UTHAS YADAVRAO SOMWANSHI Vs. STATE OF MAHARASTRA

JUDGEMENT

(1.) BOTH these writ petitions although by different writ petitioners, raise the same challenge to the proposed promotions from Class-II to Class-I in Maharashtra Development Services. For the purpose, they challenge Government Circular dated 14-3-2007, issued by the Secretary to the Government of Maharashtra in the Department of Rural Development and water Conservation as ultra vires the articles 14 and 16 of the Constitution of India and also being contrary to the Maharashtra development Services Class-I and Class-II (Departmental Examinations) Rules, 1991. Both the writ petitions also pray for quashment of the action of the Government deleting/excluding the names of petitioners from the select list prepared by the departmental Promotion Committee for promotion to the posts in Maharashtra Development services Class-I (which was the result of action based on impugned Circular ). Both the writ petitions also pray for directions to the respondents Nos. 1 and 2 to consider the claim of the petitioners for promotion to class-I posts in Maharashtra Development Services, as per the original select list prepared by the Departmental Promotion Committee.

(2.) PETITIONERS are employees presently serving in Class-II posts of Maharashtra Development services (hereinafter referred to as "mdss" ). Learned Counsel for the petitioners, during the course of their submission, having admitted certain positions, which we are referring immediately herein below, other details as to when petitioners were appointed in MDSs and their present postings and journey upto Class-II Services, are not required to be recorded for the purpose of this judgement. Admittedly, all the petitioners have crossed age of 45 years at present and even on the date of subject promotions. Admittedly, all petitioners have entered Class-II mdss after the Gazette date as contemplated by rule 2 (c) of the Maharashtra Development Services, Class-I and Class-II (Departmental Examinations) Rules, 1991 (hereinafter referred to as "the said Rules")i. e. after 18th July, 1991. Admittedly, all the petitioners have exhausted all their chances for passing Departmental Examination as required by Rule 3 of the said rules and yet, they did not pass the departmental Examination. Inspite of not having passed the Departmental Examination before completion of age of 45 years, none of the petitioners was reverted by orders as required by Rule 7 (a) of the said rules. On the contrary, there are orders passed in favour of the petitioners as required by Rule 5 (2) of the said Rules regarding entitlement of the petitioners to exemption from passing the Departmental examination. Copies of some such orders are filed at paper-book pages 50 to 53 in writ Petition No. 4197/2007 and at Exhibit-A of the other writ petition. The powers to issue such orders were delegated to the divisional Commissioners and such orders are passed by respective Divisional Commissioners. This position is not disputed by the learned Government Pleader. It is the contention of the petitioners that in the month of December, 2006, the departmental Promotion Committee (hereinafter referred to as "dpc" for the sake of brevity)prepared and finalized a list of 103 (in fact 133) officers of Class-II MDSs for promotion to Class-I MDSs. This list included 28 individuals who had crossed age of 45 years and therefore, were exempt from the condition of passing Departmental examination. Subsequently, by taking into consideration the Circular dated 14th March, 2007, petitioners are deleted from that select list, by interpreting the said circular that if the employees have exhausted all their chances of passing Departmental examination before crossing age of 45 years, they are not entitled to benefit of Rule 5 of the said Rules which exempts the employees from passing the Examination prescribed by the said Rules.

(3.) SUBMISSIONS for the petitioners in first writ petition were advanced mainly by learned Advocate Shri Talekar, which were fully supported by learned Advocate Shri sapkal for the petitioners in second writ petition with addition of few points. It was submitted that the said Rules although enacted in the year 1991 were never followed in practice and hence, the State was required to issue the impugned Circular instructing to follow the Rules scrupulously. As a result of the fact that the said rules are not followed nearly for fifteen years although enacted, there are several instances of consequences as required by rule 7 of the said Rules not being implemented. Rule 7 of the said Rules requires termination of an appointee and reversion of a promottee, in case of their failure to pass the Departmental Examination as mandated by Rule 3 of the said Rules. There are instances in the past that promotions were allowed by granting exemptions from passing the Departmental Examination. For the present, reliance is placed on a list of 58 promottees dated 4-8-2007 [paper-book pages 75 (54) of Writ Petition No. 4197/2007], in order to demonstrate that the list of 58 promottees includes only five persons who have passed the Departmental Examination and remaining 53 are the individuals who are granted exemption from appearing for the Departmental Examination. In fact, paper-book page 75 (54 and 55)is a composite list of two lists of promotions comprising 46 individuals in the first list and 12 individuals in the second list. These two separate lists are at paper-book page 75 (56 to 60) and 75 (61 to 63 ). By virtue of foot-note ( ) in para 2, the promotions are subject to condition that the promottees passed the Departmental examination under the said Rules as amended in the year 1998. In fact, by virtue of foot-notes () and (), the promotions are also subject to decision of the High court in pending Writ Petitions Nos. 8452/ 2004 and 4197/2007. According to learned Counsel for the petitioners, the cases of the petitioners are distinguished by the authorities from those included in the promotion list by interpretation of impugned circular dated 14-3-2007. It is indicated that because petitioners have exhausted all their chances of passing the Departmental examination, before they attained the age of 45 years, they are not entitled to exemption as permissible under rule 5 of the said rules. According to learned Advocate Shri talekar, Rule 5 of the said Rules which enables exemption from passing departmental Examination on attaining age of 45 years, supersedes Rule 4 of the said Rules, and therefore, on completion of age of 45 years in Class-II MDS, although without passing Departmental Examination, petitioners were entitled to be considered as eligible for promotion, by virtue of exemption from passing Departmental Examination under the said Rules. According to him, the petitioners could not have discriminated merely because petitioners have exhausted all their chances and promottees have not. In fact, it was also faintly argued that some of the candidates who had exhausted all their chances were at times promoted in the past and even in the present list. The impugned Circular dated 14-03-2007, it was pointed out, does not refer to Rule 5 of the said Rules at all, but it only instructs and expects strict compliance of Rule 4 of the said Rules. Learned Advocate Shri Sapkal has demonstrated, by relying on paper-book pages 65 to 72 of the second writ petition that all nine petitioners in both the petitions were recommended by the DPC for promotion, either for regular or for ad hoc, by the decision taken in the meeting of the dpc held on 13th and 14th December, 2006. Referring to Government Resolution dated 1-11-1977, Shri Sapkal relied upon its contents in order to submit that the same depicts the intentions of the government in relaxing the requirement of passing Departmental Examination in case of employees who have completed age of 45 years and the contents of the said Government Resolution, relied upon by him read as follows.