Shri Girish Ramaraoji Alone vs The Government Of Maharashtra ...
2017 Latest Caselaw 7522 Bom

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RMA      
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION

                                 WRIT PETITION NO. 5340 OF 2017


            Girish Ramaraoji Alone                                       .. Petitioner

                                 Versus
            State of Maharashtra & Ors.                                  .. Respondents

                                                  ...................
            Appearances
            Mrs. Leena Patil Advocate for the Petitioner
            Mr. N.C. Walimbe AGP for the State
                                                  ...................



                              CORAM       : SMT. V.K. TAHILRAMANI &
                                              DR. SHALINI PHANSALKAR-JOSHI, JJ.

DATE : SEPTEMBER 25, 2017.

ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

1. Heard learned counsel for the petitioner and learned

AGP for the State / Respondents.

2. Rule. By consent of the parties, rule is made returnable

forthwith and the matter is heard finally.

3. The petitioner was working in Dairy Development

Department of Government of Maharashtra. He was

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declared surplus in his department i.e Dairy Development

Department and was absorbed in Revenue and Forest

Department by order dated 29.5.2010. Respondent No. 1

was insisting that the petitioner has to pass departmental

examination as envisaged by Rule 1 of the Maharashtra

Probationary Naib-Tahsildars Departmental Examination

Rules 2000, hence, the petitioner has challenged the action

of the respondents asking him to pass the departmental

examination consequent upon the absorption as Naib-

Tahsildar as unconstitutional and illegal and hence, prayed

that it should be quashed and set aside.

4. According to the learned counsel for the petitioner, the

petitioner was declared surplus and was absorbed as Naib-

Tahsildar in terms of G.R. dated 29.5.2010. Learned counsel

for the petitioner submitted that the said rules are not

applicable to the petitioner as the petitioner had completed

age of 45 years and as per the G.R. dated 1.11.1977, the

petitioner is exempted from passing the aforesaid

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departmental examination.

5. Learned counsel for the petitioner placed reliance on

the decision of the Tribunal dated 3.6.2008 in O.A. No. 1 of

2008 and 127 of 2008 wherein it was held that the

Government servant who is absorbed in another post on

being declared surplus is not required to pass departmental

examination in absorbed post.

6. Learned AGP submitted that the petitioner was

absorbed as Naib-Tahsildar in Revenue and Forests

Department as he was declared surplus in Dairy

Development Department where he was working earlier. He

submitted that one mode for appointment to the post of

Naib-Tahsildar is by nomination where a Naib-Tahsildar

selected by the Maharashtra Public Service Commission

(MPSC) is required to pass departmental examination within

two years and three chances. Failure to pass the

examination will result in discharge from service. The other

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mode of appointment is by promotion from the post of Awal

Karkooon / Circle Officer. Such persons are required to pass

the Revenue Qualifying Examinations. This is to ensure that

a person appointed as Naib-Tahsildar is well conversant with

the relevant laws etc. which he has to administer as Naib-

Tahsildar. For Awal Karkoons / Circle Officers who are

promoted from the post of Junior Clerks / Talathi, exemption

is provided from passing qualifying examination under

relevant rules after crossing the age of 45 years. That is

done as they acquire a lot of knowledge of the relevant laws

and working of the Revenue Department due to long

experience. Learned AGP submitted that the petitioner

neither has any experience of working in Revenue

Department nor is he ready to acquire relevant knowledge

by passing the departmental examination. Learned AGP

further submitted that Condition No. 3 of the order of

absorption of the petitioner dated 29.5.2010 states that the

petitioner was required to pass Revenue Qualifying

Examination. Learned AGP submitted that the petitioner had

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accepted the order of absorption subject to the conditions

attached to the aforesaid orders. Now the petitioner cannot

be allowed to turn around and claim that he is not required

to pass the Revenue Qualifying Examination.

7. As stated earlier, learned counsel for the petitioner has

placed reliance on the order of the Tribunal dated 3.6.2008

in O.A. No. 1 of 2008 & 127 of 2008. Learned counsel for the

petitioner submitted that in that case, the applicants were

declared surplus and appointed as Deputy Superintendent,

State Excise, Group 'B'. We would like to quote paragraph 8

of the said order which reads thus:-

"8. Therefore, in our considered view insistence of passing departmental examination by the applicants is ill founded and the same cannot insisted by the respondents. Thus, those condition incorporated in the order of appointment has to be declared as inoperative and not applicable to the applicants herein. In fact, the Government or the concerned department should have taken a decision to issue order of exemption from passing the departmental examination by the applicants as both the applicants now have crossed the age of 45 years. In view of this aspect of the matter and considering the fact that when the applicants were initially appointed as District Prohibition Propaganda Officer they were not required to pass the departmental examination as it was not insisted and when they are declared as surplus and on the other policy they have been 'reappointed', the Government should not have incorporated such

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condition in the appointment order which in other words imposing additional condition which is onerous now for applicants to pass the said examination on account of age the applicants have been reached now."

(emphasis supplied)

On going through the decision in O.A. Nos. 1 of 2008

and 127 of 2008, we find that the applicants in the said O.A.

were working as District Prohibition Propaganda Officer in the

same department and they were not required to pass the

departmental examination as it was not insisted upon. In the

present case, the petitioner was working in different

department i.e Dairy Development Board and he had

absolutely no knowledge of working of the Revenue

Department. Condition No. 3 of the Absorption order states

that there is huge difference between the work in Dairy

Development Department and as a Naib-Tahsildar. In the

Revenue Department, a Naib-Tahsildar has to pass either

Revenue Qualifying Examination for Awal Karkoon (Circle

Officer), in case of promotion to the post or pass

departmental examination on nomination to that post.

Exemption is granted under Revenue and Qualifying

Examination Rules themselves to those who cross the age of

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45 years. The G.R. dated 1.11.1977 has no application in the

present case. The rationale for such exemption as stated in

G.R. dated 1.11.1977 from passing the Revenue Qualifying

Examination has to be understood in the proper context. A

person acquires adequate knowledge of the working of a

department due to long experience. The petitioner's case is

entirely different. He was earlier working in the Dairy

Development Department where the work is completely

different from the work he had to do as Naib-Tahsildar,

hence, in our opinion, this case is clearly distinguishable

from the case in O.A. No. 1 of 2008 and 127 of 2008.

8. As stated earlier, Condition No. 3 of the order absorbing

the petitioner as Naib-Tahsildar clearly states that he has to

pass the Revenue Qualifying Examination, given the

circumstance of this case we do not find that this condition is

unreasonable. The Tribunal after considering all these facts

has also observed that the condition is not unreasonable and

the petitioner would have to pass the Revenue Qualifying

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Examination if he is seeking promotion. Thus, we do not find

any merit in this petition. Rule is discharged.

[ DR. SHALINI PHANSALKAR-JOSHI, J ] [ SMT. V.K. TAHILRAMANI, J. ]

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