(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgement and order dated 25.8.1999 passed by the learned Single Judge of this Court in Special Civil Application No.611 of 1987, whereby the learned Single Judge has directed that the petitioner be granted exemption from passing SIS Examination and he be considered for promotion to the next higher post at par with other 23 persons and it is further directed that since the petitioner has retired, his pension and retiral benefits should also be revised accordingly in case he is found fit for promotion.
2. As such the facts are that as per the Rules for Departmental Examination for appointment to the Supervisory Post, it is an admitted position that the examination was required to be cleared before reaching the age of 40 years. The petitioner, when was granted exemption from passing Bombay Accounts Clerk Examination vide order dated 12.4.1971 – Annexure-G, he had already crossed the age of 40 years, since he was of 41 years of age. Therefore, the petitioner had justifiable case in praying that the exemption should have been granted to him from the eligibility criteria of 40 years and to that extent the order of the learned Single Judge could be said as justified.
3. However, there is a considerable force in the contention that even if he is granted exemption on the aspect of age, he would have been required to appear at the examination and pass that examination. There is no justification whatsoever stated in the petition, nor considered by the learned Single Judge for deemed passing of the examination.
4. Apart from the above, the exemption came to be granted to the petitioner in the year 1971 vide order dated 12.4.1971. Thereafter, if he was desirous to appear at the examination, he should have agitated the said question so that he could clear the examination well in time and thereafter, he could have competed for the promotion, but it appears that the petitioner has raised the grievance for the first time in the year 1987 by preferring a petition. Therefore, there was delay operating of 16 years in preferring the petition or for making the grievance on the part of the petitioner.
5. In addition to the above, the learned Single Judge has proceeded on the basis that the other 23 persons, who were granted exemption were similarly situated with the petitioner. The details of those 23 persons are mentioned at Annexure-H collectively on page 35 and if the birth-dates of those persons are considered, they are earlier than 1919 and in any case, not later than 1919, whereas the birth date of the petitioner is 15.6.1930. So there is an age difference of more than 11 years in respect of those 23 persons and the petitioner. Not only that but in the remarks column, it has been mentioned that those persons have retired and some have also expired. Under these circumstances, we are unable to agree with the view taken by the learned Single Judge that those 23 persons, who were granted exemption and who were granted promotion were similarly situated at par with the petitioner.
6. Mr.Vaishnav, learned Counsel appearing for the original petitioner had made an attempt to contend that the Department took about 15 years’ time to grant exemption vide order dated 12.4.1971 and, therefore, if there was delay in considering the matter by the Department, the petitioner cannot be made to suffer.
7. Prima facie, the contention may appear with substance, but upon close scrutiny it appears that the matter does not end there, inasmuch as even if the exemption is granted on the point of age, the petitioner was required to appear at the examination and clear the same. It is true that since the exemption was granted late and by that time, the petitioner had completed the age of 40 years, he became ineligible, but even if he is eligible, he could have agitated the question further well in time. The petitioner has also, after such examination, taken about 15 years for preferring the petition before this Court. Under these circumstances, delay operates against the petitioner even if the contention of the petitioner is considered that the delay on the part of the Department in granting of exemption should not prejudice the rights of the petitioner. If the petitioner has not preferred the petition or has not raised the grievance for about 15 years, he cannot get the benefits on the ground as sought to be canvassed. Hence, the contention cannot be accepted.
8. In view of the aforesaid observations and discussion, we find that the order of the learned Single Judge at the most can be maintained for grant of exemption in the eligibility criteria of age to the petitioner at the relevant point of time, but it cannot be maintained for granting of exemption to appear at the examination, nor can be maintained on the premise that the petitioner would have passed that examination, more particularly when those 23 persons could not be said as similarly situated. As the petitioner has already retired from service as recorded by the learned Single Judge, even if the direction was given for grant of exemption on the ground of age being eligibility criteria for appearance at the examination, the petitioner since had retired would not be in a position to appear at the examination, nor any useful purpose would be served by issuing such a writ.
9. Consequently, we find that the direction given by the learned Single Judge for considering the case of the petitioner for further promotion and for revision of the retiral benefits, including pension cannot be maintained.
10. Hence, the impugned order passed by the learned Single Judge is quashed and set aside. The petition shall stand dismissed. The Letters Patent Appeal shall stand allowed. Considering the facts and circumstances, there shall be no order as to costs.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) vinod