Supreme Court of India
SHARADversusSTATE OF MAHARASHTRA & ANR.
- Citation
- 2009 INSC 179
- Decided
- 12 February 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The Rules are valid statutory provisions and the appellant correctly lost seniority; no exemption was lawfully granted and there was no arbitrariness or illegality.
Summary
The appellant, appointed as a District Transport Officer in 1984 on probation, was required by the District Transport Officers (Motor Vehicle Department) Department Examination Rules, 1984 to pass a departmental examination within two years and three chances. He failed to pass within the prescribed period and consequently lost seniority for promotion under Rule 5(3) of the Rules. The appellant claimed he had been granted an exemption from appearing for the exam and challenged the validity of the rule that caused loss of seniority. The Supreme Court held that the Rules are statutory, that no valid exemption was granted because the conditions for exemption (age 45) were not met, and that the rule did not violate any parliamentary act nor constitute arbitrariness. Accordingly, the appellant’s loss of seniority was justified and the appeal was dismissed.
Issues considered
- Whether the District Transport Officers (Motor Vehicle Department) Department Examination Rules, 1984, particularly Rule 5(3), are valid and enforceable.
- Whether the appellant was lawfully exempted from appearing for the departmental examination.
- Whether the loss of seniority under the Rules amounts to arbitrariness or violates any parliamentary legislation.
Subjects
senioritydepartmental examinationservice lawexemptionpromotionstatutory rulesarbitrarinessMaharashtratransport department
Judgment
[2009] 2 S.C.R. 58
A SHARAD
v
STATE OF MAHARASHTRA & ANR.
Civil Appeal No.937 Of 2009
FEBRUARY 12, 2009
B
[S.B. SINHA-AND DR. MUKUNDAKAM SHARMA, JJ.]
Service Law - Seniority - Failure to clear departmental
examination - Consequence of - Appellant, District Trans-
't-"
port Officer, failed tq pass departmental examination within
c prescribed time limit and chances -Respondent-employer
enforced the Rules against the appellant and placed him be-
low those who passed the examination prior to him...:. Justifica-
tion of - Held: Justified - The Rules were statutory in nature
and required to be followed by all concerned - Rule relating
D to appearance at the examination and failure to pass the same
entailed the consequences laid down in the rule - There was
no act of arbitrariness or otherwise on the part of respondent-
employer - District Transport Officers (Motor Vehicle Depart-
ment) Department Examination Rules, 1984 - rr. 3, 4, 5 and 6.
E
Appellant was appointed as a District Transport Of-
ficer in 1984. He failed to pass the departmental examina-
tion in terms of the District Transport Officers (Motor Ve-
hicle Department) Department Examination Rules, 1984 "!
F within the time limit and chances, as prescribed. Employ-
ees who were junior to appellant were purportedly pro-
moted to the post of the Deputy Regional Transport Of-
ficer, on which appellant filed an application before the
Administrative Tribunal. The Tribunal dismissed the ap-
G plication in view of r.5(3) holding that as the appellant had
not passed the departmental examination within the stipu- ....
lated time limit and chances, he was bound to lose se-
niority for purpose of promotion. The writ petition filed by
H 58
SHARAD V. 59
STATE OF MAHARASHTRA & ANR.
appellant was dismissed by the High Court. Hence the A
present appeal.
Dismissing the appeal, the Court
HELD:1. The relevant rules must be construed hav-
ing regard to the purport and object they seek to achieve. B
Rule 3 of the District Transport Officers (Motor Vehicle
Department) Department Examination Rules, 1984 in no
uncertain terms provided for the necessity of passing the
-1 examination. As the appellant was appointed on proba-
tion and he could not pass the departmental examination c
within the stipulated period of two years upon availing
three chances, his services could have been terminated.
In fact, at the intervention of the State as also in view of
an interim order passed by the Tribunal, he was allowed
to continue. [Paras 15, 16] [ 68-8, C, D, E] D
~ 2. The submission that the appellant had been
granted exemption from appearance may not be correct.
