Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4894 OF 2019
(Arising from SLP (C) No. 2784 of 2011)
Girish Kumar …Appellant
Versus
State of Maharashtra and others …Respondents
J U D G M E N T
M.R. SHAH, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 20.12.2010 passed by the High Court
of Judicature at Bombay, Bench at Aurangabad passed in L.P.A.
No. 209/2010 in Writ Petition No. 5437 of 2010, by which a
Division Bench of the High Court has dismissed the said letters
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patent appeal preferred by the appellant herein and has
confirmed the judgment and order passed by the learned Single
Judge, the original appellant before the High Court in Letters
Patent Appeal has preferred the present appeal.
3. The facts leading to the present appeal in nutshell are
as under:
That the appellant herein – Girish Kumar was
appointed as Senior Assistant on 26.6.2001. That thereafter he
was promoted to the post of Office Superintendent by order dated
12.10.2007, however, with effect from 7.10.2005. One Govind
Jerale, appointed as Junior Assistant on 8.9.1994, was promoted
to the post of Senior Assistant on 6.11.1999. Respondent No.3
herein was appointed as Junior Assistant on 29.8.1994. He was
suspended from service sometime in the year 1999. His
suspension was revoked and he was reinstated on 17.7.2001.
That thereafter he was exonerated in departmental enquiry on
15.6.2006. That thereafter he was promoted as Senior Assistant
on 1.7.2006. However, in view of the fact that he was exonerated
in departmental enquiry, considering Rule 5 of the Maharashtra
Civil Services (Regulation of Seniority) Rules, 1982 (hereinafter
referred to as the ‘Seniority Rules, 1982’), Respondent No.3 was
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granted 6.11.1999 as deemed date of promotion as Senior
Assistant, i.e., the date on which his junior Govind Jerale was
promoted as Senior Assistant. It appears that thereafter on
22.10.2007, respondent no.3 was promoted as Office
Superintendent. The Divisional Commissioner granted to
respondent no.3 07.10.2005 as deemed date of promotion as
Office Superintendent. As Respondent No.3 was placed in the
higher position in the seniority list above the appellant herein, he
was consequently promoted as Section Officer by respondent
no.2, vide his order dated 1.2.2008.
3.1 Being aggrieved by the aforesaid order of promotion
promoting respondent no.3 herein to the post of Section Officer,
the appellant initially preferred writ petition before the High
Court. However, the said writ petition came to be disposed of by
the High Court with liberty to the appellant to approach the
Additional Divisional Commissioner, Aurangabad for redressal of
his grievance. It appears that thereafter the appellant preferred
appeal bearing no. DB/Appeal/Cell/7/2009 before the Additional
Divisional Commissioner, Aurangabad on 05.11.2008. It was the
case on behalf of the appellant that the eligibility criteria as per
the Maharashtra Zilla Parishads District Services (Recruitment)
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Rules, 1967 (hereinafter referred to as the ‘Recruitment Rules,
1967’) for the post of Section Officer was ‘continuous service of
not less than three years’ in the grade of Office Superintendent
and respondent no.3 never completed his continuous service of
not less than three years on the post of Office Superintendent, he
was not eligible for promotion to the post of Section Officer. That
vide order dated 20.05.2010, the Additional Divisional
Commissioner, Aurangabad allowed the said appeal preferred by
the appellant herein and quash and set aside the order of
promotion of respondent no.3 to the post of Section Officer.
3.2 Being aggrieved by the order passed by the Additional
Divisional Commissioner, Aurangabad dated 20.05.2010,
respondent no.3 preferred Writ Petition No. 5437 of 2010 before
the High Court. That by judgment and order dated 29.06.2010, a
learned Single Judge of the High Court allowed the said writ
petition and set aside the order passed by the Additional
Divisional Commissioner, Aurangabad dated 20.05.2010 and
consequently confirmed the order of promotion of respondent
no.3 dated 1.2.2008.
3.3 Feeling aggrieved and dissatisfied with the judgment
and order passed by the learned Single Judge, the appellant
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preferred Letters Patent Appeal No. 209/2010 before the Division
Bench of the High Court. By the impugned judgment and order,
the Division Bench of the High Court has dismissed the said
appeal and has confirmed the judgment and order passed by the
learned Single Judge. Hence, the appellant has preferred the
present appeal.
4. Shri Arun R. Pedneker, learned Advocate has appeared
for the appellant and Shri Vinay Navare, learned Senior Advocate
has appeared for respondent no.3 herein.
