Girish Kumar vs State Of Maharashtra

3. The facts leading to the present appeal in nutshell are

as under:

That the appellant herein – Girish Kumar was

appointed as Senior Assistant on 26.6.2001. That thereafter he

was promoted to the post of Office Superintendent by order dated

12.10.2007, however, with effect from 7.10.2005. One Govind

Jerale, appointed as Junior Assistant on 8.9.1994, was promoted

to the post of Senior Assistant on 6.11.1999. Respondent No.3

herein was appointed as Junior Assistant on 29.8.1994. He was

suspended from service sometime in the year 1999. His

suspension was revoked and he was reinstated on 17.7.2001.

That thereafter he was exonerated in departmental enquiry on

15.6.2006. That thereafter he was promoted as Senior Assistant

on 1.7.2006. However, in view of the fact that he was exonerated

in departmental enquiry, considering Rule 5 of the Maharashtra

Civil Services (Regulation of Seniority) Rules, 1982 (hereinafter

referred to as the ‘Seniority Rules, 1982’), Respondent No.3 was

2 granted 6.11.1999 as deemed date of promotion as Senior

Assistant, i.e., the date on which his junior Govind Jerale was

promoted as Senior Assistant. It appears that thereafter on

22.10.2007, respondent no.3 was promoted as Office

Superintendent. The Divisional Commissioner granted to

respondent no.3 07.10.2005 as deemed date of promotion as

Office Superintendent. As Respondent No.3 was placed in the

higher position in the seniority list above the appellant herein, he

was consequently promoted as Section Officer by respondent

no.2, vide his order dated 1.2.2008.

3.1 Being aggrieved by the aforesaid order of promotion

promoting respondent no.3 herein to the post of Section Officer,

the appellant initially preferred writ petition before the High

Court. However, the said writ petition came to be disposed of by

the High Court with liberty to the appellant to approach the

Additional Divisional Commissioner, Aurangabad for redressal of

his grievance. It appears that thereafter the appellant preferred

appeal bearing no. DB/Appeal/Cell/7/2009 before the Additional

Divisional Commissioner, Aurangabad on 05.11.2008. It was the

case on behalf of the appellant that the eligibility criteria as per

the Maharashtra Zilla Parishads District Services (Recruitment)

3 Rules, 1967 (hereinafter referred to as the ‘Recruitment Rules,

1967’) for the post of Section Officer was ‘continuous service of

not less than three years’ in the grade of Office Superintendent

and respondent no.3 never completed his continuous service of

not less than three years on the post of Office Superintendent, he

was not eligible for promotion to the post of Section Officer. That

vide order dated 20.05.2010, the Additional Divisional

Commissioner, Aurangabad allowed the said appeal preferred by

the appellant herein and quash and set aside the order of

promotion of respondent no.3 to the post of Section Officer.

3.2 Being aggrieved by the order passed by the Additional

Divisional Commissioner, Aurangabad dated 20.05.2010,

respondent no.3 preferred Writ Petition No. 5437 of 2010 before

the High Court. That by judgment and order dated 29.06.2010, a

learned Single Judge of the High Court allowed the said writ

petition and set aside the order passed by the Additional

Divisional Commissioner, Aurangabad dated 20.05.2010 and

consequently confirmed the order of promotion of respondent

no.3 dated 1.2.2008.

3.3 Feeling aggrieved and dissatisfied with the judgment

and order passed by the learned Single Judge, the appellant

4 preferred Letters Patent Appeal No. 209/2010 before the Division

Bench of the High Court. By the impugned judgment and order,

the Division Bench of the High Court has dismissed the said

appeal and has confirmed the judgment and order passed by the

learned Single Judge. Hence, the appellant has preferred the

present appeal.

4. Shri Arun R. Pedneker, learned Advocate has appeared

for the appellant and Shri Vinay Navare, learned Senior Advocate

has appeared for respondent no.3 herein.

4.1 Shri Arun R. Pedneker, learned Advocate appearing on

behalf of the appellant has vehemently submitted that in the

facts and circumstances of the case both, the learned Single

Judge as well as the Division Bench of the High Court have not

properly appreciated the distinction between the Seniority Rules,

1982 and the Recruitment Rules, 1967.

4.2 It is vehemently submitted by the learned Advocate

appearing on behalf of the appellant that both, the learned Single

Judge as well as the Division Bench of the High Court have

materially erred in solely relying upon Rule 5 of the Seniority

Rules, 1982 and have materially erred in not considering the

requirement under the Recruitment Rules, 1967.

