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IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
WRIT PETITION NO.2530 OF 1996
1] Manik Kisanrao Dongre,
aged 46 years, occupation :
service, resident of Rani Durgavati Nagar,
Binaki Layout, N.I.T. Quarters, B-9/99,
Nagpur.
2] Gangadhar Haribhau Patil, aged 46 years,
occupation : service, resident of Ram Nagar,
Gadchiroli, tahsil and district : Gadchiroli
3] Kashinath Shivba Khillare,
aged about 42 years, resident care of
J.K. Sahu Samarthwadi, tahsil and district : Wardha.
.......... Petitioners
VERSUS
1] The Managing Director, Mahatma
Fuley, Backward Class Development
Corporation, Mumbai.
2] The State of Maharashtra, though
Secretary to the Government of
Maharashtra in the Department of
Social Welfare, Mantralaya, Bombay 400 032
3] Shri C.G. Sontakke, Accountant,
Regional Office, Mahatma Fuley
Back Class Development Corporation, Nagpur.
4] Shri B.D. Kadam, Accountant,
Dr. Babasaheb Ambedkar Sakar Tantrik
(Technical )Training Centre,
Jambhul, tahsil Kalyan, District : Thane
5] Shri R.B. Pawar, Assistant Chief
Administrative(Recovery) Mahatma
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Fuley Magasvarg Vikas Mahamandal
Maryadit, at Supreme Shoping Centre,
Gulmohar Gross Road, No.9, J.V.P.D.
Scheme, Jhuoo, Mumbai 400 049
.........Respondents
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Smt S.W.Deshpande, advocate for petitioners
Shri Hrishikesh Marathe h/f Anand Parchure, adv. for Resp. no.1
Shri A. D.Sonak, Asstt Government Pleader for respondent no.2
Shri Rahul Dhande, advocate for respondent no. 3 & 4
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CORAM: B.P. DHARMADHIKARI & A.B. CHAUDHARI, JJ.
DATE : 11 th November, 2011 ORAL JUDGMENT [PER : B.P. DHARMADHIKARI,J] Heard Mrs. Deshpande for petitioner, advocate Marathe for respondent no.1, advocate Rahul Dhande for respondent no.3 & 4 and learned A.G.P. Shri Sonak for respondent no.2. Nobody appears for respondent no.5.
2] Short grievance of advocate Deshpande is though three petitioners before this court are senior to respondent no.3, 4 & 5, while effecting promotion to the cadre of Manager, on the strength of seniority-cum-merit, their entitlement has not been considered.
Respondents no.3 to 5 who are juniors have been given said ::: Downloaded on - 09/06/2013 17:54:50 ::: 3 promotions. She therefore relies upon judgment of the Apex Court reported in AIR 1994 SC 1693 [S.D. Raghunandan Singh ..vs.. State of Karnataka and others] to claim deemed date of promotion as all petitioners and respondents had by now retired on superannuation.
3] Advocate Marathe and advocate Dhande are supporting the impugned action. Advocate Marathe relies upon reply - affidavit filed on record to show how respondents are found entitled to promotion.
Shri Dhande states that respondents no.3 & 4 made representations for promotion and considering their representations and entitlement, they have been promoted. He fairly states that he is not aware as to why petitioners have not been promoted. Learned Assistant Government Pleader is supporting argument of respondents.
4] With the assistance of respective counsel, we have perused the relevant records. Extract of Employment Service Rules 1983 placed before us, particularly Rule 15 shows that promotion has to be on the basis of merit-cum-seniority. The norm is required to be followed unless otherwise provided for in the recruitment rules. Thus contention of petitioner that promotion has to be on the strength of ::: Downloaded on - 09/06/2013 17:54:51 ::: 4 seniority-cum-merit in ground no.1 appears to be misconceived.
5] Seniority list of accountants placed at Annexure:VIII with the petition reveals that name of petitioner no.1 appears at serial no.16, name of petitioner no.2 appears at serial no. 25 and name of petitioner no.3 appears at serial no.38. Name of respondent no.3 is at serial no.32, name of respondent no.4 is at serial no.33 and name of respondent no.5 is at serial no.34. Thus, in this seniority list petitioner no.3 is junior to all the respondents and petitioner no.1 and 2 appears to be senior to all of them.
6] In this background when impact of norm of merit-cum-
seniority as evolved by respondent no.1 for said promotion is evaluated, it is apparent that respondent no.1 has to show that it considered claim of petitioners no.1 to 3 or in any case claim of petitioner no. 1 and 2 for said promotion and found them unfit.
Respondent before this court having not filed any return after this court has issued "Rule" in the matter, respondent no.1, 3 & 4 are taking support of affidavits filed before issuance of that "Rule".
Respondents no.3 & 4 are obviously not in a position to point out ::: Downloaded on - 09/06/2013 17:54:51 ::: 5 how respondent no.1 has considered merits of petitioners or whether claim of petitioners has been considered at all or not. They remained satisfied by pointing out that they made representation and in pursuance thereof they have been promoted. Respondent no.1 has not filed any affidavit stating that claim of petitioners for such promotion has been considered and as they were found less meritorious or then unfit, they have not been selected / promoted.
7] It is therefore, obvious that petitioners have been declined even their legitimate chance of consideration for said promotion. Action of promoting respondent no.3 to 5 in this situation cannot be said to be legal and valid. However, these promotions were effected more than 15 years back and these respondents have also retired after attaining age of superannuation. Hence we do not find any point in disturbing those promotion orders. Justice can be done to petitioners by directing respondent no.1 to consider their cases and claims for promotion in accordance with law and if they are found eligible to give them deemed date of promotion with all consequential benefits.
8] Accordingly, we partly allow the petition. We direct respondent ::: Downloaded on - 09/06/2013 17:54:51 ::: 6 no.1 to consider the claim of petitioners no.1, 2 and 3 for said promotion to the post of District Manager as early as possible and in any case within a period of three months from today. If the petitioners are found eligible and entitled to said promotions, they shall be given deemed date and shall be given due seniority looking to their original standing in the seniority list of the cadre of Accountant. The respondent no.1 shall in that event release all consequential benefits in favour of petitioners or such of the petitioners as are found entitled to promotion within further period of four months.
9] Writ petition is thus partly allowed. However, in the circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
SMP
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