1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 3223 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 & Water Conservation Department Mantralaya, Mumbai-32 .. PETITIONERS. (Ori. Respondent Nos. 1 to 3) VERSUS 1) Vithal Ukandji Suroshe, age 44 years, Occu. Service as Child Development Officer, ICDS, Wadwani, Dist. Beed. 2) The Chief Executive Officer, Zilla Parishad, Beed. RESPONDENTS. (Ori. Applicant & Respondent No. 4) ... Shri K.G. Patil, Advocate for Petitioners. Shri A.S. Deshpande, Advocate for respondent No. 1 CORAM : P.V. HARDAS AND S.V. GANGAPURWALA, JJ. DATE : 16th April, 2010. 2 ORAL JUDGMENT: (Per S.V. GANGAPURWALA,J.) 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 Writ Petition impugns the judgment and order dated 30/07/2009 passed by the Maharashtra Administrative Tribunal, Bench at Aurangabad in Original Application No. 419/2009. 3. The present respondent had filed Original Application bearing No. 419/2009 before the Maharashtra Administrative Tribunal, Bench at Aurangabad, thereby seeking declaration that he has availed only three chances to appear for the Departmental examination prescribed as per the Scheme of Departmental Examination Rules, 1991 and that he is entitled to avail the fourth chance by appearing for the departmental examination scheduled to be held in May 2009, so also prayed that no adverse action be taken against him. The present respondent is promoted to M.D.S. Class-II cadre by order dated 17/03/2007 and he resumed duty on 20/03/2007. As 3 per Rules, the petitioner is supposed to pass the departmental examination in four chances within two years. 4. According to the respondent he would be eligible to appear for examination to be held in April, 2009. The examinations are held in the month of April and October every year. The respondent apprehended adverse action by the department against him, as according to department, the 4th chance would end in October, 2008. The Maharashtra Administrative Tribunal, Bench at Aurangabad allowed the Original Application filed by the present respondent holding that the exams to be held in April, 2009 would be the 4th chance of the respondent and he is entitled to appear for the said exam. Pursuant to the interim orders passed by the Tribunal, the present respondent appeared for examination held in April, 2009, at the time of allowing the said Original Application, the Tribunal directed the present petitioner to declare the result of this respondent of the examination held in April-May 2009. The Tribunal 4 further directed that, the said appearance of the present respondent be treated as 4th chance of departmental examination. The present petitioners have challenged the said judgment and order of the Tribunal. 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 shall be 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 respondent assumed his duty on 20-03-2007 and after the respondent assumed duties on 20-03-2007 the next examination was held in April, 2007, as such that would be his first chance. As examinations are held twice in a year, the exam held in October-2008 would his 4th chance and last 5 chance. According to him, this is in consonance with the said Rules. 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, -(1) Where an officer is posted for work under any Zilla Parishad, 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, 2007, 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 6 the judgment and order passed by the Tribunal and the relevant Rules. The chronological details and the events are not disputed. Rule 3 of the said Rules, 1991 cannot be read in isolation. Rule 3 will have to be read in consonance with the Rule 12. Rule 12 lays down a mandate that if any officer is desirous to appear for 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 examination. In the present case, after he assumed his duty on 20/03/2007 the examinations were held in April, 2007 itself. Naturally, the respondent could not have applied for appearing in the examination held in April, 2007, as statutory notice for giving an application i.e. 3 months prior to the commencement of examination could not have been given. The 4 chances that are reckoned are not merely illusory chances, but they ought to be real and genuine chances. The Tribunal has rightly considered the fact that, in view of Rule 12, respondent could not have appeared in April, 2007 examination and the examination held in 7 April, 2009 would be the 4th chance. The judgment of the Tribunal cannot be faulted, as such Writ Petition being devoid of any merits is hereby dismissed. However, there shall be no order as to costs. [S.V. GANGAPURWALA, J ] [ P.V. HARDAS, J ] SDM* WP3223.10(J)