{"id":230910,"date":"2008-01-30T00:00:00","date_gmt":"2008-01-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ulhas-so-yadavrao-somwanshi-vs-the-state-of-maharashtra-through-on-30-january-2008"},"modified":"2018-09-10T14:16:43","modified_gmt":"2018-09-10T08:46:43","slug":"ulhas-so-yadavrao-somwanshi-vs-the-state-of-maharashtra-through-on-30-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ulhas-so-yadavrao-somwanshi-vs-the-state-of-maharashtra-through-on-30-january-2008","title":{"rendered":"Ulhas S\/O Yadavrao Somwanshi, … vs The State Of Maharashtra Through … on 30 January, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ulhas S\/O Yadavrao Somwanshi, … vs The State Of Maharashtra Through … on 30 January, 2008<\/div>\n
Equivalent citations: 2008 (3) BomCR 99<\/div>\n
Author: N Dabholkar<\/div>\n
Bench: N Dabholkar, P Kakade<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
N.V. Dabholkar, J.<\/p>\n
1. Both these writ petitions although by  different writ petitioners, raise the same challenge  to the proposed promotions from Class-II to Class-I in  Maharashtra Development Services. For the purpose,  they challenge Government Circular dated 14-03-2007,  issued by the Secretary to the Government of  Maharashtra in the Department of Rural Development and  Water Conservation as ultra vires the Articles 14 and  16 of the Constitution of India and also being  contrary to the Maharashtra Development Services  Class-I and Class-II (Departmental Examinations)  Rules, 1991. Both the writ petitions also pray for  quashment of the action of the Government  deleting\/excluding the names of petitioners from the  select list prepared by the Departmental Promotion  Committee for promotion to the posts in Maharashtra  Development Services Class-I (which was the result of  action based on impugned Circular). Both the writ  petitions also pray for directions to the respondents  No. 1 and 2 to consider the claim of the petitioners  for promotion to Class-I posts in Maharashtra  Development Services, as per the original select list prepared by the Departmental Promotion Committee.\n<\/p>\n
2. Petitioners are employees presently serving in  Class-II posts of Maharashtra Development Services  (hereinafter referred to as “MDSs”). Learned Counsel for the petitioners, during the course of their  submission, having admitted certain positions, which  we are referring immediately hereinbelow, other details as to when petitioners were appointed in MDSs  and their present postings and journey upto Class-II  Services, are not required to be recorded for the  purpose of this judgement.\n<\/p>\n
Admittedly, all the petitioners have crossed  age of 45 years at present and even on the date of  subject promotions. Admittedly, all petitioners have  entered Class-II MDSs after the Gazette date as  contemplated by Rule 2 (c) of the Maharashtra  Development Services, Class-I and Class-II  (Departmental Examinations) Rules, 1991 (hereinafter  referred to as “the said Rules”) i.e. after 18th  July, 1991. Admittedly, all the petitioners have  exhausted all their chances for passing Departmental  Examination as required by Rule-3 of the said Rules  and yet, they did not pass the Departmental  Examination. Inspite of not having passed the  Departmental Examination before completion of age of  45 years, none of the petitioners was reverted by orders as required by Rule 7 (a) of the said Rules.  On the contrary, there are orders passed in favour of  the petitioners as required by Rule 5 (2) of the said  Rules regarding entitlement of the petitioners to  exemption from passing the Departmental Examination.  Copies of some such orders are filed at paper-book  pages 50 to 53 in Writ Petition No. 4197\/2007 and at  Exhibit-A of the other writ petition. The powers to  issue such orders were delegated to the Divisional  Commissioners and such orders are passed by respective  Divisional Commissioners. This position is not  disputed by the learned Government Pleader.\n<\/p>\n
It is the contention of the petitioners that  in the month of December, 2006, the Departmental  Promotion Committee (hereinafter referred to as “DPC”  for the sake of brevity) prepared and finalized a list  of 103 (in fact 133) officers of Class-II MDSs for  promotion to Class-I MDSs. This list included 28  individuals who had crossed age of 45 years and  therefore, were exempt from the condition of passing  Departmental Examination. Subsequently, by taking  into consideration the Circular dated 14th March,  2007, petitioners are deleted from that select list,  by interpreting the said Circular that if the  employees have exhausted all their chances of passing  Departmental Examination before crossing age of 45  years, they are not entitled to benefit of Rule 5 of the said Rules which exempts the employees from  passing the Examination prescribed by the said Rules.\n<\/p>\n
3. Submissions for the petitioners in first writ  petition were advanced mainly by learned advocate Shri  Talekar, which were fully supported by learned  advocate Shri Sapkal for the petitioners in second  writ petition with addition of few points. It was  submitted that the said Rules although enacted in the  year 1991 were never followed in practice and hence,  the State was required to issue the impugned Circular  instructing to follow the Rules scrupulously. As a  result of the fact that the said Rules are not  followed nearly for fifteen years although enacted,  there are several instances of consequences as  required by Rule 7 of the said Rules not being  implemented. Rule 7 of the said Rules requires  termination of an appointee and reversion of a  promottee, in case of their failure to pass the  Departmental Examination as mandated by Rule 3 of the said Rules. There are instances in the past that  promotions were allowed by granting exemptions from  passing the Departmental Examination. For the present, reliance is placed on a list of 58 promottees  dated 04-08-2007 [paper-book pages 75 (54) of writ  petition