REPORTABLE

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

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Consequences 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

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.

3. The  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.   

4. The 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  three chances:

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

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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).

(4) Notwithstanding 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:

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(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

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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.”

5. Appellant passed the said examination in July 1988.

6. Indisputably,  after  his  appointment,  the  Departmental  Examination

prescribed in terms of the aforementioned Rules, had been held as under :

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July 1985

January 1986

July 1986

January 1987

July 1987

January 1988

July 1988

7. Concededly, 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.

8. He was  confirmed  in  services  w.e.f.  13.7.1988  by  an  office  order

dated 17th July, 1995 which reads as under :

“With reference 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 his name.

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Name Date of Date of completing      Appointment the probationary

Period

S.G. Jickhar 3.11985 Dt.13.7.1988”

9. Inter 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 :

“The  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

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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.”

10. A writ petition filed by him was dismissed by reason of the impugned

judgment by the High Court.

11. Mr. Ashok Shrivastava, learned senior counsel appearing on behalf of

the appellant, would submit:  

(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

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consequently the High Court  committed a serious error in ignoring

the same.

12. Mr.  Sanjay V. Kharde,  learned counsel  appearing on behalf  of  the

State, however, would support the impugned judgment.

13. Before 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.   

14. Mr. 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,

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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 Rule 4.

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.  

15. Relevant  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

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chances wherefor the period of probation is required to be extended by one

year.   

16. As 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.   

17. Submission of the learned counsel that the appellant had been granted

exemption from appearance may not be correct.

Office  of  Commissioner  of  Transport  had  issued  a  letter  dated

21.7.1988, wherein it is stated :

“Through  the  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. No.

Name  of the officer

Place Term Desirous  of availing  the benefit  of exemption from paper

Which  papers  are exempted  with month and year

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1. S.J. Jichkar Regional Assistant Transport Officer, Yeotmal

4th Yes July  86  paper No.2, 4 Jan. 87. July 87 attempt Exempted.”

18. We 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.

19. The  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.   

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Conditions  for  grant  of  exemption  so  far  as  the  appellant  is

concerned, thus, also do not appear to have been fulfilled.

20. It 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.  

21. The  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.

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22. It 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].

23. Appearance 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.

24. For 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.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Mukundakam Sharma]

New Delhi. February 12, 2009

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