(1)
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7070 OF 2008
Madhukar Pandurang Gadade
R/o Near Chatrapati Shivaji High
School, Tambri Vibhag, Osmanabad
Dist-Osmanabad PETITIONER
VERSUS
1. The State of Maharashtra
Through Secretary,
Department of Rural Development
Mantralaya, Mumbai
2. The Divisional Commissioner
Aurangabad Division, Aurangabad
3. The Chief Executive Officer
Zilla Parishad, Osmanabad
4. Smt.Vasanti Shyamrao Kulkarni
R/o C/o Finance Department,
Zilla Parishad, Osmanabad RESPONDENTS
......
Mr. S.S.Jadhavar, Advocate for the petitioner
Mr. S.P.Dound, AGP for respondents No.1 & 2
Mr. V.S.Tanwade, Advocate for respondent No.3
Mr. S.S.Deshmukh, Advocate for the respondent No.4
......
CORAM: N.V.DABHOLKAR AND
A.V.POTDAR, JJ.
Reserved on : 28/04/2009
Pronounced on : 08/05/2009
—————————-
JUDGMENT [PER A.V.POTDAR, J.] :
1. Rule. Rule made returnable forthwith. With
the consent of the learned counsel for the parties,
petition is heard finally at the stage of admission.
::: Downloaded on – 09/06/2013 14:35:57 :::
(2)
2. By the present petition, under Article 226 of
the Constitution of India, the petitioner has prayed
for issuance of writ or directions that the order
dated 12.11.2008 issued by the Divisional
Commissioner, Aurangabad bearing O.No.2008/Visha/ZP
/Estt-1/Kavi/Divisional Commissioner Office,
Aurangabad Divisional Commissioner Office, Aurangabad,
be quashed and set aside.
3. The facts, disclosed by the petitioner, can be
summarised as follows:
a. The petitioner and the respondent No.4 are
working in the Accounts Department of Zilla Parishad,
Osmanabad. Initially, both of them were appointed as
Junior Assistants and both of them were promoted to
the post of Junior Accounts Officers (for short JAO)
on 29.09.2003. It appears from the rules that to
qualify for the promotion for the post of Assistant
Accounts Officers, the candidate has to hold the post
of Junior Accounts Officer in the district service
(Class-III) of the Accounts and to work on the said
post at least for 3 years. It is another criteria
that the concerned candidate should pass the
departmental accounts examination conducted by the
competent authority. The JAOs are exempted from
passing of such examination after crossing the age of
::: Downloaded on – 09/06/2013 14:35:57 :::
(3)
45 years, however are held eligible only after
attaining the age of 45 years and their seniority is
fixed as per the date on which they complete 45 years
of age. The Government of Maharashtra, Rural
Development Department, has issued Government
Resolutions on 25.06.1986 and 22.10.1996 to that
effect. As per the Government Resolution dated
22.10.1996, the Chief Executive Officer (for short
CEO), has to specifically grant exemption from passing
such examination to the employees after attaining the
age of 45 years.
b. The
respondent No.3, by his order dated 29/30
March 2007 (Exh.C), has granted such exemption to 10
JAOs, including the present petitioner and respondent
No.4, respectively w.e.f. 29.9.2003 and 15.06.2004,
the dates when they attained the age of 45 years.
Accordingly, their seniority was also fixed as per the
instructions communicated by the Rural Development
Department to Zilla Parishad, vide letters dated
25.03.1988 and 19.04.1983 9Exh. D colly.). As the
petitioner has attained the age of 45 years on
03.04.1999, he is shown as senior in the seniority
list than the respondent No.4. Three posts of
Assistant Accounts Officers became vacant in Osmanabad
Zilla Parishad due to retirement of three persons. In
the meeting, held on 25.06.2008, of the Divisional
Promotion Committee, for granting promotions against
::: Downloaded on – 09/06/2013 14:35:57 :::
(4)
these three posts, after considering all the relevant
record of the concerned employees in the light of the
concerned GR, the said Committee held the petitioner
as eligible for promotion on the post of Assistant
Accounts Officer. Accordingly, the petitioner joined
the promotional post on 18.08.2008. The Executive
Engineer (Minor Irrigation) of Zilla Parishad,
Osmanabad submitted report to the respondent No.3 to
that effect.
c. It appears that the respondent No.4 ,was
dissatisfied and aggrieved by the promotion of the
petitioner.She made a representation to the respondent
No.2 on 28.08.2008 thereby requesting to grant her
promotion as Assistant Accounts Officer. It also
appears that on receipt of the said representation,the
respondent No.2 has called explanation from the
respondent No.3, which was submitted by Respondent
No.3 on 06.09.2008. No notice or hearing was given to
the petitioner in respect of the said representation.