4.1 Shri Arun R. Pedneker, learned Advocate appearing on
behalf of the appellant has vehemently submitted that in the
facts and circumstances of the case both, the learned Single
Judge as well as the Division Bench of the High Court have not
properly appreciated the distinction between the Seniority Rules,
1982 and the Recruitment Rules, 1967.
4.2 It is vehemently submitted by the learned Advocate
appearing on behalf of the appellant that both, the learned Single
Judge as well as the Division Bench of the High Court have
materially erred in solely relying upon Rule 5 of the Seniority
Rules, 1982 and have materially erred in not considering the
requirement under the Recruitment Rules, 1967.
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4.3 It is further submitted by the learned Advocate
appearing on behalf of the appellant that the High Court ought to
have appreciated that the Seniority Rules, 1982 shall be
applicable with respect to seniority and not with respect to
recruitment. It is submitted that when the Recruitment Rules,
1967 provide that for promotion to the post of Section Officer, a
person/employee ought to have completed three years of
continuous service in District Service (Class III) (Ministerial),
Grade II, in that case, the same is required to be adhered to or
complied with. It is submitted that in the present case,
respondent no.3 as such has not completed three years of
continuous service in the District Service (Class III) (Ministerial)
Grade II and thereafter was not eligible for promotion to the post
of Section Officer.
4.4 It is vehemently submitted by the learned Advocate
appearing on behalf of the appellant that completion of three
years of continuous service/complete service is the sine qua non
for being eligible for the promotional post of Section Officer as per
Appendix IX of the Recruitment Rules, 1967. It is further
submitted that the High Court has failed to consider that the
Recruitment Rules, 1967 are framed in terms of the powers given
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under the Maharashtra Zilla Parishads and Panchayat Samities
Act, 1961 and reflects the eligibility criteria which is to be fulfilled
by a candidate before he be promoted to a particular post. It is
submitted that therefore anyone who does not fulfil the said
criteria shall not be entitled to be promoted to the post of Section
Officer. It is submitted that the language which is used to the
Rules (Recruitment Rules, 1967) is plain and simple and gives
rise to only one interpretation alone that the candidate must have
completed three years continuous service in the feeder cadre, so
that he may be wellacquainted and wellversed with the work
before he could be promoted to the post of Section Officer. It is
submitted therefore when the language which is used under the
Rules is plain and simple and unambiguous, the High Court
ought not to have considered and/or added the word “actual”
service of three years rendered in the feeder cadre.
4.5 Relying upon the definition of “continuous” defined in
the Black Law Dictionary, it is submitted that as per the
definition “continuous” means “uninterrupted, unbroken etc.”
4.5 It is further submitted by the learned Advocate
appearing on behalf of the appellant that in the present case as
such the High Court has considered the relevant provisions of the
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Service Rules, 1982, more particularly Rule 5 of the Service
Rules, which pertains to deemed date of promotion and inter se
seniority, however, does not consider at all the relevant
provisions of the Recruitment Rules, 1967 and/or the
requirements to be complied with/fulfilled under the Recruitment
Rules, 1967.
4.6 Making the above submissions, it is prayed to allow
the present appeal and quash and set aside the impugned
judgments and orders passed by the learned Single Judge as well
as the Division Bench of the High Court and to restore the order
passed by the Additional Divisional Commissioner, Aurangabad
dated 20.05.2010.
5. The present appeal is vehemently opposed by Shri
Vinay Navare, learned Senior Advocate appearing on behalf of
respondent no.3.
5.1 It is vehemently submitted by the learned Senior
Advocate appearing on behalf of respondent no.3 that as such
respondent no.3 was granted the deemed date of promotion to
the post of Office Superintendent with effect from 07.10.2005. It
is submitted therefore once respondent no.3 was granted the
deemed date of promotion as per rule 5 of the Seniority Rules,
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1982 and consequently respondent no.3 was placed in the
seniority list above the appellant, in that case, unless and until
the seniority of respondent no.3 above the appellant is
challenged, thereafter the appellant cannot make any grievance.
5.2 It is further submitted by the learned Senior Advocate
appearing on behalf of respondent no.3 that even otherwise the
appellant entered into service on 26.6.2001 as Senior Assistant.
However, in the cadre of Senior Assistant, respondent no.3 was
granted the deemed date of promotion with effect from 6.11.1999.
It is submitted that appellant choose not to challenge the deemed
date of promotion 6.11.1999 granted to respondent no.3 for the
post of Senior Assistant. It is submitted that therefore its
consequence must follow.
