{"id":204323,"date":"2009-05-08T00:00:00","date_gmt":"2009-05-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/madhukar-pandurang-gadade-vs-the-state-of-maharashtra-on-8-may-2009"},"modified":"2015-06-08T05:57:09","modified_gmt":"2015-06-08T00:27:09","slug":"madhukar-pandurang-gadade-vs-the-state-of-maharashtra-on-8-may-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/madhukar-pandurang-gadade-vs-the-state-of-maharashtra-on-8-may-2009","title":{"rendered":"Madhukar Pandurang Gadade vs The State Of Maharashtra on 8 May, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Madhukar Pandurang Gadade vs The State Of Maharashtra on 8 May, 2009<\/div>\n
Bench: N.V. Dabholkar, A. V. Potdar<\/div>\n
                                 (1)\n\n\n\n            IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n\n                           BENCH AT AURANGABAD\n\n                     WRIT PETITION NO.7070 OF 2008\n\n\n\n\n                                                                   \n     Madhukar Pandurang Gadade\n\n\n\n\n                                           \n     R\/o Near Chatrapati Shivaji High\n     School, Tambri Vibhag, Osmanabad\n     Dist-Osmanabad                                         PETITIONER\n\n                VERSUS\n\n\n\n\n                                          \n     1. The State of Maharashtra\n        Through Secretary,\n        Department of Rural Development\n        Mantralaya, Mumbai\n\n\n\n\n                                 \n     2. The Divisional Commissioner\n        Aurangabad Division, Aurangabad\n                      \n     3. The Chief Executive Officer\n        Zilla Parishad, Osmanabad\n                     \n     4. Smt.Vasanti Shyamrao Kulkarni\n        R\/o C\/o Finance Department,\n        Zilla Parishad, Osmanabad                         RESPONDENTS\n\n                          ......\n     Mr.   S.S.Jadhavar, Advocate for the petitioner\n      \n\n\n     Mr.   S.P.Dound, AGP for respondents No.1 & 2\n     Mr.   V.S.Tanwade, Advocate for respondent No.3\n   \n\n\n\n     Mr.   S.S.Deshmukh, Advocate for the respondent No.4\n                          ......\n\n                                  CORAM: N.V.DABHOLKAR AND\n                                         A.V.POTDAR, JJ.\n<\/pre>\n
                                  Reserved on   : 28\/04\/2009
\n                                  Pronounced on : 08\/05\/2009\n<\/p>\n
                                 —————————-\n<\/p>\n
     JUDGMENT [PER A.V.POTDAR, J.] :\n<\/p>\n
     1.       Rule.      Rule made returnable forthwith.               With<\/p>\n
     the   consent    of the learned counsel for the            parties,<\/p>\n
     petition is heard finally at the stage of admission.\n<\/p>\n
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\n                                           (2)<\/span><\/p>\n
     2.         By        the present petition, under Article 226 of<\/p>\n
     the     Constitution of India, the petitioner has                             prayed<\/p>\n
     for     issuance          of    writ or directions that                the       order<\/p>\n
     dated          12.11.2008           issued       by        the         Divisional<\/p>\n
     Commissioner,             Aurangabad       bearing       O.No.2008\/Visha\/ZP<\/p>\n
     \/Estt-1\/Kavi\/Divisional                     Commissioner                     Office,<\/p>\n
     Aurangabad Divisional Commissioner Office, Aurangabad,<\/p>\n
     be quashed and set aside.\n<\/p>\n
     3.         The facts, disclosed by the petitioner, can be<\/p>\n
     summarised as follows:\n<\/p>\n
     a.         The       petitioner        and the respondent                No.4      are<\/p>\n
     working        in the Accounts Department of Zilla Parishad,<\/p>\n
     Osmanabad.            Initially, both of them were appointed as<\/p>\n
     Junior        Assistants        and both of them were promoted                       to<\/p>\n
     the     post of Junior Accounts Officers (for short                               JAO)<\/p>\n
     on     29.09.2003.             It   appears from the rules                 that      to<\/p>\n
     qualify        for     the promotion for the post of                     Assistant<\/p>\n
     Accounts        Officers, the candidate has to hold the post<\/p>\n
     of     Junior        Accounts Officer in the               district         service<\/p>\n
     (Class-III)          of     the Accounts and to work on the                       said<\/p>\n
     post     at     least for 3 years.            It is        another         criteria<\/p>\n
     that      the        concerned       candidate         should          pass        the<\/p>\n
     departmental          accounts       examination conducted                  by     the<\/p>\n
     competent        authority.          The     JAOs      are      exempted          from<\/p>\n
     passing        of such examination after crossing the age of<\/p>\n
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\n                                            (3)<\/span><\/p>\n
     45     years,        however        are     held       eligible          only      after<\/p>\n
     attaining       the age of 45 years and their seniority                                is<\/p>\n
     fixed     as per the date on which they complete 45 years<\/p>\n
     of      age.         The     Government           of    Maharashtra,               Rural<\/p>\n
     Development           Department,            has          issued          Government<\/p>\n
     Resolutions          on     25.06.1986        and      22.10.1996            to     that<\/p>\n
     effect.         As     per     the        Government         Resolution            dated<\/p>\n
     22.10.1996,          the     Chief Executive Officer                   (for       short<\/p>\n
     CEO), has to specifically grant exemption from passing<\/p>\n
     such     examination to the employees after attaining the<\/p>\n
     age of 45 years.\n<\/p>\n
     b.        The<\/p>\n
                          respondent No.3, by his order dated 29\/30<\/p>\n
     March     2007 (Exh.C), has granted such exemption to                                  10<\/p>\n
     JAOs,     including the present petitioner and respondent<\/p>\n
     No.4,     respectively w.e.f.               29.9.2003 and              15.06.2004,<\/p>\n
     the     dates        when     they attained the age of                   45       years.\n<\/p>\n