No. 4197\/2007], in order to demonstrate that  the list of 58 promottees includes only five persons  who have passed the Departmental Examination and remaining 53 are the individuals who are granted  exemption from appearing for the Departmental  Examination. In fact, paper-book page 75 (54 and 55)  is a composite list of two lists of promotions  comprising 46 individuals in the first list and 12  individuals in the second list. These two separate  lists are at paper-book page 75 (56 to 60) and 75 (61  to 63). By virtue of foot-note ( ) in para 2, the  promotions are subject to condition that the promottees  passed the Departmental Examination under the said  Rules as amended in the year 1998. In fact, by virtue  of foot-notes ( ) and ( ), the promotions are also  subject to decision of the High Court in pending writ  petitions No. 8452\/2004 and 4197\/2007. According to  learned Counsel for the petitioners, the cases of the  petitioners are distinguished by the authorities from  those included in the promotion list by interpretation  of impugned Circular dated 14-03-2007. It is  indicated that because petitioners have exhausted all  their chances of passing the Departmental Examination,  before they attained the age of 45 years, they are not  entitled to exemption as permissible under rule 5 of  the said Rules. According to learned advocate Shri  Talekar, Rule 5 of the said Rules which enables  exemption from passing Departmental Examination on  attaining age of 45 years, supersedes Rule 4 of the  said Rules, and therefore, on completion of age of 45  years in Class-II MDS, although without passing Departmental Examination, petitioners were entitled to  be considered as eligible for promotion, by virtue of  exemption from passing Departmental Examination under  the said Rules. According to him, the petitioners  could not have discriminated merely because  petitioners have exhausted all their chances and  promottees have not. In fact, it was also faintly  argued that some of the candidates who had exhausted  all their chances were at times promoted in the past  and even in the present list. The impugned Circular  dated 14-03-2007, it was pointed out, does not refer  to Rule 5 of the said Rules at all, but it only  instructs and expects strict compliance of Rule 4 of  the said Rules.\n<\/p>\n
Learned advocate Shri Sapkal has demonstrated,  by relying on paper-book pages 65 to 72 of the second  writ petition that all nine petitioners in both the  petitions were recommended by the DPC for promotion,  either for regular or for adhoc, by the decision taken  in the meeting of the DPC held on 13th and 14th  December, 2006. Referring to Government Resolution  dated 01-11-1977, Shri Sapkal relied upon its contents  in order to submit that the same depicts the  intentions of the Government in relaxing the  requirement of passing Departmental Examination in  case of employees who have completed age of 45 years  and the contents of the said Government Resolution, relied upon by him read as follows.\n<\/p>\n
 After examining this question fully, the  Government has decided that Government servants who have completed 45 years of age,  should not be required to appear for  Departmental Examination. Government is  accordingly pleased to direct (i) that the existing Departmental Examination Rules, both  for continuance and confirmation and also for  qualifying for promotion to higher posts,  should be suitably amended so as to provide  therein for the grant of exemption from  passing the Departmental Examination on  attaining age of 45 years by the concerned  Government Servants subject to the condition  that the seniority, if lost by such Government  Servants as a result of not passing the  Examination within the prescribed time limit  and the number of chances permissible will not  be restored on granting such exemption, and (ii) that the effect to these orders should be  given in the proposed amendment of the Rules  from the date of these orders.\n<\/p>\n
According to learned advocate Shri Sapkal, the  petitioners are discriminated by the action of  deletion of their names from the list of candidates recommended for promotion inspite of the fact that others who have not passed the Departmental  Examination are still considered eligible for  promotion.\n<\/p>\n
4. Learned advocate Shri Ajay Deshpande who  represents respondent No. 3 and thereby represents  the cause of respondents No. 3 to 9 in first writ  petition, pointed out that Rule 4 of the said Rules  does not apply to the petitioners in view of the  admitted position that the petitioners are promoted to  Class-II MDSs after the Gazette date. This is because  Rule 4 of the said Rules is titled as “period and  number of chances for officers appointed before the Gazette date.” According to Shri Deshpande, they are  governed by Rule 3 of the said Rules. Referring to  Government Resolution dated 01-11-1977, contents of  which are reproduced hereinabove, it was submitted by  learned advocate Shri Deshpande that the seniority of  the petitioners and similarly placed employees who  have not passed the Departmental Examination, even if  exempted from passing Departmental Examination by  virtue of Rule 5 of the said Rules, their seniority is  not protected by such exemption, and therefore, they  go down in the list of seniority of Class-II MDSs, and  hence, they do not come within the zone of  consideration for promotion. As against this  position, those employees who attained the age of 45 years before exhausting all their chances, not only  get exemption under Rule 5 of the said Rules, but they  get such an exemption without any adverse effect on  their seniority. Those who have exhausted all their  chances and fell to pass the Departmental Examination,  before attaining age of 45 years, are in fact required  to be reverted and therefore, their seniority must be  deemed to have been adversely affected inspite of  grant of exemption by orders under Rule 5. In reply  to our query, learned