TMI Blog2017 (7) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... r 1997, i.e., the first year, was conducted in June, 1998. Held that: - 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Nonappearance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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