By order dated 11.12.2008, respondent No.2 directed
respondent No.3 to correct the order of promotion
[grating promotion to the petitioner], by holding that
the respondent No.4 is senior to the petitioner.
Hence, the present writ petition.
4. In response to the notice, the respondents
No.1 and 2 appeared and the Divisional Commissioner,
::: Downloaded on – 09/06/2013 14:35:57 :::
(5)
Aurangabad has filed affidavit in reply of one
P.A.Bothra, who is working as a Deputy Commissioner
(Establishment) in the office of Divisional
Commissioner, inter alia contending that respondent
No.4 has filed an application before the Divisional
Commissioner contending that even though the
petitioner is junior than her, yet he is promoted as
Deputy Accountant. In response to the letter dated
28.08.2008, respondent No.3 submitted his detailed
report vide communication dated 15.09.2008
(Exhibit-R-2). He has also given reference to Rule 5,
Appendix X from the Maharashtra Zilla Parishad
District
Service (Recruitment) Rules of 1967 as well
as GR dated 22.10.1994. He had also given reference
of the letter dated 12.02.1993 of the Rural
Development and Water Conservation Department,
providing guide-lines for fixation of seniority of
Assistant Accounts Officers (Deputy Accountants). It
further appears from the contents of the affidavit
that respondent No.4 was appointed as Deputy
Accountant on 29.09.2003 and she would get four years
for passing of examination in two parts. Hence, she
would get period up to 29.09.2007 for passing such
examination when she has crossed the age of 45 years
on 24.06.2004. As against this, the petitioner has
already crossed the age of 45 years, prior to his
appointment on the post of Deputy Accountant. Hence,
according to this deponent, the criteria as mentioned
::: Downloaded on – 09/06/2013 14:35:57 :::
(6)
in para D (I) of the letter dated 12.02.1993, would be
applicable while fixing the seniority of respondent
No.4, whereas criteria as mentioned in para D (II) of
the said letter would be applicable while fixing the
seniority of the petitioner. As per the seniority as
on 29.09.2003, respondent No.4 was at serial No.23
while the petitioner was at 24 (Exh.R-1). It appears
from the contentions of the affidavit that respondent
No.3 took the decision regarding the seniority, on the
basis of the letter dated 30.04.1990 and by wrongly
interpreting the clarification given in the letter
dated 12.02.1993. Hence, the decision taken by the
respondent
No.3, thereby promoting the petitioner to
the post of Deputy Accountant is cancelled. In
substance, according to this respondent, there are no
merits in the petition and hence prayed for dismissal
of the same.
5. Respondent No.3 has filed affidavit in reply
of one Anand Sadashiv Bothe, who is working as Junior
Accounts Officer, Zilla Parishad, Osmanabad. This
deponent has stated that the petitioner as well as the
respondent No.4, who are working in the Finance &
Accounts Department of Zilla Parishad, Osmanabad, came
to be promoted on the posts of Junior Accounts
Officers on 29.09.2003. This deponent has also given
the hierarchy of the posts available in the Finance
and Accounts Department of Zilla Parishad, which shows
::: Downloaded on – 09/06/2013 14:35:57 :::
(7)
the posts of the Junior Assistant is the basic post
and the post of Assistant Accounts Officer / Head
Accountant is the highest post in that department.
This deponent has specifically averred that for the
promotion to the post of Assistant Accountant from the
post of Junior Accounts Officer (JAO) passing of
Maharashtra Finance and Accounts Service Class-III
examination conducted by the MPSC is mandatory as per
GR dated 25.06.1986. As per clause 6 of the said GR
the Zilla Parishad employees, who have completed age
of 45 years, are exempted from passing the said
examination. This exemption is continued even in
latter GR
dated 22.10.1996. Guide lines are also
provided as per Government letter dated 30.04.1990 for
preparation of the interse seniority list of the
employees working in the Finance and Accounts
Department of the Zilla Parishad, which are mentioned
in para 3 of the affidavit. It is also stated that
neither the petitioner nor respondent No.4 has passed
the said examination, when they were promoted to the
posts of Junior Accounts officers on 29.09.2003.