advocate Shri Deshpande was not  able to point out any provision from either the  Examination Rules or Seniority Rules, if any  applicable to the employees of MDSs demonstrating the  adverse effect on the seniority in case of failure to  pass the Departmental Examination by exhausting all  the chances. Rule 7 of the said Rules, therefore,  appears to be the only provision which indicates the  consequences of such failure. Shri Deshpande pointed  out that the petitioners approached the Maharashtra  Administrative Tribunal (MAT) with a false statement  that applicants have passed the Maharashtra  Development Services Qualifying Examination some time  in 1994 to 1998 respectively, that petitioners have  scandalised the M.A.T. by challenging the  administrative circular of the Chairman. According to  Shri Deshpande, therefore, petitioners should not be  entitled to any relief by exercising the plenary  powers of this High Court under Article 226 of the Constitution of India. To the case-law, relied upon  by learned advocate Shri Deshpande, we may advert at  appropriate time in this judgement.\n<\/p>\n
Learned Government Pleader Shri Khandare  pointed out that out of 53 candidates as contained in  the list dated 04-08-2007, who are candidates having  not passed the Departmental Examination, there are 41  individuals who have attained age of 45 years before  entering into Class-II MDS, and remaining twelve  attained the age of 45 years before exhausting their  chances as permissible under the said Rules i.e. two  years\/four chances plus extra one year\/two chances.  Learned Government Pleader has provided the details in  tabular form (Exhibit-“X”), which is a list of as many  as 149 officers. In fact, on examination of 58 cases  who are promoted on 04-08-2007 and which are blown by  parrot colour in the list (Exhibit-X) for the purpose  of attracting attention, we found that seven cases of  the individuals are such that they are granted  exemption because of attaining age of 45 years and  they are not the candidates who had completed age of  45 years before entry into Class-II MDSs. Not only  that, they had span of more than two years before  attaining the age of 45 years after entry into  Class-II MDSs. We enlist them hereinbelow.\n<\/p>\n
  Sr.   Name of Officer         Date of               Date of attain-\nNo.                           Promotion to          ing age of 45 \n                              Class-II MDS          years \n\n14    Shri C.P. Band         27-09-1999             12-12-2001 \n\n15    Shri V.L. Rathod       27-09-1999             20-12-2001 \n\n32    Smt. M.K. Thorat       28-04-2000             27-11-2002 \n\n39    Shri A.R. Patil        28-04-2000             29-12-2002 \n\n40    Shri A.M. Yadav        28-04-2000             21-05-2002 \n\n48    Shri G.V. Chavan       28-04-2000             31-05-2002 \n\n81    Shri R.M. Chandan      05-02-2001             17-11-2003\n \n\nNeedless to say that in case petitioners fell  in securing orders in their favour, the respondents  No. 1 and 2 will have to reconsider the cases of  these seven officers and similarly placed officers if  they are in the select list for promotion, either  regular or adhoc.\n \n\nLearned Government Pleader conceded that all  nine petitioners were included in the select list of  133 employees. However, it was later on realized that  Rules were not adhered to and hence, the impugned  Circular was issued on 14-03-2007. The details of the  petitioners as given in Exhibit-X are as follows.\n  Sr.     Name of the Officer          Date of            Date of attain\nNo.                                  Promotion          ing age of 45\n                                     to Class-II MDSs   years\n\n22      Shri M.B. Ghasalkar          27-12-1999         31-01-2005\n\n43      Shri K.S. Kamble             28-04-2000         31-05-2004 \n\n47      Shri U.S. Waghmode           28-04-2000         31-05-2004 \n\n53      Shri S.K. Jadhav             04-05-2000         17-07-2004 \n\n56      Shri U.Y. Somvanshi          12-05-2000         30-04-2004 \n\n64      Smt. P.R. Manachanda         30-09-2000         17-01-2005 \n\n67      Shri S.W. Ahire              01-01-2001         31-05-2006 \n\n69      Shri C.L. Pawar              01-01-2001         31-05-2005 \n\n105     Shri M.K. Jadhav             12-04-2001         31-05-2006\n \n\n<\/pre>\n
According to learned Government Pleader, in fact,  petitioners are liable to be reverted and they were  not reverted because of inaction on the part of the  respondents. Consequently, they will have to be  considered to be Class-III employees and therefore,  cannot be considered for promotion to Class-I posts in  MDSs. The orders of exemption issued in favour of the  petitioners by respective Divisional Commissioners are  also not disputed by the learned Government Pleader  but he contended that those were wrongly issued and  therefore, petitioners cannot be allowed to take  benefit of the same. According to learned Government  Pleader, as a result of Rule 3 read with Rule 7 of the  said Rules, together, the petitioners are not entitled  to any promotion.\n<\/p>\n
5. In reply, it was submitted by learned advocate  Shri Talekar that adverse effect on seniority as  argued by learned advocate Shri A.S. Deshpande, is not the consequence contemplated by the said Rules,  and Resolution dated 01-11-1977 stands superseded by  the said Rules which are enacted in the year 1991.\n<\/p>\n
According to learned advocate Shri Sapkal, Resolution  dated 01-11-1977 is indicative of the intentions of  the State which did not differentiate between the  employees who attained age of 45 years before  exhausting all the chances and after exhausting all  the chances, and therefore, now the petitioners cannot  be compelled to appear for the Departmental  Examination. Since no action under Rule 7 was taken  and exemption orders are issued in favour of the  petitioners, they are entitled to all the benefits of  exemption. If the Rules are not so interpreted,  according to learned Counsel, the Rule 5 of the said  Rules would become redundant.\n<\/p>\n