     Accordingly, their seniority was also fixed as per the<\/p>\n
     instructions          communicated          by the         Rural       Development<\/p>\n
     Department       to         Zilla     Parishad,        vide       letters          dated<\/p>\n
     25.03.1988       and        19.04.1983 9Exh.             D colly.).           As     the<\/p>\n
     petitioner       has        attained        the     age      of     45     years       on<\/p>\n
     03.04.1999,          he     is shown as senior in                 the      seniority<\/p>\n
     list     than        the     respondent           No.4.       Three        posts       of<\/p>\n
     Assistant Accounts Officers became vacant in Osmanabad<\/p>\n
     Zilla Parishad due to retirement of three persons.                                     In<\/p>\n
     the     meeting,          held on 25.06.2008, of                the      Divisional<\/p>\n
     Promotion       Committee, for granting promotions                            against<\/p>\n
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\n                                          (4)<\/span><\/p>\n
     these     three posts, after considering all the relevant<\/p>\n
     record        of the concerned employees in the light of the<\/p>\n
     concerned       GR, the said Committee held the                       petitioner<\/p>\n
     as     eligible      for promotion on the post                   of     Assistant<\/p>\n
     Accounts        Officer.      Accordingly, the petitioner joined<\/p>\n
     the     promotional         post on 18.08.2008.                The      Executive<\/p>\n
     Engineer         (Minor      Irrigation)        of        Zilla         Parishad,<\/p>\n
     Osmanabad       submitted report to the respondent No.3                             to<\/p>\n
     that effect.\n<\/p>\n
     c.         It     appears         that    the   respondent            No.4       ,was<\/p>\n
     dissatisfied         and     aggrieved by the promotion                    of     the<\/p>\n
     petitioner.She made a representation to the respondent<\/p>\n
     No.2     on     28.08.2008 thereby requesting to                      grant       her<\/p>\n
     promotion       as    Assistant          Accounts Officer.                It     also<\/p>\n
     appears that on receipt of the said representation,the<\/p>\n
     respondent        No.2      has     called      explanation             from      the<\/p>\n
     respondent        No.3,      which was submitted               by     Respondent<\/p>\n
     No.3 on 06.09.2008.              No notice or hearing was given to<\/p>\n
     the     petitioner in respect of the said representation.\n<\/p>\n
     By     order     dated 11.12.2008, respondent No.2                        directed<\/p>\n
     respondent        No.3      to     correct the order             of     promotion<\/p>\n
     [grating promotion to the petitioner], by holding that<\/p>\n
     the     respondent         No.4     is senior        to    the        petitioner.\n<\/p>\n
     Hence, the present writ petition.\n<\/p>\n
     4.         In     response         to the notice,          the       respondents<\/p>\n
     No.1     and 2 appeared and the Divisional                       Commissioner,<\/p>\n
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\n                                           (5)<\/span><\/p>\n
     Aurangabad          has     filed     affidavit     in     reply        of      one<\/p>\n
     P.A.Bothra,          who     is working as a Deputy              Commissioner<\/p>\n
     (Establishment)              in      the       office      of        Divisional<\/p>\n
     Commissioner,             inter     alia contending that             respondent<\/p>\n
     No.4     has        filed an application before the                  Divisional<\/p>\n
     Commissioner              contending       that     even         though         the<\/p>\n
     petitioner          is junior than her, yet he is promoted                        as<\/p>\n
     Deputy     Accountant.              In response to the letter                dated<\/p>\n
     28.08.2008,          respondent        No.3 submitted          his      detailed<\/p>\n
     report          vide         communication          dated            15.09.2008<\/p>\n
     (Exhibit-R-2).            He has also given reference to Rule 5,<\/p>\n
     Appendix        X    from     the      Maharashtra       Zilla          Parishad<\/p>\n
     District<\/p>\n
                     Service (Recruitment) Rules of 1967 as                         well<\/p>\n
     as     GR dated 22.10.1994.             He had also given             reference<\/p>\n
     of      the         letter    dated        12.02.1993      of      the        Rural<\/p>\n
     Development           and     Water          Conservation          Department,<\/p>\n
     providing        guide-lines         for fixation of           seniority          of<\/p>\n
     Assistant        Accounts Officers (Deputy Accountants).                          It<\/p>\n
     further        appears       from the contents of            the      affidavit<\/p>\n
     that      respondent          No.4     was      appointed          as        Deputy<\/p>\n
     Accountant          on 29.09.2003 and she would get four years<\/p>\n
     for     passing of examination in two parts.                      Hence,        she<\/p>\n
     would     get       period up to 29.09.2007 for                passing         such<\/p>\n
     examination          when she has crossed the age of 45                      years<\/p>\n
     on     24.06.2004.           As against this, the petitioner                    has<\/p>\n
     already        crossed       the     age of 45 years, prior              to     his<\/p>\n
     appointment          on the post of Deputy Accountant.                     Hence,<\/p>\n
     according        to this deponent, the criteria as mentioned<\/p>\n
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\n                                           (6)<\/span><\/p>\n
     in para D (I) of the letter dated 12.02.1993, would be<\/p>\n
     applicable         while      fixing the seniority of               respondent<\/p>\n
     No.4, whereas criteria as mentioned in para D (II)                                of<\/p>\n
     the     said letter would be applicable while fixing                            the<\/p>\n
     seniority        of the petitioner.            As per the seniority as<\/p>\n
