GIRISH KUMAR versus STATE OF MAHARASHTRA AND OTHERS on 10 May 2019

[2019] 7 S.C.R. 881

GIRISH KUMAR

v.

STATE OF MAHARASHTRA AND OTHERS

(Civil Appeal No. 4894 of 2019)

MAY 10, 2019

[L. NAGESWARA RAO AND M. R. SHAH, JJ.]

Maharashtra Zilla Parishads District Services (Recruitment)Rules, 1967 – Appendix IX – Maharashtra Civil Services (Regulationof Seniority) Rules, 1982 – r.5 – Appellant was promoted to the postof Office Superintendent by order dated 22.10.2007, however, w.e.f07.10.2005 – Respondent No.3-Junior Assistant was undergoing adepartmental enquiry, however he was exonerated in departmentalenquiry on 15.06.2006 – Considering r.5 of 1982 rules, he waspromoted as Senior Assistant on 06.11.1999 and thereafter, he waspromoted as Office Superintendent on 22.10.2007 – RespondentNo.3 was granted deemed date of promotion to the post of OfficeSuperintendent w.e.f 07.10.2005 – Respondent No.3 was placed inthe higher position in the seniority list above the appellant and wasconsequently promoted as Section Officer on 01.02.2008 – WritPetition by the appellant – High Court directed appellant toapproach the Additional Divisional Commissioner – AdditionalDivisional Commissioner allowed the appeal of the appellant andset aside the order of promotion of respondent no.3 – Writ petitionby respondent no.3 – High Court set aside the order of the AdditionalDivisional Commissioner – On appeal, held: Respondent no.3 wasgranted the deemed date of promotion to the post of OfficeSuperintendent with effect from 07.10.2005 – However, he wasactually promoted as Office Superintendent on 22.10.2007 –Therefore, in fact, he has rendered service as Office Superintendentonly from 22.10.2007 – As per Appendix IX to the Recruitment rules,1967, the eligibility for appointment to the promotional post ofSection Officer requires three years continuous service – Thelanguage 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

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Athan three years – In the instant case, respondent no.3 had notcompleted three years of service for a continuous period of not lessthan three years in the feeder cadre in District Service (Class III)(Ministerial) Grade II, therefore, he was not eligible for promotionto the post of Section Officer – The High Court committed a graveerror in holding otherwise – Thus, the Additional DivisionalBCommissioner, rightly allowed the appeal and set aside the order ofpromotion of respondent no.3.

Maharashtra Zilla Parishads District Service (Recruitment)Rules, 1967 – Maharashtra Civil Services (Regulation of Seniority)Rules, 1982 – Distinction between the rules – Discussed.C

Allowing the appeal, the Court

Conclusion

HELD : 1. The Maharashtra Civil Services (Regulation ofSeniority) Rules, 1982 and the Maharashtra Zilla ParishadsDistrict Service (Recruitment) Rules, 1967 both are differentDrules and enacted under the different provisions and they operatein different fields. The Recruitment Rules, 1967 are enacted/framed in exercise of powers conferred by clause xxxix of sub-section 2 of Section 274 of the Maharashtra Zilla Parishads andPanchayat Samities Act, 1961. The said Rules shall apply to therecruitment to all posts in District Technical Service (Class III),EDistrict Service (Class III) and District Service (Class IV). Onthe other hand, the Seniority Rules, 1982 are framed/enacted inexercise of powers conferred by proviso to Article 309 of theConstitution of India. As per the Seniority Rules, 1982, theseniority of government servants shall be regulated in accordanceFwith the provisions of the Seniority Rules, 1982. The saidSeniority Rules, 1982 are made applicable to the District Servicealso. Therefore, the Seniority Rules, 1982 shall govern theseniority only and not with respect to the recruitment. Therecruitment shall be governed by the Recruitment Rules, 1967only. [Para 8] [890-H; 891-A-C]

