( 1 ) JUDGMENT REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 2423 OF 1994 1. Shri P.R. Shinde, Age : Major, Occupation : Service, Senior Clerk, District Court, Jalgaon, at Jalgaon. 2. Sou. P.C. Sant, Age : Major, Occupation : Service, Senior Clerk, District Court, Jalgaon, at Jalgaon. 3. Shri G.P. Badgujar, Age : Major, Occupation : Service, Senior Clerk, District Court, Jalgaon, at Jalgaon. 4. Shri R.G. Sheikh, Age : Major, Occupation : Service, Senior Clerk, Chief Judicial Magistrate's Court, at Jalgaon. 5. Shri B.U. Bhavsar, Age : Major, Occupation : Service, Senior Clerk, District Court, Jalgaon, at Jalgaon. ( 2 ) 6. Shri G.H. Patel, Age : Major, Occupation : Service, Junior Clerk, C.J.M.'s Court, at Jalgaon. 7. Shri D.T. Wani, Age : Major, Occupation : Service, Senior Clerk, District Court, Jalgaon, at Jalgaon. 8. Shri R.L. Rawate, Age : Major, Occupation : Service, Junior Clerk, District Court, Jalgaon, at Jalgaon. 9. Shri S.N. Patil, Age : Major, Occupation : Service, Junior Clerk, District Court at Jalgaon, Jalgaon. 10. Shri D.G. Sheikh, Age : Major, Occupation : Service, Senior Clerk, District Court at Jalgaon, District : Jalgaon. .. Petitioners. versus 1. The State of Maharashtra. 2. District and Sessions Judge, Jalgaon. ( 3 ) 3. The Hon'ble the Chief Justice, High Court, Bombay 400 032. 4. The Additional Registrar (Admn.), High Court, Appellate Side, Bombay 400 032. 5. Shri S.G. Kulkarni, Age : Major, Occupation : Govt. Servant, C/o. Civil Court, Jamner, District : Jalgaon. 6. Shri M.R. Shimpi, Age : Major, Occupation : Govt. Service, C/o. J.M.F.C. Railway Court at Bhusaval, Dist. Jalgaon. 7. Shri C.N. Patil, Age : Major, Occupation : Govt. Service, Civil Court at Raver, District : Jalgaon. 8. Shri P.L. Bansule, Age : Major, Occupation : Govt. Service, C/o. Civil Court at Pachora, District : Jalgaon. 9. Shri P.B. Sarode, Age : Major, Occupation : Govt. Service, C/o. Civil Court, Bhusaval, District : Jalgaon. ( 4 ) 10. Shri M.J. Bhagwani, Age : Major, Occupation : Govt. Service, C/o. Civil Court, Erandol, District : Jalgaon. 11. Shri R.N. Choudhari, Age : Major, Occupation : Govt. Service, C/o. Civil Court at Parola, District : Jalgaon. 12. Sou. U.S. Rakshe, Age : Major, Occupation : Govt. Service, C/o. Civil Court, Senior Division, at Jalgaon, District : Jalgaon. .. Respondents. ....................... Mr. S.R. Barlinge, Advocate, for the petitioners. Mrs. R.K. Ladda, Assistant Government Pleader, for respondent nos.1 to 4. Respondent nos.5 to 12 served (Absent). ........................ CORAM : B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE : 1ST JULY 2010 ( 5 ) ORAL JUDGMENT (Per B.R. Gavai, J.) : 1. By way of present petition, the petitioners have prayed for a declaration, that the promotions given to respondent nos.5 to 12 are illegal, ultra vires the Constitution and they should be reverted back to their respective posts. The petitioners have further sought a declaration, that the guidelines dated 6th August 1990, issued by the Additional Registrar, High Court, Bombay, are illegal. A further relief is sought, that amendment to Paragraph 625 of the Civil Manual, 1986, is illegal and, therefore, liable to be set aside. 2. The petitioners are working as Junior / Senior Clerk in the Judicial District of Jalgaon. The petitioners have passed Higher Standard Departmental Examination (For short, "HSDE"). According to the petitioners, the respondent nos.5 to 12 have been promoted as per amendment to paragraph 625 of the Civil Manual. It is the case of the petitioners, that though these respondents have not passed HSDE, they have been promoted to the post of Assistant Superintendent. It is the case of the petitioners, that all these respondents, only on the basis of their seniority, have been given promotion totally overlooking the merit. It is the contention of the petitioners, that only the petitioners who have passed the HSDE, are eligible to be considered for promotion and, as such, interest of justice ( 6 ) requires that the promotion granted in favour of the respondents be quashed and set aside and the petitioners be directed to be promoted. 3. Mr. S.R. Barlinge, learned Counsel appearing for the petitioners, submits that the amendment to paragraph 625 of the Civil Manual, which gave an exemption to the members of the staff of the subordinate courts to appear and pass HSDE, if they have completed 45 years, has been deleted by an amendment in 2000. He, therefore, submits that the amendment, which was in vogue, and gave total go by to the merit and the persons, who have completed 45 years of age, were given advantageous position, though they had failed to appear and pass the HSDE, and the persons who have passed HSDE were denied their legitimate claim, is liable to be set aside. 4. Mrs. R.K. Ladda, learned Assistant Government Pleader appearing for respondent nos.1 to 4, on the contrary, submits that the promotions were given to such of the candidates who have completed 45 years, after considering their Confidential Reports and after satisfying that they were fit to shoulder the higher responsibility. She categorically states that the promotions were given on seniority-cum-merit basis. 