     on     29.09.2003,           respondent No.4 was at            serial        No.23<\/p>\n
     while       the petitioner was at 24 (Exh.R-1).                     It appears<\/p>\n
     from     the contentions of the affidavit that respondent<\/p>\n
     No.3 took the decision regarding the seniority, on the<\/p>\n
     basis       of    the letter dated 30.04.1990 and by                     wrongly<\/p>\n
     interpreting           the    clarification given in              the      letter<\/p>\n
     dated       12.02.1993.            Hence, the decision taken by                 the<\/p>\n
     respondent<\/p>\n
                        No.3, thereby promoting the petitioner                         to<\/p>\n
     the     post      of    Deputy       Accountant     is     cancelled.             In<\/p>\n
     substance,         according to this respondent, there are no<\/p>\n
     merits       in the petition and hence prayed for dismissal<\/p>\n
     of the same.\n<\/p>\n
     5.          Respondent         No.3 has filed affidavit in                   reply<\/p>\n
     of     one Anand Sadashiv Bothe, who is working as Junior<\/p>\n
     Accounts         Officer,      Zilla Parishad,          Osmanabad.             This<\/p>\n
     deponent has stated that the petitioner as well as the<\/p>\n
     respondent         No.4,      who     are working in the            Finance         &<\/p>\n
     Accounts Department of Zilla Parishad, Osmanabad, came<\/p>\n
     to     be    promoted         on    the    posts   of    Junior         Accounts<\/p>\n
     Officers         on 29.09.2003.           This deponent has also given<\/p>\n
     the     hierarchy        of the posts available in the                   Finance<\/p>\n
     and Accounts Department of Zilla Parishad, which shows<\/p>\n
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\n                                                (7)<\/span><\/p>\n
     the     posts        of the Junior Assistant is the basic                         post<\/p>\n
     and     the        post       of Assistant Accounts Officer                 \/     Head<\/p>\n
     Accountant          is        the highest post in           that     department.\n<\/p>\n
     This     deponent             has specifically averred that for                    the<\/p>\n
     promotion to the post of Assistant Accountant from the<\/p>\n
     post     of        Junior       Accounts Officer         (JAO)       passing         of<\/p>\n
     Maharashtra             Finance       and Accounts       Service         Class-III<\/p>\n
     examination             conducted by the MPSC is mandatory as per<\/p>\n
     GR     dated 25.06.1986.               As per clause 6 of the said                   GR<\/p>\n
     the     Zilla Parishad employees, who have completed                               age<\/p>\n
     of     45     years,          are     exempted from      passing          the     said<\/p>\n
     examination.                 This    exemption     is continued            even      in<\/p>\n
     latter        GR<\/p>\n
                          dated          22.10.1996.     Guide lines           are     also<\/p>\n
     provided as per Government letter dated 30.04.1990 for<\/p>\n
     preparation             of     the     interse seniority          list      of     the<\/p>\n
     employees           working          in    the     Finance      and        Accounts<\/p>\n
     Department          of the Zilla Parishad, which are mentioned<\/p>\n
     in     para        3 of the affidavit.             It is also stated              that<\/p>\n
     neither          the petitioner nor respondent No.4 has passed<\/p>\n
     the     said examination, when they were promoted to                               the<\/p>\n
     posts       of      Junior          Accounts     officers     on     29.09.2003.\n<\/p>\n
     Hence,        in the cadre of Junior Accounts Officer, their<\/p>\n
     seniority          is        required to be considered              or     computed<\/p>\n
     from     the        date       of completion of 45           years        of     their<\/p>\n
     respective          age.        It is not disputed that the date                     of<\/p>\n
     birth       of      the       petitioner is 03.04.1954              and     he     has<\/p>\n
     completed 45 years of age on 03.04.1999 while the date<\/p>\n
     of     birth of respondent No.4 is 15.06.1959 and she has<\/p>\n
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\n                                             (8)<\/span><\/p>\n
     completed         45     years        of age on        15.06.2004.                As     the<\/p>\n
     petitioner             has         completed     45         years        of      age      on<\/p>\n
     03.04.1999,            when        he was holding the post                  of        Senior<\/p>\n
     Assistant, his seniority for the promotion to the post<\/p>\n
     of     Assistant         Accounts Officer was computed from                             the<\/p>\n
     date     of       his appointment on 29.09.2003,                         whereas        the<\/p>\n
     seniority         of respondent No.4 has to be computed                                from<\/p>\n
     15.06.2004.             It     is further averred that                    considering<\/p>\n
     the     GR     dated         22.10.1996 and the               government              letter<\/p>\n
     dated        12.02.1993, the seniority of the petitioner and<\/p>\n
     respondent         No.4        is     properly         determined.                It      is<\/p>\n
     specifically            averred       in     paragraph             No.10         of      the<\/p>\n
     affidavit<\/p>\n
                       that though as per the general                          provisional<\/p>\n
     and      final          seniority            lists         respectively                dated<\/p>\n
     01.01.2008         and 01.04.2008, respondent No.4 is                              senior<\/p>\n
     to      the       petitioner,          however        as      per      the        interse<\/p>\n
     seniority         list prepared after following the GR                                dated<\/p>\n
     12.10.1996 and the government letters dated 30.04.1989<\/p>\n
     and 12.02.1993 in the cadre of Junior Accounts Officer<\/p>\n
     the petitioner is senior to respondent No.4 and hence,<\/p>\n