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2. In the present case, the High Court has considered Rule5 of the Seniority Rules, 1982 and has not at all considered theRecruitment Rules, 1967. Respondent no.3 might have beengranted the deemed date of promotion to the post of Office Superintendent with effect from 07.10.2005. However, he wasactually promoted as Office Superintendent on 22.10.2007.Therefore, in fact, he has rendered service as OfficeSuperintendent only from 22.10.2007. As per Appendix IX tothe Recruitment rules, 1967, the eligibility for appointment tothe promotional post of Section Officer requires three yearscontinuous service. The language used in Appendix IX isunambiguous, simple and plain. Therefore, on a fair reading ofAppendix IX of the Recruitment Rules, 1967, to become eligiblefor the promotional post of Section Officer, a person ought tohave rendered continuous service of not less than three years.“Continuous service” might have been defined under theSeniority Rules, 1982. However, the same shall be for thepurpose of seniority and the Seniority Rules only. Therefore, ifany employee is granted the deemed date of promotion, hisseniority shall be considered accordingly from the deemed dateof promotion. However, that shall be only for the purpose ofinter se seniority only and the same shall not be applicable whileconsidering the eligibility criteria under the Recruitment Rules.In the Recruitment Rules, “continuous service” is not defined.Therefore, one has to consider the ordinary dictionary meaningof “continuous” which means “uninterrupted or unbroken”. TheHigh Court has added the word “actual” which as such is notthere in Appendix IX. While considering the relevant provisionsand as per the rule of interpretation, when the language used isunambiguous, plain and simple, the provision is required to beread as it is and nothing is to be added. Therefore, when inAppendix IX, the eligibility criteria is that no person shall beeligible for promotion unless he has completed service for acontinuous service of not less than three years means he has torender/complete service for a continuous period of uninterrupted/unbroken three years service. Therefore, when respondent no.3has not completed three years of service for a continuous periodof not less than three years in the feeder cadre in District Service(Class III) (Ministerial) Grade II, he was not eligible for promotionto the post of Section Officer. The High Court has committed agrave error in holding otherwise. Therefore, the AdditionalDivisional Commissioner, rightly allowed the appeal and rightly ABCDEFG

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Aset aside the order of promotion of respondent no.3 dated1.2.2008 to the post of Section Officer. [Para 9] [891-D-H;892-A-C]

3. The impugned judgments and orders passed by the SingleJudge as well as the Division Bench of the High Court are herebyBquashed and set aside and the order passed by the AdditionalDivisional Commissioner is hereby restored and it is held thatrespondent no.3 is not entitled to be promoted to the post ofSection Officer and instead action should be taken to promotethe appellant to the post of Section Officer, as directed by theAdditional Divisional Commissioner. [Para 10] [892-D-E]

CCIVIL APPELLATE JURISDICTION : Civil Appeal No. 4894of 2019.

From the Judgment and Order dated 20.12.2010 of the High Courtof Judicature at Bombay, Bench at Aurangabad in L.P.A. No. 209 of2010 in Writ Petition No. 5437 of 2010.D

Arun R. Pedneker, Samrat Shinde, Ms. Chandan Ramamurthi,Advs. for the Appellant.

Vinay Navare, Sr. Adv., Ms. Gwen Karthika, Ms. Abha R.Sharma, Amol Nirmalkumar Suryawanshi, Ms. Rajshri Dubey, NishantERamakantrao Katneshwarkar, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J. 1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentFand order dated 20.12.2010 passed by the High Court of Judicature atBombay, Bench at Aurangabad passed in L.P.A. No. 209/2010 in WritPetition No. 5437 of 2010, by which a Division Bench of the High Courthas dismissed the said letters patent appeal preferred by the appellantherein and has confirmed the judgment and order passed by the learnedSingle Judge, the original appellant before the High Court in LettersGPatent Appeal has preferred the present appeal.

