STATE OF MAH. THR. ITS SECTY. Vs. AJAY RAMDAS SHERKAR
LAWS(BOM)-2017-6-35
HIGH COURT OF BOMBAY (AT: NAGPUR)
Decided on June 07,2017

State Of Mah. Thr. Its Secty. Appellant
VERSUS
Ajay Ramdas Sherkar Respondents

JUDGEMENT

VASANTI A.NAIK,J. - (1.) By this petition, the State of Maharashtra and others challenge the order of the Maharashtra Administrative Tribunal in Original Application No.672/2001, dated 26.11.2010, partly allowing the original application filed by the respondent and setting aside the order of termination of the respondent dated 20.10.2001. Few facts giving rise to the writ petition are stated thus :- The respondent was appointed by the petitioners as a Sales Tax Inspector by the order dated 14.2.1997. The appointment order clearly recited that in case the respondent fails to clear the departmental examination within a period of three years and within three chances, his services would be terminated without any prior notice. The relevant rules however provided that an additional opportunity, i.e., fourth chance could be granted to an employee for appearing at the departmental examination at the discretion of the Sales Tax Commissioner or Additional Sales Tax Commissioner. The rule provided that if the appointee fails to pass the departmental examination in the fourth chance, if granted, he would be liable to be discharged from the services or would be reverted in the case of the promotee, as the case may be. On 9.12.1997 and 31.3.1998, the Additional Sales Tax Commissioner issued instructions pertaining to the holding of the departmental examination of the Sales Tax Inspectors. The examination that was due in December, 1997 was scheduled in June, 1998. The respondent did not appear at the said examination and appeared at the examination for the year 1998 that was conducted in 1999 and for the year 1999 that was conducted in the year 2000. The respondent failed in the attempts in 1999 and 2000. The respondent requested the concerned authorities for grant of an additional chance to appear in the examination for the year 2000 that was conducted in the year 2001. At the discretion of the concerned authority, the respondent was permitted to appear at the examination that was conducted in the year 2001. The respondent however failed to pass the departmental examination in 2001 also. The respondent was therefore served with a notice as to why his services should not be terminated for not passing in the departmental examinations that were held in the years 1997, 1998, 1999 and as per the additional chance of the year 2000. After perusing the reply of the respondent, the petitioners removed the respondent from the post of Sales Tax Inspector in view of Rule 5 of the Unified Rules for Departmental Examination of Sales Tax Inspectors and Higher Clerical Staff of the Sales Tax Department, 1972. Being aggrieved by the order of his removal, the respondent filed the original application before the Maharashtra Administrative Tribunal. The Maharashtra Administrative Tribunal allowed the original application filed by the respondent and quashed and set aside the order of removal. The order of the Maharashtra Administrative Tribunal is challenged by the State Government in this writ petition. Mrs. Prabhu, the learned Assistant Government Pleader appearing for the petitioners submitted that the Tribunal committed a serious error in ignoring the instructions and the provisions of the Rules of 1972. It is submitted that since the respondent was appointed in the year 1997, the respondent was liable to appear at the examination for the years 1997, 1998 and 1999 and ought to have passed the departmental examination in three attempts. It is stated that the respondent did not pass the examination in three attempts and requested for grant of additional attempt, which was granted. It is submitted that despite the grant of the additional attempt the respondent could not pass in the departmental examination and hence, as per the Rules, the respondent was rightly removed. It is stated that the petitioners had notified about the departmental examination that was conducted for the year 1997 in June 1998 on 9.12.1997 and 31.3.1998 but the respondent did not make an application for appearing at the examination, as required. It is submitted that as per the Circular issued by the Additional Sales Tax Commissioner on 9.12.1997 if an employee failed to submit an application and did not appear at the departmental examination, his absence would be treated as a lost chance and it would be considered as one of the three attempts. It is submitted that since the respondent did not apply for the examination for the year 1997 that was conducted in June 1998 despite the Circular and the detailed instructions issued by the Additional Sales Tax Commissioner on 9.12.1997 and 31.3.1998, the respondent had lost the first chance. It is stated that thereafter the respondent took two chances, i.e., for the year 1998 and 1999 by appearing at the examinations conducted in 1999 and 2000 respectively but failed in those examinations. It is submitted that by exercising the discretion, the concerned authority granted an additional chance to the respondent to appear at the examination at his request, but the respondent was not successful in the additional fourth chance also. It is submitted that though the respondent has not averred in the original application that he could not avail the first chance as he was sent for training at the relevant time, the Tribunal has erroneously observed in the impugned order that since the respondent was sent for training in December, 1998 he could not have appeared at the examination that was conducted in June, 1998. It is submitted that the finding of the Tribunal that the respondent had taken up only three chances and not four is contrary to the material on record. It is stated that this Court has therefore stayed the order of the Maharashtra Administrative Tribunal while issuing rule in the writ petition. Ms Jog, the learned Counsel for the respondent has supported the order of the Tribunal. It is stated that the Tribunal has rightly held that the respondent had availed only three chances and not four as per the case of the petitioners. It is submitted by referring to Rule 16 of the Rules of 1972 that it is the duty of the Commissioner and Additional Commissioner of Sales Tax to make arrangements for training and examinations that are conducted every year and to decide which person or employee should be sent for training and which of the employees would appear at the examinations. It is submitted that since the respondent was sent for training in 1998, the respondent could not have appeared at the examination that was conducted in the year 1998. It is stated that