Hence, in the cadre of Junior Accounts Officer, their
seniority is required to be considered or computed
from the date of completion of 45 years of their
respective age. It is not disputed that the date of
birth of the petitioner is 03.04.1954 and he has
completed 45 years of age on 03.04.1999 while the date
of birth of respondent No.4 is 15.06.1959 and she has
::: Downloaded on – 09/06/2013 14:35:57 :::
(8)
completed 45 years of age on 15.06.2004. As the
petitioner has completed 45 years of age on
03.04.1999, when he was holding the post of Senior
Assistant, his seniority for the promotion to the post
of Assistant Accounts Officer was computed from the
date of his appointment on 29.09.2003, whereas the
seniority of respondent No.4 has to be computed from
15.06.2004. It is further averred that considering
the GR dated 22.10.1996 and the government letter
dated 12.02.1993, the seniority of the petitioner and
respondent No.4 is properly determined. It is
specifically averred in paragraph No.10 of the
affidavit
that though as per the general provisional
and final seniority lists respectively dated
01.01.2008 and 01.04.2008, respondent No.4 is senior
to the petitioner, however as per the interse
seniority list prepared after following the GR dated
12.10.1996 and the government letters dated 30.04.1989
and 12.02.1993 in the cadre of Junior Accounts Officer
the petitioner is senior to respondent No.4 and hence,
was rightly promoted to the post of Assistant Accounts
Officer. Thus, this respondent supported the claim of
the petitioner in toto. It is stated that the
petitioner is reverted to the post of Junior Accounts
Officer vide the impugned order dated 22.01.2009.
6. In response to the notice affidavit was filed
by respondent No.4 on 14.01.2009 interalia stating
::: Downloaded on – 09/06/2013 14:35:57 :::
(9)
that by filing the present writ petition the order
challenged by the petitioner is an order passed by
respondent No.2 in administrative capacity, which
cannot be challenged by filing writ petition and hence
the writ petition is liable to be dismissed. It is
further contended that the provisional seniority list
prepared by respondent No.3 dated 01.01.2008 wherein
respondent No.4 is shown at serial No.23 and the
petitioner is shown at serial No.24 which is not
challenged by the petitioner by raising any objection
when the provisional seniority list was published. It
is also contended that this seniority list came to be
finalised
after considering the objections raised by
the concerned employees on 01.04.2008. The petitioner
has not challenged this seniority list where the
petitioner is shown junior to respondent No.4. It is
further alleged that on 30.05.2008 respondent No.4
made a representation to the Chief Accounts and
Finance Officer of the Zilla Parishad claiming to be
senior and holding the requisite qualification for
promotion and requested for grant of promotion.
Thereafter also respondent No.4 has also filed several
representations from time to time raising grievance in
respect of granting promotion to the petitioner
instead of respondent No.4. This respondent has
contended that the petitioner cannot approach this
Court with a grievance that the petitioner was not
independently heard while passing the impugned order.
::: Downloaded on – 09/06/2013 14:35:57 :::
(10)
Respondent No.4 has also requested respondent No.3 to
give effect to the order dated 12.11.2008 passed by
respondent No.2 and also made a grievance before
respondent No.2 in that respect. Lastly, it is stated
that respondent No.4 is senior than the petitioner and
supports the order under challenge and requested for
dismissal of the writ petition with costs.
7. During the course of arguments it was
submitted on behalf of respondent No.4 that during the
pendency of the writ petition the petitioner is also
promoted to the post of Assistant Accounts Officer and
the said fact is not brought to the notice of this
Court by the petitioner and hence, according to
respondent No.4, this petition has become infructuous.