5 4.3 It is further submitted by the learned Advocate

appearing on behalf of the appellant that the High Court ought to

have appreciated that the Seniority Rules, 1982 shall be

applicable with respect to seniority and not with respect to

recruitment. It is submitted that when the Recruitment Rules,

1967 provide that for promotion to the post of Section Officer, a

person/employee ought to have completed three years of

continuous service in District Service (Class III) (Ministerial),

Grade II, in that case, the same is required to be adhered to or

complied with. It is submitted that in the present case,

respondent no.3 as such has not completed three years of

continuous service in the District Service (Class III) (Ministerial)

Grade II and thereafter was not eligible for promotion to the post

of Section Officer.

4.4 It is vehemently submitted by the learned Advocate

appearing on behalf of the appellant that completion of three

years of continuous service/complete service is the sine qua non

for being eligible for the promotional post of Section Officer as per

Appendix IX of the Recruitment Rules, 1967. It is further

submitted that the High Court has failed to consider that the

Recruitment Rules, 1967 are framed in terms of the powers given

6 under the Maharashtra Zilla Parishads and Panchayat Samities

Act, 1961 and reflects the eligibility criteria which is to be fulfilled

by a candidate before he be promoted to a particular post. It is

submitted that therefore anyone who does not fulfil the said

criteria shall not be entitled to be promoted to the post of Section

Officer. It is submitted that the language which is used to the

Rules (Recruitment Rules, 1967) is plain and simple and gives

rise to only one interpretation alone that the candidate must have

completed three years continuous service in the feeder cadre, so

that he may be well­acquainted and well­versed with the work

before he could be promoted to the post of Section Officer. It is

submitted therefore when the language which is used under the

Rules is plain and simple and unambiguous, the High Court

ought not to have considered and/or added the word “actual”

service of three years rendered in the feeder cadre.

4.5 Relying upon the definition of “continuous” defined in

the Black Law Dictionary, it is submitted that as per the

definition “continuous” means “uninterrupted, unbroken etc.”

4.5 It is further submitted by the learned Advocate

appearing on behalf of the appellant that in the present case as

such the High Court has considered the relevant provisions of the

7 Service Rules, 1982, more particularly Rule 5 of the Service

Rules, which pertains to deemed date of promotion and inter se

seniority, however, does not consider at all the relevant

provisions of the Recruitment Rules, 1967 and/or the

requirements to be complied with/fulfilled under the Recruitment

Rules, 1967.

4.6 Making the above submissions, it is prayed to allow

the present appeal and quash and set aside the impugned

judgments and orders passed by the learned Single Judge as well

as the Division Bench of the High Court and to restore the order

passed by the Additional Divisional Commissioner, Aurangabad

dated 20.05.2010.

5. The present appeal is vehemently opposed by Shri

Vinay Navare, learned Senior Advocate appearing on behalf of

respondent no.3.

5.1 It is vehemently submitted by the learned Senior

Advocate appearing on behalf of respondent no.3 that as such

respondent no.3 was granted the deemed date of promotion to

the post of Office Superintendent with effect from 07.10.2005. It

is submitted therefore once respondent no.3 was granted the

deemed date of promotion as per rule 5 of the Seniority Rules,

8 1982 and consequently respondent no.3 was placed in the

seniority list above the appellant, in that case, unless and until

the seniority of respondent no.3 above the appellant is

challenged, thereafter the appellant cannot make any grievance.

5.2 It is further submitted by the learned Senior Advocate

appearing on behalf of respondent no.3 that even otherwise the

appellant entered into service on 26.6.2001 as Senior Assistant.

However, in the cadre of Senior Assistant, respondent no.3 was

granted the deemed date of promotion with effect from 6.11.1999.

It is submitted that appellant choose not to challenge the deemed

date of promotion 6.11.1999 granted to respondent no.3 for the

post of Senior Assistant. It is submitted that therefore its

consequence must follow.

