JANARDHAN YADEORAO NAVGHARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith with consent. Looking to the nature of the controversy and the Judgments delivered earlier, we have heard the respective counsel finally. Learned Advocate Shri Naik appearing for the petitioner submits that the petitioner earlier shown as senior in the seniority list of Junior clerks has been shown as juniors to respondent Nos. 4 to 12 in seniority list as published on 24-1-2011 and rejecting objection of petitioner thereto on 31-12-2011. He contends that the appointment of the petitioner as Junior Clerk in 1984 was in accordance with the provisions of the Maharashtra Zilla Parishads District Service Post Recruitment Examination Rules, 1985 and as per Rule 4 stipulated therein, first examination was held in 1989. Period of 4 years to pass the examination was to expire in 1993. The petitioner cleared the necessary departmental examination conducted in 1992 as per result declared on 8-3-1993 i.e. within a period of four years as also within three chances. As such, the petitioner was confirmed prior to and became senior to respondent Nos. 4 to 12. He further contends that respondent Nos. 4 to 12 could not pass that departmental examination within stipulated chances as also period and as such, in view of the provisions of unamended Rule 5 they could not be confirmed in service till they passed the said examination and because of non obstante provision contained in said Rule 5(3), they ought to have been terminated because of their failure to pass that examination. He contends that, in this situation, amendment dated 24-5-1999 to Rule 5 by substituting sub-rule (3) thereof cannot confer any additional right upon respondent Nos. 4 to 12. He points out that the amendment instead of termination provides for loss of seniority only. He contends that this loss of seniority also renders respondent Nos. 4 to 12 juniors to the petitioner. He has fairly invited our attention to the Judgment : , Dilip Haribhau Wakchaware vs. Additional Commissioner, Nagpur Division and others, 2005 2 BCR 770 dated 5-10-2004 in Writ Petition No. 1610 of 2003 at Nagpur and two latter views i.e. judgment at : , Anil s/o. Manikrao Kulkarni vs. State of Maharashtra and others, 2010 3 MhLJ 51 dated 19-12-2009 in Writ Petition No. 555 of 2007 delivered at Aurangabad and an unreported Judgment dated 26-8-2011 in Writ Petition No. 3688 of 2011 also delivered at Aurangabad. He states that the view taken at Aurangabad is inconsistent with the finding recorded at Nagpur on 5-10-2004. He also points out that Nagpur Judgment has not been looked into by the latter judgments delivered at Aurangabad and the last Judgment does not look into earlier two Judgments.

(2.) Learned Advocate Shri Parchure appearing for respondent Nos. 4 to 12 submits that 1999 amendment cannot operate retrospectively, therefore, there is no question of respondent Nos. 4 to 12 losing seniority or becoming juniors to the petitioner. He further contends that unamended provision in Rule 5 provides confirmation after and from the date of passing of examination and at the same time, it also contemplates termination. In this situation, the termination has been rightly found to be merely an enabling measure by the Division Bench dated 5-10-2004 at Nagpur. As respondent Nos. 4 to 12 have entered into the service before the petitioner and have also passed departmental examination, their seniority from the date of joining is rightly recognized and protected. He, therefore, prays for dismissal of the petition.

(3.) Learned Advocate Shri Zoting for respondent No. 3 employer supports and adopts the arguments of learned Adv. Shri Parchure. Learned AGP appearing for respondent No. 1 submits that the provisions of Rule 5 are very clear and need to be implemented.