1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 3222 OF 2010 1) The State of Maharashtra, Through the Government Pleader, High Court Bench at Aurangabad. 2) The Divisional Commissioner, Revenue Division, Aurangabad. 3) The Secretary, Rural Development and Water Conservation Department Mantralaya, Mumbai-32 .. PETITIONERS. Ori. Respondents) VERSUS Ashok Bhikajirao Sawant, Age 48 years, Occu. Service as Deputy Chief Executive Officer [Child Welfare], Z.P. Osmanabad, R/o 89, Samta Colony, Near Akashwani, Osamanabad RESPONDENT. (Ori. Applicant) ... Shri K.G. Patil, A.G.P. for Petitioners. Shri A.S. Deshpande, Advocate for respondent. CORAM : P.V. HARDAS AND S.V. GANGAPURWALA, JJ. DATE : 16th April, 2010. ORAL JUDGMENT: (Per S.V. GANGAPURWALA,J.) 2 1. Heard learned A.G.P. Shri K.G. Patil for the petitioners and learned counsel Shri A.S. Deshpande for respondent. 2. The present petitioners vide Writ Petition takes exception to the judgment and order dated 07/09/2009 passed by the learned Maharashtra Administrative Tribunal, Bench at Aurangabad in Original Application No. 263/2009. 3. The present respondent had filed Original Application bearing No. 263/2009 before the Maharashtra Administrative Tribunal, Bench at Aurangabad, thereby seeking directions against the present petitioners from taking any adverse action against him, in furtherance of communication dated 24-02-2009 and further declaration that he has passed departmental examination within prescribed 4 chances, as per the scheme of Departmental Examination Rules, 1991. 4. The present respondent is promoted to 3 MDS Class II cadre by order dated 30-03-2002 and he resumed his duty on 01-04-2002. The present respondent passed the Departmental Examination as required by the Maharashtra Development Services, Class I and Class II (Departmental Examination) Rules, 1991. The examination was held on 06/04/2004 and the result was subsequently declared. According to the petitioners as this passing of examination was beyond two years since the date of promotion dated 01-04-2002 and not within the four chances, the present petitioner issued show cause notice dated 24/02/2009 to the present respondent,vide the said show cause notice the present respondent, was called upon to show cause, as to why he should not be reverted. The present respondent challenged the same by filing Original Application No. 263/2009. The Tribunal by its order dated 07/09/2009 is pleased to allow the Original Application, declaring that the present respondent has passed the Departmental Examination within the requisite 4 chances and within two years as required by the Rules. This order is impugned in the present Writ Petition. 4 5. The learned A.G.P. contended that as per Rule 3 of the Maharashtra Development Services, Class I and Class II (Departmental Examination) Rules, 1991 (here-in-after referred as ‘Rules of 1991’). Every Officer is required to pass the examination within 4 chances and within a period of two years from the date of his appointment either by promotion or nomination. By relying on Rule 3, the learned A.G.P. contended that the Tribunal committed error in allowing the Original Application filed by the present respondent. According to him the respondent assumed his duties on 01-04-2002 and he passed the examination held on 06-04-2004, the same was beyond the period of two years and as such he was not entitled for promotion. 6. On the other hand, Shri A.S. Deshpande, learned counsel for the respondent placed reliance on Rule 12(1) of the said Rules, 1991 which reads as under :- “ A dmission for Examination, 12(1) Where an officer is posted for work under any Zilla Parishad, 5 such officer, if he desires to appear for the Examination, shall apply, in writing for admission to the Examination to the Chief Executive Officer of the Zilla Parishad three months prior to the date of commencement of the Examination.” According to him, he could not have appeared for the examination held in April, 2002, as according to the Rule 12(1) three months notice prior to the date of commencement of the examination is required to be given. 7. With the assistance of the learned counsels for the parties, we have gone through the judgment and order passed by the Tribunal and the relevant Rules. The chronological dates and the events are not disputed. The Rule 3 of the said Rules, 1991 cannot be read in isolation. The Rule 3 will have to be read in consonance and harmoniously with the Rule 12. Rule 12 lays down a mandate that if an officer is desirous to appear for examination, he should apply in writing for admission to the examination to the Chief Executive Officer of the Zilla Parishad, 6 three months prior to the date of commencement of examination. In the present case, after present respondent assumed his duties on 01/04/2002 immediately the examinations were held in April, 2002 itself. Naturally, he could not have applied for appearing in the examination held in April, 2002, as statutory period for giving an application, i.e. 3 months prior to the commencement of examination could not have been complied. The 4 chances that are to be reckoned are not merely illusory chances, but they ought to be meaningful and real chances. The Tribunal has rightly considered that, in view of Rule 12, petitioner could not have appeared in April, 2002 examination and the examination given in April, 2004 would be the 4th chance. The judgment of the Tribunal cannot be faulted, as such Writ Petition being devoid of any merits is hereby rejected. However, there shall be no order as to costs. [S.V. GANGAPURWALA, J ] [ P.V. HARDAS, J ] SDM* WP3222.10(J)