PRABHAKAR BALAJI PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution is for a revision of the list prepared on 15-9-1981 showing the seniority of Assistants eligible for promotion to the post of Superintendents in the Subordinate Secretariat Service.

(2.) Petitioner joined as an Assistant in the Mantra lay a on 20-10-1970 and came to be attached to the Industries, Energy and Labour Department (IELD), Assistants have a right to be promoted to the posts of Superintendents. This right was regulated by GR No, EXM-1261/80969/O&M dated 28th December, 1961. They had to appear for an examination and the two conditions precedent for being permitted to appear for the examination were : - (1) Passing of post recruitment training examination (PRT). The PRT examination could be taken up by an Assistant subject to the condition that he had attended 75% of the classes held for that purpose ; and (2) Completion of not less than five years' continuous service. Subject to the above pre-conditions, the rules required that the candidate pass out the Superintendents' examination in three chances which bad to be availed of within a period of four years. This was partially relaxed in 1964 by GR No. EXM-1264/7130-O&M, dated 22nd October, 1964 and backward class communities became entitled to four chances within a period of five years. Petitioner belongs to a community recognised as an "Other Backward Community", and was therefore, eligible for the concession made by the 1964 GR. On 6-1-1977, the 1961 rules were repealed and replaced by another set (hereinafter to be referred to as the "New or 1977 Rules"). They were deemed to have come into force on June 1, 1977. Four of the important rules in the 1977 set were those bearing Nos. 4, 5, 6 and 7. Rule 4 required every Assistant to pass the Superintendents' examination within nine years of this continuous service as an Assistant and within three chances. Tbe concession earlier given to the OBCs was withdrawn and made limited to Scheduled Caste, Schedule Tribes and Denotified and Nomadic Tribes. It was made clear that chances availed of under the 1961 Rules were to be reckoned towards the computation of the: total number of chances given by the new Rules. Rule 5 specified the consequence of failure to pass the examination. It laid down that an Assistant failing to pass the examination within the period and chances specified, would lose seniority for the purpose of promotion vis-a-vis all the Assistants who had passed the examination before him and also below all those who were senior to such Assistants below whom he was placed the latter, subject to the condition, that they had passed the examination after him but within the period and chances specified in Rule 4. Rule 6 spoke of the examination being held once in a year in the month of November or December. This of course was to be so ordinarily. Rule 7 laid down that if an examination was not held in any particular year, that year was to be excluded in the computation of the period specified in Rule 4. This Rule 7 came to be amended in 1984. The 1984 amendment provided for insertion of certain words whereby Rule 7 read thus : - "Consequences when Examination not held - If for any reason, the Examination is not held in any particular year, after an Assistant becomes eligible to appear (or the Examination, that year shall be excluded in computing the period specified in Rule 4." (Words in italics denote the inserted words.) The amendment like other amendments in the Rules was placed in the Rules with retrospective effect i.e. to be deemed as having come into force on June 1, 1977, the very day on which the 1977, Rules had come into force.

(3.) Petitioner was not allowed to appear for the PRT examination held in 1973 as he had not got 75 per cent attendance in the classes. In 1974, he appeared but could not succeed at that examination. The next year i.e. 1975 he did not appear. For the PRT examination held in November 976, petitioner appeared and was declared successful in the results which came in February 1977. The Superintendents' examination for the year 1976 was not held in that year, but appears to have been postponed and held in January 1977. Petitioner did not appear for this examination, and possibly, because he had not yet acquired the eligibility in view of his not having passed the PRT examination. The next two examinations were held in March 1978 and January 1979. In both these examinations, the petitioner appeared, but failed. It was in February 1980 that petitioner again appeared and this time passed.