Full Judgment Text
2007:BHC-AS:11393-DB
((-1-))
hvn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3641 OF 2007
Ramesh Samhari More ... Petitioner
Versus
The Registrar, Dist. Court,
Solapur and Ors. ... Respondents
ALONG WITH
WRIT PETITION NO. 3642 OF 2007
Ravindra Dattatraya Waknis ... Petitioner
Versus
The Registrar, District Court,
Solapur and Ors. ... Respondents
ALONG WITH
WRIT PETITION NO. 3643 OF 2007
Rajendra Vishwanath Kharade ... Petitioner
Versus
The Registrar District Court,
Solapur and Ors. ... Respondents
ALONG WITH
WRIT PETITION NO. 3644 OF 2007
Keshav Govind Jahagirdar ... Petitioner
Versus
The Registrar, District Court,
Solapur & Ors. ... Respondents
ALONG WITH
WRIT PETITION NO. 3645 OF 2007
Haridas Narayan Potabatti ... Petitioner
Versus
The Registrar, District Court,
Solapur and Ors. ... Respondents
::: Downloaded on - 01/04/2024 15:45:51 :::
((-2-))
Mr. I.M. Khairdi for the Petitioners.
Mr. R.D. Rane, Govt. Pleader for the Respondents.
CORAM: F.I. CORAM: F.I. REBELLO CORAM: F.I. REBELLO & REBELLO
R.M. SAVANT, JJ. R.M. SAVANT, JJ. R.M. SAVANT, JJ.
DATED: JUNE 29, 2007 DATED: JUNE 29, 2007 DATED: JUNE 29, 2007
ORAL JUDGMENT (Per F.I. Rebello,J.): ORAL JUDGMENT (Per F.I. Rebello,J.):
ORAL JUDGMENT (Per F.I. Rebello,J.):
. Rule in all the petitions. As the Petitions
raise a common question of law they are being
decided by this common judgment. All the
Petitioners herein pursuant to the test conducted by
the Committee headed by the District Judge were
promoted. The Petitioners in Writ Petition Nos.
3641 of 2007, 3643 of 2007 were promoted to the post
of Assistant Superintendent. The Petitioners in
Writ Petition No. 3642 of 2007, 3644 of 2007 and
3645 of 2007 were promoted to the post of Senior
Clerks.
2. The selection procedure for promotion for these
posts is governed by Clause 580 of the Civil Manual.
The relevant clause for our purpose is clause
(ii)(b) which reads as under :
" The District Judge may, if for reasons to be
recorded in writing, considers it to be so
desirable, appoint a Committee to subject the
employees within the Zone of consideration to an
appropriate test, and may also consider the result
::: Downloaded on - 01/04/2024 15:45:51 :::
((-3-))
of such test."
. For the purpose of setting the procedure for
filling in the vacancies, the Advisory committee met
on 8.3.2005. The committee unanimously decided to
call thrice the number of eligible candidates
according to their seniority for the test to be
taken in terms of Clause 580 (ii)(a)(b) of the Civil
Manual, 1986. All employees who were eligible and
in the zone of consideration were to be called for
the interview which included both written test and
oral interview. The committee decided that in the
written test one should obtain minimum 17 marks out
of 50 marks. Marks were also allotted under other
heads. There was also a decision taken that while
calling an incumbent to appear for the test for the
promotional post, incumbent should be allowed only
three chances and if they are not selected to the
promotional post, they should be debarred
permanently for consideration in the said post. The
committee also decided that the oral test should be
held of only those candidates who pass written test.
. The committee once again met on 19.3.2005 to
consider marks obtained at the written examination.
Two candidates who had obtained 12 and 15 marks
respectively were not called for the oral interview.
The committee also on that date considering that
::: Downloaded on - 01/04/2024 15:45:51 :::
((-4-))
these two employees had already availed of three
attempts directed that they were barred from further
consideration for promotion. It was further decided
that any of the persons who were barred to apply for
further promotion including the aforesaid two
employees if they had completed 12 years of service
and had been granted higher pay scale under the
Assured Progress Scheme that should be withdrawn as
they are not eligible for further promotion.
Accordingly, an order came to be passed on 22.3.2005
withdrawing the higher pay scale granted under the
Assured Progress Scheme.
3. The two candidates Mr. V.R. Kulkarni and Mrs.
P.P. Paithankar made representations no 20.7.2005
and 11.08.2005 respectively against they being
barred from further consideration for promotion and
withdrawal of scale under Assured Progress Scheme
(A.P.S.). On receipt of the representations
comments were invited of the District Judge Solapur
and to set out in detail the reasons for non
selection of the two representationists as also
withdrawal of the payscale under A.P.S.
