JUDGMENT
V.S. Kotwal, J.
1 The point involved is quite short, though the field of debate has been expanded on account of certain interpretation that is sought to be put by learned Counsel for both sides. Narration of only a few facts would be enough to understand the thus of the controversy. The petitioner herein was appointed as a clerk with the Bombay Municipal Corporation in the year 1957. He was promoted to the post of Junior Inspector attached to Shops and Establishment Department in the year 1973. The further promotion in the hierachy would be with reference to the office of Senior Inspector of Shops and Establishment. For getting the promotion, the employee is required to appear for the departmental examination as per the rules and which examinations are held from time to time though not necessarily every year. One such examination was held in 1965. The pattern of the examination relates to the candidate appearing in three written tests and one vivavoce. Rules provide that the candidate must get 50% marks in all subjects so as to be eligible to be declared as successful and that means that passing marks for the examination are 50% which obviously also includes necessary to get 50% minimum in each of the subjects to get that eligibility. The other rule has also some flexibility in the sense that if the candidate gets in one or two subjects out of the three, substantial number of marks, which is more than 50, then half of those marks could be added to the definition “marks in other subjects” and which are thus called as grace marks. As far as the petitioner is concerned, he appeared in the examination in 1965 in all the three written tests and vivavoce. He obtained 52% in second paper while he obtained 43% each in the first and third papers, and had secured 50% in vivavoce. The existence of one rule becomes relevant to be noted at this juncture. As per the circular issued by the corporation, a candidate getting 60% or more in any paper out of these three, would be entitled to get exemption from appearing in that subject in the next examination. On the basis of this rule, the petitioner was not entitled to get exemption in either of the three subjects because the marks were less than 60%. So also since he has passed only in one paper but had secured less than 50% in papers I and III, he was obviously declared unsuccessful because passing marks in each subject were 50%.
2. Several years passed thereafter and event occurred in 1982 which has generated this controversy. He appeared in 1982 for similar examination in the said three subjects including the subjects No. II in which he had obtained 52% in the examination held in 1965. This would assume some importance and that is why percentage of that subject is being emphasised. His performance on the second occasion had also created some difficulties. In the first paper he had secured 47% in second paper, he got 38% while in the third paper he got 59% and in vio-vosa he got 50%. As regards the first paper where he had secured 47% under the rule for getting grace marks he was entitled to get 4 marks by reason of the fact that in the third paper he got 9 marks more than the minimum requirement of 50% and thus added to the first paper he had obviously obtained 51 marks. In the final analysis the position comes to this: In the examination held in 1965 for three papers, be had secured 43%, 52% and 43% whereas in the examination held in 1982, he had secured 51%, 38% and 59% respectively, leaving aside the oral test in which he had passed on both the occasions. On account of these marks which he had secured in 1982 since he had failed to get atleast 50% in paper II, he was declared un-successful because the requirement was that the candidate must get 50% in each subject and, therefore, 50% was passing limit.
3. Record does reveal the existence of certain events which have direct nexus with the controversy in question. It appears that some representations were made by the various employees of the Corporation from time to time that the exemption limit fixed at 60% should be relaxed because it was causing much handicap and hardship. It is alleged that the Municipal Commissioner on his own relaxed the said limits scaling down the ceiling from 60% to 50% vis-a-vis entitlement for exemption. This had happened some time in the year 1973. In pursuance of this decision, a circular was issued by the Corporation on 24-6-1975, which can conveniently be styled and referred to as “1975, circular”, under which it was mentioned that the exemption limit for the subject has been scaled down from 60% to 50% and it is to take effect “retrospectively”. Pursuant to this circular certain information was called for from various departments to find out as to how many candidates would be eligible to get this benefit of scaling down of the exemption limit. As indicated on behalf of the respondents, there was agitation to have further relaxation and that is why a meeting of the board of examiners was held on 25-9-1974 and first subject on the agenda in that meeting related to this question of relaxation. It is stated on behalf of the respondents that Board of Examiners was of the opinion that since this relaxation was made by the Municipal Commissioner in the year 1973, what was meant by the word “retrospectively” in 1975 circular should relate back only upto December 1973 and not backward than that, meaning thereby that this relaxation from 60% to 50% would be available to only those candidates who had appeared in the examination in December, 1973 onwards upto 1976 and would not be available to any-one else. A detailed report was thus called for about the candidates since some discrepancy was noticed and it transpired that there was a bunch of 75 candidates excluding the petitioner who would have been entitled to the benefit of this relaxation since they had secured 50% in some subjects and had appeared in the examinations upto 1976. All those candidates who have secured 50% were thus granted benefit of this rule though they had appeared prior to 1973 since the department wanted to extend the benefit on account of the situation which was erroneously created by user of the word “retrospectively”, when it was clarified that to get the said benefit the candidate must have appeared for the subsequent examination held in between 1965 and 1976 and not thereafter. Those 27 candidates thus got the benefit and were declared successful even though in some subjects where they had obtained 50% marks already they had failed subsequently. The petitioner’s case was however singled out because it is stated at the bar that there were in all 28 candidates who could have been entitled to this benefit out of whom 27 were found eligible to get that benefit because alongwith that benefit promotion also followed, and most of them have now been promoted to the higher post and have obviously become senior to the petitioner who still remains in the office as junior inspector. Several representations were made by the petitioner with the authority which however were turned down. However, Deputy Municipal Commissioner had taken a view in no un-certain terms that the representation of the petitioner should be accepted so that he also could be entitled to the benefit of relaxation. Inspite of that the representations were turned down and it on that count that the petitioner has been obliged to move this Court under Article 226 of the Constitution.
