wp.1657.98
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1657 OF 1998
Pratapsinh Damodar Golekar
Aged about 50 years, occu: Govt. Service
Deputy Commissioner of State Excise
(Sr. Grade) C/o Commissioner,
State Excise, Old Custom House, Fort,
Mumbai-400 023. ...PETITIONER
VERSUS
1) State of Maharashtra
Through the Chief Secretary
General Administration Department
Mantralaya, Mumbai.
2) The State of Maharashtra
Through Secretary
Home Department (Transport and State Excise)
Mantralaya, Mumbai.
3) Chairman,
Maharashtra Public Service Commission
Bank of India Building
Opposite High Court, Mumbai.
4) Shri P.B. Sawant,
Retired Joint Commissioner of State Excise
(Alcohol) R/o Y-34, Sector 9
CBD Belapur, Navi Mumbai
Dist.Thane.
5) Shri V.V. Malkalpatte
Aged about 54 years, Joint Commissioner
of State Excise (Admn)
C/o Commissioner of Excise,
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Old Custom House,
Fort, Mumbai.
6) Shri V.G. Shingore
Retired Dy. Commissioner of State Excise
(Sr.Grade) R/o 17, Ashish Co-op. Housing Society
Shrinagar, Thane (West) 400 604.
7) Shri S. A. Patil
Aged about 52 years, Dy. Commissioner of
State Excise (Sr.Grade)
C/o Commissioner fo State Excise
Old Custom House, Fort, Mumbai.
8) Shri P. V. Mishra
Aged about 51 years, Dy. Commissioner of
State Excise (Sr. Grade)
C/o Commissioner of State Excise
Old Custom House, Fort
Mumbai. ...RESPONDENTS
.
...................................................................................................................
Mr. R.C. Madkholkar, Advocate for Petitioner
Mr. V. P. Maldhure, Assistant Government Pleader for Respondent Nos.1
and 2
...................................................................................................................
CORAM : R.K. DESHPANDE & MRS.SWAPNA JOSHI, JJ.
DATED : 25 th
July, 2017
ORAL JUDGMENT ( PER R.K. DESHPANDE, J. ) :
1. The petitioner filed Original Application No.220 of 1995 before the Maharashtra Administrative Tribunal, Bench at Nagpur, ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 3 challenging the promotion of respondent No.4 - P. B. Sawant and respondent No. 5 - V. V. Malkalpatte, to the post of Joint Commissioner of State Excise, Maharashtra State, with effect from 1-2-1991 by notification dated 8-2-1991. The Maharashtra Administrative Tribunal has dismissed the said Original Application by its judgment and order dated 12-3-1998. Hence, the present writ petition challenging the judgment and order passed by the Maharashtra Administrative Tribunal and also claiming a direction to the respondent Nos.1 and 2 to consider the petitioner for appointment by way of promotion to the post of Joint Commissioner with effect from 1-2-1991 by setting aside the appointments of the respondent Nos. 4 and 5 to the said posts.
2. This petition concerns with the appointment to the Super Class-I post of Joint Commissioner, State Excise ("the post in question") effected on 1-2-1991, which was denied to the petitioner. Being a Super Class-I post, it was required to be filled in by way of selection, strictly on the basis of merit from amongst the candidates working in Class-I post of the Superintendent of State Excise, which formed the zone of consideration. The number of candidates to be considered for selection were four times the number of vacancies available and to be filled in. ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 :::
wp.1657.98 4 The Class-I post of Superintendent, State Excise was at the relevant time in the pay scale of Rs.2200-4000. Above it, was the post of Divisional Deputy Commissioner, State Excise in the pay scale of Rs.3200-4625/-. The last Super Class-I post was that of the Joint Commissioner, State Excise, carrying the pay scale of Rs.3700-5000.