4. It appears that on 16.11.2005, the District &
Sessions Judge, Latur who had sought some
clarification on the Administrative side of this
court in the manner of conducting the examinations
::: Downloaded on - 01/04/2024 15:45:51 :::
((-5-))
was informed that this court had taken a decision to
hold oral test only of the candidates within the
zone of consideration of promotion to the post of
senior clerks, Assistant Superintendents and
Superintendents. The promotion of the Petitioners
in the instant case were done by Order dated
22.3.2005. The representations of the two
representationists were considered on the
Administrative side of this court and after
considering the same, the District Judge, Solapur
was informed that the promotions of the promottees
to the post of Superintendent are set aside and
selection process for promotion of senior clerk to
Assistant Superintendents be undertaken again. The
District Judge was also informed that both the
representationists were entitled to restoration of
the Assured Progress Scheme. Before the disposal of
the representations, it appears by communication
dated 30.12.2006, the principal District Judge,
Solapur was pleased to inform the registry of this
court that one Shri. A.R. Pawle, Sr. Clerk who
had made a representation regarding his non
promotion had expired on 18.4.2006 and Shri. V.R.
Kulkarni had retired by superannuation on
30.11.2006. Pursuant to the communication the
District Judge served an Order on the Petitioner
that they would stand reverted. Apprehending that
pursuant to the orders received on 23.4.2007 that
::: Downloaded on - 01/04/2024 15:45:51 :::
((-6-))
they would be reverted the petitioners filed the
present petitions. When the matter came up on
4.5.2005 while issuing notice this court granted
interim relief in terms of Prayer Cause (c) in the
petitions.
5. Reply has been filed on behalf of the Respondent
Nos. 1 to 4. Our attention is invited to the
amendment effected to Para 580 of the Civil Manual
on 22.2.2001 which includes appointing a committee
to subject the employees within the zone of
consideration to an appropriates test. It is
however set out that Para 580 of the Civil Manual
does not contemplate holding of written examination.
6. A perusal of the representationists made by Mr.
Kulkarni and Mrs. Paithankar would indicate that
the grievances are more or less similar. It was
their contention that they have passed booth the
lower standard departmental examination (L.S.D.E.)
and higher standard departmental examination
(H.S.D.E.). Both the candidates did not deny that
they were given opportunity to appear for the
written examination. Shri. Kulkarni pointed out
that the examination was difficult and further
pointed out that the pay scale given were as per the
Assured Progress Scheme and could not have been
withdrawn. It was further contended that after
::: Downloaded on - 01/04/2024 15:45:51 :::
((-7-))
three opportunities the candidate cannot be debarred
permanently from applying for the promotional post
as that would be arbitrary. It was therefore,
prayed that the order of the District Judge
withdrawing the concession granted and debarring
them from being considered for promotion for higher
post be set aside and the concession granted
(A.P.S.) be restored and that the Petitioners be
held fit for consideration for promotion to the
higher post. Similarly Mrs. Paithankar also prayed
that the order withdrawing higher pay scale should
be set aside and she should not be debarred from
appearing for further promotions. From both these
representations it will be clear that the
Petitioners had not sought any relief for setting
aside the promotions of those candidates who had
been promoted to the post of superintendent. Shri.
Paule since deceased seems to have made
representation against his non-selection. With this
background, we may now decide the controversy.
7. The first contention which has to be answered is
whether the decision taken on the administrative
side by the High Court based on queries from the
District & Sessions Judge, Latur on 25.4.2005 would
affect the promotions already done before
communication of 16.11.2005. As has been noted
earlier, the selections were done some time in the
::: Downloaded on - 01/04/2024 15:45:51 :::
((-8-))
month of March, 2005. The orders of appointment
were issued soon thereafter in March itself. The
decision on the administrative side is admittedly
some time in October/November, 2005. We have
earlier reproduced Clause 580(ii)(a) (b). Clause
580 left it to the discretion of the District Judge
to subject the employees within the zone of
consideration to an appropriate test. On a reading
of the rule, it is not possible to say that the
appropriate test excludes written test. However,
this court on the administrative side considering
that the candidate for consideration have already
passed the L.S.D.E. and H.S.D.E. examinations has
taken a decision that the test would not include a
written statement. That interpretation or
clarification at the highest can be from the date
the clarification was issued and cannot affect the
promotions already done as those employees had a
vested right unless on the face of the rule, the
rule excluded holding of a written examination. On
a perusal of the rule, as it stood, we are of the
considered view that holding of a written test
cannot be said to be not within the meaning of the
expression "appropriate test". The expression
therefore, could not mean only a viva voce test and
not a written test. The selection committee
presided over by the District Judge therefore, could
have taken a decision to hold a written test along
::: Downloaded on - 01/04/2024 15:45:51 :::
((-9-))
with viva voce. The procedure for selection
therefore, did not suffer from any illegality. The
communication therefore, by the respondents in
directing withdrawal of promotion of the Petitioners
in each of the Petitions, cannot be sustained.
