Bombay High Court
Dwarkadas Shankarlal Naole vs State Of Maha & Ors on 25 August, 2016
Bench: S.V. Gangapurwala
1 W.P.No.4997/03
UNREPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.4997 OF 2003.
Dwarkadas S/o Shankarlal Naole,
Age 52 years, Occ.Service,
R/o Aurangabad. ig ... Petitioner.
Versus
1. The State of Maharashtra,
through Secretary, Department
of Education, Mantralaya,
Mumbai.
2. The Deputy Director of
Education, Aurangabad.
3. Miz.Bahauddin Siddiqui,
Age 48 years, Occ.Service,
R/o Aurangabad,
C/o Dy.Director of
Education, Aurangabad.
4. L.K.Pasalwad, Age 55
years, Occ.Service,
Head Clerk, Office of the
Sr.Auditor (Education),
Nanded.
5. Shri R.S.Paste, Age
51 years, Occ.Service,
Jr.Auditor (Head Clerk),
Office of Sr.Auditor
(Education), Nanded. ... Respondents.
(Dismissed as per Registrar's
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2 W.P.No.4997/03
order dt.11.4.2005.)
...
Mr.P.P.Dawalkar, advocate for the petitioner
Mrs.M.A.Deshpande, A.G.P. for the State.
...
CORAM : S.V.GANGAPURWALA AND
K.L.WADANE,JJ.
Date : 25.08.2016.
ORAL JUDGEMNT (Per S.V.Gangapurwala,J.)
1.
Heard.
2. The petitioner has filed Original
Application before the Maharashtra Administrative
Tribunal, challenging the promotion granted to
Respondent No.3, so also the orders dated
9.10.1990 and 31.10.1990.
3. The petitioner was appointed as a
Junior Clerk on 1.9.1973, under the Directorate
of Education, Maharashtra State, Pune. The
Respondent No.3 was also appointed as a Junior
Clerk in the same Department on 28.9.1970. The
petitioner passed the post requirement
examination in three attempts and in the year
1976, whereas Respondent No.3 passed the said
examination in 11 attempts and in the year 1982.
The petitioner was promoted as a Senior Clerk on
3.7.1979. The Respondent No.3 was promoted as a
Senior Clerk on 8.1.1982. The petitioner was
placed at serial No.5 as per seniority list
corrected on 31.12.1985 and Respondent No.3 was
placed at serial No.30. In the year 1988, the
petitioner stood at serial No.25 and Respondent
No.3 at serial No.53 in the seniority list of
Senior Clerks. In 1988, Respondent No.3 was
demoted as a Senior Clerk. The said order was
challenged by Respondent No.3 in Writ Petition.
The said Writ Petition was dismissed for non-
prosecution. On 1.11.1990, the Respondent No.3
is promoted as Head-clerk and is given deemed
date of 1987. The same is assailed by the
petitioner before the Maharashtra Administrative
Tribunal. The Maharashtra Administrative
Tribunal, dismissed the Original Application.
Aggrieved thereby, the present petition.
4. Mr.Dawalkar, learned counsel for the
petitioner submits that the Maharashtra
Administrative Tribunal lost sight of the
Recruitment Rules governing the Respondents i.e.
the Post Recruitment (Ministerial) Examination
Rules, Department of Education. According to the
learned counsel, Rule 4 of the said Rules would
be relevant. The said Rules specifically states
that every clerk has to pass the post recruitment
examination within four (4) years of his joining
the service and within three (3) chances.
ig The
petitioner had passed the said examination within
three (3) years i.e. in the year 1976, whereas
Respondent No.3 though appointed in 1970 passed
the said examination in the year 1982 in 11th
attempt. Rule 4 states that in case a candidate
does not pass the examination within three (3)
chances mentioned above, the said candidate would
lose the seniority of those who pass the
recruitment examination before the said
candidate. The Tribunal did not consider the
said Rule in its correct perspective. According
to the learned counsel, the said Rule has been
totally ignored by the Tribunal. The learned
counsel submits that the petitioner was promoted
as a Head Clerk in the year 1991. The petitioner
ought to have been promoted as a Head Clerk ahead
of Respondent No.3 as the petitioner was senior
to the Respondent No.3 as Senior Clerk. The
petitioner now has retired on attaining age of
superannuation, the petitioner should be given
deemed date of promotion i.e. the date the
Respondent No.3 is promoted and the petitioner
would be entitled for all monetary benefits,
considering the petitioner to be Head Clerk as of
the year 1987. The learned counsel submits that
in view of the Circular of the Respondent-State
dated 25.2.1965, the petitioner would be entitled
for all arrears also.
