Sharad Vs. State of
Maharashtra & ANR.  INSC 306 (12 February 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 937 OF 2009 (Arising out
of SLP (C) No.2933 of 2004) Sharad ... Appellant Versus State of Maharashtra
& Anr. ... Respondents
S.B. Sinha, J.
of failure to clear a departmental examination in terms of the Rules known as
District Transport Officers (Motor Vehicle Department) Department Examination
Rules, 1984 (for short, `the Rules') is in question in this appeal which arises
out of a judgment and order dated 2 22.10.2002 passed by a Division Bench of
the High Court of Bombay, Bench at Nagpur whereby and whereunder a writ
petition filed by the appellant herein against the judgment and order dated
15.3.2002 passed by the Maharashtra Administrative Tribunal dismissing the
Transfer Application No.300 of 1992, was dismissed.
basic fact of the matter is not in dispute. Appellant was appointed in the post
of District Transport Officer on probation on or about 30.11.1984. He joined
the services in January 1985. Indisputably, he was put on probation for a
period of two years.
relevant Examination Rules applicable to the case 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 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 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
Provided that if he
is not able to pass the examination within the regular period of probation of
two years, he shall be liable to 3 the same consequences as provided under
sub-rule (3) of Rule 5.
(3) Every District
Transport Officer, working as such on the appointed date and who has not passed
the 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 years
from the appointed date and within three chances, including any chance of
chances availed of by him under the 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 Buddhism, Scheduled Tribe, Denotified Tribe or 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).
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 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 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 nomination or by promotion fails to pass
the examination within the time limit and chances laid 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 or is
exempted from passing the examination.
(3) If a District
Transport Officer fails to pass the examination within the time limit and
chances laid down in sub-rule (1), (2) and (3) of Rule 4 above, he 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 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 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 the examination under these Rules within the period and chances
laid down in rule 4, failing which they shall be reverted and shall lose the
seniority in the cadre of 5 District Transport Officer in the manner provided
in sub-rule (3).
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 of forty-five years on
the appointed day or attains that age on any date thereafter :
Provided that the
seniority lost by him in accordance with the provisions of sub- rule (3) of
rule 5 shall not be restored to him on account of such exemption.
Rule 7 : Examination
when to be held :
The Examination shall
ordinarily be held twice in a year in the months of January and July unless the
Commission is of the opinion that for any valid reason, it is unnecessary to
hold that examination in any particular year:
Provided that, if for
any reason, the Examination is not held in any year, or any District Transport
Officer is not allowed by the Commissioner to appear for any particular
Examination, that year or that chance shall be excluded in computing the number
of years or the chances laid down in rule 4."
passed the said examination in July 1988.
after his appointment, the Departmental Examination prescribed in terms of the
aforementioned Rules, had been held as under :
6 July 1985 January
1986 July 1986 January 1987 July 1987 January 1988 July 1988
the appellant did not appear in the examinations held in July 1985 and January
1986. He appeared in 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.
was confirmed in services w.e.f. 13.7.1988 by an office order dated 17th July,
1995 which reads as under :
to the letter of the Commissioner of Transport Maharashtra State Bombay
No.Probationary/24 2493/Off-8(2) 13836 dated 23 October, 1993 it is informed
that Shri S.G. Jichkar had been appointed to the post of Assistant Regional
Transport Officer (Class-2) in the Department of Motor 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 the date mentioned before
7 Name Date of Date
of completing Appointment the probationary Period S.G. Jickhar 3.11985
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 filed an original application before the Maharashtra
Administrative Tribunal. The said original application was dismissed by the
Tribunal, holding :
above-mentioned Rule 5(3) makes abundantly clear that the officers who failed
to pass the 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 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 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 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 8 consequences therefor. The respondent,
therefore, have rightly held that the 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."
writ petition filed by him was dismissed by reason of the impugned judgment by
the High Court.
Ashok Shrivastava, learned senior counsel appearing on behalf of the appellant,
(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.
(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.
(c) In any event, the
appellant having been exempted from appearing in certain examinations by the
competent authority, the Tribunal and 9 consequently the High Court committed
a serious error in ignoring the same.
Sanjay V. Kharde, learned counsel appearing on behalf of the State, however,
would support the impugned judgment.
adverting to the contentions raised by the appellant, we may notice that
although he questioned the constitutionality 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 completion 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.
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 either before
the Tribunal or before the High Court and, 10 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 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
Appellant has not
been able to establish as to whether any person who was confirmed after him and
passed examination after him had been declared his senior. In that view of the
matter too, it is not necessary for us to consider the aforementioned
submission of the learned Senior Counsel, being only academic in nature.
rules as noticed hereinbefore must be construed 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 passed, namely,
within a period of two years from the date of the appointment and within three
chances. Appellant, thus, having 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, however, provides for grant of two additional 11 chances wherefor the
period of probation is required to be extended by one year.
the appellant was appointed on probation and he could not pass the departmental
examination within the stipulated period of two years upon availing three
chances, his services 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.
of the learned counsel that the appellant had been granted exemption from
appearance may not be correct.
Commissioner of Transport had issued a letter dated 21.7.1988, wherein it is
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.
S. Name of Place Term
Desirous of Which papers are No. the officer availing the exempted with benefit
of month and year exemption from paper
1. S.J. Jichkar
Regional 4th Yes July 86 paper Assistant No.2, 4 Transport Jan. 87.
Officer, July 87
attempt Yeotmal Exempted."
fail to understand as to what was the occasion for grant of such purported
exemption. Appellant in fact had appeared in January 1987 examination. We,
therefore, did not find any reason as to why he could have been granted any
exemption 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 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 exemption is passed.
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.
13 Conditions for
grant of exemption so far as the appellant is concerned, thus, also do not
appear to have been fulfilled.
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.
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 examination held in July 1985 and January 1986. The requirements to pass
the examination within a period of two years in three chances must, therefore,
be counted from July 1985 and not from July 1986.
consequence of not passing the departmental examination, in, that he would
loose his seniority and would be placed before all those who had passed or
exempted from passing 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 those who had passed the examination prior to him.
is not a case where for unavoidable reasons, the employee could not appear in
the examination and it was permissible for the authorities concerned to grant
an exemption in those contingencies. It is also not a case where the rules
framed 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].
at such an examination being mandatory in nature, we do not find that any act
of arbitrariness or otherwise on the part of the respondents in enforcing the
statutory rules against the appellant.
the reasons aforementioned, there is no merit in this appeal. It is dismissed
accordingly. In the facts and circumstances of this case, however, there shall
be no order as to costs.