8. Another aspect of the matter is that both the
representationists had appeared for the
examinations. It was not their case that the
written examination could not have been held. They
in fact appeared for the test and were not selected.
In our opinion, once having taken a chance of
appearing for the test and not challenging the same
before the test was held, would mean participating
in the selection process without demur or protest.
In these circumstances, at least at the instance of
the representationists, no order should have been
passed to revert the Petitioners who were promoted
to the post of Assistant Superintendent and Sr.
Clerks. A candidate who voluntarily participates in
a selection process, pursuant to a rule, which can
include a written examination, should not after such
candidate has not passed the examination, be
entitled to contend that the process was illegal.
In fact the two candidates had not made such a
representation. The decision on that count on the
administrative side cannot be supported. In our
opinion, therefore, on this ground also the petition
::: Downloaded on - 01/04/2024 15:45:51 :::
((-10-))
are liable to be allowed.
9. The third aspect of the matter is the decision
of selection committee to bar the candidates if they
had appeared for three times from appearing for
further examinations. We are unable to read such a
power under Clause 580 of the Civil Manual or any
other provision which has been brought to our
attention as to how a selection committee, which is
only constituted for the purpose of selecting
candidate, could go beyond the scope of the rules.
In service jurisprudence, once there are rules
framed and if there be any lacuna, the same can be
rectified by administrative instructions, to the
extent the administrative instructions are not
inconsistent with rules made under Article 309 of
the Constitution of India or any other provisions of
law. The selection committee having not being
conferred power to issue such administrative
instructions could not have exercised a power not
vested in them. The Committee presided over by the
learned District Judge, therefore, could not have
debarred the representationists from appearing for
further examinations. In our opinion, considering
Clause 580 the decision of the committee in
debarring those candidate after three attempts to
appear for the examination for promotion will be
clearly arbitrary and violative of Article 14 of the
::: Downloaded on - 01/04/2024 15:45:51 :::
((-11-))
Constitution of India. That decision therefore,
taken at the meeting of the committee which was held
on 8th March, 2005 though has not ben challenged in
these petitions, nonethe less considering the relief
as sought for and the same having been brought to
our attention, can be said to be contrary to Rule
580 of the Manual. It is not open to the committee
to act contrary to Para 580 of the Manual and to lay
down any condition barring candidates for being
considered for promotion.
10. The next contention namely withdrawal of the
benefit under Assured Progress Scheme may now be
considered. An Administrative relief has already
been granted to the two representationists. The
Petitioner have really not raised the issue. The
issue however, is raised from time to time and
employee of this court and the subordinate courts
are being either denied benefit or benefit granted
is being withdrawn. The question is whether merely
because of non-selection to the higher promotional
post can the Assured Progress Scheme already granted
to any employee can be withdrawn.
. In the case of Shrirang Atmaram Nikam Versus The
District Judge Thane and Others decided on 18th
March, 2005 in Writ Petition No. 6977 of 2004
wherein the Government G.R. in the matter was
::: Downloaded on - 01/04/2024 15:45:51 :::
((-12-))
considered. In Para 5 of the G.R. dated 20.7.2001
the first requirement is that the candidate should
possess all the requisite qualifications for
promotion. The other contention is that the
employees who have refused the promotion and
employees who are held non-eligible for regular
promotions, shall not get benefit under this scheme.
In case of employees who are given any benefit of
the higher pay scale under the scheme and who have
refused regular promotion, and who are held to be
eligible for regular promotion, shall be withdrawn.
However, the monetary benefit of the pay scales
given to them will not be recovered. On the reading
of the said G.R. this court has taken a view that
mere non selection cannot be a ground for denying
the employee the higher pay scale as there may be
more meritorious candidates than the candidate who
is not selected considering the number of vacancies.
We had therefore, applied the following test :
"The test therefore, is not whether the candidate is
promoted. The test is whether the candidate is
eligible."
. On the administrative side this high court has
also issued directions to that effect. The time
scale granted under A.P.S. therefore, could not
have been withdrawn.
::: Downloaded on - 01/04/2024 15:45:51 :::
((-13-))
11. For all the aforesaid reasons, in our opinion,
this petition will have to be allowed.
12. In the light of that rule made absolute in
terms of Prayer Clause (b) in all the petitions.
(R.M.SAVANT, J.) (R.M.SAVANT, J.) (F.I. REBELLO, J.) (R.M.SAVANT, J.) (F.I. REBELLO, J.) (F.I. REBELLO, J.)
::: Downloaded on - 01/04/2024 15:45:51 :::