5. Paragraph 580 of the Civil Manual deals with the ( 7 ) principles to be followed by the District Judge, in the matter of promotions, which reads thus : " In the matter of promotions and confirmations, the District Judge should take into consideration the following principles :- (i) All clerks who pass the Lower Standard Departmental Examination should be confirmed immediately in the existing vacancies. Such confirmations should not be deferred till the passing of the said examination by their seniors (Vide High Court Circular No. B-10135/50, dated the December, 1950). (ii)(a) Whenever vacancies to be filled by promotion are available, the District Judge shall consider for promotion thrice the number of eligible employees according to their seniority. (b) The District Judge may, if for reasons to be recorded in writing, he considers it to be so desirable, appoint a Committee to subject the employees within the Zone of consideration to an appropriate test, and may also consider the result of such test. (c) While selecting an employee for promotion, the District Judge shall take into consideration :- (i) The entire service record, and more particularly annual confidential reports for the previous 5 years; ( 8 ) (ii) Leave and punctuality record, for the previous 5 years; (iii) Special reports called from the officers under whom the employees within zone of consideration are currently working; (iv) Nature of duties of the promotional post vis-a-vis the abilities of employees within zone of consideration. (d) In case promotions are not made according to seniority a minute indicating reasons for selection shall be recorded by the District Judge. The seniority of Senior Clerks should be determined from the date of their appointment to that post i.e. the Senior Clerk and not reference to seniority in the cadre of Junior Clerk. (iii) If a clerk who is junior in service has passed the Lower Standard Departmental Examination before a clerk who is senior in service, the clerk junior in service should be confirmed, if there is a permanent vacancy, in preference to the clerk senior in service who has not passed the examination. " 6. Paragraph 625 of the Civil Manual deals with Departmental Examinations. The relevant portion of the said ( 9 ) paragraph reads thus : "(1) There shall be two examinations called respectively the "Lower Standard" and the "Higher Standard". (2) No candidate selected for appointment to a clerical post in accordance with Government Circular, Home Department, No. 8977/3-II, dated the 16th March 1939 shall be confirmed in his appointment as a Clerk unless he has passed the "Lower Standard" Examination. Note :- The above shall not apply to candidates who were selected before 16th March, 1939. (3) No Clerk shall be promoted to an appointment to the post of Sheristedar, Assistant Superintendent and above unless he passes the Higher Standard Departmental Examination or to an appointment to the post of Senior Clerk unless he passes the Lower Standard Departmental Examination. (3(i)) The Members of the State of the Subordinate Courts who have completed the age of 45 years are exempted from appearing and passing the Higher Standard Department Examination. " It is to be noted that sub-paragraph 3(i) was added to the Civil Manual by amendment incorporated in 1992. The said paragraph now stands deleted by the amendment of 16-8-2000. ( 10 ) 7. From the perusal of the communication dated 20th April 1990, addressed by the Additional Registrar, High Court (Appellate Side), Bombay, to the District and Sessions Judge, Jalgaon, it can be seen that the High Court, on the administrative side, after considering request made by the lower Judiciary, requesting to grant exemption to those members of the lower Judiciary for appearing to the HSDE, had granted exemption from appearing and passing the HSDE to such of the members of the staff who had completed 45 years of age. It appears that certain guidelines were sought by some of the District Judges and the Additional Registrar vide his communication dated 6th August 1990, intimated the said guidelines to the learned District Judges. The said guidelines read thus : "1. Promotion should be on the principle of seniority subject to fitness i.e. persons should be considered for promotion according to their seniority in the cadre of Senior Clerks and they should be promoted in the order of their seniority provided they are considered fit for shouldering the higher responsibilities. 2. The exempted persons may be treated as if they have passed Higher Standard Departmental Examination. 3. By the recent amendment to para 625 of Chapter XXXI of Civil Manual, 1986, the Senior ( 11 ) Clerk who has not passed the Higher Standard Departmental Examination but attains the age of 45 years has become eligible for promotion to the cadre of Assistant Superintendent. But before he attains the age, some Senior Clerks who are junior in service to him in that cadre might have passed Higher Standard Departmental Examination and thereby may be eligible for promotion as Assistant Superintendent as per the provision of Para No.625 as it should before 4-4-1990. But in such case, the Senior Clerk who has become eligible for promotion in the cadre of Assistant Superintendent due to his attaining the age of 45 years should be promoted first taking into consideration of his fitness in case the promotion is to be made on or after 4-4-1990. 