Bombay High Court
The State Of Mah. Thr. Its Secty., ... vs Ajay Ramdas Sherkar on 7 June, 2017
Bench: V.A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3886/2011
PETITIONERS : 1. The State of Maharashtra,
Through its Secretary, Finance Department,
Mantralaya, Mumbai - 32.
2. The Commissioner of Sales Tax,
323, 3rd Floor, Vikrikar Bhavan,
Mazgaon, Mumbai - 10.
3. The Deputy Commissioner of
Sales Tax, Vikrikar Bhavan,
Civil Lines, Nagpur.
...VERSUS...
RESPONDENT : Ajay Ramdas Sherkar
Aged about 30 years, Occ. Service,
R/o c/o S.H. Ajankar,
Adiwasi Colony Plot No.31,
Trimurti Nagar, Nagpur.
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Mrs. H.N. Prabhu, AGP for petitioners
Ms Ritu Jog, Adv. h/f Shri A.C. Dharmadhikari, Adv. for respondent
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 07.06.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this petition, the State of Maharashtra and others
challenge the order of the Maharashtra Administrative Tribunal in
Original Application No.672/2001, dated 26.11.2010, partly allowing the
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original application filed by the respondent and setting aside the order of
termination of the respondent dated 20.10.2001.
Few facts giving rise to the writ petition are stated thus :-
The respondent was appointed by the petitioners as a Sales
Tax Inspector by the order dated 14.2.1997. The appointment order
clearly recited that in case the respondent fails to clear the departmental
examination within a period of three years and within three chances, his
services would be terminated without any prior notice. The relevant rules
however provided that an additional opportunity, i.e., fourth chance
could be granted to an employee for appearing at the departmental
examination at the discretion of the Sales Tax Commissioner or
Additional Sales Tax Commissioner. The rule provided that if the
appointee fails to pass the departmental examination in the fourth
chance, if granted, he would be liable to be discharged from the services
or would be reverted in the case of the promotee, as the case may be. On
9.12.1997 and 31.3.1998, the Additional Sales Tax Commissioner issued
instructions pertaining to the holding of the departmental examination of
the Sales Tax Inspectors. The examination that was due in December,
1997 was scheduled in June, 1998. The respondent did not appear at the
said examination and appeared at the examination for the year 1998 that
was conducted in 1999 and for the year 1999 that was conducted in the
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year 2000. The respondent failed in the attempts in 1999 and 2000. The
respondent requested the concerned authorities for grant of an additional
chance to appear in the examination for the year 2000 that was
conducted in the year 2001. At the discretion of the concerned authority,
the respondent was permitted to appear at the examination that was
conducted in the year 2001. The respondent however failed to pass the
departmental examination in 2001 also. The respondent was therefore
served with a notice as to why his services should not be terminated for
not passing in the departmental examinations that were held in the years
1997, 1998, 1999 and as per the additional chance of the year 2000. After
perusing the reply of the respondent, the petitioners removed the
respondent from the post of Sales Tax Inspector in view of Rule 5 of the
Unified Rules for Departmental Examination of Sales Tax Inspectors and
Higher Clerical Staff of the Sales Tax Department, 1972. Being aggrieved
by the order of his removal, the respondent filed the original application
before the Maharashtra Administrative Tribunal. The Maharashtra
Administrative Tribunal allowed the original application filed by the
respondent and quashed and set aside the order of removal. The order of
the Maharashtra Administrative Tribunal is challenged by the State
Government in this writ petition.
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Mrs. Prabhu, the learned Assistant Government Pleader
appearing for the petitioners submitted that the Tribunal committed a
serious error in ignoring the instructions and the provisions of the Rules
of 1972. It is submitted that since the respondent was appointed in the
year 1997, the respondent was liable to appear at the examination for the
years 1997, 1998 and 1999 and ought to have passed the departmental
examination in three attempts. It is stated that the respondent did not
pass the examination in three attempts and requested for grant of
additional attempt, which was granted. It is submitted that despite the
grant of the additional attempt the respondent could not pass in the
departmental examination and hence, as per the Rules, the respondent
was rightly removed. It is stated that the petitioners had notified about
the departmental examination that was conducted for the year 1997 in
June 1998 on 9.12.1997 and 31.3.1998 but the respondent did not make
an application for appearing at the examination, as required. It is
submitted that as per the Circular issued by the Additional Sales Tax
Commissioner on 9.12.1997 if an employee failed to submit an
application and did not appear at the departmental examination, his
absence would be treated as a lost chance and it would be considered as
one of the three attempts. It is submitted that since the respondent did
not apply for the examination for the year 1997 that was conducted in
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June 1998 despite the Circular and the detailed instructions issued by the
Additional Sales Tax Commissioner on 9.12.1997 and 31.3.1998, the
respondent had lost the first chance. It is stated that thereafter the
respondent took two chances, i.e., for the year 1998 and 1999 by
appearing at the examinations conducted in 1999 and 2000 respectively
but failed in those examinations. It is submitted that by exercising the
discretion, the concerned authority granted an additional chance to the
respondent to appear at the examination at his request, but the
respondent was not successful in the additional fourth chance also. It is
submitted that though the respondent has not averred in the original
application that he could not avail the first chance as he was sent for
training at the relevant time, the Tribunal has erroneously observed in the
impugned order that since the respondent was sent for training in
December, 1998 he could not have appeared at the examination that was
conducted in June, 1998. It is submitted that the finding of the Tribunal
that the respondent had taken up only three chances and not four is
contrary to the material on record. It is stated that this Court has
therefore stayed the order of the Maharashtra Administrative Tribunal
while issuing rule in the writ petition.