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

That the appellant herein – Girish Kumar was appointed as SeniorAssistant on 26.6.2001. That thereafter he was promoted to the post ofHOffice Superintendent by order dated 12.10.2007, however, with effect from 7.10.2005. One Govind Jerale, appointed as Junior Assistant on8.9.1994, 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. Hissuspension was revoked and he was reinstated on 17.7.2001. Thatthereafter 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 departmentalenquiry, considering Rule 5 of the Maharashtra Civil Services (Regulationof Seniority) Rules, 1982 (hereinafter referred to as the ‘Seniority Rules,1982’), Respondent No.3 was granted 6.11.1999 as deemed date ofpromotion as Senior Assistant, i.e., the date on which his junior GovindJerale was promoted as Senior Assistant. It appears that thereafter on22.10.2007, respondent no.3 was promoted as Office Superintendent.The Divisional Commissioner granted to respondent no.3 07.10.2005as deemed date of promotion as Office Superintendent. As RespondentNo.3 was placed in the higher position in the seniority list above theappellant herein, he was consequently promoted as Section Officer byrespondent no.2, vide his order dated 1.2.2008.

3.1 Being aggrieved by the aforesaid order of promotion promotingrespondent no.3 herein to the post of Section Officer, the appellant initiallypreferred writ petition before the High Court. However, the said writpetition came to be disposed of by the High Court with liberty to theappellant to approach the Additional Divisional Commissioner,Aurangabad for redressal of his grievance. It appears that thereafterthe appellant preferred appeal bearing no. DB/Appeal/Cell/7/2009 beforethe Additional Divisional Commissioner, Aurangabad on 05.11.2008. Itwas the case on behalf of the appellant that the eligibility criteria as perthe Maharashtra Zilla Parishads District Services (Recruitment) Rules,1967 (hereinafter referred to as the ‘Recruitment Rules, 1967’) for thepost of Section Officer was ‘continuous service of not less than threeyears’ in the grade of Office Superintendent and respondent no.3 nevercompleted his continuous service of not less than three years on the postof Office Superintendent, he was not eligible for promotion to the post ofSection Officer. That vide order dated 20.05.2010, the AdditionalDivisional Commissioner, Aurangabad allowed the said appeal preferredby the appellant herein and quash and set aside the order of promotionof respondent no.3 to the post of Section Officer.

3.2 Being aggrieved by the order passed by the Additional AB

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ADivisional Commissioner, Aurangabad dated 20.05.2010, respondent no.3preferred Writ Petition No. 5437 of 2010 before the High Court. Thatby judgment and order dated 29.06.2010, a learned Single Judge of theHigh Court allowed the said writ petition and set aside the order passedby the Additional Divisional Commissioner, Aurangabad dated 20.05.2010and consequently confirmed the order of promotion of respondent no.3Bdated 1.2.2008.

3.3 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge, the appellant preferred Letters PatentAppeal No. 209/2010 before the Division Bench of the High Court. Bythe impugned judgment and order, the Division Bench of the High CourtChas dismissed the said appeal and has confirmed the judgment and orderpassed by the learned Single Judge. Hence, the appellant has preferredthe present appeal.

4. Shri Arun R. Pedneker, learned Advocate has appeared for theappellant and Shri Vinay Navare, learned Senior Advocate has appearedDfor respondent no.3 herein.

4.1 Shri Arun R. Pedneker, learned Advocate appearing on behalfof the appellant has vehemently submitted that in the facts andcircumstances of the case both, the learned Single Judge as well as theDivision Bench of the High Court have not properly appreciated theEdistinction between the Seniority Rules, 1982 and the Recruitment Rules,1967.

4.2 It is vehemently submitted by the learned Advocate appearingon behalf of the appellant that both, the learned Single Judge as well asthe Division Bench of the High Court have materially erred in solelyFrelying upon Rule 5 of the Seniority Rules, 1982 and have materiallyerred in not considering the requirement under the Recruitment Rules,1967.