4. The Senior Clerks who have been promoted in leave vacancy on passing the Higher Standard Departmental Examination before 4-4-1990 and they are still in continuous service may not be reverted. If the said persons are reverted for want of vacancy, on or after 4-4-1990, then the exempted persons may be given promotion first if they are senior in the gradation list of Senior Clerk and are found fit. 5. When the vacancy in the posts of Assistant Superintendent have arisen prior to 4-4-1990 and they were not filled in on or to be filled in as per the provision of the amended para 625. It means when the order of promotion is being passed on or after 4-4-1990 the Senior persons in the cadre of Senior Clerk gradation list will have to be considered first if he has completed the age of 45 years and had not passed the Higher Standard Departmental Examination. " ( 12 ) 8. Perusal of sub-para 3 of para 625 of the Civil Manual would reveal that no clerk is entitled to be promoted to the post of Sheristedar, Assistant Superintendent and above unless he passes the Higher Standard Departmental Examination, or promoted as Senior Clerk unless he passes the Lower Standard Departmental Examination. By the amendment which was incorporated by addition of paragraph 3(i), what has been provided is that the members of the staff of subordinate court, who have completed age of 45 years, are exempted from appearing and passing the Higher Standard Departmental Examination. It can, thus, be seen that the qualification which is mandatory for being considered for promotion to the post of Assistant Superintendent, Superintendent or Sheristedar, that he has to pass HSDE, is relaxed, if a person crosses age of 45 years. In other words, the ineligibility to be considered for promotion, on the ground of not passing the said examination, would stand relaxed in the case of a candidate who has crossed 45 years of age. 9. Sub-paragraph "(ii)(a)" of paragraph 580 of the Civil Manual, which deals with "promotions", requires that whenever vacancies to be filled by promotion are available, the District Judge shall consider for promotion thrice the number of eligible employees according to their seniority. Sub-paragraph "(ii)(c)" of the said paragraph also requres, that while selecting an ( 13 ) employee for promotion, the District Judge is required to take into consideration his entire service record, and more particularly annual confidential reports for the previous 5 years, so also, leave and punctuality record, for the previous 5 years. The learned District Judge has also to take into consideration the special reports called from the officers under whom the employees within zone of consideration are currently working, and nature of duties of the promotional post vis-a-vis the abilities of employees within zone of consideration. Sub-paragraph "(ii)(d)" of paragraph 580 of the Civil Manual also mandates the learned District Judge to record reasons, in case, promotions are not made according to the seniority. 10. It can, thus, be clearly seen that while paragraph 625 of the Civil Manual deals with eligibility of a candidate to be considered for promotion, paragraph 580 deals with the manner in which promotion shall be made and the factors which shall be taken into consideration while effecting promotion. A conjoint reading of both the provisions would reveal that the promotions cannot be effected merely on the basis of seniority and the satisfaction regarding their fitness to shoulder higher responsibility. While effecting promotions, the learned District Judge is required to take into consideration, thrice the number of ( 14 ) eligible candidates according to their seniority, and while effecting actual promotions, the entire service record and more particularly, annual confidential reports for the last 5 years, leave and punctuality record for the previous 5 years, special reports from the officers under whom they were working, along with abilities of the employees to shoulder higher responsibility, are required to be taken into consideration. We find, that the promotion only on the basis of seniority and subjective satisfaction of the authority with respect to shouldering higher responsibility, is not what is contemplated under the Rules. 