Pratibha W/O Pramod ... vs State Of Maharashtra And Another
2017 Latest Caselaw 8100 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                           NAGPUR BENCH, NAGPUR.

                                WRIT PETITION NO. 721 OF 2002

Smt. Pratibha w/o Pramod Dharmapurikar
(Originally Smt. Vaishali w/o Ram Pathak),
"Sthapatya Puja Apartments", 1st Floor,
29, Shastri Lay-out, Khamla Road,
Nagpur - 440 025.                                                       ... PETITIONER

                                                   VERSUS

1. State of Maharashtra,
     (Through The Secretary),
     Home Department, Mantralaya,
     Mumbay - 400 032.

2. The Regional Transport Officer,
     Civil Lines, Nagpur - 440 001.                                     ... RESPONDENTS

                                        ....
Shri A.R. Atrey, Advocate for the petitioner.
Shri S.M. Ukey, Additional Government Pleader for the respondents.
                                        ....

                                                                     CORAM :  PRASANNA B. VARALE AND
                                                                                          ARUN D. UPADHYE, JJ.

DATED : 12TH OCTOBER, 2017.

ORAL JUDGMENT : (Per Prasanna B. Varale, J.)

Heard Shri A.R. Atrey, the learned Counsel appearing on behalf of

the petitioner and Shri S.M. Ukey, the learned Additional Government

Pleader appearing on behalf of the respondents.

2. At the outset, the learned Additional Government Pleader invites

our attention to the orders dated 28th July, 2017 and 26.09.2017 and submits

that by order dated 26.09.2017, the respondents were permitted to file

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affidavit-in-reply within stipulated period of two weeks, failing which the

respondents were directed to deposit further costs of Rs.25,000/-. He further

submits that by way of pursis, the respondents deposited the amount of costs

along with Demand Draft. The learned Addl. GP then submits that the

affidavit-in-reply has also filed on 09.10.2017 i.e. within stipulated period and

if even assuming that there is some delay of a day or couple of days then it

was due to some technical difficulties and there was no intention of the

respondent/authorities to not to file reply within stipulated period.

3. Perusal of the office record shows that a pursis was filed along

with the demand draft on 07.10.2017 and 08th October, 2017 being public

holiday, the demand draft was deposited on 11.10.2017 as per the office

endorsement. Thus, an amount of Rs.25,000/- was submitted in this Court

by way of demand draft within the period stipulated and the affidavit-in-

reply is treated to be filed within stipulated period.

4. The petition is heard for final disposal. Coming to the merits of

the matter, it may be necessary to refer to certain facts in respect of the

controversy involved in the petition as the petitioner challenges the order

passed by the Regional Transport Officer, Nagpur. It is submitted by the

learned Counsel for the petitioner that the petitioner was possessing

Bachelor Degree in Arts stream issued by the Nagpur University in the year

1976. She had qualification of passing of typing examinations in English and

Hindi apart from her academic qualification. The petitioner registered

herself with the Employment Exchange in the year 1981 and was also duly

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allotted registration number dated 13.10.1981. The date of birth of the

petitioner is 17.12.1956 which is reflected from the document like School

Leaving Certificate having greater value for consideration of age criteria.

Certain posts were vacant in the departments of State of Maharashtra and in

the Regional Transport Office, Nagpur. The posts of Junior Clerk fell vacant.

The list of eligible candidates was sought for from the Regional Transport

Officer. The sponsoring agency of such eligible candidates namely the

Employment Exchange recommended the name of petitioner along with

other eligible candidates on 29.10.1984. At the time of recommendation of

name of the petitioner from the sponsoring agency the petitioner was of 27

years 10 months and 12 days as per her date of birth i.e. 17.12.1956.

5. Shri Atrey, the learned Counsel for the petitioner submits that

though the scrutiny of the candidates was to take place within short period,

for some unfortunate incident in the year 1984 and more particularly in the

month of October, 1984, the scrutiny was delayed. The petitioner received

call for interview on 11.12.1984. The petitioner along with the other eligible

candidates stood for interview and was selected. Resultantly, an

appointment order was issued. The copy of the appointment order dated 21 st

January, 1985 is placed on record at Annexure-III. Name of the petitioner

appears at serial No.2. The other certain facts are referred to in the petition

namely the petitioner was married and there was some matrimonial discord.