It is the reply of the petitioner that though the
petitioner is promoted to the post of Assistant
Accounts Officer during the pendency of this petition
yet, unless the impugned order is nullified it will
permanently affect his claim of seniority. Hence, he
is continuing with the present petition. According to
respondent No.4, without amending the petition the
petitioner cannot claim such relief. According to the
petitioner, these reliefs are auxiliary and offshoot
of the decisions of respondent No.2 and hence those
orders / decisions will not affect on the merit of the
petition. Hence, leave was sought on behalf of
::: Downloaded on – 09/06/2013 14:35:57 :::
(11)
respondent No.4 to file additional affidavit and
accordingly on 17.04.2009 additional affidavit was
filed on behalf of the respondent No.4.
8. It is contended by respondent No.4 in the
additional affidavit that now the petition does not
survive because the petitioner has also been promoted
to the post of Assistant Accounts Officer by order
dated 18.02.2009 i.e. during the pendency of the writ
petition. It is further contended that conduct of the
petitioner in not disclosing the fact amounts to
playing fraud on this Court and hence the petitioner
is not liable to seek equitable relief from this Court
for which he has also placed reliance on judgment
reported in the matter of “M/s S.J.S. Business
Enterprise V/s State of Bihar”. It is contended that
the petitioner has not amended the pleadings about
challenge to the interse seniority between the
petitioner and respondent No.4. In absence of
pleadings of facts, the Court cannot consider the
submission to that effect. It is also contended that
in absence of any such relief being sought, no such
relief can be granted by the Court. It is contended
that the petitioner has sought relief of deciding the
interse seniority and deemed date of promotion during
the course of arguments. However, in absence of
pleadings, such relief cannot be granted and such
practice needs to be deprecated. It is also contended
::: Downloaded on – 09/06/2013 14:35:57 :::
(12)
that during the course of arguments the petitioner has
attempted to change the case, which the petitioner is
not permitted in law in view of judgments of the
Hon’ble Apex Court. It is further contended that the
petitioner has not challenged the order of his
reversion for which remedy is provided under Rule 14
(3) of the Maharashtra Zilla Parishad District Service
(Discipline & Appeal) Rules, 1964. In the premise, it
is contended that the present petition is not
maintainable and he has prayed for dismissal of the
petition with costs.
9. Heard
ig submissions of learned advocate
Mr.Jadhavar, followed by arguments of learned AGP
Mr.S.P.Dound for respondents No.1 and 2, learned
advocate Mr.Tanwade for respondent No.3 and learned
advocate Mr.S.S.Deshmukh for respondent No.4.
10. Before considering these submissions, at the
first instance, we feel it necessary to deal with the
objections raised by the 4th respondent during the
course of arguments as well as demonstrated in the
affidavit in reply, which are discussed in para 8 of
this judgment. It is urged that the petition suffers
from suppression of material facts, as the petitioner
was promoted on the said post during the pendency of
this writ petition and the same is not disclosed by
him. Though, the petitioner is promoted during the
::: Downloaded on – 09/06/2013 14:35:57 :::
(13)
pendency of the writ petition, yet the fact remains
that the promotion was not with the retrospective
effect, which will take away the effect of the
impugned order. Hence, according to us, it will not
amount to suppression of facts. Therefore, the ratio
laid down in the judgment of “M/s S.J.S.Business
Enterprises V/s State of Bihar”, will not be
applicable in the present case. It is also urged that
in absence of amendment of pleadings, the Court cannot
decide the interse seniority between the petitioner
and the 4th respondent. Reliance is also placed by
the counsel appearing for the 4th respondent on the
judgment reported in (2000) 2 SCC 439 in the matter of
“Commissioner, Bangalore Development Authority V/s
S.Vasudeva”. It is submitted that this Court cannot
grant the relief, which is not sought for by enlarging
the scope of the writ petition on its own, as observed
in para 6 of the reported judgment. We disagree with
the proposition put before us for the simple reason
that in the writ petition we are only examining the
legality and validity of the impugned order. As
subsequent developments and these submissions are
offshoots of the impugned order, it is not necessary
to test the validity or otherwise of subsequent
orders. In case, the rules require setting aside
order dated 12.11.2008 of Divisional Commissioner, by
which promotion order of Petitioner dated 18.8.2008
was cancelled and impliedly Respondent No. 4 was
::: Downloaded on – 09/06/2013 14:35:57 :::
(14)
ordered to be promoted, the clock will have to be set
back with status quo ante, by restoring the position
prevailing prior to order dated 12.11.2008 passed by
Divisional Commissioner, which is the foundation of
all subsequent developments. Otherwise also,
technical and procedural provisions cannot be used to
defeat and deny substantive justice. Reliance is also
placed on the judgement reported in AIR 1981 SC 583 in
the matter of “S.S.Sharma V/s Union of India”; AIR
1981 SC 1009 in the matter of ” Arti Sapre V/s State
of Jammu & Kashmir”. For the reasons stated supra the
ratio laid down in these authorities will not be
applicable
to the facts of the present writ petition.
