Full Judgment Text
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PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
JAGANNATH ACHYUT KARANDIKAR
DATE OF JUDGMENT08/03/1989
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
SINGH, K.N. (J)
CITATION:
1989 AIR 1133 1989 SCR (1) 947
1989 SCC Supl. (1) 393 JT 1989 (1) 520
1989 SCALE (1)566
ACT:
Maharashtra State Subordinate Secretariat Service Rules
1951, 1955 and 1962--Rules I to 5--Departmental Examination,
passing of--Condition precedent for promotion to cadre of
Superintendents "late passing" of examination--Whether
affects position in Seniority List-Whether Government has to
make specific order relaxing condition for passing examina-
tion--Circular dated Jan. 15, 1962--Effect
of--Vis-a-Vis--Statutory Rules.
HEADNOTE:
Respondents 1 to 8 are Assistant Secretaries/Section
Officers/ Superintendents who are working in different
departments of the State of Maharashtra. Under the Rules
governing their Service conditions the Govt. had prescribed
Departmental Examination for promotion to the cadre of
Superintendents; the passing of the examination was a condi-
tion precedent for the officials for being promoted as
superintendents. The Examination in question was required to
be conducted every year and the officials were required to
pass the same within the stipulated period; and the offi-
cials who were not able to pass the said examination within
the prescribed period were to lose their Seniority, but they
were permitted to take the examination in any number of
chances after the expiry of the stipulated period and they
were to be promoted only when they qualify themselves. The
Govt. as required under the Rules, could not hold the exami-
nation every year particularly in the years 1968, 1969 &
1970. The Govt. neither extended the period within which the
officials were required to pass the examination nor promoted
the seniors in the cadre of Superintendents subject to their
passing the examination and instead thereof the juniors in
the cadre who had qualified in the examination were promoted
to the cadre of Superintendents. The seniors in the cadre
were promoted only when they qualified the examination i.e.
later in point of time.
The Govt. issued a revised Seniority List relating to
the cadre of Superintendents. In the said List the Respond-
ents herein were shown juniors to those persons who had not
only qualified the Dept. Examination later in point of time
but also promoted after them. Being aggrieved, the Respond-
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ents herein challenged the validity of the revi-
948
sion of the Seniority List as also the validity of the Rules
being violative of Art. 14 & 16 of the Constitution by
filing a Writ Petition in the Bombay High Court.
The High Court allowed the Writ Petn. and issued the
following two directives to the State Govt.
(1) To recast the Revised/Final Seniority List dated
20.12.1982 vis-a-vis the persons shown in the Category of
"Late Passing" after considering the objections of the Writ
Petitioners and Ors. and assign them seniority strictly in
accordance with Rule 2 and the other Government Orders
referred to in paragraph 96 of the Judgment, and
(2) The Seniority in the Superintendent’s Cadre so fixed
should also be considered as seniority for further promo-
tions.
Being dissatisfied with the said order of the High
Court, the State of Maharashtra filed appeals in this Court
after obtaining Special Leave.
Allowing the appeals this Court,
HELD: Under the 1951 Rules, the candidate could appear
for the examination after two years of his entering into the
cadre. He had three chances and he must pass within six
years of his joining Service. Under the 1962 Rules a candi-
date was allowed to take the examination only after complet-
ing five years service in the cadre. He had three chances
for taking the examination and that must be availed of
within four years. That means he must pass the examination
within 9 years’ service. Under both the Rules, the Govt was
required to hold the examination every year, but no examina-
tion was held in 1968, 1969 and 1970. [953F-G]
Those recruited in 1961 are deprived of two chances in 1968
JUDGMENT:
three chances in 1968, 1969 & 1970 and those of the year
1963 have lost two chances in 1969 & 1970. The last batch to
lose one chance in 1970 is of the year 1964. [953H; 954A]
Under the 1955 Rules, the Government preserved power to
dispense with or relax the requirements of any rule regulat-
ing "the conditions of service of Government servants; or of
any class thereof". [954B]
949
There is no restriction as to the exercise of the power
or discretion.[954C]
The Circular dated January 15, 1962 is an executive
instruction whereas the 1955 Rules are statutory since
framed under the proviso to Art. 309 of the Constitution.
The Government could not have restricted the operation of
the Statutory Rules by issuing the executive instruction.
The executive instruction may supplement but cannot supplant
the statutory rules. [954D-E]
Rule 2 of the 1962 Rules no doubt states that a candi-
date who does not pass the examination at the end of 9 years
service will lose his seniority. But this rule cannot be
read in isolation. [955D]
If examination is not held every year. The rule cannot
operate to the prejudice of a person who has not exhausted
all his chances. The person who has not exhausted the avail-
able chances to appear in the examination cannot he denied
of his seniority. It would be unjust, unreasonable and
arbitrary to penalise a person for the default of the Gov-
ernment to hold the examination every year. That does not
also appear to be the intent or purpose of the 1962 Rules.