Perusal of the order makes it clear that the selected and appointed

candidates at serial Nos.2 and 6 were overage and the State Government

would be accordingly intimated and on receiving the necessary approval

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from the State Government in respect of age relaxation of these appointed

candidates, the appointment of these candidates would be treated as a final

appointment. By way of communication dated 05.07.1985, the petitioner

and other six appointees were intimated about their termination of services.

The petitioner was then again appointed on a temporary post and for a

temporary period in view of promotion of some employee by order dated

28.08.1985 and this was also conditional appointment making it known to

the petitioner that the appointment is subject to receiving the sanction from

the government as the petitioner is overage. On 21st January, 1987, the

Regional Transport Officer, Nagpur informed the petitioner and one other

appointee Ms. Asha Sonkamble that the State Government refused to relax

the age condition in case of these appointees and as such their services are

terminated. The petitioner had approached the Maharashtra Administrative

Tribunal by filing Transfer Application No. 972 of 1991 (Writ Petition No.

1967 of 1987) and the same was rejected vide order dated 10.01.2002. Being

aggrieved by the order passed by the learned Tribunal, the petitioner filed the

present writ petition.

6. It is the submission of Shri Atrey, the learned Counsel for the

petitioner that the petitioner who was possessing requisite qualification and

was eligible for appointment to the post of Junior Clerk and was duly

sponsored from the sponsoring agency to the appointing agency and

accordingly was within the prescribed age limit for the appointment, she was

subjected to conditional appointment order on an erroneous stand taken by

the respondents. The learned Counsel vehemently submits that while

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recommending the name of the petitioner from the sponsoring agency to the

appointing agency, there was no hurdle for the petitioner to be appointed as

the petitioner was within the prescribed age limit. Shri Atrey then submits

that even as per the scheduled interview subsequent to the scrutiny of

candidates which was expected to be completed in the month of October,

1984, at that relevant time also the petitioner was within the prescribed age

limit, but for some unfortunate incident, the interview scheduled itself was

postponed. The learned Counsel for the petitioner invites our attention to

the document placed on record at Annexure-IX. It is stated in the said

document that the list of the eligible candidates was called for and the same

was received by the Regional Transport Authorities in October, 1984 and due

to unfortunate incident in October, 1984 and then the General Elections, the

whole process of scrutiny and selection of the candidates was delayed and

the interviews were conducted during the period from 07.01.1985 to

10.01.1985. Shri Atrey, the learned Counsel thus submits that for no fault of

petitioner, the petitioner was required to run from pillar to post. He,

therefore, submits that the petition be allowed.

7. Perusal of the record shows that by way of interim order dated

14.02.2002, the parties were directed to maintain status quo. It further shows

that by way of interim orders, the petitioner continued to work with the

respondent/authorities till she attains the age of superannuation. Shri Atrey,

the learned Counsel for the petitioner submits that the petitioner after

attaining the age of superannuation, is now retired from the services. Perusal

of the order sheet shows that the petitioner invited attention of this Court to

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the decision in Writ Petition No. 1935 of 2002 in the case of Asha

Sonkamble .v. State of Maharashtra. This Court was of the opinion that the

case of the petitioner differs from Asha Sonkamble. It seems that the

petitioner Asha Sonkamble in Writ Petition No. 1935 of 2002 was entitled for

age relaxation being the candidates of reserved category. This Court

considering controversy involved in the petition, in a detailed order dated

28th July, 2017, referring to the Maharashtra Civil Services (Provision of Upper

Age Limit For Recruitment by Nomination) Rules, 1986 and Rule 6 as well

Rule 5, posed two questions for consideration namely, "(i) Whether the State

Government has power to relax the maximum age limit prescribed for

employee of open category ? If yes, to state the Rule or notification

conferring such power; and (ii) Whether the case of the petitioner can be

considered on the basis of the amendment to Rule 3 effected in the year 1992

enhancing the upper age limit from 28 years to 30 years." This Court also

took into consideration the factual aspect namely the petitioner was

continued in employment by virtue of interim order passed by the Court and

she has attained the age of superannuation on 31.12.2014 and rendered

continuous service from 21.01.1985 to 31.12.2014. The learned AGP was

directed to file affidavit making stand of government clear.