Appellant in fact had appeared in January 1987 examina-
tion. Therefore, there is no reason as to why he could have
been granted any exemption from appearance. Also there E
is no provision for grant of exemption in respect of 'at-
tempt' which is purported to have been done in respect
of the examination held in July 1987. It, furthermore, does
-r
not appear from the order passed by the Tribunal as also
by the High Court that even such a contention had ever F
been raised before the said forums. Furthermore, the
power to grant exemption is contained in Rule 6 of the
Rules. It is not a well settled principle of law that in the
event the power of exemption are hedged with conditions,
those conditions must be satisfied before an order of ex- G
~·
emption is passed. Conditions for grant of exemption so
far as the appellant is concerned also do not appear to
have been fulfilled. It is not a case where for unavoidable
reasons, the employee could not appear in the examina-
H
60 SUPREME COURT REPORTS [2009] 2 S.C.R.
A tion and it was permissible for the authorities concerned
to grant an exemption in those contingencies. [Paras 18,
19, 22] [ 69-D, E, F, G]
3. It is also not a case where the rules framed were in
B violation of a Parliamentary Act. The Rules are statutory
in nature. They were required to be followed by all con-
cerned. The rule relating to appearance at the examina-
tion and the consequent failure to pass the same would
entail the consequences which have been laid down in
c the .rule. Therefore, no illegality has been committed by
the respondents in placing the appellant below those who
had passed the examination prior to him. Appearance at
the examination being mandatory in nature, there was no
act of arbitrariness or otherwise on the part of the respon-
D dents in enforcing the statutory rules against the appel-
lant. [Paras 20, 21, 22, 23] [ 69-H; 70-A, 8, C, D, E, F]
Punjab National Bank By Chairman & Anr. v. Astamija
Dash (2008) 7 SCALE 726 - distinguished.
E Case Law Reference
(2008) 7 SCALE 726 distinguished Para 22
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
937 of 2009
F
From the final Judgement and Order dated 22.10.2002 of
the High Court of Judicature at Bombay, Bench at Nagpur in
Writ Petition No. 2184 of 2002.
G Ashok Shrivastav, SatyajitA. Desai, Anagha S. Desai (for
Venkateswara Rao Anumolu), with him for the Appellant.
Sanjay V. Kharde (for Asha Gopalan Nair) and Mukesh K.
Giri, for the Respondents.
The Judgement of the Court was delivered by
H
SHARAD V. 61
STATE OF MAHARASHTRA & ANR.
S.B. SINHA, J. A
.I.
,. 1. Leave granted.
2. Consequences of failure to clear a departmental ex-
amination in terms of the Rules known as District Transport Of-
ficers (Motor Vehicle Department) Department Examination B
Rules, 1984 (for short, 'the Rules') is in question in this appeal
which arises out of a judgment and order dated 22.10.2002
passed by a Division Bench of the High Court of Bombay, Bench
--of
at Nagpur whereby and whereunder a writ petition filed by the
appellant herein against the judgment and order dated c
15.3.2002 passed by the Maharashtra Administrative Tribunal
dismissing the Transfer Application No.300 of 1992, was dis-
missed.
3. The basic fact of the matter is _not in dispute. Appellant
'
was appointed in the post of District Transport Officer on pro- D
.Jo; bation on or about 30.11.1984. He joined the services in Janu-
ary 1985. Indisputably, he was put on probation for a period of
two years.
4. The relevant Examination Rules applicable to the case
E
read as under :
"Rule 4:-Period within which Examination is to be passed:-
(1) Every District Transport Officer appointed by
promotion after the appointed date shall be required
to pass the examination within the period of two years F
from the date of the appointment and within three
chances.
(2) Every District Transport Officer recruited by
nomination on or after the appointed date shall be G
required to pass the examination within the period of
probation of two years or within the extended period
-(
of probation, as the case may be, and within three
chances:
"
L.
