1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 2392 OF 2001 Shri Gumansingh Laschhya Barde, age 42 years, occ. Industries Inspector, District Industries Centre, R/o Plot No. 23/A, Raysarthi Colony, Gandoor Road, Deopur, Dhule – 424 002. ...Petitioner (Original Applicant) VERSUS 1 The State of Maharashtra, 2 Development Commissioner (Industries), Directorate of Industries, New Administrative Building, Opp. Mantralaya, MUMBAI – 400 032. ...Respondents (Orig.Respondents) ..... Shri P.R.Katneshwarkar, advocate for the petitioner Shri D.R.Korde, A.G.P. for respondents ..... CORAM : S.B.DESHMUKH AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 09.11.2009 DATE OF PRONOUNCING THE JUDGMENT : 13.11.2009 2 J U D G M E N T : (PER Shrihari P. Davare, J.) 1 Perused. 2 By the present Writ Petition, filed under Articles 226 and 227 of the Constitution of India, the petitioner has sought to quash and set aside the judgment and order in Original Application No. 172 of 2000, rendered by the Chairman, Maharashtra Administrative Tribunal, Bench at Mumbai on 17.10.2000; and also requesting for directions to the respondents to promote the petitioner on the post of Industries Officer with effect from 25.7.1997 and to give him all the consequential benefits thereof. FACTUAL MATRIX : 3 The petitioner herein is presently working as Industries Inspector at District Industries Centre, Dhule. He has joined the Government service on 26.12.1983 as a Industries Inspector and worked in that grade upto 5.7.1991 at District Industries Centre, Dhule. His date of birth is 23.7.1958 and he belongs to Scheduled Tribe. 3 4 On selection through Maharashtra Public Service Commission, the petitioner joined as Industries Officer (Class II) on 6.7.1991 and worked in that grade at Kolhapur upto 30.1.1994. Thereafter he worked at Sindhudurg from 31.1.1994 upto 21.7.1996 and also worked at Dhule from 22.7.1996 to 24.7.1997. However, he was reverted on 25.7.1997 on account of failure to pass departmental examination. Admittedly, he was given four chances to pass the departmental examination, even though the Rules of the Departmental Examination provide that the said examination is to be passed within a period of two years and additional opportunity can be given by the Government in special circumstances by Government Resolution dated 10.7.1984. Accordingly, the petitioner has been working as Industries Inspector at Dhule District Industries Centre till date. 5 The petitioner made representation to Development Commissioner (Industries) on 25.4.1996 expressing his difficulties, but same was not considered and also he came to be reverted as afore said on 25.7.1997. 6 The petitioner after succeeding in the departmental examination held in October, 1997 preferred Original Application 4 No. 172 of 2000 before the Maharashtra Administrative Tribunal, Mumbai Bench, praying to quash and set aside the reversion order, inviting the attention of identical case of his colleague, namely, Shri S.H.Patil, who was benefited by the order passed by this Court, Bench at Nagpur on 25.11.1998. However, the said Original Application came to be dismissed on 17.10.2000 as afore said, and hence, the petitioner has approached this Court under Articles 226 and 227 of the Constitution of India for the prayers as stated herein above. SUBMISSIONS :- 7 It is the contention of the petitioner that although the Rules of departmental examination provide that the departmental examination has to be passed within a period of two years, additional opportunity can be given by the Government in special circumstances vide Government Resolution dated 10.7.1994. It is the contention of the petitioner that he was posted at Sindhudurg District, which affected his and his family’s health and he was suffering from hypertension at the time of is last examination and, therefore, he could not clear the same. Hence, the petitioner feels that he should have been given additional chance. He also submitted the representation to the Development Commissioner 5 (Industries) on 25.4.1996, but still he was not given additional chance to appear for departmental examination. His grievance is that there was no response to the said representation dated 25.4.1996, on the contrary he was reverted on 25.7.1997. 