4.3 It is further submitted by the learned Advocate appearing onbehalf of the appellant that the High Court ought to have appreciatedGthat the Seniority Rules, 1982 shall be applicable with respect to seniorityand not with respect to recruitment. It is submitted that when theRecruitment Rules, 1967 provide that for promotion to the post of SectionOfficer, a person/employee ought to have completed three years ofcontinuous service in District Service (Class III) (Ministerial), Grade II,in that case, the same is required to be adhered to or complied with. ItH

is submitted that in the present case, respondent no.3 as such has notcompleted three years of continuous service in the District Service (ClassIII) (Ministerial) Grade II and thereafter was not eligible for promotionto the post of Section Officer.

4.4 It is vehemently submitted by the learned Advocate appearingon behalf of the appellant that completion of three years of continuousservice/complete service is the sine qua non for being eligible for thepromotional post of Section Officer as per Appendix IX of theRecruitment Rules, 1967. It is further submitted that the High Court hasfailed to consider that the Recruitment Rules, 1967 are framed in termsof the powers given under the Maharashtra Zilla Parishads andPanchayat Samities Act, 1961 and reflects the eligibility criteria which isto 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 criteriashall not be entitled to be promoted to the post of Section Officer. It issubmitted that the language which is used to the Rules (RecruitmentRules, 1967) is plain and simple and gives rise to only one interpretationalone that the candidate must have completed three years continuousservice in the feeder cadre, so that he may be well-acquainted andwell-versed with the work before he could be promoted to the post ofSection Officer. It is submitted therefore when the language which isused under the Rules is plain and simple and unambiguous, the HighCourt 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 BlackLaw 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 onbehalf of the appellant that in the present case as such the High Courthas considered the relevant provisions of the Service Rules, 1982, moreparticularly Rule 5 of the Service Rules, which pertains to deemed dateof promotion and inter se seniority, however, does not consider at all therelevant provisions of the Recruitment Rules, 1967 and/or therequirements to be complied with/fulfilled under the Recruitment Rules,1967.

4.6 Making the above submissions, it is prayed to allow the presentappeal and quash and set aside the impugned judgments and orders passed A

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Aby the learned Single Judge as well as the Division Bench of the HighCourt and to restore the order passed by the Additional DivisionalCommissioner, Aurangabad dated 20.05.2010.

5. The present appeal is vehemently opposed by Shri VinayNavare, learned Senior Advocate appearing on behalf of respondentBno.3.

5.1 It is vehemently submitted by the learned Senior Advocateappearing on behalf of respondent no.3 that as such respondent no.3was granted the deemed date of promotion to the post of OfficeSuperintendent with effect from 07.10.2005. It is submitted thereforeConce respondent no.3 was granted the deemed date of promotion as perrule 5 of the Seniority Rules, 1982 and consequently respondent no.3was placed in the seniority list above the appellant, in that case, unlessand until the seniority of respondent no.3 above the appellant is challenged,thereafter the appellant cannot make any grievance.

D5.2 It is further submitted by the learned Senior Advocate appearingon behalf of respondent no.3 that even otherwise the appellant enteredinto service on 26.6.2001 as Senior Assistant. However, in the cadre ofSenior Assistant, respondent no.3 was granted the deemed date ofpromotion with effect from 6.11.1999. It is submitted that appellantchoose not to challenge the deemed date of promotion 6.11.1999 grantedEto respondent no.3 for the post of Senior Assistant. It is submitted thattherefore its consequence must follow.

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5.3 Now so far as the submission on behalf of the appellant thatrules of eligibility for appointment to the promotional post of SectionOfficer under Appendix IX requires three years continuous service andFSeniority Rules, 1982 cannot be read for conferring eligibility prescribedunder Appendix IX is concerned, it is vehemently submitted by Shri VinayNavare, learned Senior Advocate that first of all the term “continuousservice” is not defined under the Recruitment Rules, 1967. It is submittedthat Rule 8 of the Maharashtra Zilla Parishads District Services Rules,G1968 makes Maharashtra Civil Services (MCS) Rules applicable to ZillaParishad employees. It is submitted that the term “continuous service”is essentially a technical term in service jurisprudence. It is submittedthat there is nothing wrong or illegal if MCS Rules define and explainwhat “continuous service” is.