8. Shri Ukey, the learned Additional Government Pleader invites our

attention to the affidavit-in-reply dated 09.10.2017. A stand is taken in the

affidavit-in-reply that the request of the petitioner for relaxation of the upper

age limit cannot be considered as the government possesses no powers to

relax any conditions prescribed in the Recruitment Rules. A reference is also

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made to the amendment to Rule 3 of Maharashtra Civil Services (Provision of

Upper Age Limit For Recruitment by Nomination) Rules, 1986, made in the

year 1992 for enhancing upper age limit from 28 years to 30 years. The copies

of communication dated 02.01.1987 and the Government Resolution dated

28.10.1992 are placed on record and pressed in service by the learned

Additional Government Pleader. Shri Atrey, the learned Counsel for the

petitioner submits that the stand of the government is clearly unsustainable.

He submits that the State Government did not posses the power of age

relaxation itself cannot be accepted in view of the amendment of the Rules

enhancing the upper age limit from 28 years to 30 years. The learned

Counsel thus submits that the stand of the government also cannot be

accepted in view of the judgment of the Division Bench of this Court in the

case of Anil Motilal Nimbhore .v. State of Maharashtra and others

(reported in 2008(4) Mh.L.J., 824). It is the submission of the learned

Counsel for the petitioner that the Bombay Civil Services (Classification and

Recruitment) Rules, 1939 specifically deal with the powers of the State

Government for relaxation of age limit.

9. On considering the rival submissions of the learned Counsel

appearing on behalf of the respective parties and in view of the factual

position referred to above by us in detailed, we are of the opinion that the

learned Counsel for the petitioner has made out a case. The stand of the

government in response to the questions posed in the earlier order dated 28th

July, 2017 that the State Government is possessing the powers is clearly

unsustainable. Shri Atrey, the learned Counsel for the petitioner is fully

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justified in placing reliance on the judgment of the Division Bench of this

Court in the case of Anil Motilal Nimbhore .v. State of Maharashtra and

others (cited supra). It may be useful for our purpose to refer the

observations of the Division Bench in the case of Anil Motilal Nimbhore .v.

State of Maharashtra and others (cited supra). In the said it was the stand of

the State Government that the State Government is not possessing the

powers for age relaxation in view of the subsequent amendment and the Act

is repealed. The Division Bench of this Court, in clear and unambiguous

words, rejected the contentions of the State Government. It would be useful

for our purpose to refer to these observations reflected in para Nos.6 and 7 of

the judgment, as under :-

"6. Learned counsel for petitioner had taken us to preamble of both the set of rules. The 1939 Rules framed in exercise of the powers conferred by Government of India Act, 1935, and in supersession of Bombay Civil Services (Classification and Recruitment) Rules, 1929, were framed "to regulate the classification of and the methods of recruitment to the services and posts". As against this, 1986 Rules are framed by the Governor in exercise of the powers conferred by Article 309 for "regulating the upper age limit of recruitment by nomination in Class I, Class II, Class III and Class IV posts in the Maharashtra Civil Services. No doubt, as argued by Advocate Shri Deshpande, the preamble of 1986 Rules does not suggest supersession of 1939 Rules, however, we cannot avoid a feeling that the preambles clearly suggest that two sets of rules operate in two different regions. The learned Members of MAT have referred to and relied upon Rule 3 of 1986 Rules by which they felt that Rule 7 Note 3 B of 1939 Rules stood superseded. Said Rule 3 reads thus :

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"3. Notwithstanding anything contained in any rule, order or instrument for the time being in force relating to recruitment by nomination to any posts, cadre or service in Class-I, Class-II, Class-III and Class-IV, the upper age- limit for the purpose of recruitment by nomination to the said post, cadre or service in Class-I, Class-II, Class-III or Class-IV shall be 28 years and in respect of persons belonging to Backward Classes, it shall be 33 years :

Provided that, where a recruitment rule for any particular post, cadre or service in Class-I, Class-II, Class-III or Class- IV provides the upper age limit above 28 years, then the upper age-limit shall be as prescribed in that recruitment rule for that particular post, relaxable by 5 years in respect of persons belonging to Backward Classes."