     was rightly promoted to the post of Assistant Accounts<\/p>\n
     Officer.          Thus, this respondent supported the claim of<\/p>\n
     the     petitioner            in     toto.     It      is       stated        that       the<\/p>\n
     petitioner         is reverted to the post of Junior Accounts<\/p>\n
     Officer vide the impugned order dated 22.01.2009.\n<\/p>\n
     6.           In    response to the notice affidavit was filed<\/p>\n
     by     respondent            No.4 on 14.01.2009               interalia          stating<\/p>\n
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\n                                           (9)<\/span><\/p>\n
     that     by     filing the present writ petition                     the       order<\/p>\n
     challenged           by     the petitioner is an order               passed        by<\/p>\n
     respondent           No.2     in    administrative        capacity,           which<\/p>\n
     cannot be challenged by filing writ petition and hence<\/p>\n
     the     writ        petition is liable to be dismissed.                     It     is<\/p>\n
     further        contended that the provisional seniority list<\/p>\n
     prepared        by respondent No.3 dated 01.01.2008                       wherein<\/p>\n
     respondent           No.4     is    shown at serial         No.23        and     the<\/p>\n
     petitioner           is     shown    at serial No.24          which        is    not<\/p>\n
     challenged           by the petitioner by raising any objection<\/p>\n
     when the provisional seniority list was published.                                 It<\/p>\n
     is     also contended that this seniority list came to be<\/p>\n
     finalised<\/p>\n
                         after considering the objections raised                        by<\/p>\n
     the concerned employees on 01.04.2008.                        The petitioner<\/p>\n
     has     not     challenged          this seniority        list       where       the<\/p>\n
     petitioner           is shown junior to respondent No.4.                      It is<\/p>\n
     further        alleged        that on 30.05.2008          respondent            No.4<\/p>\n
     made     a     representation           to   the    Chief       Accounts         and<\/p>\n
     Finance        Officer of the Zilla Parishad claiming to                           be<\/p>\n
     senior        and     holding the requisite            qualification             for<\/p>\n
     promotion           and     requested      for     grant      of     promotion.\n<\/p>\n
     Thereafter also respondent No.4 has also filed several<\/p>\n
     representations from time to time raising grievance in<\/p>\n
     respect        of     granting       promotion       to     the      petitioner<\/p>\n
     instead        of     respondent        No.4.      This     respondent           has<\/p>\n
     contended           that     the petitioner cannot            approach          this<\/p>\n
     Court        with     a grievance that the petitioner                    was     not<\/p>\n
     independently              heard while passing the impugned order.\n<\/p>\n
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\n                                           (10)<\/span><\/p>\n
     Respondent          No.4 has also requested respondent No.3 to<\/p>\n
     give     effect          to the order dated 12.11.2008 passed                          by<\/p>\n
     respondent          No.2     and     also made         a     grievance            before<\/p>\n
     respondent No.2 in that respect.                       Lastly, it is stated<\/p>\n
     that respondent No.4 is senior than the petitioner and<\/p>\n
     supports          the order under challenge and requested                            for<\/p>\n
     dismissal of the writ petition with costs.\n<\/p>\n
     7.           During         the     course      of         arguments         it      was<\/p>\n
     submitted on behalf of respondent No.4 that during the<\/p>\n
     pendency          of the writ petition the petitioner is                            also<\/p>\n
     promoted to the post of Assistant Accounts Officer and<\/p>\n
     the     said       fact is not brought to the notice                         of     this<\/p>\n
     Court        by     the    petitioner          and     hence,       according          to<\/p>\n
     respondent No.4, this petition has become infructuous.\n<\/p>\n
     It     is     the     reply of the petitioner that                     though        the<\/p>\n
     petitioner          is     promoted       to     the       post     of     Assistant<\/p>\n
     Accounts          Officer during the pendency of this petition<\/p>\n
     yet,     unless          the impugned order is nullified it                         will<\/p>\n
     permanently          affect his claim of seniority.                        Hence, he<\/p>\n
     is continuing with the present petition.                              According to<\/p>\n
     respondent          No.4,     without amending the                  petition         the<\/p>\n
     petitioner cannot claim such relief.                          According to the<\/p>\n
     petitioner,          these reliefs are auxiliary and                         offshoot<\/p>\n
     of     the        decisions of respondent No.2 and hence                          those<\/p>\n
     orders \/ decisions will not affect on the merit of the<\/p>\n
     petition.           Hence,        leave    was       sought       on     behalf        of<\/p>\n
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\n                                                (11)<\/span><\/p>\n
     respondent             No.4       to     file     additional         affidavit           and<\/p>\n
     accordingly             on     17.04.2009 additional                affidavit           was<\/p>\n
     filed on behalf of the respondent No.4.\n<\/p>\n
     8.           It        is     contended          by respondent No.4               in     the<\/p>\n
     additional             affidavit         that now the petition does                     not<\/p>\n
     survive       because the petitioner has also been promoted<\/p>\n
     to     the    post of Assistant Accounts Officer                             by        order<\/p>\n
     dated 18.02.2009 i.e.                    during the pendency of the writ<\/p>\n