6. As a result of submissions advanced by learned  counsel of both sides, the points required to be  considered can be crystalized as follows.\n<\/p>\n
(i) Whether, as a result of completion of 45 years  of age after exhausting all the chances for  passing Departmental Examination and before  they could be considered for promotion,  petitioners can be deprived of being  considered for promotion ?\n<\/p>\n
(ii) Whether the petitioners are not entitled to be  considered for promotion because, in fact,  they should have been reverted to Class-III  posts by compliance of Rule 7 of the said  Rules ?\n<\/p>\n
(iii) Whether the petitioners stand discriminated,  by considering those employees who have not  attained age of 45 years before exhausting all  the chances for passing Departmental  Examination, as eligible for promotion ?\n<\/p>\n
(iv) Whether failure to pass Departmental  Examination inspite of exhausting all  available chances before attaining age of 45  years, has any adverse effect on the seniority  of the petitioners ?\n<\/p>\n
7. The Rules which are relevant for the purpose  of adjudication of the writ petitions can usefully be  reproduced hereinbelow.\n<\/p>\n
Rule (2) : Definitions<\/p>\n
(c) : “Gazette Date” means the date of  official gazette in which these rules are  published.\n<\/p>\n
Rule (3) : Period and number of chances : Every officer shall be required to pass the  Examination within four chances and within a period of two years from the date of his  appointment, either by promotion or  nomination.\n<\/p>\n
Rule (5) : Exemption from passing Examination<\/p>\n
(1) An officer shall be exempted from passing  the Examination if he, <\/p>\n
(a) has attained age of forty five years  on or after the Gazette date; or <\/p>\n
(b) has passed the Maharashtra Development  Services Qualifying Examination or Revenue  Officers Examination or Revenue Qualifying  Examination, or Agricultural Services  Examination;\n<\/p>\n
(2) The officer who is qualified for  claiming exemption under Clauses (a) or (b) of  Sub-rule (1) may apply for grant of such  exemption, to the Secretary to Government,  Rural Development Department who on being  satisfied that such officer is entitled to  such exemption, shall pass an order to that effect.\n<\/p>\n
Rule (7) : (a) Consequences of failure to  pass Examination :- Where an officer fails to  pass the Examination within the period and within the chances specified under Rule 3 or  Rule 4, as the case may be, of these Rules,  such officer shall be discharged from the  services or reverted to the lower post as the  case may be.\n<\/p>\n
(b) Consequences when examination not  held….\n<\/p>\n
8. Out of four points as framed in para 6 above  for consideration, points No. (i) and (ii) can be  considered together because finding on those two  points depends on eventuality of employees not passing  the Departmental Examination before attaining the age  of 45 years and before they can be considered for  promotion. The finding on these points shall depend  on interpretation of Rules 5 and 7 of the said Rules  together since, according to submission of learned  counsel for the petitioners, these Rules seem to be  conflicting with each other and it was also submitted  that in case effect is given to the consequences as  contemplated in Rule 7 (a), Rule 5 would become redundant. Points No. (iii) and (iv) are required to  be considered independently.\n<\/p>\n
 We intend to deal with issue No. (iv) first  since it was submitted by learned advocate Shri A.S.  Deshpande for respondent No. 3 in writ petition No.  4197\/2007 that in case of failure to pass the  Departmental Examination, the employees lose their  seniority to those who have passed the Departmental  Examination, and such lost seniority cannot be  restored by mere grant of exemption by an order under  Rule 5. The arguments in the matter were heard for  two days i.e. 15th and 16th January, 2008, and  inspite of putting a query as to whether there is  anything in the Rules under consideration or any other  Rules such as General Service Conditions or Seniority  Rules, there is any provision supporting such a  proposition, learned Counsel has not been able to draw  our attention to any such provision. In that event,  ordinarily, consequences upon failure to pass the  Departmental Examination within the prescribed limits,  in terms of period and number of attempts, even before  attaining the age of 45 years, would be as prescribed  by the Rules. As the consequences are prescribed by  Rule 7 (a) i.e. a direct appointee would lose the job  and a promottee would be reverted, there is no  eventuality contemplated in Rule 7 (a) that a person  would be allowed to continue in Class-II even after having failed to pass the Departmental Examination.  (whether he can continue merely by attaining the age  of 45 years, even after enjoying all four attempts to  pass the Departemntal Examination unsuccessfully, is  an issue of controversy).\n<\/p>\n
In order to meet the challenge posed by the  learned Counsel for the petitioners that they are  discriminated because they are not treated at par with  the candidates having passed Departmental Examination,  although they are certified to be exempt from passing  the Departmental Examination by orders under Rule 5  and as a result of having attained the age of 45 years  and that they are also discriminated because  candidates who have not passed the Departmental  Examination, although they have not exhausted all  their chances, by not considering petitioners for  promotion, although other two categories are so  considered, learned Counsel Shri A.S. Deshpande has come out with this theory of loss of seniority.  Eventually, the philosophy has no basis in the said  Rules, nor he has been able to point out such a  provision from any other set of Rules applicable to  the parties. Comparatively, learned Government Pleader has come out with a simpler challenge.  According to him, it was a lapse on the part of the  office in not reverting and also an error in passing  the orders of exemption in favour of the petitioners, inspite of all petitioners having exhausted their  permissible attempts to pass the Examination without  success, instead of reverting them as required by Rule  7 (a) of the said Rules.\n<\/p>\n