4. Shri Chinoy, the learned Counsel appearing on behalf of the petitioner has vigorously contended utter irrationality behind this rule which was sought to be implemented by the Corporation and according to him, even if the rule is taken on its face value in so far as 1975 circular is concerned, then the petitioner must get the benefit since it is thoroughly irrelevant or immaterial whether the petitioner had appeared for second time prior to 1976. In other words the petitioner’s appearing in the examination in 1982 i.e. subsequent to 1976 is thoroughly besides the point, if on merits it is held that he has secured exemption in respect of second paper, even in the examination held in 1965, because at that time he had obtained 52% marks and which according to 1975 circular was within permissible limit for the entitlement for exemption since limit was reduced from 60% to 50%. He also sought to rely on the cases of other candidates who according to him are similarly situated. Further grievance is made by the learned Counsel that there is hardly any rational behind this mode why the date introduced in 1976, fixing it from December 1973 onwards and more particularly between 1965 and 1976 only and not further onwards and there is no basis for that purpose in that behalf. All these contentions are countered by Shri Shah, learned Advocate for the Corporation and according to him the most material feature is that though relaxation was made by the Municipal Commissioner it was erroneously reflected in the circular as being effective “retrospectively” and that error was clarified by 1976 circular that this period would relate back to the examination held in December 1973 or at the most upto 1976 only. Shri Shah further submitted that concept of exemption would mean that the candidate is exempted from appearing in the examination and, therefore, so contends the learned Counsel, if the petitioner had not appeared in 1965 and before 1976 when relaxation was withdrawn then obviously he forfeits his claim for any exemption or in other words there was no exemption accruing in his favour at all because the exemption was relating to the right for not appearing in the examination which was not availed of by him upto 1976 because he appeared in the examination after 1965 for the first time 1982. The learned Counsel, therefore, submitted that this case is entirely different from the other 27 candidates.
5. After this petition was filed. The same came to be amended with the leave of the Court since it was felt necessary to implead all other persons who have been promoted by reason of getting exemption under the said relaxed rule because by the reason of verdict in this matter they are likely to be affected in their seniority, because in that even the petitioner would jump to position No. 2 in the seniority. Though the amendment was allowed by the Court and record reveals that all those persons who have been joined and amendment has been carried out, have been duly served with the petition as is apparent from the affidavit of service, none has appeared on their behalf nor any motion has been made and as such there is no justification to adjourn the matter for that purpose.
6. The narration of facts would indicate that there are two circulars in the field, one of 1975 and one of 1976 though infact according to Shri Shah learned Counsel both have a concurrent object whereas the second one merely clarifies the position. To re-capitulate, initially exemption limit was 60% qua any subject; the Municipal Commissioner is supposed to have relaxed the said limit from 60% to 50% on his own in 1973; under resolution passed in the meeting of board of examiners in 1974 it was clarified that this exemption benefit would be given only as and from December, 1973 onwards and they clarified the user of the word retrospectively included in 1975 circular mean that it would be related backward upto December, 1973. In the face of these admitted features, the question obviously narrows down itself.