     petition.          It is further contended that conduct of the<\/p>\n
     petitioner             in     not       disclosing the         fact      amounts          to<\/p>\n
     playing       fraud on this Court and hence the                            petitioner<\/p>\n
     is not liable to seek equitable relief from this Court<\/p>\n
     for     which          he     has also placed reliance                  on     judgment<\/p>\n
     reported          in        the     matter       of   “M\/s     S.J.S.          Business<\/p>\n
     Enterprise          V\/s State of Bihar”.                 It is contended that<\/p>\n
     the     petitioner            has not amended the               pleadings              about<\/p>\n
     challenge         to         the       interse        seniority        between           the<\/p>\n
     petitioner         and        respondent          No.4.         In      absence           of<\/p>\n
     pleadings         of         facts,       the Court cannot             consider          the<\/p>\n
     submission         to that effect.                It is also contended that<\/p>\n
     in     absence          of any such relief being sought, no                             such<\/p>\n
     relief       can be granted by the Court.                       It is        contended<\/p>\n
     that     the petitioner has sought relief of deciding the<\/p>\n
     interse       seniority and deemed date of promotion during<\/p>\n
     the     course of             arguments.           However,       in     absence          of<\/p>\n
     pleadings,         such           relief     cannot be granted               and        such<\/p>\n
     practice needs to be deprecated.                         It is also contended<\/p>\n
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\n                                         (12)<\/span><\/p>\n
     that during the course of arguments the petitioner has<\/p>\n
     attempted       to change the case, which the petitioner is<\/p>\n
     not     permitted       in      law in view of       judgments         of     the<\/p>\n
     Hon’ble     Apex Court.          It is further contended that the<\/p>\n
     petitioner        has     not    challenged       the      order       of     his<\/p>\n
     reversion       for which remedy is provided under Rule                         14<\/p>\n
     (3) of the Maharashtra Zilla Parishad District Service<\/p>\n
     (Discipline & Appeal) Rules, 1964.                  In the premise, it<\/p>\n
     is      contended       that      the     present     petition         is     not<\/p>\n
     maintainable        and      he has prayed for dismissal of                   the<\/p>\n
     petition with costs.<\/p>\n
\n\n\n\n\n                                            \n     9.         Heard\n                         ig  submissions        of       learned           advocate\n\n     Mr.Jadhavar,        followed       by     arguments of         learned        AGP\n                       \n     Mr.S.P.Dound        for      respondents      No.1     and      2,     learned\n\n     advocate        Mr.Tanwade       for respondent No.3 and               learned\n\n<\/pre>\n
     advocate Mr.S.S.Deshmukh for respondent No.4.\n<\/p>\n
     10.        Before       considering these submissions, at                     the<\/p>\n
     first     instance, we feel it necessary to deal with the<\/p>\n
     objections        raised     by the 4th respondent              during        the<\/p>\n
     course     of     arguments as well as demonstrated                    in     the<\/p>\n
     affidavit       in reply, which are discussed in para 8                         of<\/p>\n
     this     judgment.        It is urged that the petition suffers<\/p>\n
     from     suppression of material facts, as the petitioner<\/p>\n
     was     promoted on the said post during the pendency                           of<\/p>\n
     this     writ     petition and the same is not disclosed                        by<\/p>\n
     him.      Though,       the petitioner is promoted during                     the<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:35:57 :::<\/span>
\n                                            (13)<\/span><\/p>\n
     pendency        of        the writ petition, yet the fact                      remains<\/p>\n
     that     the        promotion        was not with           the      retrospective<\/p>\n
     effect,        which       will      take        away    the      effect       of      the<\/p>\n
     impugned        order.       Hence, according to us, it will                          not<\/p>\n
     amount        to suppression of facts.                   Therefore, the ratio<\/p>\n
     laid     down        in     the judgment           of    “M\/s      S.J.S.Business<\/p>\n
     Enterprises            V\/s        State     of      Bihar”,        will       not       be<\/p>\n
     applicable in the present case.                         It is also urged that<\/p>\n
     in absence of amendment of pleadings, the Court cannot<\/p>\n
     decide        the     interse seniority between the                       petitioner<\/p>\n
     and     the     4th respondent.             Reliance is also placed                     by<\/p>\n
     the     counsel        appearing for the 4th respondent on                            the<\/p>\n
     judgment reported in (2000) 2 SCC 439 in the matter of<\/p>\n
     “Commissioner,             Bangalore        Development            Authority          V\/s<\/p>\n
     S.Vasudeva”.              It is submitted that this Court                        cannot<\/p>\n
     grant the relief, which is not sought for by enlarging<\/p>\n
     the scope of the writ petition on its own, as observed<\/p>\n
     in     para 6 of the reported judgment.                        We disagree with<\/p>\n
     the     proposition          put before us for the simple                        reason<\/p>\n
     that     in     the writ petition we are only examining                               the<\/p>\n
     legality       and        validity        of the        impugned        order.          As<\/p>\n
     subsequent          developments          and      these       submissions            are<\/p>\n
     offshoots       of the impugned order, it is not                            necessary<\/p>\n
     to     test     the        validity       or      otherwise        of     subsequent<\/p>\n