We are not dealing with the other citations relied on
by the 4th respondent as they are also on the same
point.
. We are also not in agreement with learned
counsel for Respondent No.4 that by subsequent
promotion of Petitioner, his writ petition has become
infructuous. In fact, subsequent promotion of
Petitioner would perpetuate the position of Petitioner
as Junior to Respondent No. 4 in the cadre of Junior
Accounts Officer, which the Petitioner feels to be
incorrect as a result of his getting exemption from
passing Departmental Examination prior to Respondent
No.4 and in the light of guidelines dated 25.3.1988
(Exh.D).
::: Downloaded on – 09/06/2013 14:35:57 :::
(15)
11. It is not under dispute that no opportunity
was given to the petitioner by the second respondent
while passing the impugned order on the representation
of the fourth respondent. Thus, there is clear
violation of principles of natural justice at the
hands of the second respondent while passing the
impugned order.
12. We have discussed the stand taken by the 2nd
respondent in the affidavit in reply, in para 4 of
this judgment. At the same time, we have also
discussed the stand of the 3rd respondent in para 5 of
this judgment. From the contents of these affidavit
in replies as well, it is not disputed either by the
petitioner or by the 4th respondent that both of them
were appointed on the post of Junior Accounts Officers
(JAO) on 29.09.2003. Post of Assistant Accounts
Officer / Head Accountant is the promotional post /
avenue for the Junior Accounts Officer.
13. It is guided by Government Resolution dated
25.06.1986 as to what is the eligibility criteria to
qualify for the post of Assistant Accounts Officer
i.e. Head Accountant. As per this Government
Resolution, the incumbents / candidates who have
passed the departmental examination of the Deputy
Accountant in the District Service (Class-III)
::: Downloaded on – 09/06/2013 14:35:57 :::
(16)
(Accounts) Grade II conducted by the Rural Development
Department or Maharashtra Accounts Clerk Examination
conducted by the Director of Accounts and Treasury,
Bombay, shall be eligible to appear in this
examination. At the same time, the employees, who
have completed 45 years of age, can be exempted from
passing this examination. There is partial
modification to this GR by the GR dated 22.10.1996.
Rule 4 of this GR speaks about period and number of
chances for passing the said examination.
14. In response to the communication dated
26.08.1987,
by the Chief Executive Officer, Zilla
Parishad, Ratnagiri, vide letter dated 25.03.1988, the
Desk Officer, Rural Development Department, has
clarified the effect of this exemption clause in para
5 of the communication. The Desk Officer has guided
the criteria to appoint while considering the
promotional post as how to grant exemption to the
employees concerned, who have attained age of 45
years, in Rule 9 of the GR dated 22.10.1996. As under
Rule 9, it is provided that the exemption shall be
granted from passing the qualifying examination by the
concerned CEO.
15. It is not under dispute that the petitioner
has attained age of 45 years on 03.04.1999 and
exemption was granted to him on and from 29.09.2003
::: Downloaded on – 09/06/2013 14:35:57 :::
(17)
and exemption was granted to the 4th respondent on
15.06.2004. It is also not under dispute that this
exemption was granted to them as they have not passed
the requisite qualifying examination.
