JUDGMENT
B.H. Marlapalle, J.
1. The petitioner was appointed as a Lower Division Clerk on 15th June, 1959 and came to be promoted as Assistant Accountant w.e.f. 6.4.1970. He was further promoted to the Post of Divisional Accountant from 8th June 1971. On the basis of the decisions rendered by the Division Bench of this Court in Special Civil Application No. 3071/1973 and W.P. 2948/1979 as well as W.P. No. 79/1979, the respondent Board has re-drawn the seniority list of the employees in the Accounts Branch as on 31.3.1977 and the petitioner was shown at Sr. No. 104 in the said seniority list.
2. By way of the instant petition, the petitioner raises a limited grievance regarding his promotion to the post of Accounts Officer with retrospective effect i.e. from 7th February, 1977. He has been promoted to the said post w.e.f 26th March, 1984 and he claims that his junior at Sr. No. 108, in the above referred seniority list, Shri N.S. Borkhede, came to be promoted to the said post from 7-2-1977, whereas the similar benefit was not granted to the petitioner. He was thus, superceded though there was no adverse record of service at any point of time. He had submitted a representation to the respondent Board on 1.4.1985 and it appears that he continued to submit such representations from time to time, the last being submitted on 10-9-1991. As there was no response from the respondents, he approached this Court.
3. The Assistant Personnel Officer with the respondent No.1 Board has filed a return and it has been contended that, for promotion to the post of Accounts Officer, educational qualifications of a University Degree, preferably in Commerce, has been prescribed under the M.S.E.B. Employees Classification and Recruitment Regulations, 1961. The petitioner does not possess a University Degree and, therefore, he could not be promoted alongwith his other colleagues w.e.f. 7.2.1977 and the Board exercised its powers under Regulation No.36 of the service regulations and granted him promotion from 24.1.1984. The prayer for deemed date of promotion has been opposed only on the ground that the petitioner could not be considered unless relaxation in educational qualifications was granted under Regulation No.36 or the petitioner possessed a Graduation Degree.
4. We are not impressed by the stand taken by the respondent Board. The petitioner came to be promoted to the post of Divisional Accountant w.e.f 8-6-1971 in the pay scale of Rs.410-35-585-E.B.-40-985 and the essential educational qualifications prescribed for the said post under the regulations of 1961 read as under :-
“Degree of a recognized University, preferably in Commerce, Economics or Mathematics. The membership of the Institute of Chartered Accountants of India preferred.”
Admittedly, the petitioner does not possess a Graduation degree and it appears that the Board exercised its power of relaxation under Regulation NO. 36, when the petitioner was promoted to the post of Divisional Accountant. In the return filed, the Board states that this was done under pressure from the Field Officers. Once the Board granted relaxation in qualifications, while the petitioner was promoted to the post of Divisional Accountant, the petitioner was eligible for further promotion to the post of Accounts Officer, more so, when post of Divisional Accountant is a feeder post to the post of Accounts Officer as per the Regulations of 1961. The Board claims that such a relaxation in educational qualification was granted subsequently and the competent Selection Committee recommended to promote the petitioner to the post of Accounts Officer w.e.f 24.1.1984. This contention raised by the Board cannot be accepted and there was no disability on the part of the petitioner to meet the requirement for the post of Accounts Officer from 7.2.1977, more so, when he was holding the post of Divisional Accountant, which is a feeder post and relaxation in qualifications was already granted to him way back in 1971.
5. On the touchstone of these factual events, the Board could not take a plea that the petitioner did not possess the requisite qualification and, therefore, he could not be promoted to the post of Accounts Officer w.e.f 7.2.1977 i.e. the date on which his junior at Sr. No. 108 in the seniority list was promoted. Thus, the solitary reason set out by the respondent Board in its return, opposing the petition is unsustainable. The return does not indicate any adverse service record of the petitioner for not granting him the deemed date of promotion alongwith his next junior. The regulations of 1961 indicate that the post of Accounts Officer can be filled in by departmental promotion or by direct recruitment and, therefore, there was no disability that the petitioner suffered, for his candidature being considered for promotion to the post of Accounts Officer alongwith an employee in the post of Divisional Accountant, who was next below the petitioner.
6. Shri Joshi, the learned counsel appearing for the respondent-Board, by relying upon the provisions of Retulation No.36, submitted that the post of Accounts Officer being a selection post, the relaxation in academic qualifications cannot be granted for promotion to the said post. The said Regulation reads as under :-
“36. When a post is being filled up by departmental promotion, the Competent Authority may relax the academic qualifications if the departmental candidate to be appointed is otherwise suitable and qualified by reason of adequate experience and/or by having passed the prescribed departmental examination, provided that the academic qualification shall not be relaxed in case of departmental promotion to the selection posts.”
We are unable to accept these submissions for two reasons, namely,(a) the Very Board has already granted relaxation in the academic qualifictions in favour of the petitioner for his promotion to the post of Accounts Officer in January 1984 itself ; and (b) nowhere it has been stated in the return by the Board that the post of Divisional Accountant is not a selection post.
7. Under the circumstances, the petition succeeds and the stand taken by the Board cannot be accepted. We, therefore, allow the petition and make rule absolute in terms of prayer clause (A). with no orders as to costs.