     orders.         In        case,     the rules require              setting           aside<\/p>\n
     order     dated 12.11.2008 of Divisional Commissioner, by<\/p>\n
     which     promotion          order of Petitioner dated                      18.8.2008<\/p>\n
     was     cancelled          and      impliedly Respondent No.                     4    was<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:35:57 :::<\/span>
\n                                             (14)<\/span><\/p>\n
     ordered        to be promoted, the clock will have to be set<\/p>\n
     back     with status quo ante, by restoring the                          position<\/p>\n
     prevailing           prior to order dated 12.11.2008 passed                        by<\/p>\n
     Divisional           Commissioner,        which is the foundation                  of<\/p>\n
     all      subsequent              developments.            Otherwise           also,<\/p>\n
     technical           and procedural provisions cannot be used to<\/p>\n
     defeat and deny substantive justice.                      Reliance is also<\/p>\n
     placed on the judgement reported in AIR 1981 SC 583 in<\/p>\n
     the     matter           of “S.S.Sharma V\/s Union of India”;                      AIR<\/p>\n
     1981     SC 1009 in the matter of ” Arti Sapre V\/s                            State<\/p>\n
     of Jammu & Kashmir”.                For the reasons stated supra the<\/p>\n
     ratio        laid        down    in these authorities           will      not      be<\/p>\n
     applicable<\/p>\n
                          to the facts of the present writ petition.\n<\/p>\n
     We     are not dealing with the other citations relied on<\/p>\n
     by     the     4th respondent as they are also on                      the       same<\/p>\n
     point.\n<\/p>\n
     .            We      are     also    not in agreement           with      learned<\/p>\n
     counsel        for        Respondent     No.4      that     by       subsequent<\/p>\n
     promotion           of Petitioner, his writ petition has become<\/p>\n
     infructuous.                In   fact,     subsequent         promotion            of<\/p>\n
     Petitioner would perpetuate the position of Petitioner<\/p>\n
     as     Junior to Respondent No.                 4 in the cadre of Junior<\/p>\n
     Accounts          Officer,       which the Petitioner feels                 to     be<\/p>\n
     incorrect           as     a result of his getting exemption                     from<\/p>\n
     passing        Departmental Examination prior to                     Respondent<\/p>\n
     No.4     and        in the light of guidelines dated                   25.3.1988<\/p>\n
     (Exh.D).\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:35:57 :::<\/span>
\n                                               (15)<\/span><\/p>\n
     11.          It         is       not under dispute that no                    opportunity<\/p>\n
     was     given to the petitioner by the second                                   respondent<\/p>\n
     while passing the impugned order on the representation<\/p>\n
     of     the        fourth          respondent.            Thus,        there       is      clear<\/p>\n
     violation             of        principles     of natural justice                    at        the<\/p>\n
     hands        of       the        second respondent              while        passing           the<\/p>\n
     impugned order.\n<\/p>\n
     12.          We         have discussed the stand taken by the                                 2nd<\/p>\n
     respondent              in       the affidavit in reply, in para                          4     of<\/p>\n
     this     judgment.                 At   the     same          time,      we     have          also<\/p>\n
     discussed the stand of the 3rd respondent in para 5 of<\/p>\n
     this     judgment.               From the contents of these                       affidavit<\/p>\n
     in     replies as well, it is not disputed either by                                          the<\/p>\n
     petitioner              or by the 4th respondent that both of them<\/p>\n
     were appointed on the post of Junior Accounts Officers<\/p>\n
     (JAO)        on       29.09.2003.             Post       of     Assistant           Accounts<\/p>\n
     Officer           \/     Head Accountant is the promotional post                                 \/<\/p>\n
     avenue for the Junior Accounts Officer.\n<\/p>\n
     13.          It         is       guided by Government Resolution                         dated<\/p>\n
     25.06.1986              as to what is the eligibility criteria                                 to<\/p>\n
     qualify           for        the post of Assistant                  Accounts         Officer<\/p>\n
     i.e.         Head          Accountant.          As        per       this        Government<\/p>\n
     Resolution,                the    incumbents         \/    candidates              who         have<\/p>\n
     passed        the          departmental        examination of                 the       Deputy<\/p>\n
     Accountant                 in     the    District             Service         (Class-III)<\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 14:35:57 :::<\/span>
\n                                                  (16)<\/span><\/p>\n
     (Accounts) Grade II conducted by the Rural Development<\/p>\n
     Department        or Maharashtra Accounts Clerk                              Examination<\/p>\n
     conducted        by        the Director of Accounts and                          Treasury,<\/p>\n
     Bombay,          shall           be        eligible      to      appear          in        this<\/p>\n
     examination.               At     the same time, the                  employees,           who<\/p>\n
     have    completed 45 years of age, can be exempted                                        from<\/p>\n
     passing          this           examination.                  There         is        partial<\/p>\n
     modification           to        this GR by the GR dated                     22.10.1996.\n<\/p>\n
     Rule    4     of this GR speaks about period and number                                      of<\/p>\n
     chances for passing the said examination.\n<\/p>\n
     14.         In        response             to      the     communication                 dated<\/p>\n