7. At the out-set, it must be observed that it is the case of the respondents that the Municipal Commissioner of the Corporation on his own had relaxed the limit of 60% for getting exemption to 50% as he is invested with that power. The circular in pursuance to that authority was issued on 24-6-1975 in which it was specifically mentioned that the limit of marks has been reduced from 60% and 50% and would becomes effective “retrospectively”. Asstated, according to Shri Shah, what was meant by “retrospectively” was limited and restricted to the period from December, 1973 onwards which was clarified by board of examiners and was reflected in 1976 circular which, however, fixed the span between 1965 and 1975 and not further onwards. According to Shri Shah, when the question as to how this cut off line was earmarked, Shri Shah, learned Counsel endeavoured to submit that this was obviously because it was in 1973 that the Municipal Commissioner is purported to have taken decision on his own to relax the marks rule from 60% to 50%. As stated the first circular is in 1975 and not 1973. When specifically asked as to whether there is anything on record to bolster the case that the Municipal Commissioner has taken that decision in 1973, a negative answer came on behalf of the respondents when it was further clarified that inspite of vigorous search nothing is traced in that behalf. Consequently, there is nothing on record to suggest that any such decision was taken by the Municipal Commissioner on his own assuming that he was invested with that power. This would assume some importance because his decision and communication of that decision through 1975 circular is now sought to be clarified by the resolution of the board of examiners which in turn gets reflected in 1976 circular. This would be the first deficiency in this matter. However, the matter does not rest there because even accepting several features in favour of the respondents, still the deficiencies some of which are quite formidable could not be erased.
8. As has been indicated at the threshold, the petitioner in 1965 examination had secured 52% in second paper though he had failed in other two papers. On the original condition he would not have been entitled to exemption in second paper because marks were less than 60%. However, by reason of the relaxation which is supposed to have been made by the Municipal commissioner in 1973 and by reason of 1975 circular which was made applicable retrospectively, he was obviously entitled to exemption in paper II, the marks being more than 50% because by then the limit was reduced from 60% to 50%. When specifically questioned Shri Shah, learned Counsel for the respondents corporation expressly conceded one position which, in my opinion, would have a direct impact. It is now accepted by the Corporation that if in the given case a candidate gets exemption in one subject may be by reason of getting 60% or 50% as the case may be, but fails in other two subjects then he need not appear for that subject in the next examination, meaning thereby that his accruing exemption in that subject in the earlier exemption remains un-affected by reason of his failure in other two subjects. In other words, even if he fails in the examination, exemption accrued in his favour in one such subject remains absolutely intact. This position is conceded on behalf of the respondents. Applying this test, it would mean that if the petitioner had obtained a requisite quota of marks to get exemption in paper II, then entitlement to get exemption plus actual accrual of that exemption in his favour in that examination would remain un-affected and would be de-hors of the fact that he has failed in papers I and II. In other words if the petitioner had obtained 60% marks in paper II in 1965 examination but has failed in papers I and III, he would have been entitled to exemption in paper I notwithstanding that he had failed in papers I and III in that examination. If this applies in respect of the minimum percentage of marks for exemption being 60%, it would squarely apply to the case where exemption can be granted, where person gets 50% Applying this test and examining in juxta position the case of the petitioner, it would be apparent that by reason of 1975 circular exemption limit has been reduced from 60% to 50% and it was reduced “retrospectively” and if that be so, without their being any further circular, then the petitioner was entitled and in fact is deemed to have been granted exemption in paper II in the examination held in 1965 because he had obtained 52% and it is squarely the entitlement to tangible right that has actually accrued in his favour, that would remain un-effected even by the fact that he has secured less than 50% in other two subjects and thus had failed in the examination in 1965. According to Shri Shah, however the main test would be as to whether the candidate had actually appeared for the further attempt any time prior to 1976, because the concept of exemption indicates entitlement not to appear in the examination. Further argument, therefore, flows out of this is to the effect that if once cut-off date is fixed from December, 1973 onwards or atleast by circular of 1976, it was obligatory for the petitioner to appear for the examination any time before 1976, and further argument is that if he had so appeared any time between 1965 and 1976, then it was not necessary for him to give test in that subject namely paper II, because he had secured exemption. Converse of this proposition, therefore, is that if the petitioner did not choose to appear in the examination between 1965 and 1976, but appears any time after 1976, then benefit which is covered by label of exception in paper II is completely lost to him because he had not appeared for any such examination. I am unable to pursuade myself to accept this submission. The plain reading of circular of 1975 and 1976 does not admit of any such inference. But on the contrary terminology of all these circulars and even the resolution of board of examiners does indicate that the factum of appearance or non appearance for examination prior to 1976 would be irrelevant in so far as emeption that has already accrued in favour of the candidate in the earlier examination and in other words accruing of exemption by reason of existing rule would be dehors of the fact as to whether the candidate actually appears for the examination prior to 1976. This, is my opinion, could be a more harmonious consideration of the whole situation or otherwise efficacy and advantage of getting exemption is completely not only diluted but wiped out. The concept of exemption should be read harmoniously in that manner.
