Bombay High Court

Vivek Gangadhar Davare vs The State Of Maharashtra on 12 November, 2013

Bench: R.M. Borde, A.I.S. Cheema

                                                          wp150.98
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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 




                                                            
                    BENCH AT AURANGABAD




                                    
                WRIT PETITION NO.150 OF 1998




                                   
     Vivek Gangadhar Davare,
     Range Forest Officer,
     Forest Development Corporation
     of Maharashtra Ltd.,
     Age-44 years, Occu:Service,




                           
     At & Post-Takali-Dhokeshwar,
     Tq-Parner, Dist-Ahmednagar. 
                 
                                     ...PETITIONER 

            VERSUS             
                
     1) The State of Maharashtra,
        (Secretary Revenue and Forest
        Dept. Sachiwayaya, Bombay),
      


     2) Forest Development Corporation
   



        of Maharashtra Ltd.,
        (A Government of Maharashtra
        Undertaking),
        Through-Managing Director,
        Forest Development Corporation





        of Maharashtra Ltd., Ravel Plaza,
        Plot No.12, Kadvi Chowk,
        Kamathi Road, Nagpur,
        Dist-Nagpur,





     3) Regional Manager, Nasik Region,
        Forest Development Corporation
        of Maharashtra Ltd., 
        Kalika Mandir Road,
        Opp. Old I.T.I., 
        At & Post & Dist-Nasik,




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     4) Divisional Manager,




                                                            
        Forest Development Corporation
        of Maharashtra Ltd.,




                                    
        Forest Project Division Sangamner,
        Wadje Mala Vidyanagar, 
        At & Post-Sangamner,
        Dist-Ahmednagar,




                                   
     5) Mr. M.P. Bhalerao,
        Range Forest Officer,
        Forest Development Corporation
        of Maharashtra Ltd., Forest Project




                           
        Division Dahanu, Dist-Thane,
                 
     6) Mr. S.H. Ahmed,
        Range Forest Officer,
        Forest Development Corporation
                
        of Maharashtra Ltd., Forest Project
        Division Khamgaon, Dist-Buldhana,

     7) [Mr. S.S. Raut,
        Range Forest Officer,
      


        Forest Development Corporation
        of Maharashtra Ltd., Forest Project
   



        Division Yawal, Dist-Jalgaon],
        (Dismissed as per Court's order
         dated 7/2/2011 as abated).





     8) Mr. D.Y. Khaire,
        Range Forest Officer,
        Forest Development Corporation
        of Maharashtra Ltd., Forest Project
        Division Satara, Dist-Satara,





     9) Mr. H.H. Jadhav,
        Range Forest Officer,
        Forest Development Corporation
        of Maharashtra Ltd. Forest Project
        Division Yawatmal, Dist-Yawatmal,




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     10) Mr. P.M. Salunke,
         Range Forest Officer,




                                                                   
         Forest Development Corporation
         of Maharashtra Ltd., Forest Project




                                           
         Division East Nasik, Dist-Nasik.       

                                     ...RESPONDENTS




                                          
                          ...
        Shri.A.B. Gatne Advocate  for  Petitioner.
        Shri.S.G. Sangle, A.G.P. for Respondent No.1.
        Shri.S.N. Boiwar Advocate holding for Shri.
        Pradeep Shahane Advocate for Respondent Nos.




                                
        2 to 4.
        Respondent Nos. 5, 6, 8 to 10 served.      
                   
                          ...
                  
                   CORAM:   R.M.BORDE AND
                            A.I.S. CHEEMA, JJ.

DATE : 12TH NOVEMBER, 2013

JUDGMENT [PER A.I.S. CHEEMA, J.] :

1. In this matter, Rule was issued on 12th

January, 1998.

2. Petitioner, Range Forest Officer ("RFO"

in brief) with Forest Development Corporation of

Maharashtra Ltd. ("F.D.C.M." in brief), is

aggrieved with the promotional order dated 26th

November, 1997 issued by Respondent No.2- F.D.C.M.