     26.08.1987,<\/p>\n
                           by        the     Chief Executive               Officer,          Zilla<\/p>\n
     Parishad, Ratnagiri, vide letter dated 25.03.1988, the<\/p>\n
     Desk        Officer,            Rural           Development         Department,            has<\/p>\n
     clarified        the effect of this exemption clause in para<\/p>\n
     5     of the communication.                      The Desk Officer has                 guided<\/p>\n
     the      criteria           to        appoint         while        considering             the<\/p>\n
     promotional           post        as       how to grant exemption                   to     the<\/p>\n
     employees        concerned,                who     have attained             age      of     45<\/p>\n
     years, in Rule 9 of the GR dated 22.10.1996.                                       As under<\/p>\n
     Rule    9,       it is provided that the exemption                               shall       be<\/p>\n
     granted from passing the qualifying examination by the<\/p>\n
     concerned CEO.\n<\/p>\n
     15.         It    is        not under dispute that the                         petitioner<\/p>\n
     has    attained            age        of     45    years       on     03.04.1999           and<\/p>\n
     exemption        was        granted to him on and from                         29.09.2003<\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 14:35:57 :::<\/span>
\n                                               (17)<\/span><\/p>\n
     and    exemption           was granted to the 4th                respondent           on<\/p>\n
     15.06.2004.           It    is also not under dispute                   that       this<\/p>\n
     exemption        was granted to them as they have not passed<\/p>\n
     the requisite qualifying examination.\n<\/p>\n
     16.        It     is        not disputed that the              petitioner           was<\/p>\n
     promoted        to the post of Assistant Accounts Officer                               \/<\/p>\n
     Head     Accountant          vide order dated 16.08.2008                     and      he<\/p>\n
     took charge of the said post on 18.08.2008.                               Till this<\/p>\n
     time, it was nobody’s case that the 4th respondent has<\/p>\n
     attempted        to        qualify       the    examination          or     she     had<\/p>\n
     appeared for the same.                   Under Clause -III of para 5 of<\/p>\n
     the<\/p>\n
            communication dated 25.03.1988, it is made                                clear<\/p>\n
     that     since        the exemption is granted to the                       employee<\/p>\n
     working     on        the post of Junior Accounts Officer,                          his<\/p>\n
     seniority        is to be counted from the date on which                              he<\/p>\n
     attains age of 45 years.                   As stated herein above, even<\/p>\n
     though this exemption was granted to the petitioner on<\/p>\n
     29.09.2003, yet he has attained the age of 45 years on<\/p>\n
     03.04.1999.           As the 4th respondent has attained age of<\/p>\n
     45     years on 15.06.2004, exemption was granted to                                her<\/p>\n
     from      appearing            or    passing          of     the          qualifying<\/p>\n
     examination on that date.                   Thus, from this record, the<\/p>\n
     fact     is clear that the date on which the                          promotional<\/p>\n
     post was granted to the petitioner w.e.f.                             16.08.2008,<\/p>\n
     till     that time the 4th respondent had not passed                                the<\/p>\n
     qualifying        examination.             Again, we have to go back to<\/p>\n
     clause      I     of        para     5    of    the    communication              dated<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:35:57 :::<\/span>
\n                                                (18)<\/span><\/p>\n
     25.03.1988,              which        speaks       for      the      candidates             \/<\/p>\n
     employees          who        have     passed the         examination              of     the<\/p>\n
     Deputy        Accountant during the stipulated period,                                   then<\/p>\n
     their        seniority          will        remain       intact,         as       per     the<\/p>\n
     original           seniority in the Department.                      Thus, on clear<\/p>\n
     reading        of        Clause       I     and    III of        para        5    of     this<\/p>\n
     communication,             the       fact is clear that                the        original<\/p>\n
     seniority          will        remain intact in case                 the         concerned<\/p>\n
     employee           has cleared the examination.                      This        position<\/p>\n
     is     further        clarified in Clause II of para 5                              of    the<\/p>\n
     said     communication that the employees, who pass                                      this<\/p>\n
     examination           after       the stipulated period, then                          their<\/p>\n
     seniority will be reckoned from the date they pass the<\/p>\n
     said         qualifying              examination.               Thus,        from        this<\/p>\n
     communication             one        fact     is     clear        that        after       the<\/p>\n
     employee           attained       the age of 45 years                   and       exempted<\/p>\n
     from     passing the qualifying examination there will be<\/p>\n
     change        in     the       original seniority.               If this            is    the<\/p>\n
     effect        of this communication, then there is no                                  force<\/p>\n
     in     the     submissions of the learned counsel                                appearing<\/p>\n
     for     the        4th     respondent that               when     the        provisional<\/p>\n
     seniority            list       was       prepared         and     published,              no<\/p>\n
     objection          was        raised to the same by the                      petitioner.\n<\/p>\n
     Again,        there is no force in the submissions that when<\/p>\n
