2015(3) ALL MR 239
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A. B. CHAUDHARI AND A. B. CHAUDHARI, JJ.
Superintending Agriculture Officer, Amravati Vs. Ramdas Sampatrao Puri
Writ Petition No.3564 of 2003
24th September, 2013.
Petitioner Counsel: Ms. S.S. JACHAK
Respondent Counsel: Mr. S.D. HARODE
Drivers of Motor Cars and Jeeps in Government Offices (Recruitment) Rules (1980), R.2(c)(iv) - Promotion - Three years experience for promotion to the post of driver - Peon used to drive in absence of driver and he was paid 20% special pay for such service - Three years were computed by adding 5 days to 14 days spread over a period of 20 years service - Held, requisite experience of three years for promotion must be taken to mean regular experience for a period of three years in continuation and not spread over 20 years and as such said peon was not entitled to promotion. (Para 5)
JUDGMENT :- Feeling aggrieved by the judgment and order dated 11.07.2003 passed by Member, Industrial Court, Amravati in Complaint ULP No.79 of 1991 ordering promotion of the respondent from the post of Peon to the post of Driver w.e.f. 11.07.1986 by an affirmative relief, the State of Maharashtra preferred this writ petition against the said judgment and order.
2. In support of the writ petition the learned Assistant Government Pleader Ms Jachak argued that the promotion to the post of driver is governed by the Drivers of Motor Cars and Jeeps in Government Office (Recruitment) Rules, 1980 published on 14th November, 1980, and conditions for appointment by promotion and in particular 2(a) read with (c)(iv) the condition of not less than three years experience of driving the motor vehicle other than motorcycle is the requirement. According to her, the respondent-complainant did not possess the experience of three years and therefore, was not qualified to claim promotion to the post of Driver from the post of Peon. She then argued that it was the case of the respondent-complainant that he used to work also as a driver because of the instructions of his superior officers in absence of the regular driver. She, however, contended that assuming it to be so, the respondent-complainant was always granted special pay @20% for driving the vehicle in addition to his dues of the substantive post of Peon and therefore, the respondent-complainant could not be conferred promotion to the post of Driver. According to her, the interpretation put up by the learned Member of the Industrial Court for counting three years' experience by taking into consideration the service of 20 years and the work of Driver performed during the said period of 20 years for a period ranging for a few days in one year and also intermittently a few kilometers per year, does not satisfy the requirement of three years experience as a Driver. That is the only point canvassed by the learned Assistant Government Pleader in support of the writ petition.
3. Per contra, Mr.Harode, learned counsel for the respondent-employee supported the impugned judgment and order and invited my attention to the oral evidence of the respondent-complainant, so also some documents about which there is a reference in the evidence of the respondent-complainant. He argued that no fault could be found out with the interpretation made by the Industrial Court for finding out experience of three years, since in the long tenure of 20 years the respondent-complainant had been driving the jeep of the government, though intermittently and as and when regular driver was not on duty. According to Mr. Harode, if interpretation given by the Industrial Court is not accepted then no Peon can become eligible for promotion to the post of driver thereby making effect of rules for promotion nugatory. He, therefore, submits that the interpretation made by the learned Industrial Court is harmonious and need not be interfered with. Apart from that Mr. Harode has shown me a certificate signed by the concerned Sub Divisional Officer showing that the petitioner has experience from 1976 as driver till December, 1989. He submits that though no document has been exhibited in the Industrial Court the said certificate still should be relied in the light of the oral evidence tendered by the respondent-complainant. Finally he prayed for dismissal of the petition.
4. I have seen the entire record and evidence of the respondent-complainant. After hearing the learned counsel for the rival parties, it would be appropriate to quote the relevant rules regarding promotion. The relevant part of the said rules read thus :
"1. These rules may be called the Drivers of Motor Cars and Jeeps in Government Offices (Recruitment) Rules, 1980.
2. Appointment to the post of drivers of motor cars and jeeps in Government offices shall be made either-
(a) by promotion from amongst the members of staff in Class IV Government service, who possess qualifications and experience mentioned in subclauses (ii), (iii), (iv), (v) and (vi) of clause (c) ; or
(b) by transfer of a member of staff in Class III Government service, who possess qualifications and experience mentioned in subclause (c) ; or
(c) by nomination from amongst candidates who,
(ii) possess an effective driving licence to drive a heavy vehicle or a motor car or a jeep under the Motor Vehicles Act, 1939 ;
(iii) have passed at least IVth standard examination of any recognised school and can speak in Marathi and Hindi languages ;
(iv) possess not less than three years' experience of driving motor vehicles other than a motor cycle ;
(v) have clean record and working knowledge of repairs of a motor car or, as the case may be, of a jeep ; and ...."
5. The said Rules of 1980 govern 'promotion' as well as 'direct recruitment' to the post of driver of motor cars and jeeps in the government offices. The instant case is about promotion to the post of Driver from the post of Peon and not the recruitment by nomination. The only disputed area in the case at hand is about the experience of three years contemplated by Rule 2(c) (iv). The reason adopted by the Industrial Court and the submission made by the learned counsel for the respondent that even if the respondent-complainant worked for a few days in one year as driver but during the period of 20 years if taken into consideration the benefit ought to be given to the respondent-complainant and it should be held that he thus had requisite experience of three years, cannot be countenanced. It appears from the record that whenever respondent-complainant was asked to work as a driver, when the regular driver was not on duty, he was paid 20% special pay in addition to his substantive salary of Peon. That was done obviously with reference to or in accordance with the relevant rules regarding payment of special pay when extra work is taken from an employee. It is thus, clear that the services of the respondent-complainant were not used free of cost by the government when his services as driver were taken while he was working in substantive post of peon. That apart, to count the period of three years experience by taking into consideration a few days ranging from 5 days to 14 days between September, 1977 to August, 1989 in each year spread over the period of 20 years and then say that it becomes three years' experience is also unacceptable. The experience to drive a car or a jeep for a few days in a year cannot be said to be an experience for becoming a 'driver'. Driving a car or a jeep every day or continuously and then counting the experience of three years can, by no stretch of imagination, be compared with driving a car or a jeep for few days in a year spread over period of 20 years and then say by adding all those days in 20 years he completed experience of three years. Such a interpretation put up by the Industrial Court on the said rule is, therefore, preposterous. It is not possible for me to agree with such a reasoning. The experience of three years must be taken to mean that the regular experience for a period of three years and not spread over in 20 years as said in the instant case.
6. In that view of the matter, considering the view taken by the Industrial Court, I find that the respondent-complainant was not holding experience of three years and consequently was not entitled for the promotion to the post of driver. The respondent-complainant is not prejudiced, because according to the petitioner, whenever the work of driver was taken from him he was paid 20% special pay. If that is so, I do not think that the petitionerGovernment had made any exploitation of the respondent employee. The upshot of the above discussion is that the instant petition must succeed. In the result, I pass the following order.
i. The Writ Petition No.3564 of 2003 is allowed.
ii. The impugned judgment and order made by Industrial Court, dated 11.07.2002 in Complaint (ULP) No. 79 of 1991 is set aside. Consequently, Complaint (ULP) No. 79 of 1991 is dismissed.
Rule is made absolute accordingly with no order as to costs.