the name of the respondent did not appear in the list of the candidates who appeared at the examination conducted in June, 1998. The learned Counsel sought for the dismissal of the writ petition. On hearing the learned Counsel for the parties and on a perusal of the order of the Tribunal, it appears that the Tribunal has committed a serious error in interpreting the Rules of 1972 and appreciating the material on record. The respondent was appointed in the year 1997 and by the appointment order itself it was made clear that the respondent would be removed from services, if he does not pass the departmental examination in three attempts and within three years. As per the relevant Rules of the year 1972 an employee was entitled to an additional chance, i.e., a fourth chance only at the discretion of the concerned authority. The departmental examinations are liable to be conducted every year. Since the respondent was appointed in February, 1997, the respondent was liable to take an attempt at the examination scheduled in December 1997, 1998 and 1999 and was required to pass in the examination in at least three attempts. The examination for the year 1997, i.e., the first year, was conducted in June, 1998. The Additional Commissioner of Sales Tax had issued detailed instructions on 9.12.1997 and 31.3.1998 regarding the holding of the examination of 1997 in June, 1998. Despite the specific instructions, that were given wide publicity, the respondent failed to apply for the examination when several other employees that were appointed in 1997 had applied. It was also notified by the Circular issued by the Additional Sales Tax Commissioner dated 9.12.1997 and specially paragraph 8 thereof that an employee would be deemed to be absent at the examination if he does not apply for the examination conducted for the said year and the office would not be responsible for this lapse. It was clearly mentioned in the Circular that the absence at the examination would be treated as a lost chance. Despite the instructions in the Circular dated 9.12.1997, the respondent failed to make an application and ignored the detailed instructions of the Additional Sales Tax Commissioner dated 9.12.1997 and 31.3.1998. It is vaguely stated in the original application filed by the respondent that the respondent did not appear at the examination for the year 1997 that was conducted in June, 1998 as he was not aware that the examination was being conducted. We are not inclined to accept the lame excuse of the respondent that the respondent was not aware that the examination was being conducted in June, 1998, as the Additional Sales Tax Commissioner had issued detailed instructions dated 9.12.1997 and 31.3.1998 that were given wide publicity. As per paragraph 8 of the instructions, the Tribunal ought to have held that first chance was not availed by the respondent in June, 1998 and hence that was a lost chance. Non-appearance of the respondent in June, 1998 examination should be considered as the first chance that was availed by the respondent though it was lost by him. The respondent failed to clear the examination in the second attempt (in the year 1999) and in the third attempt (in the year 2000) though he had appeared for those examinations. The Tribunal was not justified in holding that the respondent had availed only three chances and not four. The case of the respondent in that regard was falsified by the material on record which showed that the respondent had sought for a fourth additional chance when he could not clear the examination in the year 2000, which was the third attempt and permission was granted by the concerned authority to the respondent to avail an additional chance and appear at the examination that was conducted in the year 2001. The respondent availed the additional chance but still could not get through the examination. There was no alternative for the petitioners but to remove the respondent from the services as the respondent was clearly made aware at the time of his appointment, as could be seen from the appointment order that the respondent was liable to be discharged from services, if he failed to clear the departmental examination within a period of three years and within three attempts. In the instant case, it would be necessary to hold that the respondent had taken up four attempts, the first attempt which he lost because of his fault, the second and the third attempt which he availed and the fourth attempt, which was an additional attempt granted to the respondent at the discretion of the concerned authority. The Tribunal has committed an error in holding that the respondent could not appear at the examination that was conducted for the year 1997 in June, 1998 because he was sent for training in December, 1998. The aforesaid observation of the Tribunal in paragraph 26 of the impugned order is palpably erroneous. It would be ridiculous to hold that an employee who had to join the training in December, 1998 could not have appeared at the examination held in June, 1998. If the examination was held more than six months before the respondent was sent for training, it is difficult to gauge as to how the respondent could not have appeared at the examination due to the training. In any case, such is not the stand of the respondent in the original application as in the original application the respondent has stated that he did not appear at the examination for the year 1997 as he had no notice about the said examination. Even assuming that the respondent was sent for training at the same time, which is not the case here, the petitioners cannot be blamed as the respondent had not applied for the examination at all though as per the detailed instructions of the Additional Sales Tax Commissioner issued on 9.12.1997 and 31.3.1998, the employees were duly informed about the consequences of their failure to appear at the examination. Despite the issuance of the two Circulars by the concerned authority, the respondent failed to appear at the examination and hence it was held that the respondent had lost the first chance. Since thereafter the respondent had taken up three chances and failed in the examination, it cannot be said that the petitioners had committed any error whatsoever in removing the respondent from the services. The Tribunal did not consider the material tendered by the parties on record in the right perspective, while setting aside the order of the petitioners. Hence, for the reasons aforesaid, the writ petition is allowed. The impugned order is quashed and set aside. The original application filed by the respondent stands dismissed. Rule is made absolute in the aforesaid terms with no order as to costs.;


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