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in favour of Respondent Nos. 5 to 10 who are

junior to him (Respondent No.7 expired during

pendency of the Petition and matter abated as

regards the said Respondent). Petitioner claims

that he should have been promoted in preference to

Respondent Nos. 5 to 10 on the basis of seniority.

He wants Rule 3(1) of F.D.C.M. relating to need to

pass departmental examination for being eligible

for promotion of RFO's to the post of Assistant

Manager, to be struck down as violative of Article

14 and 16 of the Constitution of India. At least

part of the Rule requiring RFO already in service

to pass examination before 1st July, 1989 needs to

be struck down.

3. It is the case of the Petitioner that

F.D.C.M. is a Government of Maharashtra

Undertaking. Respondent Nos. 5 to 10 are

employees of Respondent No.2 - F.D.C.M. who are

juniors having been recruited after recruitment of

the Petitioner. According to him, by a common

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training programme for Range Forest Officers by

direct recruitment held by Forest Department and

F.D.C.M., there was selection and after successful

training some candidates got posted to Forest

Department while some got posted to F.D.C.M.

Petitioner was posted to F.D.C.M. in 1976-78. Up-

till 1988 there were no rules framed by F.D.C.M.

for departmental/promotional examination of RFO's.

There was such provision for the counter parts in

the Forest Department of the State and so

Petitioner made applications for such benefit.

Rules got framed on 30th March, 1988 for the

departmental/promotional examination of RFO's to

the post of Assistant Managers. Rule 3(1) made

provision that RFO's recruited directly after

framing of the rules, would be allowed to pass the

examination in five years period. However for

RFO's already in service, the time prescribed to

pass the examination was of before 1st July, 1989.

In default, consequences of withholding increments

and denial of promotion were to follow.

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Departmental/promotional examination was first

held in July 1988 for batch earlier to the batch

of the Petitioner. He appeared in the examination

held in March 1989 but did not succeed. He could

not attend the examination held in September 1989

and September 1990 due to exigencies of service.

The examination held in September 1991 was

boycotted by Union of employees. He appeared in

examination held in December 1992 but could not

succeed. As per Petitioner, this gave him only one

opportunity to pass examination before 1st July,

1989. In the year 1993 auditor objected to annual

increments granted to Petitioner for not having

passed examination before 1st July, 1989 and

recovery was ordered. In view of representations

made by the Petitioner and recommendations made by

Divisional Manager of Forest Project Division,

Nasik, annual increments withheld, were

subsequently sanctioned. Petitioner is pointing

out the gradation/seniority list of 1st January,

1995 and 1st January, 1997 to show that Respondent

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Nos. 5 to 10 are junior to him. By impugned

promotion order dated 26th November 1997, they

came to be promoted excluding the Petitioner.

According to the Petitioner, Rule 3(1) is bad in

law, discriminatory and violative of Article 14

read with 16 of the Constitution of India, being

unjust with RFO's who were already in service as

the Rule gave cut-off date of 1st July, 1989 to

existing RFO's while it gave period of five years

to RFO's who will join after framing of the Rules.

Gradation/seniority list has nothing to do with

the passing of departmental examination and there

is no limit on the number of attempts to be made

by RFO's in the said examination though there is

limit of five years for granting or withholding

annual increments. Thus, the Petition.

