JUDGMENT
R.M.S. Khandeparkar, J.
1. Heard. Rule. By consent, the rule is made returnable forthwith.
2. The petitioners challenge the order of reversion dated 17-6-2005 on three counts; firstly, that the promotion which was granted to the petitioners could not have been on conditional relaxation of the qualification pertaining to the passing of the professional examination; secondly, the Government policy does not permit reversion of the employees in reserved category where the promotional cadre does not have the prescribed percentage of reserved category employees, and thirdly, that the backlog created on account of failure to fill-up the posts meant for reserved category does not justify the reversion of the petitioners.
3. The learned Advocate for the petitioners, drawing attention to Rule 5(2) of the Recruitment Rules, submitted that the authority is not empowered to grant conditional or restrictive relaxation of the required qualification for promotion in the absence of specific provision empowering the authority to impose such condition or the restriction. Reliance is sought to be placed in the decision of the Apex Court in the matter of Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and Ors., .
4. The Rule 5(2) of the Recruitment Rules reads thus :
“Except or otherwise provided in these rules, the Commissioner of the Division concerned may where the Chief Executive Officer in case of appointment falling under Rule 4 of the Maharashtra Zilla Parishads District Services Recruitment (without consulting Selection Boards) Rules, 1965, and the Selection Board concerned in other cases, issues a certificate that suitable candidates with the prescribed qualifications are not available, allow the appointing authority to relax all or any of the qualification prescribed for appointment to the posts in the District Services in respect of any person or class of persons.”
5. Plain reading of the said Sub-rule (2) of Rule 5 discloses that the competent authority in the facts and circumstances warranting such relaxation of the qualification can allow the appointing authority to relax all or any of the qualifications prescribed for appointment to the posts in the District services in respect of any person or class of persons. It nowhere prescribes any restrictions for exercise of power by the authority to grant the relaxation pertaining to all or any of the qualifications prescribed for appointment to a post. If the contention on behalf of the petitioners that such power does not include the power to relax with certain restrictions is accepted, it would virtually amount to rewriting the said Rule by adding such provision for restrictions upon the exercise of power by the authority. Such an exercise, under the pretext of interpretation of the Statute, is not permissible as it would virtually amount to legislate upon the said Rule.
6. The Apex Court in Anjum Ghaswala’s case (supra) in para 27, to which attention was drawn, had held that :
It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.
(emphasis supplied)
The Apex Court has reiterated the well-settled rule of interpretation of statute. Undoubtedly, when an authority is required to perform an act by virtue of the power vested in it and the statute prescribes the manner in which that act is required to be performed, the authority is expected to act in accordance with the manner prescribed by the statute and not otherwise. The Rule 5(2) merely lays down the guide-lines regarding the circumstances in which the relaxation from the required qualification can be granted. It does not prescribe any restrictions for exercise of such power. Indeed, the question of relaxation of qualification would depend upon the facts and circumstances of each case. There cannot be any universal criteria to be laid down under any statutory provision in that regard. Any such provision may be counter-productive and, therefore, the Rule 5(2) cannot be interpreted to mean that it imposes any restriction on the exercise of power in the matter of relaxation of qualification. Neither the decision of the Apex Court in Anjum Ghaswala’s case helps the petitioners to convince us to interpret the Rule 5(2) in the manner the petitioners want to interpret the same nor the rules of interpretation assist the petitioners justify reading down the said sub-rule in the manner it is sought to be canvassed on behalf of the petitioners.
7. As the law stands, therefore, no fault can be found with the authority having imposed restriction of three years’ period for passing the professional examination in order to avail the benefit of the order of promotion which was granted to the petitioners in the year 1997.
8. Once the law empowered the authority to impose such restrictions and the promotion having been granted subject to such condition and the petitioners having not complied with the said condition, no fault can be found with the impugned order of reversion of the petitioners.
9. As regards the second ground of challenge, the learned Advocate for the petitioners have drawn our attention to the Government Resolution dated 19-3-1979, as also to the Circular dated 24-2-1993. The G.R., in Clause 4 thereof, provides that :
“Government is now pleased to direct that when any reversion is to be effected, members of Backward Classes already in service should not be reverted if their strength into promotion cadre does not exceed the prescribed percentage of reservation.”
