ORDER
N. J. Pandya, J.
1. Petitioner entered the Government service in Industries Department as Industries Inspector in the year 1981. While in service, he applied for being directly recruited as Industries Officer (Technical) through Maharashtra Public Service Commissioner (in short ‘MPSC’) who came to be selected and appointed as such. Within a period of probation of two years, he was supposed to pass a qualifying examination for which he did appear in April 1992 as also in April 1993 without any success.
2. He, therefore, applied for additional chance and was granted permission to appear in the examination held in 1994 and one more chance was given to him in October 1995 when the examination was held in the said
month with the same result. Making out a case for one more chance, he approached the authorities by way of representation -cum-application dated 4-4-1996, Annexure-V, page 31. This was never replied to. In fact, the grievance of the petitioner is that his form for examination was never forwarded. The petitioner, therefore, approached the Maharashtra Administrative Tribunal seeking the relief of additional chance. The tribunal by its order dated 16-6-1997 rejected the Original Application as per page 42, Ann-VII. Apparently, it was a one sided matter because initially petitioner was not present and the presenting officer pointed out to the tribunal that 4 chances to appear in the examination as per the rules were granted. The tribunal, therefore, felt that one more chance, which is sought by the petitioner, cannot be granted.
3. So far as rule for grant of chance is concerned, we have got the Government Resolution governing the case and it is produced as Annexure-III, page 22 onwards. The relevant paragraph of that Resolution is to be found at page 24 and it is paragraph 5. On reading the entire resolution, it is quite clear that, nowhere there is a rule of grant of 4 chances. The learned A.G.P. is right to state that the rule is to grant 2 chances when the examinations are held in the month of April ordinarily. As noted above, the examinations were in fact held in the month of April of the years 1992, 1993, and 1994. Only in the year 1995, it was held in the month of October. However, coming to make the said statement before the Maharashtra Administrative Tribunal that 4 chances as per rules having been granted, it has to be held that this submission is not supported by any rule as carved out from the said G.R. The said tribunal in different set of matters concerning to education department, had an occasion to deal with the very question, where, as per the copy of the order Ann-VII, page 39, it has been noted that instances were found where 5 chances or more than 5 chances were given. This can be seen at page 39 of the present petition.
4. Before the decision was given in that matter on 14-3-1997, there was an order of the Hon’ble Supreme Court dated 18-11-1996 which was produced in those petitions at Annexure-4. It has been referred at page 40, internal page 3 and the relevant portion has been extracted in the order. As per this extract, the learned Counsel for the State had conceded the claim of the petitioners.
5. The tribunal in the aforesaid set of matters followed the same and granted identical relief to the respective petitioners.
6. Had there been a proper representation on the part of the petitioner before the tribunal, it is obvious that the result of his petition could have been certainly different than what it was as noticed above.
7. By the interim order of this Court, the petitioner was permitted to appear in the examination where he has succeeded and has cleared the examination. Inspite of this development, the respondents are maintaining their stand as could be seen from the return submitted by them that it is contrary to rules to give more than 4 chances. The case is set out more particularly in para 4 page 48 where they have also referred to the fact that while granting 3rd and 4th chance, the petitioner was informed on both the occasions that he is being given the last chance.
8. The learned A.G.P., after perusal of the record pertaining to this case, has been able to show from the record that while granting last chance, it has
been specifically conveyed that, if the persons who have been given this chance will fail, their services will be terminated or they will be reverted.
9. Inspite of this clearcut communication, the petitioner has not been terminated form the services, but has been reverted. The possibility of reversion is also communicated in the said communication. Accordingly, he has been reverted.
10. The petitioner is relying on the case of one Panchbhai who has been granted 5th chance by the Government, for which, in the return, it has been submitted that after Panchbhai failed to clear the examination on availing 4 chances, his services were terminated. This aspect is covered in that very para 4, page 49- internal page 3 of the return. The fact of termination is sought to be made out as unique situation so far as Panchbhai is concerned.
11. For grant of additional chance, para 5 of Annexure-III refers to
^^vioknkRed ifjfLFkrh**
. This could be translated as ‘exceptional circumstances’. When there is a question of grant of additional chance, in our opinion, the exceptional circumstances should have some relation to the chance which has been granted earlier, but not resulted into a success. The reason for granting additional chance should be germane to the scheme of the examination, where restriction as to number of chances has been put.
12. In the instant case, as per said representation of the petitioner during the last examination period in the month of October 1995, he was suffering from jaundice and that fact he sought to bring and substantiate by submitting the Medical Certificate alongwith the representation. In our opinion, this will have a direct bearing on the chance which he availed of, which is the 4th chance, when he was no doubt informed as per the communication that he will either be terminated or reverted, if he fails to clear the examination. Accordingly, he has been reverted. However, the failure is not attributed only to the lack of efforts but is attributed to his illness as he was suffering from Jaundice at about the same time when the examination was held. In case of Panchbhai, if the termination lead to total unemployment as he has crossed the age limit of Government employment, is taken into consideration, though, in our opinion, it has no connection whatsoever with the examination when Shri Panchbai appeared and there are no circumstances on record mentioning why he could not do better at the examination. When we have got positive material on record, so far as the petitioner is concerned, that nothing pointed out why he could not succeeded in the examination and that has not been controverted at all and this reason being directly attributed to his ill health on account of jaundice, we feel that if there be any instance of exceptional circumstance, this could be said to be one of them and, therefore, the Government ought to have granted exemption. We are told that it was never forwarded to the Government. Even if it was sent as per the averment in para 8, page 51, admittedly, there was no reply either from the Government or from the concerned authority to whom the representation was forwarded.
13. In the meantime, so far as the petitioner is concerned, under the orders of this Court, he has already appeared in the examination and has cleared the same.
14. When the 2 cases are compared, viz. of the petitioner and that of said Panchbhai, it is at once clear that the unemployment of Panchbhai was the
result of his failure at the examination and, therefore, could not have been considered to be a basis for grant of one more chance.
15. While considering the question of giving one more chance, obviously, the reasons for failure at given chance, should weigh with the authority and not the fact of failure at the chance. If, as a result of failure, a man is removed, he is bound to be unemployed. But, that is not because of failure. That is merely the effect. This is not to say that the authorities could not have considered the case of Panchbhai. There may have other factors also in his regard and in absence of entire material as to Panchbhai, the aforesaid observations are not to be held against him.
16. When we come to a conclusion that this exceptional circumstance ought to have been considered but having not been considered, the chance granted by this Court, obviously, would be the chance which he would have got if the relevant material was considered by the authority. After availing that chance, when the petitioner has succeeded in the examination, obviously, his petition will also succeed.
17. Accordingly, the petition is allowed. His order of reversion dated 25th July, 1997, is hereby quashed and set aside. He is directed to be promoted to the post of Industries Officer with effect from the date of passing of the examination with all consequential benefits.
18. Petition allowed.