Bombay High Court
Ramesh Mahadeo Mathkar vs State Of Maharashtra Thr The ... on 27 September, 2022
Bench: Madhav J. Jamdar
4-aswp9612-2022
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9612 OF 2022
Ramesh Mahadeo Mathkar ...Petitioner
V/s.
State of Maharashtra through
the Secretary, Water Supply &
Sanitation Department & Ors. ...Respondents
Mr. Atul Damle, Senior Advocate i/by Mr. Ashok S.
Pandire for the petitioner.
Ms. R. A. Salunkhe, AGP for respondent no.1/State.
Mr. Ajit Ram Pitale for respondent no.2.
CORAM: DIPANKAR DATTA, CJ. &
MADHAV J. JAMDAR, J.
DATE: SEPTEMBER 27, 2022
P.C.:
1. The petitioner joined the Maharashtra Jeevan
Pradhikaran (respondent no. 2) as Assistant Engineer (Grade-
II) on 16th September 1986. He was promoted to the post of
Sub Divisional Engineer on 20th March 2003. As a condition of
service, he was required to appear and succeed in the
Departmental Professional Examination (hereafter "DPE", for
short) within three (3) years of such promotion to become
entitled for further increments. It is not in dispute that the
petitioner failed to succeed in the DPEs conducted in 2003 and
2004; however, the respondent no.2 on 14th December 2004
constituted a committee for reverification/revaluation of the
papers of the unsuccessful candidates who had written the
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DPE conducted in 2004. Upon such reverification/revaluation,
three (3) marks were added to the marks obtained by the
petitioner by way of grace on the subject of Accounts, with
the result that he was shown to have succeeded in the DPE.
2. Pausing here, we may take note that the petitioner was
required to appear in three (3) subjects pertaining to the DPE
conducted in 2004, i.e., General Engineering, Water Supply &
Sanitation, and Accounts. He had succeeded in the subjects of
General Engineering and Water Supply & Sanitation but fell
short of the qualifying marks in Accounts by three (3) marks.
The reverification/revaluation that was conducted resulted in
awarding of three (3) grace marks to the petitioner with the
consequence that he was declared to have passed the DPE
conducted in 2004 on 30th September 2005. After such
declaration of result, the petitioner was allowed to continue as
Sub Divisional Engineer and paid salary as well as other
allowances as per his entitlement.
3. On 30th August 2016, a show-cause notice came to be
issued to the petitioner by the Chief Administrative Officer of
the respondent no.2 calling upon the petitioner to explain why
the benefits of promotion should not be taken away. The
petitioner replied to the show-cause notice by a
representation dated 7th October 2016. It was contended
therein that reverification/revaluation of the results were
conducted by the respondent no.2 without the petitioner
having any role to play in that behalf. It was further
contended that had the petitioner not been declared
successful in the DPE conducted in 2004, he would have taken
the opportunity of writing the next DPE. The point of delay
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was also raised and it was contended that a decade had
passed since the petitioner was declared successful in the
DPE. It was, accordingly, prayed that no action ought to be
taken pursuant to the show-cause notice because of lapse of
time since the irregularity was committed.
4. For about five (5) years, there was complete silence
maintained by the respondent no.2.
5. On 9th December 2021, the Deputy Secretary,
Government of Maharashtra, Department of Water Supply &
Sanitation addressed a letter to the Member Secretary of the
respondent no.2. It was alleged therein that in course of
reverification/revaluation of the results of the DPE conducted
in 2004, grace marks had been arbitrarily awarded in excess
of the limit set by the Government. The limit, that is referred
to in the said letter, is that two (2) marks can be increased in
any one subject and the total increase of marks should not be
more than six (6), meaning thereby that in each subject there
could be an increase of not more than two (2) marks.
Pertinently, the petitioner was awarded three (3) marks by
way of grace which, though in excess of the limit set for each
subject, was well within the aggregate limit of grace marks.
6. Be that as it may, the Administrative & Establishment
Officer of the respondent no.2 with the approval of the
Member Secretary of the respondent no.2 issued a further
order dated 30th March 2022 calling upon the petitioner to
avail the opportunity of writing a further DPE which would be
conducted firstly in March, secondly in June and thirdly in
December 2022. It was threatened that if the petitioner failed
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to succeed in such DPE, appropriate action would be initiated
against him.
7. It is this order dated 30th March 2022 that has formed
the subject matter of challenge in this writ petition by the
petitioner.