4. For Respondent Nos. 2 to 4 affidavit in

reply was filed. The defence is that the

Petitioner availed several chances and appeared

for the examinations but he failed and employees

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who passed the examination were selected and

therefore there is no discrimination. Respondent

No.2 is a company registered under the provisions

of Companies Act, 1956. Previously, it was Forest

Development Board under the State of Maharashtra

and subsequently the said Board merged into the

Forest Development Corporation of Maharashtra Ltd.

w.e.f. 25th October, 1974. Respondent No.2 is

wholly owned and controlled by the State of

Maharashtra. Officers of the Forest Department are

taken on deputation in Respondent No.2 but not

vice-versa. It is admitted that Petitioner was

selected for direct recruitment as RFO and after

training with others, some were appointed in

Forest Department and Petitioner came to be

appointed with F.D.C.M. It is admitted that till

1988 there were no Rules for departmental/

promotional examination of RFO's. It is claimed

that Respondent No.2 is an independent Corporation

and Rules are different and cannot be compared

with Rules of Forest Department. The Respondents

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are pointing out the various chances which were

given to Petitioner for passing of the

examination. It is claimed that although cut-off

date was mentioned in the Rules, it was not

strictly adhered to. Examination was held six

times upto 1998 and Petitioner had full

opportunity to participate and he is thus now

estopped from claiming that only one chance was

there before 1st July, 1989 and so there was

discrimination. The audit objection for annual

increment has nothing to do with passing of

examination and promotion. Without prejudice, it

is claimed that by letter dated 10th December,

1997 the annual increments were regularized. The

Petitioner was given five chances out of which

Petitioner did not appear in some examinations and

in the remaining examinations he was declared

unsuccessful. The increments due in favour of

Petitioner when subsequently released, were given

retrospective effect. Gradation list is merely

seniority list and promotion is subject to

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eligibility as stated in the Rules. Respondent

Nos. 5 to 9 passed the departmental examination

which is essential for promotion, and Respondent

No.10 received exemption as per Rule 3-B(2),

having attained the age of 45 years at the time of

promotion. Respondent Nos. 5, 6 and 8 passed the

examination in September, 1989 while Respondent

Nos. 7 and 9 passed the examination in September,

1990 and thus became eligible and were promoted by

the impugned order dated 26th November, 1997. It

is claimed that after framing of the Rules, no

recruitment to the post of RFO has been done

directly and hence the Petitioner cannot claim

that there has been discrimination. All the RFO's

were appointed prior to the commencement of Rules

and those who passed examination, have been placed

in promotional post according to their seniority

and availability of post. There is no need to

declare the Rules as invalid, as claimed by the

Petitioner. Respondent Nos. 5 to 10 have already

joined promotional posts and their promotions may

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not be disturbed. Respondents point out six

examinations as held in :- (1) September, 1988 (2)

March, 1989 (3) September, 1989 (4) September,

1990 (5) September, 1991 and (6) December, 1992,

to show that sufficient opportunities were given

to the Petitioner. It is pointed out that

Petitioner appeared in the examinations held in

March, 1989 and December, 1992 but he failed while

he did not take benefit of the other examinations

held. The Respondents want the Petition to be

dismissed.

5. Petitioner vide additional affidavit, has

tried to explain as to how in the examinations

held in September, 1989 and September, 1990 he

could not appear. In the additional affidavit, it

is claimed that on Petitioner completing the age

of 45 years on 31st October 1998, he has been

promoted w.e.f. 22nd July, 2010. According to him,

as there was vacancy, he should have been promoted

from 1st November, 1998.

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6. We have gone through the Petition and

heard the counsel. It has been argued by the

learned counsel for the Petitioner that earlier

there were no Rules till 1988 and so Petitioner

did not get opportunity of promotion and when the

Rules were framed, they were discriminatory, as

the same gave chance to Petitioner who was

already in service only till 1st July, 1989 while

provided five years period for passing examination

to the RFO's to be recruited after framing of the

Rules. According to him, although the Rules

provided stopping of increments for not passing of

examination, the increments were released and so

similar yard-stick could have been applied and

Petitioner could have been promoted even before

attaining the age of 45 years. The learned counsel

for Petitioner submitted that now Petitioner has

already superannuated but it is necessary to

strike down the Rules as discriminatory and deemed

promotion may be given to the Petitioner on

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completing 45 years of age, at least with effect

from 1st November 1998, so that he gets necessary

benefits.

