of Rule 3 and Rules 4, 5 and 6(2).
(Emphasis added)
From the aforesaid ratio it is clear that if an employee has failed to pass the departmental examination within specified chances and period, he would lose his seniority for getting promotion qua those persons who have passed the examination within prescribed chances and prescribed period. In summing up paragraphs the Division Bench gave final conclusions and directions. The relevant direction which interprets Rules 6(2) and 7 of the Revenue Qualifying Examination Rules is as under:
(3) The main part of Rule 7 confers a right on a person who has forfeited his chances under Rule 6(2) by reason of his failure to pass within the specified chances and specified time to write the examination over again, but he is like a fresh entrant and his eligibility for promotion depends on his passing the examination. When once he passes the examination, he becomes eligible for promotion, but he would have no claim against those who had passed the examination within the specified period and specified chances and thereby had become eligible prior to the time he became eligible. He cannot claim that he should supersede his juniors who have become eligible earlier on account of his passing the examination under Rule 7.
But a question may arise as to his right to claim preference in the matter of promotion between those who have passed the examination under Rule 7 (beyond specified chances and beyond specified period). Rule 7 proviso as amended gives him a preferential right to be promoted as against juniors of his class those who have passed beyond specified period and chances) subject to the condition that he shall not have such preference against those juniors of his class as are already promoted.
From the aforesaid conclusion it can be said that : (1) when an employee passes the examination, he becomes eligible for promotion but he would have no claim of priority for promotion against those who had passed the examination within specified chances and prescribed period and thereby had become eligible prior to the time he became eligible; (2) he cannot claim that he should supersede his juniors who had become eligible earlier on account of his passing examination under extra chances; (3) he can claim priority in the matter of promotion against those who had passed examination beyond specified chances and beyond prescribed period if they are his juniors and not promoted. Even if his juniors who have passed the examination beyond the specified chances and prescribed period are promoted prior to he became eligible for promotion, he will have no claim of seniority over those employees.
13. Taking into consideration the aforesaid finding by the Division Bench, it cannot be said by any stretch of imagination that this decision advances the contention raised by the petitioner.
14. Learned Advocate Mr. Anand lastly relied upon the judgment of this Court in Special Civil Application No. 3492 of 1981 decided on 30th November, 1982 by N.H. Bhatt, J. In that case the Court interpreted the Gujarat Section Officers’ Departmental Examination Rules. The relevant Rules i.e., Rules 61 and 13 are as under:
61 A person who does not pass the examination within the prescribed chances during the prescribed period shall not be eligible for promotion to the post of Superintendent and shall also lose his seniority.
13. Notwithstanding anything contained in these rules, a person who has not passed the examination within the prescribed chances and during the prescribed period, may, if he so desires, appear at any examination held subsequently on payment of examination fee of Rs. 15/- for appearing at the examination subject to the conditions that he shall also become junior to all those who have passed this examination earlier than him.
The Court interpreted Rule 6 and the phrase “lose his seniority” used in the said Rule and held that it only means the seniority for the purpose of promotional chances. Other things being equal, he will get the chance subsequent to his junior who has passed the examination within prescribed period and within prescribed chances. The Court held that it is a cardinal principle of administration that all effort should be made to give an effect to the meaning of the word used in the statute or statutory rules. The relevant discussion is in paragraph 5 which is as under:
As per this 1966 amendment, the petitioners, who had admittedly not passed the examination within the prescribed chances during the prescribed period were not eligible for promotion to the post of the Section Officer and it was further provided that they shall lose their seniority. What was contemplated by the words “lose seniority” is to some extent elaborated by Rule 13 already quoted above from the 1966 notification Rule 13 specifically lays down that those who were not eligible for promotion under Rule 6.1, could earn subsequent eligibility by appearing at the examination at their own costs with a clear understanding that their seniority was lost and they would rank junior to all those who had passed that examination earlier than they. A confusion obviously arose because of the loose expression ‘seniority’ employed in Rules 6 and 13 quoted above. Seniority ordinarily means the ranking in the list of employees of a particular cadre on the strength of the length of their holding his age in the cadre. In other words, the period of continuous officiation or working in a particular cadre ordinarily determines the seniority. In that sense of the term of seniority, those Assistants who had lost the chance of appearing at the examination till the introduction of above mentioned Rule 13 could not be dubbed as junior to other companions of their in the cadre of Assistants. Failure to pass an examination for the higher post would not rob an employee, an Assistant in this case, of the total length of service he has put in. In that sense of the term ‘seniority’ the expressions of Rule 6 and 13 of that 1966 notification can be said to be an unhappy expressions, but the idea appears to be that while considering the case for promotion, such persons will rank below those who have legitimately passed the examination. The word ‘seniority’, therefore appears to have been loosely used in the above quoted Rules 6 and 13. It only means the seniority for the purpose of promotional chances. Other things being equal, they will get the chance subsequent to their junior who has passed the examination within the prescribed period and within prescribed chances.
15. Considering the law laid down in the aforesaid cases it can be said without any hesitation that it no where advances the contention of the petitioner that even though he has passed the departmental examination in 1985, he is entitled to have deemed date prior thereto on the ground that persons junior to him were promoted earlier as they had passed the examination within the prescribed number of chances and during the prescribed period. The Division Bench of this Court in the case of Kiritkumar v. State 1985 (2) 26 (2) GLR 1077, has in terms held after considering Rule 7 of STO Examination Rules with regard to those who have passed the examination later:
You, Mr. Late Latif, we will not give you seniority in the higher cadre qua all those who have been already promoted prior to your acquiring eligibility for promotion to the post of Sales Tax Officer on their having passed departmental examination earlier than you and we shall not give countenance to your seniority in the lower cadre of Sales Tax Inspector”. This is the normal, natural and patent interpretation that can be held on the bare reading of the text.
Same is the view taken by the Division Bench in Special Civil Application No. 2360 of 1983 decided on 16th December, 1983. Therein the Division Bench has interpreted the Gujarat Lower Revenue Qualifying Examination Rules. In Special Civil Application No. 3492 of 1981 decided on 30th November, 1982 the Court took the same view and held that the word “loss of seniority” would be for the purpose of being promoted to the higher post.
16. Hence taking into consideration Rules 4 and 6 of L.R.Q. Examination Rules it can be held that : (1) where any person belonging to the lower division of the subordinate Land Records Service fails to pass the examination within the prescribed number of chances and during the prescribed period. (a) he shall not be eligible for promotion to the higher post, (b) he shall not be confirmed on the said post, and (c) he shall lose seniority for the purpose of being promoted to the higher post. Other things being equal he will get the chance subsequent to his junior who has passed the examination within the prescribed number of chances and during the prescribed period; (2) he can appear in the examination by paying the prescribed examination fee and if he passes such examination, he shall be eligible for promotion to the higher post but he shall not be entitled to claim seniority over those persons who have been promoted before he became eligible for promotion on account of their having passed the examination earlier than him notwithstanding that he was senior to the persons so promoted in the cadre from which promotion was given.
17. In the above view of the matter, it cannot be said that the petitioner is entitled to have any deemed date as claimed by him. In the result, there is no substance in this petition and it is rejected. Notice discharged. Ad interim relief stands vacated.