3. It is not in dispute that the first provisional seniority list of the officers working in Class-I post of Superintendent was prepared on 13-2-1990 and it was circulated for objections to be submitted on or before 13-3-1990. The respondent Nos.4 and 5 were at serial Nos.1 and 2, whereas the petitioner was at serial No.11 in the said seniority list. The first consideration for promotion to the post of Divisional Deputy Commissioner took place on 1-4-1990 and the petitioner was selected and appointed to the said post on 8-5-1990. The respondent Nos.4 and 5 were not promoted but continued to work in Class-I post of Superintendent. The first consideration for promotion to the Super Class-I post of Joint Commissioner took place on 1-2-1991, in which the respondent Nos.4 and 5 were promoted against the two posts which were created. This was the subject-matter of challenge before the Maharashtra Administrative Tribunal by filing the Original Application ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 5 and also in this petition challenging the dismissal of the Original Application by the Tribunal.
4. The stand of the respondent Nos. 1 and 2 before the Maharashtra Administrative Tribunal to defend the claim of the petitioner for consideration to the post in question was that the seniority list of persons working in Class-I post of Superintendent prepared on 13-2-1990 included the name of respondent Nos. 4 and 5 at Serial Nos. 1 and 2, whereas the name of the petitioner was at Serial No.11. On 1-2-1991, the respondent Nos. 1 and 2 considered the names of eight candidates in the order of seniority and the respondent Nos. 4 and 5 being found meritorious amongst them, were selected and appointed by notification dated 8-2-1991 to occupy the post in question. The petitioner being at Serial No.11 in the seniority list was beyond the zone of consideration and, therefore, the question of appointing him by way of promotion to the post in question did not arise.
5. Before the Tribunal, it was the case of the petitioner that on the date of consideration i.e. 1-2-1991, he was working as Deputy Commissioner, which was a post above Class-I post of Superintendent. It ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 6 was his case that he was possessing the grading of "Outstanding A+" in the confidential records pertaining to the period of 5 years preceding the date of consideration on 1-2-1991 and none of the respondents could compete him in such grading. The petitioner alleged in his Original Application that though the annual confidential reports of the respondent Nos. 4 and 5 were less meritorious, they were promoted on the basis of seniority only and there was no comparative assessment of merits. The petitioner alleged that the respondent No. 4 - P. B. Sawant in the Original Application suppressed the material fact that his height was less than 165 cms., which is the statutory requirement in clause (2) of the Rules of Physical Fitness framed under Article 309 of the Constitution of India on 2-4-1980, and hence he was not eligible for promotion to the post in question. The petitioner alleged that the adverse confidential report awarded to the respondent No.5 - V. V. Malkalpatte in the year 1986-87 were expunged without even any representation in writing by him and in breach of the procedure.
6. In response to the Original Application, the respondent Nos. 1 and 2 filed their return. In paragraph 4 of the said return, the stand was taken as under :
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wp.1657.98 7 "It is further submitted that though assuming but no admitting that the petitioner has outstanding (A+) Confidential Reports for the last preceding 5 years and even if the petitioner is required to be placed at the sixth place above, he does not reach the place of non- applicants Nos. 4 and 5, apart from the fact that the petitioner was also not in the zone of consideration."
The Tribunal records the finding that the submission of the petitioner that his confidential reports for five years preceding the appointment of the respondent Nos. 4 and 5 were 'Outstanding' has not been controverted by the respondent nos. 1 and 2. The Tribunal holds that the confidential reports of the petitioner were not produced by the respondent Nos. 1 and 2 along with the minutes of the meeting of the Establishment Board, which recommended the respondent Nos. 4 and 5 for promotion to the post in question.
7. The Tribunal refers to the contention of the petitioner that respondent No. 4 - P. B. Sawant was involved in two serious cases and he had shot himself by revolver in or around 1981; as a result of which, the departmental enquiry was initiated against him and it was kept pending for many years and was dropped in or around 1990. The Tribunal also ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 8 refers to the contention of the petitioner that the respondent No.5 was given adverse remarks for the years 1985, 1986 and 1987 by the Additional Collector of Nagpur, for cancellation or suppression of French Police Licences. The Tribunal takes into consideration the stand of the respondent Nos. 1 and 2 that the Government has taken a conscious decision to promote the respondent No.4 in spite of the pending enquiry and that the expungement of the adverse remarks against respondent No.5 was the privilege of the Government.