Learned advocate Shri Deshpande has tried to  substantiate his argument by relying upon reported  judgements.\n<\/p>\n
In the matter of State of Maharashtra v.  Jagannath Achyut Karandikar AIR<\/a> 1989 S.C. 1133,  learned advocate Shri Deshpande has placed reliance  upon the observations in para 9 of the judgement. In  the reported matter, respondents No. 1 to 8 were  Assistant Secretaries\/Section Officers\/Superintendents  in different Departments of Government of Maharashtra.  Departmental Examination was prescribed as condition  precedent for promotion to the cadre of  Superintendents and the Examinations were required to  be conducted every year. Officials were expected to  pass the Departmental Examinations within a stipulated  period and those who could not pass within time frame,  were to lose their seniority, but could be promoted as  and when they qualify themselves. The Rules those  were applicable to the petitioners are reproduced in  para 2 of the judgement. The Government for some  reason or the other could not hold examinations every  year, particularly in the years 1968 to 1970. Yet, Government did not pass any order extending the period  prescribed for passing the Departmental Examination,  nor promoted the seniors subject to their passing the  Examination. The juniors who qualified themselves  were promoted overlooking the case of seniors, and  seniors were promoted only upon their passing the  examination. In the cadre of Superintendent, however,  Government refused the seniority list so as to reflect  rankings in the lower cadre irrespective of date of  promotion. This was challenged before Bombay High  Court and this High Court conceded the powers to the  Government to relax the Rules relating to passing the  Examination in case of hardship, but refused to  recognize the power of the Government to give  seniority to those who could not pass the Examination  within the time schedule. Rule 2 specifically laid  down that
\n a candidate who does not pass the Examination  at the end of nine years service in the Upper  Division, will lose his seniority to those  candidates who pass the Examination before he  passes it.\n<\/p>\n
and subject to loss of seniority, the candidate was  allowed to take further chance to pass the Examination  even after completion of nine years service by virtue  of Rule 4. The Supreme Court, in para 9 later half, observed thus :\n<\/p>\n
 …Rule 2 of the 1962 Rules no doubt  states that a candidate who does not pass the  examination at the end of nine years service  will lose his seniority. But this rule cannot  be read in isolation as the High Court did.  It has to be read along with the other rules  since it is a part of the scheme provided for  promotion. Rule 5 requires the Government to  hold the examination every year. This rule is  the basis of the entire scheme and the effect  of other rules depends upon holding the  examination. If examination is not held in any year, the rule 2 cannot operate to the prejudice of a person who has not exhausted all his chances. The person who has not exhausted the available chances to appear in the examination cannot be denied his seniority. It would be unjust, unreasonable  and arbitrary to penalise a person for the  default of the government to hold the  examination every year. That does not also  appear to be the intent or purpose of the 1962  Rules.\n<\/p>\n
It can be seen that facts in the reported case  are different than the one before us. It is not the contention of either party that they could not pass  the Departmental Examination because those were not  held. So far as loss of seniority is concerned, there  was specific Rule applicable, which is not the case in  the matter before us.\n<\/p>\n
 M.P. Chandoria v. State of M.P. and  Ors.<\/a> was a matter wherein the Honble the Apex Court  was dealing with interpretation of Rule 12 of the M.P.  Civil Services (General Conditions of Service) Rules,  1961, and the observations in para 5, relied upon by  learned advocate Shri A.S. Deshpande is  interpretation of the said Rules. The said Rule  governed the seniority of the members of the service  of a district branch or group of posts of that  service. Sub-clause (i) of Clause (a) envisaged that  the seniority of a directly recruited Government  servant appointed on probation, shall count during his  probation from the date of his appointment.  Sub-clause (ii) envisaged that same order of inter se  seniority of direct recruits was maintained by  confirmation of the normal period of probation. If,  however, the period of probation of any direct recruit  was extended, the appointing authority was empowered  to determine the date from which the candidate should  be assigned seniority. It was held that until the  probation period is completed and he is confirmed in the post, he does not become a member of the service  on successful completion of the probation and passing  of the prescribed tests or conditions precedent to  declaration of completion of the probation period. It  was, therefore, held that mere passage of time of one  year does not entitle a probationer to be a member of  the service.\n<\/p>\n
Even the case of Omprakash Shah v. State of  M.P. and Anr. 2005 AIR SCW 2397, dealt with the  same Rule No. 12 of the M.P. Civil Services (General  Conditions of Service) Rules, and para 10 relied upon  by learned advocate Shri A.S. Deshpande, therefore,  also refers to observations of the Supreme Court in  the matter of M.P. Chandoria (supra).\n<\/p>\n