8. Mr. Damle, learned senior advocate appearing for the
petitioner, submits that the opportunities sought to be
extended for writing the DPEs in March and June 2022 have
not fructified since they were not conducted and the first
examination is due to be conducted in October 2022.
However, it is Mr. Damle's further contention that the
petitioner is due to retire on superannuation on 30 th
November 2022. According to him, the insistence of the
Government as well as the respondent no. 2 that the
petitioner must write the DPE to be conducted in October
2022 failing which he would face adverse action, would
operate harshly against the petitioner. That apart, serious
prejudice would be caused to the petitioner since he would
not be in service beyond November 2022 and, therefore,
stand deprived of writing the DPE, if conducted in December
2022. Even otherwise, Mr. Damle contends that the petitioner
having served the respondent no.2 as a Sub Divisional
Engineer without any blemish since 2005, it would be
iniquitous if he was made to suffer the consequences of any
wrong action taken by the officers of the respondent no.2
without the authority of law as far back as in 2005.
9. We had heard this writ petition on 20th September
2022 and recorded our prima facie satisfaction of the
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impugned order dated 30th March 2022 being too harsh. We
had also called upon Ms. Salunkhe, learned AGP for the
respondent no.1 to obtain appropriate instructions. Ms.
Salunkhe, upon obtaining instructions, submits today that
several other writ petitions are pending before the
Aurangabad and Nagpur Benches of this Court at the instance
of appointees who were given grace marks much in excess of
the limit set by the Government. According to her, any
decision in favour of the petitioner would be cited as a
precedent before the other Benches and, therefore, no relief
as claimed ought to be granted in favour of the petitioner,
particularly in view of the fact that he obtained three (3)
marks by way of grace in the subject of Accounts although the
limit was two (2).
10. Mr. Pitale, learned advocate for the respondent no.2 has
invited our attention to the resolution of the respondent no.2
dated 16th July 2022 addressed to the Additional Secretary,
Water Supply & Sanitation Department, Government of
Maharashtra. The Government was sought to be apprised that
any adverse action against the beneficiaries of the
reverification/revaluation of results would bring about
undesirable results, particularly having regard to the distance
of time when grace marks in excess of the limit were awarded
as well as the meritorious service having been rendered by
such appointees.
11. We have heard learned advocates for the parties and
perused the materials on record.
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12. There are certain significant features that stand out in
the present case. The first is that the petitioner was entitled,
as per Government rules, to two (2) marks by way of grace;
instead, he was given three (3) marks by way of grace. The
difference is minimal. In any event, the total grace marks
awarded do not exceed six (6) which is the maximum that
could have been awarded to a failed candidate. The petitioner
having qualified in two (2) subjects, award of one (1)
additional mark should not have been frowned upon.
Secondly, the petitioner is due to retire on superannuation on
30th November 2022. The decision to grant three (3)
opportunities cannot be fully availed of by the petitioner. He
would, therefore, face discrimination. Thirdly, the distance of
time is a factor which would weigh in favour of the petitioner.
As rightly submitted by Mr. Damle, the petitioner could have
availed the opportunity of writing the DPE in 2005. It was
because of the reverification/revaluation of results that such
opportunity could not be availed of. In any event,
reverification/revaluation at the instance of the respondent
no.2 was not at the behest of the petitioner. The petitioner not
being instrumental in any manner in having his marks
increased by award of grace marks cannot be made to suffer
for no fault on his part. Indeed, if the petitioner had not been
declared successful, he could have written the next DPE
conducted in 2005.
13. It is based on these significant and distinctive features
that we are of the considered opinion that the matter must be
given a quietus.
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14. The impugned order dated 30th March 2022 stands set
aside. The petitioner shall be regarded as duly appointed on
the post of Sub Divisional Engineer and entitled to all benefits
that would have accrued to him but for the incidents giving
rise to this writ petition. The petitioner shall be allowed to
retire on 30th November 2022 unless, of course, there are
valid reasons for the respondent no.2 to disallow such
retirement. In case the petitioner is allowed to retire, he shall
be entitled to retiral benefits in accordance with law.
15. The writ petition is disposed of on the above terms. No
costs.
16. This judgment and order shall not be treated as
precedent for the other cases.
Digitally
signed by
(MADHAV J. JAMDAR, J.) (CHIEF JUSTICE)
ATUL
ATUL GANESH
GANESH KULKARNI
KULKARNI Date:
2022.09.27
20:47:25
+0530