Provided that if he is not able to pass the examination H
62 SUPREME COURT REPORTS [2009) 2 S.C.R.
A within the regular period of probation of two years,
,i..
he shall be liable to the same consequences as
provided under sub-rule (3) of Rule 5. t
~"'-
(3) Every District Transport Officer, working as such on L
the appointed date and who has not passed the
B examination or has not been exempted from passing
it, under the existing rules, shall be required to pass
the examination within a period of two ye.a rs from the
appointed date and within three chances, including ,..._
any chance of chances availed of by him under the
c existing rules:
Provided that a period promoted or appointed
by nomination who is on probation or extended
probation as District Transport Officer belonging to
Schedule Caste, Scheduled Caste converts to ·~
D
Buddhism, Scheduled Tribe, Denotified Tribe or
;A.
Nomadic Tribe shall be given one more chance and
one more year to pass the examination than
otherwise admissible to, him under sub-rule (1) or
(2).
E
(4) Notwithstanding anything contained in sub-rule (1)
or sub rule (2), the Government may, having regard
to the performance of District Transport Officer in the
examination in respect of earlier chances already ~
F· availed of by him and to· any other facts and
circumstances of the case, grant not more than two
additional chances to a District Transport Officer to
appear for the examination. For this purpose, the
period of two years, probation of a District Transport
G. Officer appointed by nomination may be extended
by a period not exceeding one year. ,.....
Rule 5 : Consequences of failure to pass the examination:
(1) A District Transport Officer who is appointed by I
H
nomination or by promotion fails to pass the I
}--
SHARAD V. STATE OF MAHARASHTRA & 63
ANR. [S.B. SINHA, J.]
examination within the time limit and chances laid A
down in rule 4, shall be liable to be discharged from
service or reverted, as the case may be.
(2) No District Transport Officer, who is required to pass
the examination under these Rules, shall be promoted
to a higher post, unless he passes the examination B
or is exempted from passing the examination.
(3) If a District Transport Officer fails to pass the
-1 examination within the time limit and chances laid
down in sub-rule (1 ), (2) and (3) of Rule 4 above, he c
shall lose seniority for the purpose of promotion to
the higher post, that is to say, he shall be ranked
below, all the District Transport Officer, who pass or
are exempted from passing the examination before
him and also below all those who are senior to such
D
District Transport Officer below whom he is placed
and who may pass the examination after him but
within the period and .chances laid down in Rule 4.
(4) During the interim period from the appointed date to
the date on which the result of the first examination E
held under these Rules is declared, promotion to the
higher post shall where necessary, be made
according to the seniority and suitability. However,
subject to the provision of Rules 6, the District
Transport.Officers so appointed shall have to pass F
the examination under these Rules within the period
and chances laid down in rule 4, failing which they
s_hall be reverted and shall lose the seniority in the
cadre of District Transport Officer in the manner
provided in sub-rule (3).
G
~ Rule 6: Exemption :
A District Transport Officer whether appointed before
or after the appointed date shall be exempted from
passing the Examination, if he has attained the age
H
SHARAD V. STATE OF MAHARASHTRA & 65
ANR. [S.B. SINHA, J.]
nations held in July 1985 and January 1986. He appeared in A
the said examination for the first time in July 1986. Out of six
papers prescribed, he passed in four papers and failed in two.
In the examination held in January 1987, he appeared but failed.
8. He was confirmed in services w.e.f. 13.7.1988 by an
office order dated 1ih July, 1995 which reads as under: B
"With reference to the letter of the Commissioner of
Transport Maharashtra State Bombay No.
Probationary/24 2493/0ff-8(2) 13836 dated 23
October, 1993 it is informed that Shri S.G. Jichkar c
had been appointed to the post of Assistant Regional
Transport Officer (Class-2) in the Department of
Moto.r Vehicle through Government Order No.M.V.O.
1184/8 (1 )-6 dated 30.11.84. It is certified that he
completed his probationary period satisfactorily on
D
the date mentioned before his name.