7. To examine the controversy, it would be

appropriate to refer to the relevant portions of

"Rules of Departmental Examination of Range Forest

Officers, 1998". Rule 3 and 3-B read as under:

" Rule No.3 :- Invitability (sic) of

passing the Departmental examination and effects.

1) Every Range Forest Officer, other than the Range Forest Officers who are exempted

from passing the Departmental Examination as per exemption clause No.3-B of these rules will be required to pass the

Departmental examination, within 5 years period, from the date of taking over the charge of the post. The Range Forest Officers who are already in service, on

the date of commencement of these rules, will be required to pass this Departmental examination before 1.7.1989.

2) The annual increment of the RFO's other than the RFO's who are exempted from

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passing the Departmental examination as

per exemption clause No.3-B of these rules who do not pass the Departmental

examination within the prescribed period, will be with-held, or Managing Director, under his discretion can retire such RFO's from service or can handle such cases by

other means as deemed fit.

Note: The annual increment so withheld

shall be withheld until RFO passes the Departmental examination. The date of

annual increment, on passing the Departmental examination will not be

postponed in case the candidate passes the Departmental examination, on expiry of prescribed period.

3. The RFO other than the Range Forest Officers, who are exempted from passing

the Departmental examination as per exemption clause No.3-B of these rules shall not be confirmed in his cadre,

unless he passes the Departmental examination.

4. The RFO other than the Range Forest

Officers who are exempted from passing the Departmental examination as per exemption clause No.3-B of this rule shall not be considered fit for promotion as Assistant Manager, unless he passes the Departmental examination.

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5. Examinee shall be eligible to claim travelling allowance for appearing for the

Departmental examination, maximum upto two times. In case the examinee fails in the examination, the Managing Director may after considering the performance of the

candidates in Departmental examination issue certificate for sanctioning T.A. to the examinee.

Rule No.3-B:- Exemption Clause :-

1) The foresters who are promoted as Range

Forest Officers, shall not be required to pass the Departmental examination prescribed for RFO's of FDCM Ltd. This exemption from passing the Departmental

examination shall remain effective upto their promotion in the cadre of Assistant

Manager.

2) Range Forest Officers shall be exempted

from passing the Departmental examination prescribed for RFO's of FDCM Ltd. when they attain the age of 45 years.

3) Range Forest Officers of FDCM Ltd. who have passed the Departmental examination prescribed for Range Forest Officers of Forest Department of M.S. in "Forest Laws" shall be exempted from passing the Departmental examination of FDCM Ltd in

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the subject "Forest Act". All such RFO's

will be required to pass the Departmental examination in all remaining subjects,

prescribed for the Departmental examination of Range Forest Officers of FDCM Ltd." (Emphasis supplied).

8. As per the Petitioner, these Rules were

framed and approved on 30th March, 1988. It is

clear from reading of the above Rules that there

is no bar as far as regards how many opportunities

may be taken by the Range Forest Officers for

passing of the examination. What is provided is

that RFO's (other than those who are exempted

under Rule 3-B) are required to pass the

Departmental examination within five years, from

the date of taking over the charge of the post.

RFO's who were already in service, were given time

till 1st July, 1989 and the default was to attract

withholding of annual increment or to even face

retirement. Even regarding this, as sub Rule (2)

of Rule 3 shows the Managing Director was given

discretion to handle such cases by other means as

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deemed fit. Admittedly, although increments of

Petitioner were earlier withheld due to audit

objection, the same came to be released with

retrospective effect. There do not appear any

orders of retirement. Employees already in

service, armed with experience, cannot claim

parity with just appointed employee if adverse

action is invoked for non passing examination

after giving new-comer more opportunity. Thus, the

Rules as framed in this regard are workable.