     the     seniority             list was finalised and published                           even<\/p>\n
     then     no objection was taken by the petitioner to that<\/p>\n
     final        seniority          list,        as    the effect           of       the     said<\/p>\n
     finalization             of     the seniority is taken away                        by     the<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 14:35:57 :::<\/span>
\n                                              (19)<\/span><\/p>\n
     communication             dated       25.03.1988.         The seniority                list<\/p>\n
     dated     1.1.2008             relied upon by Respondent No.                           4    is<\/p>\n
     required        to        be     ignored      as   erroneous,           so     far          as<\/p>\n
     Petitioner           and Respondent No.             4 are concerned, since<\/p>\n
     it      did     not        give       effect       to    the       orders              dated<\/p>\n
     29\/30.3.2007              (Exh.C)      and Respondent No.                 4    passing<\/p>\n
     department examination any time after 15.6.2004 is not<\/p>\n
     going     to     prepone           or restore her seniority,                   in          the<\/p>\n
     cadre of Junior Accounts Officer, to be reckoned prior<\/p>\n
     to     29.9.2003 when Petitioner was exempt from                               passing<\/p>\n
     Departmental Examination.\n<\/p>\n
     .          Learned\n                            ig      counsel     for     Respondent No.                  4       has\n\n     tried     to     rely          upon    an entry in          the        service             book\n                          \n     (paperbook page 141, part of Exh.                         RR-II).         This entry\n\n     is     pertaining           to     Respondent No.             4    having          passed\n\n     examination           of Deputy Accountant.                 However, so far as\n      \n\n\n     dispute        between           petitioner and Respondent No.                     4        is\n   \n\n\n\n     concerned,           we are not concerned about either of                              them\n\n\n\n\n\n     having        passed        the examination of Deputy                   Accountant,\n\n     but     with     fact          that    they        are    required            to           pass\n\n     Maharashtra           Finance and Accounts Service (Class                              III)\n\n     examination,              which     is the eligibility               qualification\n\n\n\n\n\n     for     promotion           as     Head       Accountant          or      Divisional\n\n     Accountant           or     Assistant Accounts Officer,                     from           the\n\n     post     of     Deputy Accounts Officer or                     Junior         Accounts\n\n     Officer.         Both          have not passed that examination                            and\n\n\n\n\n                                                              ::: Downloaded on - 09\/06\/2013 14:35:57 :::<\/span>\n                                          (20)<\/span>\n\n     they     are        exempted from passing the same with                  effect\n\n     from      the         dates    indicated    in    the        order          dated\n\n     29\/30.3.2007 (Exh.C).\n\n\n\n\n                                                                              \n     17.       On        clear perusal of the impugned order, we do\n\n\n\n\n                                                      \n     not     find anywhere that this aspect was considered                           by\n\n     the     Divisional Commissioner, Aurangabad while passing\n\n     the     order       dated 12.11.2008 and cancelling the                    order\n\n\n\n\n                                                     \n     dated     16.08.2008.             The said order is passed             without\n\n     giving        any    opportunity by way of natural justice                      to\n\n     the     petitioner.           In the premise, the effect               of     the\n\n\n\n\n                                          \n     government          resolutions      on record, clearly show                 that\n\n     the     impugned\n                            ig order is erroneous and         passed        without\n\n     application          of    mind     and hence, is      required          to     be\n                          \n     quashed and set aside.              In the result, the order dated\n\n     12.11.2008          is hereby quashed and set aside.                  Needless\n\n<\/pre>\n
     to say that once the said order is quashed, all orders<\/p>\n
     subsequently          passed pursuant to the said order,                     will<\/p>\n
     have     to     be     nullified in their        effect        and     parties<\/p>\n
     (Petitioner          and    Respondent     No.4) will          have      to     be<\/p>\n
     restored to statusquo ante.\n<\/p>\n
     .         Rule        is made absolute in the terms                 indicated<\/p>\n
     above.        Writ petition stands disposed of with no order<\/p>\n
     as to costs.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:35:57 :::<\/span>
\n                       (21)<\/span><\/p>\n
     [A.V.POTDAR]            [ N.V.DABHOLKAR ]\n        JUDGE                      JUDGE\n\n     drp\/wp7070-08\n\n\n\n\n                                                       \n                               \n                              \n                      \n                     \n                    \n      \n   \n\n\n\n\n\n\n                               ::: Downloaded on - 09\/06\/2013 14:35:57 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Madhukar Pandurang Gadade vs The State Of Maharashtra on 8 May, 2009 Bench: N.V. Dabholkar, A. V. Potdar (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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-204323","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMadhukar Pandurang Gadade vs The State Of Maharashtra on 8 May, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/madhukar-pandurang-gadade-vs-the-state-of-maharashtra-on-8-may-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Madhukar Pandurang Gadade vs The State Of Maharashtra on 8 May, 2009 - 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