[955E-F]
The Govt. instead of promoting such persons in their
turn made them to wait till they passed the examination.
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They are the persons failing into the category of "Late
Passing". To remove the hardship caused to them the Govt.
wisely restored their legitimate seniority in the promotion-
al cadre. There is nothing improper or illegal in this
action and indeed, it is in harmony with the object of 1962
Rules. [955G-H]
The Court need not have to reflect upon the Rules of
interpretation since they are well settled. They are now
like the habits of driving which have become ingrained. They
come for assistance by instinct. The different rules have to
be used meticulously to give effect to the scheme as the
clutch, brake and accelerator are used for smooth driving.
These rules are to be harmoniously construed. One should not
concentrate too much on one rule and pay too little atten-
tion on the other, for that would lead astray and result in
hardship, such construction should be avoided. [955C-D]
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 30373038
of 1984
From the Judgment and Order dated 12.12. 1983 of the Bombay
950
High Court in W.P. No. 1189 of 1980.
S.K. Dholakia, A.S. Bhasme and A.M. Khanwilkar for the
Appellant.
N.B. Shetya, S.B. Bhasme, S. Ramachandran, R. Ramachan-
dran, Maknand Adkar and Mrs. M. Karanjawala for the Respond-
ents.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. These two appeals by special
leave are by the State of Maharashtra. They are directed
against the judgment of the High Court of Bombay dated 12th
January, 1983 by which the High Court issued the following
two directives to the State Government:
"(1) To recast the Revised/Final Sen-
iority List dated 20.12. 1982 vis-a-vis the
persons shown in the category of ’Late Pass-
ing’ and assign them seniority strictly in
accordance with Rule 2 and the other Govern-
ment orders referred to in Paragraph 96 of the
judgment; and
(2) The seniority in the Superintend-
ent’s cadre so fixed should also be considered
as seniority for further promotions."
The background to these directives is, in
outline, this:
Respondents 1 to 8 are Assistant Secretaries/Section
Officers/ Superintendents in different departments of the
Government of Maharashtra. The State Government prescribed
departmental examinations as a condition precedent for
promotion to the cadre of Superintendents. The examination
was required to be conducted every year, and the officials
have to pass within the stipulated period. Those who could
not pass within the time frame would lose their seniority
but they will be promoted as and when they qualify them-
selves. The Government for some reason or the other could
not hold the examinations every year. Particularly in 1968,
1969 & 1970, the Government did not hold the examinations.
The Government, however, did not pass any order extending
the period prescribed for passing the examinations, nor
promoted the seniors subject to their passing the examina-
tion. The juniors who qualified themselves were promoted
overlooking the case of seniors and seniors were only pro-
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moted upon their passing the examination. In the cadre of
Superinten-
951
dents, however, the Government revised the seniority list so
as to reflect the rankings in the lower cadre irrespective
of the date of promotion. The validity of the revision of
seniority was challenged before the High Court. The High
Court conceded the power to the Government to relax the
rules relating to passing of the examination in case of
hardship, but refused to recognise the power of the Govern-
ment to give seniority to those who could not pass the
examination within the time schedule. The High Court was of
opinion that without specific orders of the Government
relaxing the conditions of the rules, the persons could not
be given seniority for ’Late Passing’. There are also other
reasons given by the High Court which we will presently
consider. But before that, it is important that we should
have a chronology of the relevant rules and resolutions of
the Government. It is as follows:
On 22nd August, 1951, the Government made a resolution
prescribing departmental examination for the members of the
Upper Division of the Subordinate Secretariat Service, and
further directing that only those persons who pass the
examination should be promoted as Superintendents. The
accompanying rules (The 1951 Rules) thereunder provided the
procedure for passing the examination as well as the conse-
quences of failure to pass the examination. On 24th August,
1955, the Government framed rules (The 1955 Rules) under the
proviso to Article 309 of the Constitution specifically
providing power to dispense with, or relax, the requirements
of the operation of any rule regulating the conditions of
service of Government servants; or of any class thereof if
it causes undue hardships in any particular case. On 15th
January, 1962, the Government issued a circular purporting
to restrict the scope of the rule permitting relaxation only
in respect of travelling allowance rules, leave rules, etc.