11. We find, that the guidelines issued by the High Court, dated 6th August 1990, and particularly paragraphs 3 and 4 thereof, are not in conformity with the rules. The said guidelines require that if a Senior Clerk, who is junior in service and has not attained the age of 45 years, but passed HSDE and thereby eligible for promotion as Assistant Superintendent, should be considered after a Senior Clerk who has become eligible for promotion in the cadre of Assistant Superintendent only because he completes the age of 45 years. The guideline No.4 which requires that if a Senior Clerk who was promoted on leave vacancy is reverted for want of vacancy, then exempted person should be given promotion first. We are of the considered view, that both the guidelines are not in consonance with the rules. ( 15 ) 12. At the cost of repetition, we may say, what is provided by way of amendment to paragraph 625 of the Civil Manual, was to make the persons who have crossed 45 years of age, eligible to be considered for promotion and remove the ineligibility which had accrued to them on non-qualifying the HSDE. However, the said provision cannot be read to mean that merely because they had crossed age of 45 years, they were entitled to the promotion. What has been done, is that the said persons who have crossed 45 years of age, have been held eligible to be considered for promotion along with other eligible candidates. After these persons are found to be eligible, they were required to be considered for promotion in accordance with paragraph 580 of the Civil Manual. 13. We may refer to the observations of Division Bench of this Court, in the case of Shrirang Atmaram Nikam Vs. District and Sessions Judge, Thane & others (2005(3) ALL MR 573), wherein the provisions of Para 580 of the Civil Manual, 1986, fell for consideration. The Division Bench of this Court has observed thus : " In the case of promotion whether by selection or based on seniority-cum-fitness what is always considered is the number of posts and the zone of consideration. As an illustration, if there be one ( 16 ) post, depending upon the G.R., 3 persons may be considered. All the 3 employees may be having good record, but still as the vacancy is only one, the candidate in the case of selection post, having the best record would be selected. It does not mean that the other candidates are not fit for promotion. The test, therefore, is not whether a candidate would be promoted. The test is whether a candidate is eligible. " 14. As is evident from the affidavit in reply, the promotions to the respondents have been effected only on the ground that the said candidates had completed 45 years of age and what was required to be considered is only seniority and their fitness to shoulder the higher responsibility. As already discussed herein above, the promotions could not have been effected only on this ground. While effecting promotions, the learned District Judge was required to consider the cases of thrice the number of eligible candidates as per vacancies and then by taking into consideration the four factors which are stipulated in sub-paragraph "(ii)(c)" of paragraph 580, could have granted promotions to the most suitable candidates. We give an illustration. If there were 5 vacancies, the learned District Judge was required to consider 15 eligible candidates and amongst 15 eligible candidates, 5 best candidates, by applying the test in sub-paragraph "(ii)(c)" of paragraph 580 of the Civil Manual, could have been promoted. The promotions ( 17 ) could not have been given to the five senior most persons who had attained the age of 45 years, only on account of his subjective satisfaction that they were fit to shoulder the higher responsibility. 15. We, therefore, find that the promotions which were made are not in accordance with paragraph 580 of the Civil Manual. It is a settled principle, that a particular provision of a statute or rule cannot be read in isolation but has to be read in harmony with other provisions of the statute or rule. It appears that the respondents have, on reading sub-paragraph "3(i)" of paragraph 625 of the Civil Manual, in isolation, made the promotions in total disregard to the other provisions of paragraph 625 and paragraph 580 of the Civil Manual. 16. We have, therefore, no option but to set aside the promotions of respondent nos.5 to 12 made by respondent no.2. 17. However, Mr. S.R. Barlinge, learned Counsel appearing for the petitioners, at this stage, fairly concedes that the aforesaid respondents have already retired from services and, therefore, has not pressed for setting aside the promotional orders of respondent nos.5 to 12. ( 18 ) 18. In the result, the petition is allowed. (i) We direct the respondent no.2 to re-determine the issue of promotion to the post of Assistant Superintendent, in the light of what has been observed by us herein above. (ii) We make it clear, in the re-determination of the matter, if it is found that the petitioners are entitled for promotion to the post of Assistant Superintendent, prior to that of respondent nos.5 to 12, they shall be only given deemed date in the cadre of Assistant Superintendent and the deemed date shall be taken into consideration for their continuity in that cadre and for the pensionary benefits. However, they would be entitled for the salary in the higher cadre, only from the date of actual officiation. (iii) We further make it clear that in the event, if it is found that the respondent nos.5 to 12 were not entitled for promotion on the date they were given, no recovery shall be made from their salary of any excess payment made to them. ( 19 ) 19. Rule is made absolute in the aforesaid terms. However, parties shall bear their own costs. ( S.V. GANGAPURWALA ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp2423