 We are of a considered view that the ratio  laid down in these two case also is not available for  assistance of present respondents because they have  not relied upon any provision similar to that with  which the Honble Apex Court was dealing in the  reported matters. We are, therefore, unable to accede  to the submission of learned advocate Shri Deshpande  that by failure of passing the Departmental  Examination inspite of enjoying permissible chances,  the employee could continue in the cadre, but by  losing the seniority to those who had passed the  Examination.\n<\/p>\n
9. Submission of learned Counsel for the  petitioners that there have been instances in the past  of candidates not having passed the Departmental  Examination being promoted is an argument which is  required to be accepted even without being illustrated  by individual cases. In fact, the Government Circular  under challenge itself supports such a submission.  The Circular itself is issued because the said Rules  were not being observed at all. That the Rules must  have been observed in breach is also evident from the  list produced at Exhibit-X and we have pointed out  atleast seven cases from 58 promoted candidates,  wherein benefit of exemption as a result of attaining  age of 45 years appears to have been wrongly conferred  i.e. without passing Examination although they had  sufficient time to enjoy permitted chances to pass the  Examination, before attaining age of 45 years.\n<\/p>\n
It was contention of the learned Counsel for  the petitioners that once orders of exemption on  attaining the age of 45 years are passed in their  favour, they stand at par with the candidates who have  passed the Examination, and they cannot be denied an  opportunity of being considered for promotion. For  supporting such a submission, it was also contended  that otherwise Rule 5 would become redundant. We cannot avoid feeling that without  assistance of any other set of Rules applicable to the  petitioners, the set of said Rules if considered in  isolation, apparantly seem to be having quite a good  number of lacunae in the sense that the Department can  land into a situation for which it may not be able to  find solution. Rules are applicable to both Class-I  and Class-II and it is not clear as to whether an  employee in Class-III who is initially promoted to  Class-II and later on to Class-I post and the direct  nominee of Class-II if promoted to Class-I is required  to pass the Examination on his entry in each of the  classes of service. Rule (2) says that the Rules  shall apply to officers appointed either by nomination  or promotion to Class-I and Class-II posts in MDSs.  Rule-3 requires every officer to pass the Examination  within four chances. However, the annexure provides  only one composite syllabus and therefore, there is  room to infer that probably a person would be required  to pass the Departmental Examination only once. If he passes the Examination while in Class-II service, he  may not be required to pass the same again on his  promotion to Class-I.\n<\/p>\n
Rules do not indicate any parameter in  addition to attaining age of 45 years for grant of  exemption, nor Rule 5 specifically says that such an  exemption can be granted only if all chances are not<\/p>\n
The Rules also do not state as to what would  happen to the seniority inter se if a senior fails,  but before he exhausts his chances, a junior to him  passes the Examination. Rules also do not talk about  effect on seniority upon senior failing inspite of  enjoying all chances, and junior either passing or not  exhausting all his chances when it is the time to  consider both of them for promotion.\n<\/p>\n
The said Rules do not say that passing of  Examination is condition for being eligible to  promotion from Class-II to Class-I nor those indicate  that passing of such Examination is condition  precedent for confirmation and continuation in the  Class-II or Class-I as the case may be. [However, if  Rule 7 (a) is construed strictly, passing of  Examination would be condition precedent for both,  either being eligible for promotion to Class-I or for  confirmation and continuation in Class-II or Class-I  as the case may be. This is because the consequence  of failure to pass inspite of exhausting all the  chances is discharge from service for a nominee and  reversion for a promottee.]<\/p>\n
The Rules also do not provide specific  solution, in case, an individual does not pass the Departmental Examination when nominated or promoted to  Class-II but is promoted to Class-I before exhausting  permissible period and chances while in Class-II…. Whether he would get only remaining period and chances  to pass the Examination, (this would be so if every officer is to pass the Examination only once in his  career, and not upon entry in each Class-I and  Class-II) OR he would again get full period of two years and four chances, upon promotion to Class-I?  (this would be so if he is to pass the Examination  twice i.e. upon entry into each class). Rules do not  provide as to what would be the fate of an individual  if he fails to pass the Departmental Examination while  on promotion to Class-I, although not having passed  while in Class-II. Is he liable to be reverted to  Class-II or Class-III ?\n<\/p>\n
Last but not the least, although both  provisions i.e. Rule 5 (a) regarding exemption from  passing Examination on attaining age of 45 years and  Rule 7 (a) regarding consequences of failure to pass  Examination, are worded by inclusion of “shall be”  thereby indicating no option\/discretion with the  Department, neither of the two is so worded as to have  an overriding effect over the other. Both the  provisions are therefore required to be so construed  or operated that neither supersedes\/nullifies the  other.\n<\/p>\n