The circular also clarified that the 1955 Rules could not be
invoked for conferring benefit on an individual by relaxing
the conditions relating to recruitment, promotion, grant
of extension of service or re-employment. On 28th December,
1961, the Government made the revised rules in supersession
of the 1951 Rules. They were brought into force with effect
from 1st January, 1962 (the 1962 Rules). They were made
appl-
icable to all persons recruited to the Upper Division of
the Subordinate Secretariate Service on or after that date
and also to those who have been in service prior to 1st Jan-
uary, 1962 unless they had already passed the examination
under the 1951 Rules. The rules 1 to 5 are as follows:
"1. Every member of the Upper Divi-
sion of the Subordinate Secretariat Service
will be required to pass within
952
nine years from the date of his entry in the
Upper Division, a departmental examination for
promotion to the posts of Superintendents
according to the prescribed syllabus. For
being eligible to appear for the examination a
candidate must have passed the Post-Recruit-
ment Training Examination for Junior Assistant
and must have also completed not less than
five years’ continuous service in the Upper
Division.
(2) Subject to Rule 1, a candidate
will be allowed to appear for the examination
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in three chances which must be availed of
within a period of four years. This period of
4 years will not be extended for any reasons
irrespective of the fact whether a candidate
has availed himself of 3 chances or not during
the period. Similarly no candidate will be
allowed to take during this period more than 3
chances. A candidate who does not pass the
examination at the end of 9 years service in
the Upper Division, will lose his seniority to
all those candidates who pass the examination
before he passes it.
(3) No persons shall be appointed
to the post of Superintendent unless he has
passed the Superintendents’ Examination.
Provided that this rule shall not apply to
short term vacancies not exceeding two months.
(4) Subject to the condition of
loss of seniority laid down in rule 2, a
candidate will be allowed to take the examina-
tion in any number of chances after the com-
pletion of 9 years’ service.
(5) The examination will be held once a year.
XXX XXX XXX
XXX "
On December 28, 1970, proviso to above rule 3 has been
added. The said proviso reads:
"Provided that if the Superintendent’s
Examination is not held in any year, a person
who has completed 9 years service and who has
not exhausted all the permissible chances,
may be promoted to the post of Superintendent,
provided further that he is otherwise suitable
for promo tion, subject to the
clear condition that he will have to pass
953
the examination at the earliest opportunity
whenever it is held."
"It is further clarified that promo-
tions to the posts of Superintendents should,
in view of the above amendments, be given only
after ensuring that there are no persons who
have passed the Superintendents Examination
earlier for being promoted to the posts of
Superintendents."
We may incidentally refer to the subsequent rules made
by the Government, although it is not applicable to the
present case. On June 6, 1977, the Government framed the
rules called "The Maharashtra Government Subordinate Service
Rules, 1977". Rule 7 of the rules provides that if, for any
reason, the examination is not held in any particular year,
that year shall be excluded in computing the period speci-
fied under the rules. This is, indeed, the true reflection
of the underlying concept of purpose of the earlier rules.
Against this backdrop, we may now consider whether the
Government was justified in re-arranging the seniority by
giving benefit to persons in the category of "Late Passing".
We are not concerned herein about the seniority of
persons in whose favour the Government has made individual
orders extending the period for passing the examination. We
will consider such cases a little later. For the present, we
may examine the rights of those "Late Passing" where the
Government has not made any specific order relaxing the
conditions for passing the examination. Under the 195 1
Rules, the candidate could appear for the examination after
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two years of his entering into the cadre. He has three
chances and he must pass within 6 years of his joining
service. Under the 1962 Rules the scheme provided was
slightly different. Under that scheme, candidate was allowed
to take the examination only after completing five years
service in the cadre. He had three chances for taking the
examination and that must be availed of within four years.
That means he must pass the examination within the 9 years’
service. Under both the Rules, the Government was required
to hold the examination every year, but no examination was
held in 1968, 1969 & 1970. This is not in dispute. For a
proper appreciation of the question raised, we must first
try to understand the hardship resulted by not holding the
examination in 1968, 1969 & 1970. It is as follows: The
candidates recruited in 1960 have lost one chance in 1968.
Those recruited in 1961 are deprived of two chances in 1968
and 1969. The candidates recruited in 1962 are
954
denied of three chances in 1968, 1969 & 1970 and those of
the year 1963 have lost two chances in 1969-and 1970. The
last batch to lose one chance in 1970 is of the year 1964.