Name Date of Date of completing
Appointment the probationary
Period E
S.G. Jickhar 3.11985 Dt.13.7.1988"
9. Inter alia on the premise that those employees who were
junior to him and/or passed the examination at a later date were
promoted to the post of Deputy Regional Transport Officer, he F
filed an original application before the Maharashtra Adminis-
trative Tribunal. The said original application was dismissed by
the Tribunal, holding :
"The above-mentioned Rule 5(3) makes abundantly
clear that the officers who failed to pass the G
examination within the time limit prescribed under
Rule 4, shall loose the seniority for the purpose of
promotion to the higher post, and he shall be ranked
below all the District Transport Officers, who pass or
are exempted from passing the examination before H
66 SUPREME COURT REPORTS [2009] 2 S.C.R.
A him and also below all those who are senior to such
District Transport Officers below whom he is placed
and who may passed the examination laid down in
rule 4. As observed earlier, the applicant failed to
pass the examination within the prescribed time limit
B and chances and therefore, he is bound to loose his
seniority for the purpose of higher promotion. It is
true that the Government - respondent No.1 had
issued a memorandum dated 17. 7 .1995, clarifying
that the applicant has completed the probation period
c satisfactorily on 31.7.88. However, the fact remains
that the applicant did not passed the examination
within the time limit and chances, as prescribed under
the Departmental Examination Rules, and therefore,
he is bound to suffer the consequences therefor. The
respondent, therefore, have rightly held that the
D
applicant has lost seniority for the purpose of
promotion to the higher post. However, the prayer of
the applicant to promote him as Deputy Regional
Transport Officer along with those officer promoted
on 13.9.95 cannot be accepted."
E
10. A writ petition filed by him was dismissed by reason of
the impugned judgment by the High Court.
11. Mr. Ashok Shrivastava, learned senior counsel appear-
ing on behalf of the appellant, would submit:
F I
(a) Although the validity of Rule 5(3) of the Rules was
questioned both in. the original application as also
the writ petition, neither the Tribunal nor the High
Court passed any order thereupon.
G (b) As the appellant started appearing in the examination
from July 1986 having been sent for training, the total
number of chances prescribed in the Rules, namely,
three, must be held to have expired in July 1987 and
nor prior thereto.
H
SHARAD V. STATE OF MAHARASHTRA & 67
ANR. [S.B. SINHA, J.]
(c) In any event, the appellant having been exempted A
from appearing in certain examinations by the
competent authority, the Tribunal and consequently
the High Court committed a serious error in ignoring
the same.
B
12. Mr. Sanjay V. Kharde, learned counsel appearing on
behalf of the State, however, would support the impugned judg-
ment.
13. Before adverting to the contentions raised by the ap-
pellant, we may notice that although he questioned the constitu- c
tionality of the aforementioned provision of Rule 5(3) of the
Rules, the only contention which appears to have been raised
was that in the Finance Department of Respondent No.1 where
also the similar departmental examination Rules were in force,
the officers, who passed their examinations after the comple- o
tion of the stipulated period, have been given the seniority from
the date of their initial appointment. Even in the writ petition only
that contention has been raised and none other. On the basis of
such a contention, the appellant, in our opinion, could not have
prayed for declaration of the said Rule as unconstitutional. E
14. Mr. Shrivastav, however, would argue that although the
first part of sub-rule (3) of Rule 5 is constitutional, the second
. part is not, as in terms thereof those employees who had passed
the examination even after the officer concerned would be
deemed to be senior. Such a contention had never been raised F
either before the Tribunal or before the High Court and, thus, we
cannot permit the appellant to raise such a contention for the
first time before us. We may, however, notice that the second
part of sub-rule (3) of Rule 5 postulates two situations, namely,
(1) the officer concerned shall be placed below all those who G
were senior to such Transport Officers below whom he had been
placed; and (2) who may pass examination after him but within
the period and chances laid down in Rule 4.
Appellant has not been able to establish as to whether H
68 SUPREME COURT REPORTS [2009] 2 S.C.R.
A any person who was confirmed after him and passed examina-
....
tion after him had been declared his senior. In that view of the
matter too, it is not necessary for us to consider the aforemen-
tioned submission of the learned Senior Counsel, being only
academic in nature.
