K. Jagannatha Shetty, J. - (1.) These two appeals by special leave are by the State of Maharashtra. They are directed against the judgment of the High Court of Bombay dated 12th January, 1983 by which the High Court issued the following two directives to the State Government:"(1) To recast the Revised/Final seniority list dated 20-12-1982 vis-a-vis the persons shown in the category of 'Late Passing' and assign them seniority strictly in accordance with Rule2 and the other Government orders referred to in Paragraph 96 of the judgment; and (2) The seniority in the Superintendent's. cadre so fixed should also be considered as seniority for further promotions."
(2.) The background to these directives is, in outline, this:Respondents 1 to 8 are Assistant Secretaries/ Section Officers/ Superintendents in different departments of the Government of Maharashtra. The State Government prescribed departmental examinations as a condition precedent for promotion to the cadre of Superintendents. The examinations were required to be conducted every year, and the officials have to pass within the stipulated period. Those who could not pass within the time-frame would lose their seniority but they will be promoted as and when they qualify themselves. The Government for some reason or the other could not hold the examinations every year. Particularly in 1968, 1969 and 1970, the Government did not hold the examinations. The Government, however, did not pass any order extending the period prescribed for passing the examinations, nor promoted the seniors subject to their passing the examination. The juniors who qualified themselves were promoted overlooking the case of seniors and seniors were only promoted upon their passing the examination. In the cadre of Superintendents, however, the Government revised the seniority list so as to reflect the rankings in the lower cadre irrespective of the date of promotion. The validity of the revision of seniority was challenged before the High Court. The High Court conceded the power to the Government to relax the rules relating to passing of the examination in case of hardship, but refused to recognise the power of the Government to give seniority to those who could not pass the examination within the time schedule. The High Court was of opinion that without specific orders of the Government relaxing the conditions of the rules, the persons could not be given seniority for 'Late Passing'. There are also other reasons given by the High Court which we will presently consider. But before that, it is important that we should have a chronology of the relevant rules and resolutions of the Government. It is as follows: On 22nd August, 1951, the Government made a resolution prescribing departmental examination for the members of the Upper Division of the Subordinate Secretariat Service, and further directing that only those persons who pass the examination should be promoted as Superintendents. The accompanying rules (The 1951 Rules) thereunder provided the procedure for passing the examination as well as the consequences of failure to pass the examination. On 24th August, 1955, the Government framed rules (The 1955 Rules) under the proviso to Article 309 of the Constitution specifically providing power to dispense with, or relax, the requirements of the operation of any rule regulating the conditions of service of Government servants; or of any class thereof if it causes undue hardships in any particular case. On 15th January, 1962, the Government issued a circular purporting to restrict the scope of the rule permitting relaxation only in respect of travelling allowance rules, leave rules, etc. The circular also clarified that the 1955 Rules could not be invoked for conferring benefit on an individual by relaxing the conditions relating to recruitment, promotion, grant of extension of service or re-employment. On 28th December, 1961, the Government made the revised rules in suppression of the 1951 Rules. They were brought into force with effect from 1st January, 1962 (the 1962 Rules). They were made applicable to all persons recruited to the Upper Division of the Subordinate Secretariat Service on or after that date and also to those who have been in service prior to 1st January, 1962 unless they had already passed the examination under the 1951 Rules. The rules I to 5 are as follows: "1. Every member of the Upper Division of the Subordinate Secretariat Service will be required to pass within nine years from the date of his entry in the Upper Division, a departmental examination for promotion to the posts of Superintendents according to the prescribed syllabus. For being eligible to appear for the examination a candidate must have passed the post-Recruitment Training Examination for Junior Assistants and must have also completed not less than five years' continuous service in the Upper Division. (2) Subject to Rule 1, a candidate will be allowed to appear for the examination in three chances which must be availed of within a period of four years. This period of 4 years will not be extended for any reasons irrespective of the fact whether a candidate has availed himself of 3 chances or not during the period. Similarly no candidate will be allowed to take during this period more than 3 chances. A candidate who does not pass the examination at the end of 9 years service in the Upper Division, will lose his seniority to all those candidates who pass the examination before he passes it. (3) No person shall be appointed to the post of Superintendent unless he has passed the Superintendents' Examination. Provided that this rule shall not apply to short term vacancies not exceeding two months. (4) Subject to the condition of loss of seniority laid down in rule 2, a candidate will be allowed to take the examination in any number of chances after the completion of 9 years' service. (5) The examination will be held once a year. ********** " On December 28,1970, proviso to above rule 3 has been added. The said proviso reads: "Provided that if the Superintendent's examination is not held in any year, a person who has completed 9 years service and who has not exhausted all the permissible chances, may be promoted to the post of Superintendent, provided further that he is otherwise suitable for promotion, subject to the clear condition that he will have to pass the examination at the earliest opportunity whenever it is held. "It is further clarified that promotions to the posts of Superintendents should, in view of the above amendments, be given only after ensuring that there are no persons who have passed the Superintendent's Examination earlier for being promoted to the posts of Superintendents."
(3.) We may incidentally refer to the subsequent rules made by the Government, although it is not applicable to the present case. On June 6,1977, the Government framed the rules called "The Maharashtra Government Subordinate Rules, 1977". Rule 7 of the rules provides that if, for any reason, the examination is not held in any particular year, that year shall be excluded in computing the period specified under the rules. This is, indeed, the true reflection of the underlying concept of purpose of the earlier rules.;