(1) WP 3688.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3688 OF 2011 Babasaheb S/o Sheshrao Patil and others PETITIONERS VERSUS The State of Maharashtra and ors. RESPONDENTS ..... Mr. Sujeet D. Joshi, Advocate for the Petitioners. Mr. S.K. Tambe, A.G.P. for the Respondent-State. Mr. P.R. Nagare, Advocate for respondent nos.2 and 3 ..... CORAM : B.R. GAVAI AND M.T. JOSHI, JJ. DATED : 26TH AUGUST, 2011 ORAL ORDER: 1. By way of present Petition, the petitioners challenge the seniority list. Shri Joshi, learned counsel appearing on behalf of the petitioners submits that on account of the non-passing of the requisite examination within the prescribed period, an employee was only liable to suffer the punishment of non-confirmation and not drawing the next increment. However, he submits by view of amended rules, it is provided that an employee who fails to pass the examination would lose his seniority over (2) WP 3688.2011 the employees who have passed the examination. Shri Joshi further submits that the petitioners were entitled to be considered in accordance with the rules of 1985 and not the rules which came into effect on 24.5.1999. 2. Shri Nagare, learned counsel appearing on behalf of the respondents 3 and 4 on the contrary submits that the seniority is rightly determined on the basis of the rules. Rule 5 of rules dated 8.11.1985 which provides for consequences of failure to pass the examination reads thus:- "5. Consequences of failure to pass the examination- (1) A Parishad employee who fails to pass the examination within the period and chances specified in rule 4, shall not, until he passes the examination or is exempt from passing the examination under rule 6:- (a) be confirmed in the post which he is holding. (b) be allowed to draw his next increment in the scale of the post which he is holding. (2) Increments so withheld under paragraph (b) of sub rule (1) shall become payable to a Parishad employee with effect from the date on which he passes the examination and future increments shall occur as if no increment was withheld. The arrears of (3) WP 3688.2011 increment shall not be admissible for the period during which his increment was so withheld. (3) Notwithstanding anything contained in sub-rule (1) or (2), a Parishad employee appointed to the post by nomination after the appointed date who fails to pass the examination within the period and chances specified in rule 4 shall be liable for termination of his services." By way of rules, which are notified in 1999, sub-rule 3 of rule 5 has been amended, which reads thus:- "3. In rule 5 of the principal rules, for sub-rule (3), the following sub-rule shall be substituted, namely:- (3) A Parishad employee who fails to pass the examination within the period and chances specified in rule 4, shall loose the seniority in the cadre of his post to all those Parishad Employees in the said post who pass the examination before him and also to all those who are senior to such Parishad Employees, below whom he is placed, and who may pass the examination after him but within the period specified in rule 4" 3. Undisputably, though the petitioners have subsequently passed the examination, they have failed to pass the examination within the requisite number of chances and the period. (4) WP 3688.2011 4. It appears that the petitioners and also the learned counsel for the petitioners have missed the attention of sub-rule 3 of 1985 Rules. If the contention of the petitioners that they are entitled to be treated as per rule 1 of 1985 rules is to be accepted, then there is no other option but to throw them out of their services. However, it appears that the respondent-authorities have chosen not to act in consonance with the 1985 rules and the perusal of 1999 rules would reveal that the tenor of the consequences for passing the examination in requisite chances and period has been made much milder now. The consequences which entail termination have now been diluted only to loss of seniority. The petitioners should thank their stars, inasmuch as the respondent-authorities did not act in accordance with the 1985 rules. 5. No merit is found in the Petition. Petition is dismissed with costs, which are quantified at ` 15,000/- (` Fifteen Thousand) to be payable to the High Court Advocates' Bar Association Library, Aurangabad. The costs to be paid within a period of (5) WP 3688.2011 three (3) weeks from today. The costs and the receipt thereof be placed on record of the present Petition. Non-payment of the costs would entail in suo-motu proceedings being initiated against the petitioners for contempt of the Court. Sd/- Sd/- [M. T. JOSHI, J.] [B. R. GAVAI, J.] arp/