5.4 It is submitted by the learned Senior Advocate appearing on H

behalf of respondent no.3 that in the Seniority Rules, 1982 “continuousservice” and the “deemed date” are defined. It is submitted that as perproviso to rule 3(c) “continuous service” is where a person is continuouslyofficiating in a post, cadre or service from a deemed date of appointmentunder the provisions of the seniority rules, such person shall be deemedto have rendered continuous service with effect from such deemed date.It is submitted therefore that when respondent no.3 was granted thedeemed date of promotion to the post of Office Superintendent witheffect from 7.10.2005, as rightly held by the High Court, it can be saidthat respondent no.3 has completed three years of continuous serviceand therefore is entitled to be promoted to the post of Section Officer.

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 submittedthat in Appendix IV at serial no.3, the word used is “experience” asrequisite qualification. It is submitted therefore that whenever theauthority intended they used the word “experience”. It is submitted thattherefore as in Appendix IX before the word “continuous service” neitherthe word “actual service” is mentioned nor “actual experience” is statedand therefore “continuous service” in Appendix IX need not be “actualexperience” under the Recruitment Rules, 1967.

5.6 It is further submitted by the learned Senior Advocate appearingon behalf of respondent no.3 that if the submission/contention on behalfof the appellant is accepted, it will give an absurd result. It is submittedthat it will be absurd to say that a person gets benefit of deemed dateand continuous service under the Seniority Rules, 1982 but he cannotderive such continuous service for satisfaction of eligibility condition. Itis submitted that such interpretation will make the Seniority Rules, 1982absurd and unworkable. It is submitted therefore that the provision hasto be read to make it harmonious.

5.7 It is further submitted by the learned Senior Advocate appearingon behalf of respondent no.3 that if mere grant of a deemed date is notheld good enough to consider respondent no.3 eligible for the promotionalpost, then the very object of granting the same would be otiose.

5.8 It is further submitted by the learned Senior Advocate appearingon behalf of respondent no.3 that in any case the view taken by thelearned Single Judge and the Division Bench of the High Court is a A

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Apossible view and it relates to interpretation of the provisions of StateLaw, the interference of this Court under Article 136 of the Constitutionof India is not called for.

5.9 Making the above submissions, it is prayed to dismiss thepresent appeal.B6. We have heard the learned Advocates for the respective partiesat length.

7. The short question which is posed for consideration before thisCourt is, whether an employee who has been assigned the deemed dateof promotion as per Rule 5 of the Seniority Rules, 1982 and as such hasCnot actually worked at all on the promotional post, can it be said that hehas completed service for a continuous period of not less than threeyears in the feeder cadre, which is the requirement under the relevantRecruitment Rules?

8. As per Appendix IX to the Recruitment Rules, 1967, which areDframed in exercise of the powers conferred under Section 274 of theMaharashtra Zilla Parishads and Panchayat Samities Act, 1961 forpromotion to the post of Section Officer, no person shall be eligible forpromotion unless he has completed service for a continuous period ofnot less than three years in District Service (Class III) (Ministerial) GradeEII. Respondent no.3 was promoted as Office Superintendent on22.10.2007. However, he was granted deemed date of promotion underRule 5 of the Seniority Rules, 1982 for promotion as OfficeSuperintendent. He was promoted to the post of Section Officer on1.2.2008. It was the case on behalf of the appellant that as respondentno.3 was actually promoted as Office Superintendent on 22.10.2007Fand therefore has not completed service for a continuous period of notless than three years in the District Service (Class III) (Ministerial) GradeII and therefore he was not eligible for promotion considering the relevantprovisions of the Recruitment Rules, more particularly Appendix IX.However, it is the case on behalf of respondent no.3 that once he wasGgranted the deemed date of promotion under Rule 5 of the SeniorityRules, 1982, his date of promotion for all purposes shall be continued/counted from 7.10.2005, i.e., from the deemed date of promotion. Thelearned Single Judge and the Division Bench of the High Court haveconsidered and applied the Seniority Rules, 1982 under which respondentno.3 was granted the deemed date of promotion. However, it is requiredH

