1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION No. 2346/2011. Mahesh Bhagwandas Dattani -VERSUS- The State of Maharashtra and another _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ CORAM : B.P.DHARMADHIKARI & A.P. BHANGALE, JJ. DATED : SEPTEMBER 13, 2011. This Court has already issued notice for final disposal. Accordingly we have heard Shri A.V. Bhide, learned Counsel for petitioner, Shri Kale, learned A.G.P. for respondent No.1 and Shri V.V. Naik, learned Counsel for respondent no.2. Rule is made returnable forthwith. Shri Bhide, learned Counsel for petitioner points out that petitioner has completed 45 years of his age and has been exempted from passing Maharashtra 2 Accounts Clerks Examination (MAC Examination) w.e.f. 06.07.2006. Being physically challenged and as promotional post was available, petitioner has been promoted by order dated 23.04.2009 as Senior Assistant (Accounts), however, in promotion order an arbitrary condition, that the promotion would be only for a period of 11 months or then till availability of a candidate who passes that examination has been introduced. Though period of 11 months has expired, petitioner still continues on promotional post. Reliance is being placed upon the judgment of Hon’ble Apex Court reported at (1996) 10 SCC 623 (Mohammed Rahmat Ali .vrs. Inspector of Registration & Stamps A.P. and others), to urge that the petitioner being exempted, is not required to pass any examination and therefore, needs to be treated at par with person who passes that examination. Contention is, the condition of duration of 11 months or then availability of a candidate who has passed MAC Examination, therefore, deserves to be quashed and set aside. Shri Naik, learned Counsel for respondent 3 no.2 as also Shri Kale, learned A.G.P. for respondent no.1 are opposing the petition. Shri Naik, learned counsel places reliance upon reply affidavit and contends that if any stipulation in promotion was not acceptable to the petitioner, he could have not joined the promotional post. He further contends that having enjoyed the benefit of promotion for almost two years, petition has been filed and therefore, it is suffering from delay and latches. He further states that at present there is no cause of action for maintaining such petition. If it becomes necessary to revert the petitioner, appropriate notice and opportunity of hearing will be extended to him, and in that event, he may approach this Court. He therefore, prays for dismissal of petition. We find basic facts not in dispute. Petitioner has completed 45 years of his age and therefore, is not required to pass MAC Examination. He therefore, deserves to be treated as if he has cleared that examination. Perusal of order dated 23.04.2009 reveals that petitioner belonging to open category has been 4 promoted against a roaster point meant for open category candidate which is shown to be reserved for physically challenged person like him. It is obvious that from said order that roaster point against which the petitioner is promoted is to be filled in by promotion only. The order also shows that petitioner can be reverted if his work is not found satisfactory. Zilla Parishad has not pointed out any valid reason which prompted it to introduce time limit of 11 months in this promotion order or then the stipulation about non-availability of a candidate who has passed MAC Examination. It is apparent that the availability of such a candidate who has passed MAC Examination is totally irrelevant, as petitioner cannot be treated as a candidate who has not passed MAC Examination, at least in present facts. The contention that challenge before this court is belated or suffers from latches, is liable to be rejected. Though petition is filed after 22 months, it is apparent that situation has not become irreversible either for petitioner or for respondent no.2. We 5 therefore, do not find any substance in the said challenge. Having put a condition which is unsustainable, it was necessary for Zilla Parishad to extend reasons therefor. That has not been done, and on the contrary an offer of previous notice and opportunity of hearing is made, we find both unnecessary in present facts. In this situation, we set aside the stipulation of 11 months or then availability of a candidate who has passed MAC Examination in the order of promotion dated 24.02.2009. Rest of the order is maintained as it is. Petition is, thus partly allowed. Rule is made absolutely in the aforesaid terms, with no order as to costs. JUDGE JUDGE Rgd