All these questions would not protrude their  heads if we consider and interpret Section 7(a) as a  provision imposing passing of Examination as a  condition for confirmation\/continuation in Class-II or  Class-I as the case may be, as also as eligibility for  promotion from Class-II to Class-I. So far as  seniority is concerned, if a person fails to pass  inspite of enjoying all his chances, he would be  liable to reversion, not having acquired eligibility  for confirmation and continuation in Class-II on  promotion. Naturally, the individual would not be  borne on Class-II to clash with those who have passed  the Examination or with those who are yet to exhaust  all their chances. So far as promotion from Class-II  to Class-I, passing of Examination should be treated as eligibility condition, automatically, because not  passing it would deprive an individual right of  confirmation\/continuation in Class-II and thus he  would not be part of class-II cadre. Naturally, he  cannot be considered for promotion to Class-I. And  then the questions posed as arising, if a person is promoted from Class-II to Class-I without passing  Examination while in Class-II would not arise at all.\n<\/p>\n
For all these reasons discussed, wording  “shall be” in Rule 7 (a) is required to be construed  with strictness. If the said provision is so construed, position will boil down as under.\n<\/p>\n
(i) While in Class-II, all  chances exhausted without  passing Examination.\n<\/p>\n
  (ii) While in Class-II, all  chances not exhausted  neither reached age of  45 years.\n<\/p>\n
(iii) While in Class-II, all  chances not exhausted,  and reached the age of  45 years.\n<\/p>\n
(iv) Has passed Examination  within permissible  period or attempts  (while in Class-II).  – Individual will have to be  reverted.  – Can continue in  Class-II till he  exhausts his four  chances and then  confirmation or  reversion in  accordance with  passing\/failure  at the Examination – He has reached 45  years and become  eligible for  exemption under  Rule 5 (a) before  he loses his right  of confirmation\/  continuance in  Class-II – case  will have to be  considered for  exemption positi  vely and will be  eligible for  promotion if  exemption is  ordered. – Entitled to  confirmation\/  continuance in  Class-II and also  eligible for  promotion to  Class-I.\n<\/p>\n
[Note : It will not be necessary for him to  pass the Examination again, after promotion  for Class-II. Consequently, only those who  directly enter Class-I will have to pass the  Examination while in Class-I]<\/p>\n
(v) Has entered Class-II  after completion of  age of 45 years.  – Will have to be  considered for  promotion & shall  also be eligible  for promotion to Class-I if such  exemption is  ordered.\n<\/p>\n
 In entries (iii) and (v), by virtue of  language of Section 5 (a), grant of exemption would be  “must” and merely because there is no application or  that same is not processed, the career prospects as  indicated in those entries, should not be affected  adversely.\n<\/p>\n
10. It was argued that if Rule 7 (a) is applied  strictly as instructed by impugned Circular dated  14-03-2007, it will make Rule 5 (a) redundant and  nugatory. We do not think the proposition is wholly  correct. We have indicated by tabularised five  entries hereinabove that the two rules can operate  within their respective zones and without clashing or  overlapping.\n<\/p>\n
We have already indicated that none of the two  provisions is given an effect overriding the other.\n<\/p>\n
Legislation in its wisdom have incorporated and  retained both on the rule book and hence, those will  have to be so interpreted that they can cohabit with  harmony.\n<\/p>\n
Contents from Government Circular dated  01-11-1977 relied upon by learned advocate Shri Sapkal, as “object and reason” for incorporation of  provision such as Section 5 (a) reads :\n<\/p>\n
 After examining this question fully,  Government has decided that Government servants who have completed 45 years of age,  should not be required to appear for  Departmental Examination.\n<\/p>\n
If we are to interpret Rule 5 (a) as attempted  by learned Counsel for petitioners, that there can be  a declaration of exemption from passing Departmental  Examination, even after having exhausted all four  chances, by appearing but without success, target as  above will not be achieved. This is because, after  failure in all four chances, the individual is neither  required nor can be permitted to appear for  Departmental Examination. On the contrary, purpose  stands achieved if Rules 5 and 7 are interpreted to  operate as in five entries tabulated in para 9 above.  For a person who has not exhausted all his chances  before attaining the age of 45 years, on  nomination\/promotion to Class-II, and also for those  who enter Class-II after attaining age of 45 years,  there would be need to pass Departmental Examination,  but for exemption under Rule 5 (a) of the said Rules.  Orders of exemption in such cases, would certainly be  exemption. But orders of exemption, after all chances are exhausted without success, would amount to  condoning the failure and reward to less competent.\n<\/p>\n
In the matter of construction of Rules 5 (a)  and 7 (a) of the said Rules and claim that Rule 7 (a)  if construed strictly would make Rule 5 (a) redundant,  we may refer to observations in para 9 of the  judgement by the Honble the Apex Court in the matter  of State of Maharashtra v.  Jagannath<\/a> (supra), which  read thus :\n<\/p>\n
 We are to use the different rules  meticulously, to give effect to the scheme as  we use the clutch, brake and accelerator for  smooth driving. These rules are to be  harmoniously construed. We should not  concentrate too much on one rule and pay too  little attention on the other. That would  lead us astray and result in hardship. We  must avoid such construction.\n<\/p>\n
11. In the judgement of Tribunal, there is  reference to the Maharashtra Development Service  (Constitution, Classification and Recruitment) Rules,  1973 and more particularly to Rule 5 pertaining to  appointment in MDS Class-I. The relevant portion, we  may reproduce hereunder, for useful reference.\n<\/p>\n
5. Appointment in the Maharashtra Development Service, Class:\n<\/p>\n