16. It is not disputed that the petitioner was
promoted to the post of Assistant Accounts Officer /
Head Accountant vide order dated 16.08.2008 and he
took charge of the said post on 18.08.2008. Till this
time, it was nobody’s case that the 4th respondent has
attempted to qualify the examination or she had
appeared for the same. Under Clause -III of para 5 of
the
communication dated 25.03.1988, it is made clear
that since the exemption is granted to the employee
working on the post of Junior Accounts Officer, his
seniority is to be counted from the date on which he
attains age of 45 years. As stated herein above, even
though this exemption was granted to the petitioner on
29.09.2003, yet he has attained the age of 45 years on
03.04.1999. As the 4th respondent has attained age of
45 years on 15.06.2004, exemption was granted to her
from appearing or passing of the qualifying
examination on that date. Thus, from this record, the
fact is clear that the date on which the promotional
post was granted to the petitioner w.e.f. 16.08.2008,
till that time the 4th respondent had not passed the
qualifying examination. Again, we have to go back to
clause I of para 5 of the communication dated
::: Downloaded on – 09/06/2013 14:35:57 :::
(18)
25.03.1988, which speaks for the candidates /
employees who have passed the examination of the
Deputy Accountant during the stipulated period, then
their seniority will remain intact, as per the
original seniority in the Department. Thus, on clear
reading of Clause I and III of para 5 of this
communication, the fact is clear that the original
seniority will remain intact in case the concerned
employee has cleared the examination. This position
is further clarified in Clause II of para 5 of the
said communication that the employees, who pass this
examination after the stipulated period, then their
seniority will be reckoned from the date they pass the
said qualifying examination. Thus, from this
communication one fact is clear that after the
employee attained the age of 45 years and exempted
from passing the qualifying examination there will be
change in the original seniority. If this is the
effect of this communication, then there is no force
in the submissions of the learned counsel appearing
for the 4th respondent that when the provisional
seniority list was prepared and published, no
objection was raised to the same by the petitioner.
Again, there is no force in the submissions that when
the seniority list was finalised and published even
then no objection was taken by the petitioner to that
final seniority list, as the effect of the said
finalization of the seniority is taken away by the
::: Downloaded on – 09/06/2013 14:35:57 :::
(19)
communication dated 25.03.1988. The seniority list
dated 1.1.2008 relied upon by Respondent No. 4 is
required to be ignored as erroneous, so far as
Petitioner and Respondent No. 4 are concerned, since
it did not give effect to the orders dated
29/30.3.2007 (Exh.C) and Respondent No. 4 passing
department examination any time after 15.6.2004 is not
going to prepone or restore her seniority, in the
cadre of Junior Accounts Officer, to be reckoned prior
to 29.9.2003 when Petitioner was exempt from passing
Departmental Examination.
. Learned
ig counsel for Respondent No. 4 has
tried to rely upon an entry in the service book
(paperbook page 141, part of Exh. RR-II). This entry
is pertaining to Respondent No. 4 having passed
examination of Deputy Accountant. However, so far as
dispute between petitioner and Respondent No. 4 is
concerned, we are not concerned about either of them
having passed the examination of Deputy Accountant,
but with fact that they are required to pass
Maharashtra Finance and Accounts Service (Class III)
examination, which is the eligibility qualification
for promotion as Head Accountant or Divisional
Accountant or Assistant Accounts Officer, from the
post of Deputy Accounts Officer or Junior Accounts
Officer. Both have not passed that examination and
::: Downloaded on - 09/06/2013 14:35:57 :::
(20)
they are exempted from passing the same with effect
from the dates indicated in the order dated
29/30.3.2007 (Exh.C).
17. On clear perusal of the impugned order, we do
not find anywhere that this aspect was considered by
the Divisional Commissioner, Aurangabad while passing
the order dated 12.11.2008 and cancelling the order
dated 16.08.2008. The said order is passed without
giving any opportunity by way of natural justice to
the petitioner. In the premise, the effect of the
government resolutions on record, clearly show that
the impugned
ig order is erroneous and passed without
application of mind and hence, is required to be
quashed and set aside. In the result, the order dated
12.11.2008 is hereby quashed and set aside. Needless
to say that once the said order is quashed, all orders
subsequently passed pursuant to the said order, will
have to be nullified in their effect and parties
(Petitioner and Respondent No.4) will have to be
restored to statusquo ante.
. Rule is made absolute in the terms indicated
above. Writ petition stands disposed of with no order
as to costs.
::: Downloaded on – 09/06/2013 14:35:57 :::
(21)
[A.V.POTDAR] [ N.V.DABHOLKAR ]
JUDGE JUDGE
drp/wp7070-08
::: Downloaded on - 09/06/2013 14:35:57 :::