8. The Tribunal considered the stand of the respondents that the petitioner being at Serial No.11 in the seniority list of the post of Superintendent, State Excise, prepared on 13-2-1990, was beyond the zone of consideration. According to the Tribunal, the Government Resolution dated 1-10-1989 produced by the petitioner, does not prescribe the maximum number of officers to be considered for appointment by way of promotion and it was open for the respondents to have considered more than six officers, including the petitioner, especially when the petitioner had been a Deputy Commissioner earlier than at least four of those, who were above him in the seniority list. The Tribunal holds, "We find that zone of consideration has lost much of ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 9 its significance in view of the Government Resolution dated 18-10-1988 that jumping of queue by six places is permissible for the officers with outstanding record" .
9. The Tribunal holds in paragraph 15 of its judgment, "It will appear from the record made available to us that respondent Nos. 4 and 5 were given the promotion in spite of their comparatively less meritorious C.Rs. than those of the applicant and it will appear that the criteria laid down for promotion by strict selection were not followed." The Tribunal, however, holds, "... it is debatable as to whether the high standard laid down by the Government for selection for promotion creates a right for officers with outstanding records to claim promotion over their seniors who are considered suitable for promotion by the Government, in spite of their less meritorious record." According to the Tribunal, the claim of the petitioner was that he was not given promotion in supersession of his seniors and that it was not a case of supersession in the matter of promotion. It is on the basis of such findings that the Tribunal has rejected the claim of the petitioner for appointment by promotion to the post in question with effect from 1-2-1991.
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10. Initially, we heard the matter on 6-6-2017, when the following order was passed :
" The claim of the petitioner in this petition is for the promotion to the post of Joint Commissioner (State Excise) with effect from 01-02-1991, that is the date on which the respondent nos.4 to 8, juniors to the petitioner were promoted to the said post. Prima facie, the criterion for promotion is that of merit. The contention of the petitioner is that the petitioner possessed the outstanding record and without following the procedure of preparing the select list, the respondent nos.4 to 8 who were juniors to him, were promoted. Service record pertaining to the period of five years prior to 01-02-1991 would be relevant. The learned Counsel for the respondents invites the attention of this Court to these factual aspects.
Shri Maldhure, the learned Assistant Government Pleader for respondent nos.1 to 3, seeks time in this matter.
Put up this matter on 15-06-2017 so as to enable the learned Assistant Government Pleader to obtain necessary instructions and to argue the matter."
Thereafter, we passed an order on 15-6-2017 as under : ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 :::
wp.1657.98 11 " In continuation of the order dated 6-6-2017, we pass the following order :
The respondent No.2 is directed to produce before this Court the annual confidential reports of the petitioner as well as the respondent Nos.4 to 8 for the period from 1-1-1985 to 31-12-1990, which are considered before passing the order of promotion of the respondent Nos.4 and 5 on 1-2-1991.
The copies of the annual confidential reports should be filed along with the affidavit of the responsible officer.
Put up the matter on 29-6-2017, at the request of the learned Assistant Government Pleader for the respondent Nos.1 and 2."
In response to the aforesaid two orders, the respondent No.1 has filed an affidavit of the Joint Secretary, Home Department, Government of Maharashtra, stating that on 21-6-2012, the Mantralaya building was hit by major fire, as a result, many records and proceedings, documents and other important stored information of Home Department came to be burned down to ashes. It is also the stand that the annual confidential records of the petitioner had been gutted in the untoward fire incident. It is further stated in the affidavit that the endeavour was made to call the records of the petitioner from the State Excise and the reply is received that the record has not been traced.
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11. We have gone through the Government Resolution dated 28-1-1975, which prescribes the principles to be observed in the matter of promotion from a lower to a higher grade, service or post. It is issued by the General Administration Department of the State Government in consultation with the Maharashtra Public Service Commission. Paragraphs (2) and (6) of the said Government Resolutions being relevant, are reproduced below :
"(2) Promotions above the first promotions to Class I should be by strict selection i.e. only those persons who possess positive merit and achieve tangible good results should be considered suitable for promotion irrespective of their seniority provided they fulfil the criteria of length of service prescribed if any."