B 15. Relevant rules as noticed hereinbefore must be con-
strued having regard to the purport and object they seek to
achieve. Rule 3 of the Rules in no uncertain terms provided for
the necessity of passing the examination. Sub-rule (1) of Rule 4
provides for the period during which the examination is to be "'"'
c passed, namely, within a period of two years from the date of
the appointment and within three chances. Appellant,
I
thus, hav-
ing been appointed on 30.11.1984 was required to pass the
examination within a period of two years therefrom, wherefor
he could avail only three chances. Sub-Rule (3) of Rule 4, how-
D ever, provides for grant of two additional chances wherefor the
period of probation is required to be extended by one year. ~·
16. As the appellant was appointed on probation and he
could not pass the departmental examination within the stipu-
lated period of two years upon availing three chances, hisser-
E
vices could have been terminated. In fact, such an order had
been but later on at the intervention of the State as also in view
of an interim order passed by the Tribunal, he was allowed to
continue and the order of termination was recalled. cf-
F 17. Submission of the learned counsel that the appellant
had be.en granted exemption from appearance may not be cor-
rect.
Office of Commissioner of Transport had issued a letter
dated 21.7.1988, wherein it is stated:
G
"Through the above reference letter, the Maharashtra
Public Service Commission Bombay have permitted
the below mentioned Assistant Regional Transport
Officers to appear for the Department exam. Kindly
inform the concerned authorities.
H
SHARAD V. STATE OF MAHARASHTRA & 69
ANR. [S.B. SINHA, J.]
S. Name of Place Term Desirous of Which A
No. the officer papers are availing the
exempted with benefit
of month and year
exemption from
paper B
1. S.J. Jichkar Regional 4th Yes July 86 paper
Assistant No.2, 4
Transport Jan. 87.
Officer, July 87 attempt
Yeotmal Exempted." C
18. We fail to understand as to what was the occasion for
grant of such purported exemption. Appellant in fact had ap-
peared in January 1987 examination. We, therefore, did not
find any reason as to why he could have been granted any ex-
0
emption from appearance. It is also conceded that there is no
provision for grant of exemption in respect of 'attempt' which is
purported to have been done in respect of the examination held
in July 1987. It, furthermore, does not appear from the order
passed by the learned Tribunal as also by the High Court that
even such a contention had ever been raised before the said . E
forums. Furthermore, the power to grant exemption is contained
in Rule 6 of the Rules. It is not a well settled principle of law that
in the event the power of exemption are hedged with condi-
tions, those conditions must be satisfied before an order of ex-
emption is passed. F
19. The power of exemption are confined to such cases
where the employee concerned had attained the age of 45 years
on the appointed date or at any date thereafter.
Conditions for grant of exemption so far as the appellant G
is concerned, thus, also do n·ot appear to have been fulfilled.
20. It is also, in our opinion, incorrect to contend that five
chances must be counted from July 1986. The Rules do not put
an embargo on appearance at the examination by a trainee.
H
70 SUPREME COURT REPORTS (2009] 2 S.C.R.
A The Rules are statutory in nature. They were required to
be followed by all concerned. No reason has been assigned as ~
to why appellant as a trainee could not appear at the examina-
tion held in July 1985 and· January 1986. The requirements to
pass the examination within a period of two years in three
B chances must, therefore, be counted from July 1985 and not
from July 1986.
21. The consequence of not passing the departmental ex-
amination, in, that he would loose his seniority and would be
placed before all those who had passed or exempted from pass-
C ing the examination before him. The rule relating to appearance
at the examination and the consequent failure to pass the same
would entail the consequences which have been laid down in
the rule. We, therefore, do not find that any illegality has been
committed by the respondents in placing the appellant below
D those who had passed the1examination prior to him.
22. It is not a case where for unavoidable reasons, the
employee could not appear in the examination and it was per-
missible for the authorities concerned to grant an exemption in
those contingencies. It is also not a case where the rules framed
E were in violation of a Parliamentary Act as was in the case of
Punjab National Bank By Chairman & Anr. v. Astamija Dash
[2008 (7) SCALE 726].
23. Appearance at such an examination being mandatory
F in nature, we do not find that any act of arbitrariness or other-
wise on the part of the respondents in enforcing the statutory
rules against the appellant.
24. For the reasons aforementioned, there is no merit in
this appeal. It is dismissed accordingly. In the facts and circum-
G stances of this case, however, there shall be no order as to costs.
B.B.B. Appeal dismissed.
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