5.3 Now so far as the submission on behalf of the
appellant that rules of eligibility for appointment to the
promotional post of Section Officer under Appendix IX requires
three years continuous service and Seniority Rules, 1982 cannot
be read for conferring eligibility prescribed under Appendix IX is
concerned, it is vehemently submitted by Shri Vinay Navare,
learned Senior Advocate that first of all the term “continuous
service” is not defined under the Recruitment Rules, 1967. It is
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submitted that Rule 8 of the Maharashtra Zilla Parishads District
Services Rules, 1968 makes Maharashtra Civil Services (MCS)
Rules applicable to Zilla Parishad employees. It is submitted that
the term “continuous service” is essentially a technical term in
service jurisprudence. It is submitted that there is nothing
wrong or illegal if MCS Rules define and explain what
“continuous service” is.
5.4 It is submitted by the learned Senior Advocate
appearing on behalf of respondent no.3 that in the Seniority
Rules, 1982 “continuous service” and the “deemed date” are
defined. It is submitted that as per proviso to rule 3(c)
“continuous service” is where a person is continuously officiating
in a post, cadre or service from a deemed date of appointment
under the provisions of the seniority rules, such person shall be
deemed to have rendered continuous service with effect from
such deemed date. It is submitted therefore that when
respondent no.3 was granted the deemed date of promotion to
the post of Office Superintendent with effect from 7.10.2005, as
rightly held by the High Court, it can be said that respondent
no.3 has completed three years of continuous service and
therefore is entitled to be promoted to the post of Section Officer.
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5.5. It is further submitted that in the Recruitment Rules,
1967, more particularly Appendix IX before the word “continuous
service” word “actual service or actual experience” is not used. It
is submitted that in Appendix IV at serial no.3, the word used is
“experience” as requisite qualification. It is submitted therefore
that whenever the authority intended they used the word
“experience”. It is submitted that therefore as in Appendix IX
before the word “continuous service” neither the word “actual
service” is mentioned nor “actual experience” is stated and
therefore “continuous service” in Appendix IX need not be “actual
experience” under the Recruitment Rules, 1967.
5.6 It is further submitted by the learned Senior Advocate
appearing on behalf of respondent no.3 that if the
submission/contention on behalf of the appellant is accepted, it
will give an absurd result. It is submitted that it will be absurd
to say that a person gets benefit of deemed date and continuous
service under the Seniority Rules, 1982 but he cannot derive
such continuous service for satisfaction of eligibility condition. It
is submitted that such interpretation will make the Seniority
Rules, 1982 absurd and unworkable. It is submitted therefore
that the provision has to be read to make it harmonious.
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5.7 It is further submitted by the learned Senior Advocate
appearing on behalf of respondent no.3 that if mere grant of a
deemed date is not held good enough to consider respondent no.3
eligible for the promotional post, then the very object of granting
the same would be otiose.
5.8 It is further submitted by the learned Senior Advocate
appearing on behalf of respondent no.3 that in any case the view
taken by the learned Single Judge and the Division Bench of the
High Court is a possible view and it relates to interpretation of
the provisions of State Law, the interference of this Court under
Article 136 of the Constitution of India is not called for.
5.9 Making the above submissions, it is prayed to dismiss
the present appeal.
6. We have heard the learned Advocates for the respective
parties at length.
7. The short question which is posed for consideration
before this Court is, whether an employee who has been assigned
the deemed date of promotion as per Rule 5 of the Seniority
Rules, 1982 and as such has not actually worked at all on the
promotional post, can it be said that he has completed service for
a continuous period of not less than three years in the feeder
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cadre, which is the requirement under the relevant Recruitment
Rules?
8. As per Appendix IX to the Recruitment Rules, 1967,
which are framed in exercise of the powers conferred under
Section 274 of the Maharashtra Zilla Parishads and Panchayat
Samities Act, 1961 for promotion to the post of Section Officer,
no person shall be eligible for promotion unless he has completed
service for a continuous period of not less than three years in
District Service (Class III) (Ministerial) Grade II. Respondent no.3
was promoted as Office Superintendent on 22.10.2007. However,
he was granted deemed date of promotion under Rule 5 of the
Seniority Rules, 1982 for promotion as Office Superintendent.