9. Learned counsel for the Petitioner

admitted that in the examination held in March,

1989 Petitioner had appeared but he failed. The

argument that till 1st July, 1989 Petitioner got

only one opportunity to pass the Departmental

examination (as examination of 1988 was limited to

earlier batch) has no substance. The Petitioner

does not claim that in the subsequent examinations

he was prohibited from appearing. In fact he did

appear in the examination held in December, 1992

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and failed. According to the Respondents, after

framing of the Rules, no RFO's were appointed and

so Petitioner cannot claim even discrimination

from the provisions of the Rule providing for

opportunity to pass Departmental examination

within five years period for RFO's if firstly

appointed vis-a-vis those who were already in the

service when the Rules came into effect. We find

that the Rules cannot be treated as discriminatory

as the same have been so framed and applied that

the RFO's were given ample opportunities and even

though the Rule provided for withholding of annual

increments, the Managing Director was given

discretion to handle such cases by other means. As

mentioned, there is also nothing to show that

anybody has been retired from service for not

having passed the examination.

10. What appears from the Rules is that if

the RFO does not pass the examination, he shall

not be confirmed in the cadre and shall not be

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considered as fit for promotion for Assistant

Manager. Thus the Rule basically provides that if

the RFO passes the examination he would become

eligible for consideration for promotion. Rule 3-B

prescribes exemption for those who attain the age

of 45 years. The Petitioner did reap even these

fruits as he got promoted on 22nd July, 2010.

11.

Learned counsel for the Petitioner relied

on the case of "Union of India and another vs.

Hemraj Singh Chauhan and others," reported in

(2010) 4 Supreme Court Cases 290, for the

principles of law as enunciated in Para 35 and 36

of the Judgment. Same read as under:

"35. The Court must keep in mind the constitutional obligations of both the appellants/Central Government as also the State Government. Both the Central

Government and the State Government are to act as model employers which is consistent with their role in a welfare State.

36. It is an accepted legal position that the right of eligible employees to be

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considered for promotion is virtually a

part of their fundamental right guaranteed under Article 16 of the Constitution. The

guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution."

12. According to learned counsel for the

Petitioner as soon as Petitioner became eligible

on completing the age of 45 years on 31st October

1998, he should have been promoted. Reliance is

placed on the case of "Rajinder Pal Singh Lamba

vs. Suraj Bhan and others," reported in (2008) 14

Supreme Court Cases 679, and reference is made to

para 14 of the Judgment to argue that F.D.C.M. was

under fiduciary duty to consider name of the

Petitioner for promotion as and when the vacancy

arose. Para 14 of the Judgment, reads as under:

"14. Respondent 4 was under a fiduciary duty and was required to consider the name of the appellants for promotion to the post of UDC in accordance with the statutory rule as and when the vacancy

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arose. Unfortunately, there was lapse on

the part of Respondent 4 due to which the case of the appellants for promotion could

not be considered. At the same time it cannot be scored out that the appellants slept over their rights, which led to a considerable delay i.e. delay of 11 to 12

years on the part of the appellants to give representation for promotion to the grade of UDC. Delay defeats equity is a

well-known principle of jurisprudence. Delay of 11 to 12 years cannot be

overlooked when an applicant before the court seeks equity and specially in the

case of service matters as in the said case it geopardises the existing positions of a very large number of members of that service."

13. There can be no dispute as far as regards

the principles referred to by the learned counsel.

The facts, however, in the matter of Hemraj Singh

Chauhan and others were different as in that

matter due to delay on the part of the State the

Respondents therein crossed the upper age limit of

54 years and the employees earlier eligible for

promotion were rendered ineligible. Thus relief

was granted. Facts in the matter of Rajinder Pal

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Singh Lamba are also different as in that matter

LDC's of District Courts received benefit of

retrospective promotion as UDC's pursuant to the

order of learned Single Judge of the High Court

and reaped benefit of promotion for nearly ten

years when the Division Bench of the High Court

faulted with the Judgment. In the peculiar facts

and circumstances of that matter the Hon'ble the

Supreme Court in its powers did not take away the

benefits. However the Supreme Court itself has

recorded that relief granted in that matter will

not be treated as precedent in any other matter.