5.3 Now so far as the submission on behalf of the

appellant that rules of eligibility for appointment to the

promotional post of Section Officer under Appendix IX requires

three years continuous service and Seniority Rules, 1982 cannot

be read for conferring eligibility prescribed under Appendix IX is

concerned, it is vehemently submitted by Shri Vinay Navare,

learned Senior Advocate that first of all the term “continuous

service” is not defined under the Recruitment Rules, 1967. It is

9 submitted that Rule 8 of the Maharashtra Zilla Parishads District

Services Rules, 1968 makes Maharashtra Civil Services (MCS)

Rules applicable to Zilla Parishad employees. It is submitted that

the term “continuous service” is essentially a technical term in

service jurisprudence. It is submitted that there is nothing

wrong or illegal if MCS Rules define and explain what

“continuous service” is.

5.4 It is submitted by the learned Senior Advocate

appearing on behalf of respondent no.3 that in the Seniority

Rules, 1982 “continuous service” and the “deemed date” are

defined. It is submitted that as per proviso to rule 3(c)

“continuous service” is where a person is continuously officiating

in a post, cadre or service from a deemed date of appointment

under the provisions of the seniority rules, such person shall be

deemed to have rendered continuous service with effect from

such deemed date. It is submitted therefore that when

respondent no.3 was granted the deemed date of promotion to

the post of Office Superintendent with effect from 7.10.2005, as

rightly held by the High Court, it can be said that respondent

no.3 has completed three years of continuous service and

therefore is entitled to be promoted to the post of Section Officer.

10 5.5. It is further submitted that in the Recruitment Rules,

1967, more particularly Appendix IX before the word “continuous

service” word “actual service or actual experience” is not used. It

is submitted that in Appendix IV at serial no.3, the word used is

“experience” as requisite qualification. It is submitted therefore

that whenever the authority intended they used the word

“experience”. It is submitted that therefore as in Appendix IX

before the word “continuous service” neither the word “actual

service” is mentioned nor “actual experience” is stated and

therefore “continuous service” in Appendix IX need not be “actual

experience” under the Recruitment Rules, 1967.

5.6 It is further submitted by the learned Senior Advocate

appearing on behalf of respondent no.3 that if the

submission/contention on behalf of the appellant is accepted, it

will give an absurd result. It is submitted that it will be absurd

to say that a person gets benefit of deemed date and continuous

service under the Seniority Rules, 1982 but he cannot derive

such continuous service for satisfaction of eligibility condition. It

is submitted that such interpretation will make the Seniority

Rules, 1982 absurd and unworkable. It is submitted therefore

that the provision has to be read to make it harmonious.

11 5.7 It is further submitted by the learned Senior Advocate

appearing on behalf of respondent no.3 that if mere grant of a

deemed date is not held good enough to consider respondent no.3

eligible for the promotional post, then the very object of granting

the same would be otiose.

5.8 It is further submitted by the learned Senior Advocate

appearing on behalf of respondent no.3 that in any case the view

taken by the learned Single Judge and the Division Bench of the

High Court is a possible view and it relates to interpretation of

the provisions of State Law, the interference of this Court under

Article 136 of the Constitution of India is not called for.

5.9 Making the above submissions, it is prayed to dismiss

the present appeal.

6. We have heard the learned Advocates for the respective

parties at length.

7. The short question which is posed for consideration

before this Court is, whether an employee who has been assigned

the deemed date of promotion as per Rule 5 of the Seniority

Rules, 1982 and as such has not actually worked at all on the

promotional post, can it be said that he has completed service for

a continuous period of not less than three years in the feeder

12 cadre, which is the requirement under the relevant Recruitment

Rules?

8. As per Appendix IX to the Recruitment Rules, 1967,

which are framed in exercise of the powers conferred under

Section 274 of the Maharashtra Zilla Parishads and Panchayat

Samities Act, 1961 for promotion to the post of Section Officer,

no person shall be eligible for promotion unless he has completed

service for a continuous period of not less than three years in

District Service (Class III) (Ministerial) Grade II. Respondent no.3

was promoted as Office Superintendent on 22.10.2007. However,

he was granted deemed date of promotion under Rule 5 of the

Seniority Rules, 1982 for promotion as Office Superintendent.