9. It is also further rightly submitted by Shri Chinoy learned Counsel that there is not much rationale behind fixing this cut off date and also insisting that the candidate to get benefit of exemption must have appeared any time prior to 1976. Instead thereof it could well have been a date fixed in the year 1977 or 1978 for appearing for the examination. This was more so that even though the board of examiners meeting was held in 1974, still, this circular was insisted upon and benefit was sought to be withdrawn in 1976. The picture is also quite hazy in respect of other as pacts namely as to why it was felt necessary to give benefit to the candidate concerned, only upto the year 1976 and not to extend it further. As stated Shri Shah learned Counsel no doubt endeavoured to submit that this was essentially because the Commissioner had granted relaxation in 1973 and it had to be clarified because there was obvious mistake in that circular for the user of the word “retrospectively”. As stated this meeting was held in 1974 and clarification of the circular was done in 1976 and it was decided to give benefit only to those candidates who had appeared upto 1976. I am afraid there is not much of rationale behind this process or exercise.
10. The cases of certain other candidates are cited as illustrations and form part of the affidavits on behalf of respondent as Exhibit No. 2. Thus for instance there are cases of three candidates and it does appear that if the marks obtained by them are perused it would mean that since each of them had obtained 50% marks in one or two subjects in one examination, exemption was granted to them inspite of the very glarying feature that inrespect of one candidate on the last occasions he is deemed to have been failed in that subject where he had obtained more than 50% in the earlier examination. To demonstrate the case of Shri Asudani indicates that in the examination held in 1967, he had obtained 50% in paper I though he had consistently failed in that subject in the examinations held in 1965, 1968 and 1971 whereafter he did not appear and yet even for that subject exemption was granted mainly because he had obtained 50% in year 1967. Same pattern is followed in respect of other two subjects. I am afraid merely because this candidate had appeared in subsequent examination after 1965 and upto 1976, that should not be a factor to discriminate the petitioner merely since he had obtained 50% marks in paper II in the year 1965 when the circular of 1975 could made applicable by reason of the user of the word “retrospectively” and in fact this very concept was applied to these other two more candidates accepting their exemption in various subjects in the examination held in 1965 or 1967. The weightage that has been given in their favour only on the basis of the fact that they did appear in the examination subsequent to 1965 and prior to 1976 hardly carries any conviction.
11. Incidentally it may be observed, though it may not be the governing and conclusive factor, that atleast two Deputy Municipal Commissioners had recommended the case of the petitioner accepting this view point that is being propogated in this petition and which is being upheld. Thus for instance the Deputy Municipal Commissioner, Zone V. has made it very clear that effect of 1975 circular would entitle bestowing of this benefit on the petitioner because it was made applicable retrospectively without any reservation and, therefore, it was suggested that petitioner should be exempted from appearing in this paper and declared successful and promoted in due course as per his turn. Similar is the recommendation of yet another Deputy Municipal Commissioner Zone V though he has clarified that his seniority should be fixed as from the year 1982 because it in that year that he had appeared in the examination, though it does not appear that the petitioner had thereafter appeared for the third time in the year 1985.