14. The present matter will have to be

appreciated on its own facts to do justice between

the parties. At the time of arguments, the learned

counsel for Petitioner has not controverted the

defence that Respondent Nos. 5 to 9 came to be

promoted as they had already passed the

departmental examination and Respondent No.10 had

received exemption as per Rule 3-B (2) having

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attained the age of 45 years at the time of

promotion. Thus, the Petitioner cannot compare

himself with these Respondents. Learned counsel

for the Petitioner was specifically asked at the

time of arguments and accepted that he was not in

a position to show that any junior to the

Petitioner was promoted before him, after he

became 45 years of age. Record shows that although

Respondent Nos. 5, 6 and 8 passed examination in

September, 1989 and Respondent Nos. 7 and 9 passed

examination in September, 1990 and thus became

eligible for promotion, they were promoted only on

26th November, 1997. Thus, even those Respondents

had to wait for considerable period even after

they became eligible. Petitioner became eligible

on completing the age of 45 years on 31st October,

1998 and got promoted w.e.f. 22nd July, 2010. This

is not a happy state of affairs as far as F.D.C.M.

is concerned. However, by that it does not mean

that the Petitioner has been discriminated. All

the eligible employees have a right not only to be

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considered for promotion but also to be considered

within reasonable time.

15. At the time of arguments, learned counsel

for the Petitioner was unable to support his

arguments that Petitioner should have been

promoted w.e.f. 1st November, 1998, as soon as he

crossed the age of 45 years. In the matter of Baij

Nath Sharma vs. Hon'ble Rajasthan High Court at

Jodhpur and another, reported in (1998) 7 Supreme

Court Cases, 44, the appellant before the Hon'ble

High Court who was a judicial officer from

Rajasthan judicial service, claimed that before

his retirement there were vacancies in promotion

quota against which he could have been considered

for promotion to Rajasthan Higher Judicial

Service. He claimed promotion from the date when

vacancy had arisen in the promotion quota. In that

matter, the Rajasthan High Court had, on

administrative side, taken a decision not to make

promotions till recruitment was made from the Bar,

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otherwise there would be imbalance between

strength of promotees and direct recruits. The

appellant therein, moved the Rajasthan High Court

by writ petition but the same was dismissed. By

the time he filed appeal to the Hon'ble Supreme

Court, he had superannuated. In Para 6 of the

Judgment, the Hon'ble Supreme Court observed

that:-

"6. The appellant could certainly have a grievance if any of his juniors had been

given promotion from a date prior to his superannuation. It is not the case here."

. In the present matter also, the

Petitioner has not been able to show that anybody

junior to him was promoted after he became 45

years of age or that anybody junior to him has

been given promotion from the date prior to his

superannuation.

16. In the matter of Baij Nath Sharma

(supra), it was observed in Para 8 as under:

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"8. It is regrettable because of the

inaction on the part of the High Court that recruitment from the Bar could not be

made in time which created an imbalance in the service and ultimately it were the appellant and officers similarly placed who suffered. After having put in long

years of service, it is the seniority and promotion which an officer looks forward to. He expects he is given due promotion

in time. Non-promotion may be an incidence of any service. But here the appellant has

been deprived of his promotion without any fault of his. The High Court said that it

might be a sad state of affairs that the name of the appellant was not considered for promotion till he retired. The High Court may feel anguished but it gives no

comfort to the appellant. At least for the future, such an unfortunate thing should

not happen to any other officer similarly situated." (Emphsis supplied).

. With such and other observations made by

the Hon'ble Supreme Court, the appeal of Baij Nath

Sharma came to be dismissed. Thus, it is clear

that the Hon'ble Supreme Court did not give

retrospective promotion to the appellant therein

from the date vacancy arose. Looking to the facts

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of the present matter as well as keeping in view

the above Judgment of the Hon'ble Supreme Court,

it is not possible to accept the argument of the

learned counsel for the Petitioner that the

Petitioner may be given deemed date of promotion