Ms Jog, the learned Counsel for the respondent has
supported the order of the Tribunal. It is stated that the Tribunal has
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rightly held that the respondent had availed only three chances and not
four as per the case of the petitioners. It is submitted by referring to
Rule 16 of the Rules of 1972 that it is the duty of the Commissioner and
Additional Commissioner of Sales Tax to make arrangements for training
and examinations that are conducted every year and to decide which
person or employee should be sent for training and which of the
employees would appear at the examinations. It is submitted that since
the respondent was sent for training in 1998, the respondent could not
have appeared at the examination that was conducted in the year 1998. It
is stated that the name of the respondent did not appear in the list of the
candidates who appeared at the examination conducted in June, 1998.
The learned Counsel sought for the dismissal of the writ petition.
On hearing the learned Counsel for the parties and on a
perusal of the order of the Tribunal, it appears that the Tribunal has
committed a serious error in interpreting the Rules of 1972 and
appreciating the material on record. The respondent was appointed in the
year 1997 and by the appointment order itself it was made clear that the
respondent would be removed from services, if he does not pass the
departmental examination in three attempts and within three years. As
per the relevant Rules of the year 1972 an employee was entitled to an
additional chance, i.e., a fourth chance only at the discretion of the
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concerned authority. The departmental examinations are liable to be
conducted every year. Since the respondent was appointed in February,
1997, the respondent was liable to take an attempt at the examination
scheduled in December 1997, 1998 and 1999 and was required to pass in
the examination in at least three attempts. The examination for the year
1997, i.e., the first year, was conducted in June, 1998. The Additional
Commissioner of Sales Tax had issued detailed instructions on 9.12.1997
and 31.3.1998 regarding the holding of the examination of 1997 in June,
1998. Despite the specific instructions, that were given wide publicity, the
respondent failed to apply for the examination when several other
employees that were appointed in 1997 had applied. It was also notified
by the Circular issued by the Additional Sales Tax Commissioner dated
9.12.1997 and specially paragraph 8 thereof that an employee would be
deemed to be absent at the examination if he does not apply for the
examination conducted for the said year and the office would not be
responsible for this lapse. It was clearly mentioned in the Circular that the
absence at the examination would be treated as a lost chance. Despite the
instructions in the Circular dated 9.12.1997, the respondent failed to
make an application and ignored the detailed instructions of the
Additional Sales Tax Commissioner dated 9.12.1997 and 31.3.1998. It is
vaguely stated in the original application filed by the respondent that the
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respondent did not appear at the examination for the year 1997 that was
conducted in June, 1998 as he was not aware that the examination was
being conducted. We are not inclined to accept the lame excuse of the
respondent that the respondent was not aware that the examination was
being conducted in June, 1998, as the Additional Sales Tax Commissioner
had issued detailed instructions dated 9.12.1997 and 31.3.1998 that were
given wide publicity. As per paragraph 8 of the instructions, the Tribunal
ought to have held that first chance was not availed by the respondent in
June, 1998 and hence that was a lost chance. Non-appearance of the
respondent in June, 1998 examination should be considered as the first
chance that was availed by the respondent though it was lost by him. The
respondent failed to clear the examination in the second attempt (in the
year 1999) and in the third attempt (in the year 2000) though he had
appeared for those examinations. The Tribunal was not justified in
holding that the respondent had availed only three chances and not four.
The case of the respondent in that regard was falsified by the material on
record which showed that the respondent had sought for a fourth
additional chance when he could not clear the examination in the year
2000, which was the third attempt and permission was granted by the
concerned authority to the respondent to avail an additional chance and
appear at the examination that was conducted in the year 2001. The
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respondent availed the additional chance but still could not get through
the examination. There was no alternative for the petitioners but to
remove the respondent from the services as the respondent was clearly
made aware at the time of his appointment, as could be seen from the
appointment order that the respondent was liable to be discharged from
services, if he failed to clear the departmental examination within a
period of three years and within three attempts. In the instant case, it
would be necessary to hold that the respondent had taken up four
attempts, the first attempt which he lost because of his fault, the second
and the third attempt which he availed and the fourth attempt, which was
an additional attempt granted to the respondent at the discretion of the
concerned authority. The Tribunal has committed an error in holding that
the respondent could not appear at the examination that was conducted
for the year 1997 in June, 1998 because he was sent for training in
December, 1998. The aforesaid observation of the Tribunal in paragraph
26 of the impugned order is palpably erroneous. It would be ridiculous to
hold that an employee who had to join the training in December, 1998
could not have appeared at the examination held in June, 1998. If the
examination was held more than six months before the respondent was
sent for training, it is difficult to gauge as to how the respondent could
not have appeared at the examination due to the training. In any case,
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such is not the stand of the respondent in the original application as in
the original application the respondent has stated that he did not appear
at the examination for the year 1997 as he had no notice about the said
examination. Even assuming that the respondent was sent for training at
the same time, which is not the case here, the petitioners cannot be
blamed as the respondent had not applied for the examination at all
though as per the detailed instructions of the Additional Sales Tax
Commissioner issued on 9.12.1997 and 31.3.1998, the employees were
duly informed about the consequences of their failure to appear at the
examination. Despite the issuance of the two Circulars by the concerned
authority, the respondent failed to appear at the examination and hence it
was held that the respondent had lost the first chance. Since thereafter
the respondent had taken up three chances and failed in the examination,
it cannot be said that the petitioners had committed any error whatsoever
in removing the respondent from the services. The Tribunal did not
consider the material tendered by the parties on record in the right
perspective, while setting aside the order of the petitioners.
Hence, for the reasons aforesaid, the writ petition is
allowed. The impugned order is quashed and set aside. The original
application filed by the respondent stands dismissed.
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Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