On reading the text of the rule, it is evident that in fact upper age limit is enhanced to 28 and 33 years for open/reserved category candidates. Reading the text of the rule and proviso together, it can be deduced that the rule operates where the upper age limit prescribed earlier was below 28 years and the proviso protects those rules from being superseded by present rule, wherein the upper age limit already prescribed is above 28 years. In fact, we are unable to appreciate that this rule has any superseding effect over the rule relating to relaxation, if any, as contained in earlier rules. In fact, Rule 3 does not touch the aspect of relaxation at all. Hypothetically considered, if there were any set of rules earlier by which upper age limit prescribed was below 28 years, but by provision for relaxation, the same could be stretched beyond 28 years, probably, it could have been possible to say that such relaxation stands abridged by Rule 3. However, in view of proviso, even that would be a debatable proposition. While considering the preambles of two sets of rules, and even after considering Rule 3, relied upon by learned Members of MAT as superseding 1939 Rules, we feel that Rule 3 operates in a totally different region and does not overlap or supersede relaxations, if any, prescribed in the earlier set of rules.

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The submission of learned counsel that 1986 Rules do not supersede 1939 Rules in express terms is, therefore, required to be upheld. For implied supersession, learned Government Pleader has not demonstrated to us as to which provisions of the two sets of rules are so inconsistent with or repugnant to each other that the two sets are incapable of standing together.

7. In fact, learned Government Pleader adopted a totally different line of argument. According to him, by Article 395 of the Constitution of India, the Government of India Act, 1935, is repealed and, therefore, rules framed thereunder stand repealed as soon as new Rules (1986) are framed by invoking powers under Article 309 of the Constitution. We are afraid, that such a submission is not acceptable. Article 395 of the Constitution reads :

"395. Repeals - The Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed."

Thus the Government of India Act, 1935, and all enactments either amending or supplementing the same are repealed by the force of Article 395. However, Article 372(1) reads as under :

"372. Continuance in force of existing laws and their adaptation - (1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority."

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From the non obstante clause with which Article 372(1) begins and by specific reference to Article 395, it is not possible to accede to the submission of learned Government Pleader that because the Government of India Act, 1935, is repealed, the rules framed thereunder can be said to have become ineffective. The rules framed at the time when the then Government was competent and empowered to frame those have statutory force and all the laws in force in the territory of India immediately before the commencement of the Constitution are saved by Article 372(1) and are to continue to be in force until altered or repealed or amended by competent legislature or other competent authority, of course subject to other provisions of the Constitution. Learned Government Pleader has not placed reliance upon any other provisions of the Constitution indicating that subordinate legislations enacted either under the Government of India Act, 1935, or the Indian Independence Act, 1947, which are repealed by Article 395, have stood repealed. Considering the principles of repeal, we have found that 1986. Rules have not repealed 1939 Rules in express terms. In fact, we have found that the two sets of rules operate in different fields. We have, therefore, accepted the submission of Advocate Shri Deshpande that 1939 Rules are not repealed by 1986 Rules in express words."

10. Shri Atre, the learned Counsel for the petitioner is also justified in

submitting that while the name of petitioner was sponsored and

recommended by the sponsoring agency and even at the time of scheduled

scrutiny and conducting the interviews in October, 1984, the petitioner was

within the prescribed age limit but for some unfortunate incident, the whole

schedule was postponed and for that postponment the petitioner was not at

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all blameworthy and for no fault of the petitioner, the petitioner may not be

subjected to an injustice.

11. Considering all these aspects, the petition is partly allowed. The

orders passed by Maharashtra Administrative Tribunal in Transfer

Application No. 972 of 1991 dated 10.01.2002 is quashed and set aside. We

remit the matter to the State Government for taking a just decision in the

case of petitioner for age relaxation and the State Government to take the

decision as expeditiously as possible and not later than 30th April, 2018.

12. As we have referred on perusal of the record that the State

Government had deposited the amount of costs of Rs.25,000/- within

stipulated period and the cost was for non filing of the affidavit-in-reply and

the affidavit-in-reply is filed, costs deposited by respondent No.2 be

permitted to be withdrawn by respondent No.2.

                       JUDGE                                                                                 JUDGE
                                                                  
      
*rrg.