He was promoted to the post of Section Officer on 1.2.2008. It
was the case on behalf of the appellant that as respondent no.3
was actually promoted as Office Superintendent on 22.10.2007
and therefore has not completed service for a continuous period
of not less than three years in the District Service (Class III)
(Ministerial) Grade II and therefore he was not eligible for
promotion considering the relevant provisions of the Recruitment
Rules, more particularly Appendix IX. However, it is the case on
behalf of respondent no.3 that once he was granted the deemed
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date of promotion under Rule 5 of the Seniority Rules, 1982, his
date of promotion for all purposes shall be continued/counted
from 7.10.2005, i.e., from the deemed date of promotion. The
learned Single Judge and the Division Bench of the High Court
have considered and applied the Seniority Rules, 1982 under
which respondent no.3 was granted the deemed date of
promotion. However, it is required to be noted that the Seniority
Rules, 1982 and the Recruitment Rules, 1967 both are different
rules and enacted under the different provisions and they operate
in different fields. The Recruitment Rules, 1967 are
enacted/framed in exercise of powers conferred by clause xxxix of
subsection 2 of Section 274 of the Maharashtra Zilla Parishads
and Panchayat Samities Act, 1961. The said Rules shall apply to
the recruitment to all posts in District Technical Service (Class
III), District Service (Class III) and District Service (Class IV). On
the other hand, the Seniority Rules, 1982 are framed/enacted in
exercise of powers conferred by proviso to Article 309 of the
Constitution of India. As per the Seniority Rules, 1982, the
seniority of government servants shall be regulated in accordance
with the provisions of the Seniority Rules, 1982. The said
Seniority Rules, 1982 are made applicable to the District Service
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also. Therefore, the Seniority Rules, 1982 shall govern the
seniority only and not with respect to the recruitment. The
recruitment shall be governed by the Recruitment Rules, 1967
only.
9. In the present case, the High Court has considered
Rule 5 of the Seniority Rules, 1982 and has not at all considered
the Recruitment Rules, 1967. Respondent no.3 might have been
granted the deemed date of promotion to the post of Office
Superintendent with effect from 07.10.2005. However, he was
actually promoted as Office Superintendent on 22.10.2007.
Therefore, in fact, he has rendered service as Office
Superintendent only from 22.10.2007. As per Appendix IX to the
Recruitment rules, 1967, the eligibility for appointment to the
promotional post of Section Officer requires three years
continuous service. The language used in Appendix IX is
unambiguous, simple and plain. Therefore, on a fair reading of
Appendix IX of the Recruitment Rules, 1967, to become eligible
for the promotional post of Section Officer, a person ought to
have rendered continuous service of not less than three years.
“Continuous service” might have been defined under the
Seniority Rules, 1982. However, the same shall be for the
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purpose of seniority and the Seniority Rules only. Therefore, if
any employee is granted the deemed date of promotion, his
seniority shall be considered accordingly from the deemed date of
promotion. However, that shall be only for the purpose of
inter
se seniority only and the same shall not be applicable while
considering the eligibility criteria under the Recruitment Rules.
In the Recruitment Rules, “continuous service” is not defined.
Therefore, one has to consider the ordinary dictionary meaning of
“continuous” which means “uninterrupted or unbroken”. The
High Court has added the word “actual” which as such is not
there in Appendix IX. While considering the relevant provisions
and as per the rule of interpretation, when the language used is
unambiguous, plain and simple, the provision is required to be
read as it is and nothing is to be added. Therefore, when in
Appendix IX, the eligibility criteria is that no person shall be
eligible for promotion unless he has completed service for a
continuous service of not less than three years means he has to
render/complete service for a continuous period of
uninterrupted/unbroken three years service. Therefore, when
respondent no.3 has not completed three years of service for a
continuous period of not less than three years in the feeder cadre
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in District Service (Class III) (Ministerial) Grade II, he was not
eligible for promotion to the post of Section Officer. The High
Court has committed a grave error in holding otherwise.
Therefore, the Additional Divisional Commissioner, Aurangabad
rightly allowed the appeal and rightly set aside the order of
promotion of respondent no.3 dated 1.2.2008 to the post of
Section Officer.
10. In view of the above and for the reasons stated above,
the present appeal succeeds. The impugned judgments and
orders passed by the learned Single Judge as well as the Division
Bench of the High Court are hereby quashed and set aside and
the order passed by the Additional Divisional Commissioner,
Aurangabad dated 20.05.2010 is hereby restored and it is held
that respondent no.3 is not entitled to be promoted to the post of
Section Officer and instead action should be taken to promote the
appellant to the post of Section Officer, as directed by the
Additional Divisional Commissioner, Aurangabad. However, in
the facts and circumstances of the case, there shall be no order
as to costs.
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……………………………………..J.
[L. NAGESWARA RAO]
NEW DELHI; …………………………………….J.
MAY 10, 2019. [M.R. SHAH]
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