 (1) Appointment to the posts in the  Maharashtra Development Service, Class-I,  shall be made either <\/p>\n
(a) by nomination on the result of a  competitive examination….\n<\/p>\n
(b) on and after the 15th August, 1973 by  promotion of suitable officers with not less than five years of continuous service  (including period of probation) in the Maharashtra Development Service, Class II; or <\/p>\n
(c) *****”\n<\/p>\n
Sub Rule (5) of the said Rule reads as under.\n<\/p>\n
 5(5) Appointment by promotion shall be made  from amongst suitable persons holding posts in  the Maharashtra Development Service, Class-II,  who have passed the Secondary School  Certificate Examination or any examination  recognized by the Government as equivalent  thereto and the qualifying written examination or such other test as the Government may, in consultation with the Commission, prescribe.\n<\/p>\n
The text of Rule 5 (1) (b) confirms our  interpretation that a person cannot proceed for  promotion to Class-I before he exhausts all his  chances of passing Departmental Examination, and  therefore, there need be no cases of promotion without  exhausting all the chances of passing Departmental  Examination unless the individual has passed the  Examination at first attempt or within less chances  than permissible. Sub Rule (5) of Rule (5) confirms  our interpretation that a written examination is  eligibility condition for promotion.\n<\/p>\n
Consequently, although as a result of our  interpretation as above, petitioners can be considered  to be not eligible for promotion and writ petitions  may fail, for the Government, it is desirable to  re-examine the list prepared on 04-08-2007 in the  light of interpretation of the Scheme of said Rules as  discussed hereinabove. Eventually, as a result of  order passed by this Court on 02-11-2007, we believe  that the promotion list must not have been operated.\n<\/p>\n
12. It was vehemently argued that impugned  Circular is discriminatory, and therefore, violative  of Article 14. In fact, there is no substance in the  argument that the Circular is violative of said Rules,  which submission was also tried to be advanced. In  fact, the Circular insists for application and strict compliance of the said Rules.\n<\/p>\n
So far as the argument that the Circular and  implementation of said Rules thereby discriminates, it  must be remembered that when the equals are treated  unequally, that would amount to discrimination.  Similarly, when unequals are treated at par, even that  may be possibly branded as discrimination. It is not  possible to say that a provision is discriminatory if  unequals are treated on different footing.  Petitioners who have exhausted all their chances  before reaching age of 45 years, therefore, cannot  claim parity with those who have passed the  Examination before reaching age of 45 years or who  have attained the age of 45 years before exhausting  all their chances. We may hasten to repeat that as  harmonious interpretation of Rules 5 (a) and 7 (a) of  the said Rules, only those persons who enter Class-II  after attaining age of 45 years or one who attains age  of 45 years before exhausting all his chances to pass  Departmental Examination, upon entry into Class-II  (before attaining age of 45 years), will be the  individuals entitled to declaration of exemption. At  the same time, it must be reminded that without  passing the Departmental Examination while in  Class-II, there cannot be promotion to Class-I. It was tried to be argued that petitioners are being discriminated because the Rules have never been  implemented with strictness and there have been cases  of undeserving retentions in class-II and promotion to  Class-I. In order to grant parity to the petitioners,  therefore, they ought to be considered for promotion as they were already in the select list. We are  afraid, the Court cannot grant benefit to the  petitioners on the ground of equality and parity, which others have earned in breach of the Act or the  Rules. On the contrary, we are indicating  desirability of re-opening the cases of undeserving  retention\/promotion, in the operative order.\n<\/p>\n
13. For the reasons discussed hereinabove, both  writ petitions fail and are dismissed. The Department  should operate the pending select list for promotion  only in the light of interpretation of Examination  Rules as indicated hereinabove. We believe  petitioners in their contentions that there must have  been the cases of undeserving continuation in Class-II  and promotions to Class-I in breach of the legal  position as deducible from the Examination Rules.  However, we are not issuing any direction regarding  the past incidents as those individuals had no  opportunity of being heard. Since we are refusing to  quash the Government Circular dated 14-03-2007, it  shall be for the Department to examine the cases of  continuation in Class-II or promotion to Class-I, in breach of the said Rules i.e. without passing the  Departmental Examination as required, on its own and  without support of any direction from the Court.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ulhas S\/O Yadavrao Somwanshi, … vs The State Of Maharashtra Through … on 30 January, 2008 Equivalent citations: 2008 (3) BomCR 99 Author: N Dabholkar Bench: N Dabholkar, P Kakade JUDGMENT N.V. Dabholkar, J. 1. Both these writ petitions although by different writ petitioners, raise the same challenge to the proposed promotions […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-230910","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nUlhas S\/O Yadavrao Somwanshi, ... vs The State Of Maharashtra Through ... on 30 January, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ulhas-so-yadavrao-somwanshi-vs-the-state-of-maharashtra-through-on-30-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ulhas S\/O Yadavrao Somwanshi, ... vs The State Of Maharashtra Through ... on 30 January, 2008 - 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