The aforesaid Rules expressly provided power to the
Government to grant more chances for passing the examination
in any individual case or in class of cases. Under the 1955
Rules, the Government preserved power to dispense with, or
relax the requirements of any rule regulating "the condi-
tions of service of government servants; or of any class
thereof". In the exercise of this power, the Government
could dispense or relax the operation of any rule, if it
causes undue hardships in any particular case. It is need-
less to state that this power includes the power to relax
the conditions prescribed for promotion since promotion is a
condition of service. There is no restriction as to the
exercise of the power or discretion. The High Court, howev-
er, has observed that the scope of this power has been
constrained by the circular dated 15th January, 1962. The
circular states that the 1955 Rules permitting relaxation
cannot be utilised to relax the rules which regulate condi-
tions of service. It further states that the scope of the
Rules should be limited only to matters relating to travel-
ling allowance, leave, etc. But this appears to be an exer-
cise in vain. The circular is an executive instruction
whereas the 1955 Rules are statutory since framed under the
proviso to Article 309 of the Constitution. The Government
could not have restricted the operation of the statutory
rules by issuing the executive instruction. The executive
instruction may supplement but not supplant the statutory
rules. The High Court was in error in ignoring this well
accepted principle.
When we turn to the 1962 Rules with the amendments made
in 1970, it becomes more clear about the power of the Gov-
ernment to relax the conditions for passing the examination.
The proviso dated 28th December, 1970 to rule 3 specifically
provides that if the examination is not held in any year, a
person Could be promoted to the cadre of Superintendent if
he has completed nine years’ service. The only condition is
that he should not have exhausted all the permissible
chances. The promotion, made should be subject to the condi-
tion that he will have to pass the examination at the earli-
est opportunity whenever it is held. The benefit of this
proviso was evidently not extended to any of the persons
falling into the category of "Late Passing".
Counsel for the contesting respondents however, urged
that the proviso does not entitle the candidate to get his
legitimate seniority if
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955
he does not pass the examination at the end of nine years’
service. He depended upon rule 2 of the 1962 Rules which
states that the candidate who does not pass the examination
within 9 years’ service will lose his seniority to all those
candidates who pass the examination earlier. He also argued
that the proviso is only to rule 3 and not to rule 2 and the
Government has no power to restore the seniority of a person
who has lost it by the operation of rule 2.
This is a question of construction of the rules which
form part of the scheme prescribing a condition for promo-
tion. We do not have to reflect upon the rules of interpre-
tation since they are well settled. They are now like the
habits of driving which have become ingrained. They come to
our assistance by instinct. We are to use the different
rules meticulously to give effect to the scheme as we use
the clutch, brake and accelerator for smooth driving. These
rules are to be harmoniously construed. We should not con-
centrate too much on one rule and pay too little attention
on the other. That would lead us astray and result in hard-
ship. We must avoid such construction. Rule 2 of the 1962
Rules no doubt states that a candidate who does not pass the
examination at the end of nine years’ service will lose his
seniority. But this rule cannot be read in isolation as the
High Court did. It has to be read along with the other rules
since it is a part of the scheme provided for promotion.
Rule 5 requires the Government to hold the examination every
year. This rule is the basis of the entire scheme and the
effect of other rules depends upon holding the examination.
If examination is not held in any year, the rule 2 cannot
operate to the prejudice of a person who has not exhausted
all his chances. The person who has not exhausted the avail-
able chances to appear in the examination cannot be denied
of his seniority. It would be unjust, unreasonable and
arbitrary to penalise a person for the default of the Gov-
ernment to hold the examination every year. That does not
also appear to be the intent or purpose of the 1962 Rules.
If the examination is not held in any year, the person
who has not exhausted all the permissible chances has a
right to have his case considered for promotion even if he
has completed 9 years’ service. The Government instead of
promoting such persons in their turn made them to wait till
they passed the examination. They are the persons falling
into the category of "Late Passing". To remove the hardship
caused to them the Government wisely restored their legiti-
mate seniority in the promotional cadre. There is, in our
opinion, nothing improper or illegal in this action and
indeed, it is in harmony with the object of the 1962 Rules.
956
This takes us to the question whether the Government was
justified in individual cases to relax the period for pass-
ing the examination. It is said that the number of persons
failing into this category are not more than five. In the
rejoinder filed on behalf of the Government, it is stated
that the Government made some orders extending the period
for individuals to pass the examination on administrative
grounds or on some genuine hardships. It is also stated that
such orders were made upon recommendations by the respective
departments and those persons passed the examination within
the period extended. There is no reason to doubt the cor-
rectness of these statements made in the rejoinder. The
power to relax the conditions of the rules to avoid undue
hardship in any case or class of cases cannot now be gain-
said. It would be, therefore, futile for the respondents to
make any grievance.
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In the result and for the reasons stated, we allow these
appeals and in reversal of the judgment of the High Court,
we dismiss the writ petitions filed by the contesting re-
spondents. In the circumstances of the case, however, we
make no order as to costs.
Y.L. Appeals
allowed.
957