5. Mrs.Deshpande, learned A.G.P. states
that the Tribunal has considered the provisions
of the Maharashtra Civil Services Rules. The
Respondent No.3 was appointed prior to the
petitioner as a Junior Clerk and the said
seniority is considered by the Tribunal. The
Government also considered the said aspect in its
proper perspective. The seniority list at the
behest of the Respondent No.3 was corrected.
After the letter dated 19.10.1990, the Respondent
No.3 was given deemed date of promotion as Senior
Clerk with effect from 4.7.1979.
6. We have considered the submissions
canvassed by the learned counsel for respective
parties. We have also gone through the judgment
of the Tribunal.
7. Upon
ig perusal of the judgment of the
Tribunal, it is manifest that the Tribunal has
not at all given any importance to the Post
Recruitment (Ministerial) Examination Rules,
Department of Education. The parties are bound
by the said rules also. Rule 4 of the said Rules
reads as under :-
"4) Every Clerk/Clerk-cum
typist/typist should pass the
examination within 4 years of his
joining the service and within three
chances. If the candidate's name is
included in the post recruitment
Training Class, he is expected to
appear at the post-Recruitment Training
Examination and pass it as early as
possible. If he passes the examination
within three chances (To be taken at
any three out of four successive
examination held immediately after the
completion of the training course to
which he was admitted) he would retain
his Original seniority. In case he
does not pass the examination within
the three chances mentioned above, he
will also lose the seniority to all
those who pass the P.R.T. Examination.
Before he passes it. The candidates
who are not admitted to the examination
on account of their attendance in the
training class being below the
prescribed minimum, will be deemed to
have failed in that P.R.T. Exam. and
have lost one chance. A candidate will
not be confirmed till he passes the
examination."
8. The said Rule is unambiguous and does not
require any interpretation. The said Rule
succinctly lays down that even if a candidate is
appointed earlier in point of time but fails to
pass the examination within the number of
attempts permissible and a junior candidate
passes the post recruitment examination prior to
the senior candidate then the senior candidate
loses his seniority.
9. The facts on record are undisputed. The
petitioner had passed the said examination in the
year 1976 within three years, whereas Respondent
No.3 who was appointed earlier could pass the
said examination only in the year 1982 in 11th
attempt. At the said point of time, the
Respondent No.3 had lost his seniority to the
petitioner. On and from the date the petitioner
had passed the said examination in 1976 and
Respondent No.3 having failed to pass the said
examination, the petitioner certainly will have
to be held as senior to Respondent No.3.
10. It is also required to be considered that
even the Department considered the petitioner to
be senior and the petitioner was promoted as
Senior Clerk on 3.7.1979, whereas Respondent No.3
was promoted as Senior Clerk in the year 1982
much after the petitioner. Even in the seniority
list of senior clerks, the petitioner is shown
senior to the Respondent No.3. The petitioner
o0ught to have been considered senior to the
Respondent No.3 and ought to have been promoted
as Head clerk prior to the Respondent No.3.
11. The
ig Department promoted the Respondent
No.3 on 1.11.1990 giving him deemed date of 1987,
whereas the petitioner is promoted as a Head
Clerk in the year 1991. The grievance of the
petitioner is certainly justified. The said
aspect in fact ought to have been considered by
the Tribunal.
12. The Respondent No.3 also would not be in a
position to take benefit of Rule 5 as the said
exemption from appearing from the examination is
granted to those persons who are employed three
years prior to the enforcement of the said Rule.
The respondent No.3 was appointed as a Junior
Clerk on 28.9.1970 and the said Rules came into
force in July 1973 i.e. before the lapse of three
(3) years of Respondent No.3 entering into the
service. The Respondent No.3 would not get the
benefit of Rule 3 of the said Rules also.
13. In light of the above, the impugned
judgment passed by the Tribunal can not be
sustained and deserves to be set aside and is
hereby set aside. The Respondent Department shall
notionally consider the petitioner to have been
promoted as a Head Clerk in the year 1987 and the
benefits therein till the date of his
superannuation shall be notionally calculated for
the purpose of retiral benefits and pension. The
petitioner shall be paid retiral benefits and
pension considering date of petitioner being
promoted as Head Clerk in 1987, though we have
not granted the payment of actual arrears for
the period till petitioner attained age of
superannuation.
14. Considering the fact that the Respondent
No.3 has retired, the retiral benefits and
pension of the Respondent No.3 shall not be
affected by this order.
15. Rule accordingly made absolute in above
terms. No costs.
Sd/- Sd/-
(K.L.WADANE,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp499703