8 The learned counsel for the petitioner further submitted that one Shri S.H.patil, who was belonging to Scheduled Caste was also selected through the Maharashtra Public Service Commission for the class II post of Industries Officer (Technical). At the same time the petitioner and said Shri S.H.Patil both joined their respective posts in July, 1991. Both of them appeared for the departmental examination held in the year 1992-93 and both of them failed in that examination. Thereafter by Government Resolution dated 11.3.1994 both of them were permitted one additional chance to appear for the examination and accordingly their probation period was extended suitably. However, both of them again failed in the said examination held in 1994. Thereafter by order dated 31.8.1995 the petitioner, Shri S.H.Patil and four others were given additional chance to appear for the departmental examination as a special case. However, the petitioner failed in the said examination, and consequently, was reverted vide order dated 25.7.1997 and was posted as Industries Inspector at Dhule. 6 9 The learned counsel for the petitioner submits that the petitioner’s colleague Shri S.H.Patil was also reverted and was posted at Chandrapur as Industries Inspector, but he approached this Court, Bench at Nagpur by Writ Petition No. 1991 of 1997 and was permitted additional chance because he was suffering from Jaundice and the High Court stayed his reversion order and Shri S.H.Patil cleared the said examination, and consequently, his reversion order was averted. The learned counsel for the petitioner submits that the petitioner was also suffering from hypertension at the time of examination, like Shri S.H.Patil, who was suffering from Jaundice, and therefore, the petitioner also ought to have been given additional chance and his reversion order dated 25.7.1997 should have been set aside. 10 The learned counsel for the petitioner further submitted that the Deputy Director for Industries (Establishment) by letter dated 9.7.1990 (Page 73 of the paper book) addressed to the Desk Officer, Energy and Labour Department, Government of Maharashtra, pointed out that the petitioner’s case was identical on all fours with the case of Shri S.H.Patil and, therefore, recommended that the petitioner ought to be granted same benefits which were given to Shri S.H.Patil. 7 11 Respondent no.2 has filed affidavit-in-reply, which was sworn in by Shri Vasant Himmatrao Deshmukh, presently working as Join Director of Industries, Aurangabad Region, Aurangabad and thereby denied the averments and contentions made by the petitioner specifically unless admitted therein and pointed out that the petitioner failed in the departmental examination for four times and as per the provisions of the Rules his services should have been terminated, but since prior to his appointment as a probationary Industries Officer the petitioner was officiating in the Directorate of Industries in the capacity of Industries Inspector,he was only reverted as Industries Inspector rather than terminating his services as Industries Officer (Technical). 12 Learned A.G.P. appearing for the respondents further submitted that the case of Shri S.H.Patil cannot be equated with the petitioner, because the State Government has not given 5th chance to appear for the departmental examination to Shri S.H.Patil, like in the case of the petitioner herein. However, Shri S.H.Patil filed Writ Petition before this Court, Bench at Nagpur and as per the directions of this Court, Bench at Nagpur, he appeared for the examination and his result was declared at the instance of this court, Bench at Nagpur and he cleared the said examination. 8 Moreover, this court, Bench at Nagpur had stayed the order of reversion of Shri S.H.Patil and he continued to be in the post of Industries Officer; whereas the petitioner was reverted vide order dated 25.7.1997 and the said order of reversion became effective and was implemented since the petitioner did not approach to any forum immediately. 13 Learned A.G.P. for the respondents further submitted that although the the petitioner herein passed the examination at the 5th attempt, he cannot claim promotional post as of right, as he could not get through the departmental examination within stipulated period and since he was reverted to the post of Industries Inspector and thereafter got through the said departmental examination and his case would be considered for further promotion on the basis of seniority and the learned A.G.P. Relied upon Rule 4(B)(3) of Notification dated 10.7.1994 produced at Annexure ‘R-1’. 14 Lastly, learned A.G.P. for the respondents submitted that the case of Shri S.H.Patil does not stand on the equal footing of the case of petitioner herein and, therefore, the petitioner cannot claim the benefit of the decision given in the case of Shri S.H.Patil by this court, Bench at Nagpur. 