Referring to this decision of the Government, it was sought to be contended on behalf of the petitioners that unless the promotional cadre exceeds the required percentage of reservation, the question of reversion does not arise. The contention on behalf of the petitioners is devoid of substance. The said G.R. was issued in a peculiar set of facts and the same is clear from Clause 3 of the said G.R., which provides that :
“Generally, the persons belonging to the above three sections of Backward Classes occupy the lower ranks in the combined select list and if there are any reversions due to abolition of posts, repatriation of senior persons to parent Department etc., persons belonging to Scheduled Caste, Scheduled Tribe and Denotified Tribes, Nomadic Tribes being juniors are reverted. If the orders issued in Government Resolution General Administration Department No. BCC-1072/122/187/XVI, dated 2nd March, 1977 are scrupulously followed there should ordinarily be no occasion to up-set reservations. However, in spite of following these order scrupulously, or occasion arises when a person from the combined select list is required to be reverted and if a person from Scheduled Caste, Scheduled Tribe or Denotified tribes/Nomadic Tribes being junior is reverted there is a risk of a backlog being created in the promotional vacancies. The question as to what procedure should be followed when there is an occasion to revert an Officer/Officers promoted according to paragraph of Government Resolution, General Administration Department, No. BCC-1072-J, dated 23rd May, 1974 was under consideration of Government for some time past.
Obviously the decision disclosed in Clause 4 was in the facts stated in Clause 3 of the said G.R. and which related to cases where “reversions due to abolition of posts, repatriation of senior persons to parent Department etc.,” Referring to the expression “etc.”, it was sought to be argued that this resolution would apply to all the cases i.e., cases even otherwise than where the reversion is due to either abolition of post or repatriation of senior persons to parent department. The said term “etc.” has to be understood bearing in mind the expression used preceding the said term. The preceding words to the said term reveal that the same is qualified by two types of cases i.e. where the reversions are on account of abolition of posts or repatriation of senior persons to the parent department. The term “etc.” is added to those two types of eventualities. Consequently, the other eventualities which could be said to have been covered by the word “etc.” are necessarily to be those which are on par with the eventualities preceding the said term and not some other types of eventualities like reversion being on account of either non-fulfilment of the required qualification, or non-compliance of the conditions attached to the promotional decision. It is one thing to say that reversion should not be adopted as a matter of course on account of abolition of posts or on account of repatriation of senior persons to the parent department when the promotional cadre does not exceed the prescribed percentage of reservation and it is another thing to say that no such steps should be taken even when the person occupying the higher post does not satisfy the required qualification to occupy such higher post, or that he was allowed to occupy such post subject to certain conditions and those conditions in relation to the required qualification are not satisfied within” the prescribed time, being so, taking shelter of the G.R. dated 19-3-1979, the petitioners cannot insist to occupy the promotional posts without satisfying the required qualification merely on the ground that the promotional cadre does not exceed the prescribed percentage of reservation. Promotions are not to be availed merely because posts are vacant and thereby totally ignoring whether the person is qualified or competent to occupy such promotional post. Undoubtedly, when relaxation under a statutory provision in favour of the reserved category is granted, the authorities are bound to grant such facility to the reserved category candidates but when such relaxations are granted subject to certain conditions, it cannot be heard even from the reserved category candidates that the candidates will insist to occupy the promotional post without satisfying the required conditions.
10. The third ground of challenge is that there is sufficient backlog available which does not justify reversion. Here again, reference is made to the said G.R. and the Circular dated 24-2-1993. As regards the said G.R., it is not necessary to reiterate what we have already stated above. The Circular is merely further explanation of the G.R. but it nowhere provides anything in addition to the G.R. dated 19-3-1979 which could justify the continuation of the promotees in the posts in which they were promoted without satisfying the required conditions which were specified as pre-conditions for continuation of the petitioners beyond three years in the posts in which they were promoted.
11. The impugned order is also sought to be challenged on the ground of discrimination. There are no pleadings in that regard in the petition and the same is sought to be canvassed only in the rejoinder filed in the petition. It is well-settled law that rejoinder does not form part of the pleadings in the petition. Besides, whether there is discrimination or not is not a pure question of law and once such a point is raised, the opposite party is entitled to meet the said case by filing the necessary reply to the same. Once such a ground is taken for the first time in the rejoinder, there is no opportunity to the respondents to meet such case of the petitioners. In any case, the petitioners are not entitled to enlarge the scope of the petition by adding certain grounds in the rejoinder. Therefore, we are not inclined to allow the petitioners to raise such a ground on the basis of the submissions made in the rejoinder. We make it clear that we have not expressed any opinion on the said issue as the petitioners have not been allowed to raise the said issue in the present petition.
12. For the reasons stated above, therefore, there is no case for interference in the impugned order. Hence the petition is dismissed. The rule is discharged with no order as to costs.