to be noted that the Seniority Rules, 1982 and the Recruitment Rules,1967 both are different rules and enacted under the different provisionsand they operate in different fields. The Recruitment Rules, 1967 areenacted/framed in exercise of powers conferred by clause xxxix of sub-section 2 of Section 274 of the Maharashtra Zilla Parishads andPanchayat Samities Act, 1961. The said Rules shall apply to therecruitment to all posts in District Technical Service (Class III), DistrictService (Class III) and District Service (Class IV). On the other hand,the Seniority Rules, 1982 are framed/enacted in exercise of powersconferred by proviso to Article 309 of the Constitution of India. As perthe Seniority Rules, 1982, the seniority of government servants shall beregulated in accordance with the provisions of the Seniority Rules, 1982.The said Seniority Rules, 1982 are made applicable to the District Servicealso. Therefore, the Seniority Rules, 1982 shall govern the seniority onlyand not with respect to the recruitment. The recruitment shall be governedby the Recruitment Rules, 1967 only.

9. In the present case, the High Court has considered Rule 5 ofthe Seniority Rules, 1982 and has not at all considered the RecruitmentRules, 1967. Respondent no.3 might have been granted the deemeddate of promotion to the post of Office Superintendent with effect from07.10.2005. However, he was actually promoted as OfficeSuperintendent on 22.10.2007. Therefore, in fact, he has rendered serviceas Office Superintendent only from 22.10.2007. As per Appendix IX tothe Recruitment rules, 1967, the eligibility for appointment to thepromotional post of Section Officer requires three years continuousservice. The language used in Appendix IX is unambiguous, simple andplain. Therefore, on a fair reading of Appendix IX of the RecruitmentRules, 1967, to become eligible for the promotional post of Section Officer,a person ought to have rendered continuous service of not less thanthree years. “Continuous service” might have been defined under theSeniority Rules, 1982. However, the same shall be for the purpose ofseniority and the Seniority Rules only. Therefore, if any employee isgranted the deemed date of promotion, his seniority shall be consideredaccordingly from the deemed date of promotion. However, that shall beonly for the purpose of inter se seniority only and the same shall not beapplicable while considering the eligibility criteria under the RecruitmentRules. 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 AB

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Ahas added the word “actual” which as such is not there in Appendix IX.While considering the relevant provisions and as per the rule ofinterpretation, 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 personshall be eligible for promotion unless he has completed service for aBcontinuous service of not less than three years means he has to render/complete service for a continuous period of uninterrupted/unbroken threeyears service. Therefore, when respondent no.3 has not completedthree years of service for a continuous period of not less than threeyears in the feeder cadre in District Service (Class III) (Ministerial)CGrade 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 rightlyallowed the appeal and rightly set aside the order of promotion ofrespondent no.3 dated 1.2.2008 to the post of Section Officer.

D10. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgments and orders passedby the learned Single Judge as well as the Division Bench of the HighCourt are hereby quashed and set aside and the order passed by theAdditional Divisional Commissioner, Aurangabad dated 20.05.2010 ishereby restored and it is held that respondent no.3 is not entitled to beEpromoted to the post of Section Officer and instead action should betaken to promote the appellant to the post of Section Officer, as directedby the Additional Divisional Commissioner, Aurangabad. However, inthe facts and circumstances of the case, there shall be no order as tocosts.

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Ankit Gyan

Appeal allowed.

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