JUDGMENT
Kamdar S.U., J.
1. By the present petition, the petitioner is challenging an order dated 16-8-2002 passed by Additional Commissioner, Nagpur Division, Nagpur.
2. The petitioner was appointed on 10th of July, 1990 and was subsequently promoted and presently holding the post of Live Stock Supervisor Zilla Parishad, Bhandara. The provisions of Zilla Parishad District Service Post Recruitment Examination Rules, 1985 (hereinafter referred to as ‘the said Rules’) as amended by Zilla Parishad District Service Post Recruitment Examination (Amendment) Rules, 1999 governs the issue of seniority and promotion of the employees of Panchayat Samiti. Thus, the petitioner as well as respondents Nos. 4 to 8 are governed by the said Rules.
3. An unamended Rule 4 of the said Rules inter alia provided for post recruitment examination. Thus every employee after being selected as Zilla Parishad employee required to pass the said qualifying examination as provided under the Rules. Under an unamended Rule it was provided that every employee appointed after the appointed date shall be required to pass the examination within three chances and within a period of four years. Under Sub-rule (3) of unamended Rule 5 it was provided that if an employee fails to pass the examination within the prescribed period and number of chances provided thereunder then his services were liable to be terminated. The said unamended Rules 4 and 5 of the said 1985 Rules reads as under –
4. Period and number of chances for passing examination:-
(1) every Parishad employee appointed after the appointed date shall be required to pass the examination within three chances and within a period of four years : –
(2) Every Parishad employee appointed before the appointed date shall be required to pass the examination within three chances and within a period of four years from the appointed date.
(3) Notwithstanding anything contained in Sub-rules (1) and (2) : –
(a) If for any reasons an examination is not held in a particular year that year shall be excluded in computing the total period of years mentioned in Sub-rules (1) and (2).
(b) The Chief Executive Officer, may in exceptional circumstances for two chances to a Parishad employee or extend the time by than good and sufficient reasons to be recorded in writing grant not more than two years for passing the examination.
Rule 5: Consequences of failure to pass the examination ;
(1) A Parishad employee who fails to pass the examination within the period and chances specified in Rule ‘4’ shall not, until he passess the examination or is exempt for passing the examination under Rule 6 : –
(a) So confirmed in the post which he is holding;
(b) be allowed to draw his next increment in the scale of the post which he is holding.
(2) Increments so withheld under paragraph (b) of Sub-rule (1) shall become payable to a Parishad employee with effect from the date on which he passess the examination and future increments shall occur as if no increment was withheld. The arrears of increment shall not be admissible for the period during which his increment was so withheld.
(3) Notwithstanding anything contained in Sub-rule (1) or (2), A Parishad employee appointed to the post by nomination after the appointed date into who fails to pass the examination within the period and chances specified in Rule ‘4’ shall be liable for termination of his service.
4. Pursuant to the aforesaid Rules the petitioner and respondents Nos. 4 to 9 appeared for the examination from 1992 onwards. The petitioner has passed the examination in 1992. The respondent No. 4 has passed the examination in 1993. The respondent No. 5 has passed the examination in 1997, The respondent No. 6 has passed the examination in 1996. The -respondent No. 7 has passed the examination in 1998. The respondent No. 8 has passed the examination in 1997 and respondent No. 9 has passed the examination in 1996. Thus, the petitioner as well as respondents Nos. 4 to 9 all have cleared the said qualifying examination prior to 26th of December, 1998.
5. On 24th of May, 1999 the said Recruitment Rules of 1985 have been amended and Sub-clause (3) of Clause 5 has been substituted as under :-
“(3) A Parishad employee who fails to pass the examination within the period and chances specified in Rule 4, shall loose the seniority in the cadre of his post to all those Parishad employees in the said post who pass the examination before him and also to all those who are senior to such Parishad Employees, below whom he is placed, and who may pass the examination after him but within the period specified in Rule 4”.
6. The case of the petitioner is that the respondents Nos. 4 to 9 have not passed the examination within three chances as contemplated under amended Rule 4 of 1985 Rules. It is his further contention that thus the said respondents Nos. 4 to 9 have lost their seniority to that of the petitioner herein. He therefore contends that the petitioner has become entitle to be appointed as a senior to the respondents Nos. 4 to 9, though on the basis of date of appointment the petitioner is junior to them. For the aforesaid contention the learned Counsel for the petitioner has relied upon amended Sub-rule (3) of Rule 4 of the said Rules. He has contended that the said Sub-rule (3) of Rule 5 as amended, prescribes that if a person has not passed the examination within prescribed number of attempts then he is liable to loose his seniority.
7. On the other hand, the learned Counsel for the respondents Nos. 2 and 3 has submitted that the amended Sub-rule 3 of Rule 5 of the said Rules has no application in the present case, as all the employees namely respondents Nos. 4 to 8 as well as the petitioner have passed the qualifying examination before the amended Rule brought into operation. Thus, in submission of the respondents Nos. 2 and 3 the said amended Rule cannot apply to those employees who have already passed the examination prior to the said amendment coming into force.
8. We heard the learned Counsel for the parties. We are of the view that the provisions of Sub-rule (3), as amended in 1999, cannot and do not have any retrospective operation. It is for the simple reason because in the 1985 Recruitment Rules what was provided was that if an employee does not pass the examination in prescribed number of attempts then his services are liable to be terminated. This provisions are substituted by the amending Rules of 1999 and it has been now provided that if a person does not pass an examination within a prescribed number of attempts then his seniority is liable to be affected and the junior who has passed the examination within the prescribed number of attempts are liable to be promoted over and above him. On consideration of both the regulations we are of the view that the contention of the learned Counsel for the petitioners has no merits. The provisions are not having retrospective operation. So, those employees who have passed the examination even before amendment coming into operation cannot be deprived of their right of promotion by relying upon a Rule which is subsequently enacted.
9. The earlier Rule which provided for termination of the employees was a merely an enabling power of authorities, since it stated that his services are liable to be terminated meaning thereby that an employer has to initiate the action of termination on the basis of employee’s failure to pass an examination in the prescribed number of attempts. There was no automatic termination of services provided under the unamended 1985 Rules. In our view, the contention of learned Counsel for the petitioner that 1999 Rule should be made applicable and petitioner be promoted over and above respondents Nos. 4 to 9 merely because the respondents Nos. 4 to 9 have not passed the examination in the prescribed number of attempts cannot be accepted. This is in view of the fact that the Sub-rule (3) of Rule 5 cannot be made applicable to those employees who are already qualified to hold the post in Zilla Parishad prior to the amended Rules brought in force. In the aforesaid circumstances we do not find any substance in the present petition and we dismissed the same accordingly.
There shall be no order as to costs.