9 15 We have perused the petition, it’s annexures, impugned order and affidavit-in-reply filed by respondent no.2 and the relevant rules as well as heard submissions advanced by learned counsel for the parties. CONSIDERATION :- 16 Considering the rival contentions of the petitioner and the respondents, and Rules prescribed by the Government Resolution dated 10.7.1994, which are produced at Exh. ’C’ page 37 of the petition, which have been framed under Article 309 of the Constitution of India, which are self-explicit and prescribe that the probationary Industries Officer shall have to pass the departmental examination within the period of two years and he would avail two opportunities therefor and an additional chance can be given as a special case. The failure in the examination as afore said would invite the termination. 17 Since the petitioner failed in the said departmental examination during both the attempts, by way of Government Resolution dated 1.3.1994, page 42 of docket of the petition, the petitioner was given an additional opportunity to appear for the said departmental examination as last chance and it was made 10 clear to him that failure in the said examination would invite termination of his services. However, the petitioner failed in the said examination also. Thereafter by Government Resolution dated 31.8.1995 produced at Exh. ’G’ page 47, the petitioner and five others were granted one more opportunity as a special case to appear for the said departmental examination and it was made clear to the petitioner that it was his last chance to appear in the examination, and failing in the said examination would invite termination of his services or he would be reverted back. However, the petitioner herein again failed in the departmental examination during the said attempt also. Accordingly, the petitioner failed in the said departmental examination in spite of giving four chances. Hence, thereafter the petitioner came to be reverted to the post of Industries Inspector, Class III by order dated 25.7.1997, which is produced at Exh. ’J’ page 53 and the said order came into effect and was implemented and he resumed his duty as Industries Inspector, Class III, at Dhule. 18 Coming to the contention of the petitioner that his case is identical to the case of Shri S.H.Patil and he be given benefit like Shri S.H.Patil, we are not impressed by the said argument canvassed by learned counsel for the petitioner, for the simple reason that the case of the petitioner cannot be equated with the 11 case of Shri S.H.Patil, because the State Government has not given 5th chance to appear for the departmental examination to Shri S.H.Patil, and besides that, Shri S.H.Patil filed Writ Petition before this Court, Bench at Nagpur and as per directions of this court, Bench at Nagpur he appeared for the said departmental examination and cleared the same, and consequently, his reversion was averted, and more particularly the case of the petitioner can be distinguished from the case of Shri S.H.Patil, since this Court, Bench at Nagpur stayed the order of reversion of Shri S.H.patil, who continued to be in the post of Industries Officer; whereas the petitioner herein was reverted back to the post of Industries Inspector by order dated 25.7.1997, which was acted upon and implemented since the petitioner did not approach to any appropriate forum immediately, and the petitioner resumed on his duty as Industries Inspector, Class III, at Dhule. 19 In substance, it is amply clear that the case of Shri S.H.Patil and the case of the petitioner herein do not stand on the equal footing and the petitioner cannot claim the benefit of the decision given in the case of Shri S.H.Patil by this Court, Bench at Nagpur. 12 20 In the circumstances, we do not find any illegality, irregularily, and/or perversity in the reasoning adopted by the learned Chairman, Maharashtra Administrative Tribunal, Bench Mumbai while passing the order in Original Application No. 172 of 2000 on 17.10.2000. Hence, we are of the considered view that this is not a fit case to exercise the extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India to interfere in the impugned order dated 17.10.2000 and hence present Writ Petition bears no substance and same is devoid of any merits and deserves to be dismissed. 21 In the result, Writ Petition stands dismissed. Rule is discharged accordingly. However, in the circumstances of the case, there shall be no order as to costs. (SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.) dbm/wp2392.01