He was promoted to the post of Section Officer on 1.2.2008. It

was the case on behalf of the appellant that as respondent no.3

was actually promoted as Office Superintendent on 22.10.2007

and therefore has not completed service for a continuous period

of not less than three years in the District Service (Class III)

(Ministerial) Grade II and therefore he was not eligible for

promotion considering the relevant provisions of the Recruitment

Rules, more particularly Appendix IX. However, it is the case on

behalf of respondent no.3 that once he was granted the deemed

13 date of promotion under Rule 5 of the Seniority Rules, 1982, his

date of promotion for all purposes shall be continued/counted

from 7.10.2005, i.e., from the deemed date of promotion. The

learned Single Judge and the Division Bench of the High Court

have considered and applied the Seniority Rules, 1982 under

which respondent no.3 was granted the deemed date of

promotion. However, it is required to be noted that the Seniority

Rules, 1982 and the Recruitment Rules, 1967 both are different

rules and enacted under the different provisions and they operate

in different fields. The Recruitment Rules, 1967 are

enacted/framed in exercise of powers conferred by clause xxxix of

sub­section 2 of Section 274 of the Maharashtra Zilla Parishads

and Panchayat Samities Act, 1961. The said Rules shall apply to

the recruitment to all posts in District Technical Service (Class

III), District Service (Class III) and District Service (Class IV). On

the other hand, the Seniority Rules, 1982 are framed/enacted in

exercise of powers conferred by proviso to Article 309 of the

Constitution of India. As per the Seniority Rules, 1982, the

seniority of government servants shall be regulated in accordance

with the provisions of the Seniority Rules, 1982. The said

Seniority Rules, 1982 are made applicable to the District Service

14 also. Therefore, the Seniority Rules, 1982 shall govern the

seniority only and not with respect to the recruitment. The

recruitment shall be governed by the Recruitment Rules, 1967

only.

9. In the present case, the High Court has considered

Rule 5 of the Seniority Rules, 1982 and has not at all considered

the Recruitment Rules, 1967. Respondent no.3 might have been

granted the deemed date of promotion to the post of Office

Superintendent with effect from 07.10.2005. However, he was

actually promoted as Office Superintendent on 22.10.2007.

Therefore, in fact, he has rendered service as Office

Superintendent only from 22.10.2007. As per Appendix IX to the

Recruitment rules, 1967, the eligibility for appointment to the

promotional post of Section Officer requires three years

continuous service. The language used in Appendix IX is

unambiguous, simple and plain. Therefore, on a fair reading of

Appendix IX of the Recruitment Rules, 1967, to become eligible

for the promotional post of Section Officer, a person ought to

have rendered continuous service of not less than three years.

“Continuous service” might have been defined under the

Seniority Rules, 1982. However, the same shall be for the

15 purpose of seniority and the Seniority Rules only. Therefore, if

any employee is granted the deemed date of promotion, his

seniority shall be considered accordingly from the deemed date of

promotion. However, that shall be only for the purpose of inter

se seniority only and the same shall not be applicable while

considering the eligibility criteria under the Recruitment Rules.

In the Recruitment Rules, “continuous service” is not defined.

Therefore, one has to consider the ordinary dictionary meaning of

“continuous” which means “uninterrupted or unbroken”. The

High Court has added the word “actual” which as such is not

there in Appendix IX. While considering the relevant provisions

and as per the rule of interpretation, when the language used is

unambiguous, plain and simple, the provision is required to be

read as it is and nothing is to be added. Therefore, when in

Appendix IX, the eligibility criteria is that no person shall be

eligible for promotion unless he has completed service for a

continuous service of not less than three years means he has to

render/complete service for a continuous period of

uninterrupted/unbroken three years service. Therefore, when

respondent no.3 has not completed three years of service for a

continuous period of not less than three years in the feeder cadre

16 in District Service (Class III) (Ministerial) Grade II, he was not

eligible for promotion to the post of Section Officer. The High

Court has committed a grave error in holding otherwise.

Therefore, the Additional Divisional Commissioner, Aurangabad

rightly allowed the appeal and rightly set aside the order of

promotion of respondent no.3 dated 1.2.2008 to the post of

Section Officer.

10. In view of the above and for the reasons stated above,

the present appeal succeeds. The impugned judgments and

orders passed by the learned Single Judge as well as the Division

Bench of the High Court are hereby quashed and set aside and

the order passed by the Additional Divisional Commissioner,

Aurangabad dated 20.05.2010 is hereby restored and it is held

that respondent no.3 is not entitled to be promoted to the post of

Section Officer and instead action should be taken to promote the

appellant to the post of Section Officer, as directed by the

Additional Divisional Commissioner, Aurangabad. However, in

the facts and circumstances of the case, there shall be no order

as to costs.

17 ……………………………………..J. [L. NAGESWARA RAO]

NEW DELHI; …………………………………….J. MAY 10, 2019. [M.R. SHAH]

18