Mahendra Harishchandra Nathe vs The Commissioner, Nashik ...
2003 Latest Caselaw 887 Bom

JUDGMENT

C.K. Thakker, C.J.:

1. Rule. Mr. V.A. Gangal, learned Counsel, appears and waives service of notice of rule on behalf of respondent. No.1. Mr. R.M. Patne, learned A.G.P., appears and waives services of notice of rule on behalf of respondent No.2. In the facts and circumstances, the matter is taken up for final hearing.

2. This petition is filed by the petitioner for declaring condition No.2. in Resolution No.218 dated 20th August, 1996 (Exhibit `A') issued by Nashik Municipal Corporation illegal, ultra-vires and unconstitutional.

3. The case of the petitioner is that in 1993, he was appointed as Field Worker, which is a Class IV post. At that time, his educational qualification was Standard X (failed). In November 1997, he had cleared Bachelor of Arts Examination and obtained Degree from Yeshwant Rao Chavan Maharashtra Open University. In May 2000, he had passed M.A. with History and obtained a certificate from Pune University. There was a vacant post of Junior Clerk (Class III) in Nashik Municipal Corporation respondent No.1 herein. The petitioner, hence, applied for consideration of his case for promotion to the said post of Junior Clerk. He had sent several reminders. But there was no response. The petitioner, therefore, approached this Court by filing Writ Petition No.6914 of 2002. In view of the condition in the Resolution, however, the petitioner withdrew the petition with liberty to pursue suitable remedy. Hence, the petitioner now approaches this Court by filing the present petition for declaring condition of passing S.S.C. Examination and L.S.G.D. Examination ultra vires and unconstitutional.

4. The learned Counsel for the petitioner contended that it is true that the petitioner has not cleared S.S.C. Examination but he has passed B.A. Examination from Yeshwant Rao Chavan Maharashtra University as well as M.A. from Pune University. It was stated that Yeshwant Rao Chavan Maharashtra Open University has been recognised by the Government of Maharashtra vide Government Resolution dated 10th December, 1998 (Exhibit `E'). By the said resolution, certain Universities were recognised by the State of Maharashtra in consultation with Maharashtra Public Service Commission and Yeshwant Rao Chavan Maharashtra Open University is one of them mentioned at Sr.No.173. The Counsel, therefore, submitted that it was not open to the respondent No.1 to consider the petitioner ineligible on the ground that he had not passed S.S.C. Examination.

5. The other condition related to passing of L.S.G.D. Examination. It is true that the petitioner has not cleared L.S.G.D. Examination but reliance was placed by the learned Counsel for the petitioner on the Resolution of the first respondent Corporation dated 20th August, 1996 wherein it was stated that for promotion to the post of Junior Clerk (Class III) from the post of Field Worker (Class IV), an employee must have passed L.S.G.D. Examination. But it is provided that if the person has not passed the said examination, he must pass such examination within two years from the date of promotion, failing which he will be reverted to his original post of Class IV.

6. The learned Counsel for the petitioner contended that in view of the above provision, the case of the petitioner ought to have been considered for promotion to the post of Junior Clerk and if found fit for promotion, he should be promoted. The respondent No.1 should grant two years time to the petitioner to clear L.S.G.D. Examination. If the petitioner is unable to clear the said examination within that period, he would be liable to reversion as Field Worker. It is, however, not permissible for the respondent No.1 to treat that petitioner ineligible and refuse to consider his case. It was therefore, submitted that an appropriate direction may be issued to the respondent No.1 to consider the case of the petitioner for promotion to the post of Junior Clerk.

7. The learned Counsel for the respondent No.1 submitted that when the resolution requires a person to have passed S.S.C. Examination, it is irrelevant whether he has passed B.A. or M.A. Examination. Since the petitioner has not cleared S.S.C. Examination, he was rightly treated ineligible by respondent No.1 and the petitioner cannot make grievance against the said action.

8. We are unable to uphold the contention of the learned Counsel. It is true that the petitioner has not cleared S.S.C. Examination but it is equally true that the petitioner has passed B.A. Examination from a University which has been recognised by the State of Maharashtra in consultation with the Maharashtra Public Service Commission, constitutional body associated with Civil services. The petitioner has also passed M.A. Examination from Pune University. By treating the petitioner ineligible, in our opinion, respondent No.1 has acted arbitrarily, unreasonably and has committed an illegality which requires to be corrected by this Court.

9. Secondly, it was contended that the petitioner has not passed L.S.G.D. Examination. That fact is not disputed even by the petitioner. In our opinion, however, non-passing of L.S.G.D. Examination would not make the petitioner ineligible for consideration of his case for promotion under Resolution No.218; dated August 20, 1996. The said resolution explicitly lays down that cases of such employees should be considered on merits. In the earlier part of the Resolution, it was observed that the past practice was as per Resolution No.75 dated 21st June, 1985. That resolution laid down that for promotion to the post of Junior Clerk, a candidate must have passed S.S.C. Examination, L.S.G.D. Examination and must have requisite experience. The Resolution then proceeds to state that considering educational qualification as well as experience of Class IV employees, certain decisions were taken. Those decisions were reflected in paras 1 to 5. The Resolution was unanimously accepted by the Corporation. One of the decisions clearly provides that if a Class IV employee has not passed L.S.G.D. Examination, he must clear the said examination within two years from the dated of promotion.

10. In view of the above decisions, in our opinion, within two years a person who is promoted to Class III post from Class IV post, must clear the said examination.

11. Finally, it was submitted by the learned Counsel for the respondent No.1 that Resolution No.218 of 1996 is "one time" measure. The resolution does not say so. Reading of the resolution also does not justify such a conclusion. On the contrary, by the Resolution of 1996, earlier Resolution No.75 of 21st June, 1985 was partially modified and certain conditions were relaxed.

12. In our opinion, therefore, the petition deserves to be allowed and is, accordingly, allowed. The petitioner must be treated eligible and his case for promotion to Class III must be considered on merits in accordance with law. The Writ Petition is, accordingly, allowed. Rule is made absolute to that extent with no order as to costs.

13. A follow up action should be taken by the respondent Corporation within three months from today.

Certified copy is expedited.