12. Reliance was also placed by Shri Chinoy learned Counsel for the petitioner on the ratio in D.S. Nakara and others v. Union of India, . In support of his contention that there is no rational in fixing the cut-off date. During the course of the judgement, Supreme Court observed that there was nothing immutable about the choosing of an event as an eligibility criteria subsequent to a specified date. A similar question was posed by the Court as to what are the relevant and valid considerations for fixing the date in question. The Supreme Court then examined various cases available in the field. In respect of same decisions it was indicated that the Central Government can not pick out a date from a hat and that is what it seems to have been done in saying that period prior to that date would not be deemed to be approved by the Central Government. In yet another case cited therein, it was observed that division for the purpose of allotment of the land with reference to certain date was considered both arbitrary and discriminatory on the ground that it was wholly unrelated to the objects sought to be achieved. Shri Shah learned Counsel for the respondent Nos. 1 and 2 relied on the decision of the Supreme Court in Narain Dass and others v. The Improvement Trust, Amritsar and another, in support of the contention that equal laws are to be applied to all persons in the same situation and that if some other persons have derived the benefit unjustifiably that would not be itself cloth another person to get the similar benefit. It is also indicated in Union of India v. Parameswaran Match Works, that the choice of the date as the basis for conclusion can not always be dubbed as arbitrary even if no particular reason is forth-coming for the choice unless it is shown to be capricious. This latter decision was considered and explained by Supreme Court in Nakara’s case cited supra. So called dissimilarity between the petitioner and other candidates as sought to be carved out by Shri Shah as discussed earlier sounds to be artificial and not in harmony with the rules. Even at the cost of repetition it may be noted that the petitioner had appeared in 1965 and obtained 50% marks in one subject and this was an event obviously prior to 1976 and, therefore, his obtaining exemption was complete by itself prior to 1976 since it is not as it that he had obtained 50% marks in that subject in an examination held after 1976 which perhaps would made some difference. Therefore entitlement to the right and actual accrual of that right in favour of the petitioner was already complete in the past before 1976 and thus could not be said to be irrelevant when be appeared in the examination in 1982. As stated fixing of the year 1976 for the benefit does not have a sound rationable since it could have been even in 1982 in which event the petitioner even according to the respondents would have obtained the benefit. To that limited extent atleast the ratio relied upon by Shri Chinoy would lend the support.
13. On anxious consideration of all these features, I am inclined to take a view with least reservation that construction sought to be placed by Shri Chinoy learned Counsel is more harmonious even while examining the concept of exemption in preference to the one as suggested by Shri Shah learned Counsel for the respondents Nos. 1 and 2. If that be so, then in-evitable result must follow that the petitioner shall be deemed to have passed the examination in the year 1982 more so since. Since significantly failure in II subject in 1982 examination is to be corelated with getting exemption in that very subject in 1965 examination and when he had allegedly passed in the other two subjects in 1982 examination with the further resultant consequence that he would be entitled to the seniority to the post of senior inspector of shops and establishment as and from 1982. It is true it may affect the seniority of some other candidates who have already now been promoted to that post. However, it can not be overlooked that at the stage of admission a specific order was made by this Court that all promotions and fixing of seniority to that post would be subject to the result and outcome of this petition meaning thereby that every one including the Corporation and the said candidates were fore-cautioned that their seniority though granted was tentative in the sense that it was subject to the outcome of this petition meaning further thereby that if the petitioner succeeds he would get legitimate seniority which is likely to affect the seniority of other persons. This consequence is, therefore, inevitable. I am tempted to observed that though incidentally that the petitioner is the only person left out of the lot of 28 persons since 27 persons have already been promoted merely on account of a situation which may have accidentally occurred that they had appeared in the examination prior to 1976. It would have been better if the last person in the lot also would have been given the same benefit. The petitioner has been in service since 1957 and has thus put in nearly 33 years of service. A point was made in the affidavit though not seriously pressed on behalf of the respondents that there has been delay in filling this petition because according to Shri Shah, the petitioner was informed repeatedly in response to his representations right from the year 1985 onwards that his representations can not be accepted and yet the petition is filed in 1987. This is rightly countered by Shri Chinoy and is supported by record that recommendations were made by officers no other than the Deputy Municipal Commissioners repeatedly in favour of the petitioner, last being after July 1986 and the petitioner can not be blamed if he was advised to wait for the outcome of these recommendations since the employee would obviously welcome an order without friction with the department rather than knocking the doors of the Court. The petition has been filed soon thereafter in the year 1987. The contention of delay, therefore, topples down.
14. In this view of the matter, petition must succeed even in this extra-ordinary jurisdiction under Article 226 of the Constitution of India.
15. Rule made absolute in terms of prayers (b) and (c) only with the resultant consequence that the petitioner shall be deemed to have passed departmental examination in the year 1982 and would be entitled to get his seniority on that basis as from that date to the office of the senior inspector attached to Shops and Establishment.
16. Under the circumstances, however, there would be no order as to costs.