"(6) In the case of promotions by selection, interse seniority of the officers who are considered fit for promotion should be the maintained subject to grant of accelerated promotion to those who possess an outstanding record."
12. The Government Circular issued by the General Administration Department on 11-9-1975, placed on record, deals with ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 13 the principle governing the preparation and revision of select list. It states that the Government has decided, in consultation with the Maharashtra Public Service Commission, that all appointments above the first promotion to Class-I post of service should be awarded strictly by selection. The guidelines laid down for preparation of selection list, relevant for this case, are reproduced below :
"(1) A Committee consisting of ____ should in July in each year review the claims of all ____ for promotion to posts of ____ and should draw up a Select List of those who are considered by the Committee fit for promotion. The list should not be of excessive length and should ordinarily be limited to the vacancies likely to occur during the next two years.
(2) The list should be drawn up with due regard to the general principles regarding promotions laid down in Government Resolution, General Administration Department No. DTB-1074-D, dated the 28th January 1975 and Government Resolution, General Administration Department No. BCC-1072-J, dated the 23rd May, 1974.
(3) Names entered in the list should ordinarily be arranged in the order of seniority in the case of ____ as between officers brought on the list at the same time, but it will be open to given an officer higher rank than that warranted by seniority if he is considered to be of outstanding merit."::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 :::
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13. In continuation of the aforesaid Government Resolution and Circular, another Resolution was issued by the General Administration Department on 1-4-1976 in consultation with the Maharashtra Public Service Commission, and paragraphs 3(a) and 3(b) of the said Government Resolution being relevant, are reproduced below :
"3(a) Promotions above the first promotion to Class-I Service have to be on the basis of strict selection as described in clause (2) of the Government Resolution, General Administration Department, No.SRV.1074/D, dated the 28th January, 1975. With a view to enabling the Government Servants possessing positive merit to be considered for promotion earlier, in amplification of clause (2) of the said Government Resolution, it has been decided that the field of selection should be widened so as to ensure that, when ever any posts are to be filled by promotion is four times the number of vacancies, likely to occur during the next two years, or the number of the senior-most officers appointed to the lower-grade, post of service during four consecutive years, whichever is greater.
(b) For being considered as a person possessing positive merit, a Government servants record should be free from serious blemish, and should show that the person concerned is able, not only to discharge efficiently the duties of the post held by him for the time being, but to shoulder the duties and responsibilities of a higher post."::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 :::
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14. Another Government Resolution dated 19-9-1977 modifies paragraph 3(b) of the Government Resolution dated 1-4-1976 as under :
"3(b) : for a Government Servant to be considered as possessing positive merit, the overall assessment of his record should show that he possesses positive qualities like initiative, drive integrity and efficiency to a noticeably higher degree than necessary for discharging efficiently the duties of the post held by him and also shoulder the responsibilities of a higher post. The persons should be clearly fit for promotion to a higher post and should not be a border line case."
15. The Government Resolution dated 18-5-1983 lays down the principles to be followed while effecting promotions from lower post to higher post in service. After seeking advice of the Maharashtra Public Service Commission, the Government decided as under in clause (B) of the said Government Resolution :
"B) In all the promotions, while including the officers in the select-list, possessing the outstanding remarks, shall, instead of giving placement upto 4th higher place as per existing norms, be given placement upto 6th higher place in the select-list."::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 :::
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16. The aforesaid position was reiterated in the Government Resolution dated 18-10-1988; the relevant portion of which, is reproduced below :
"As per Government resolution No.SRV-1077/CR- 343/79/12, dated 18 May, 1983, while including the officers with outstanding C.R. for various promotions in the select-list, upper position upto the 6th place can be given. Now, the Government has reconsidered the question of giving upper position in the select list and the following decision has been taken.
(1) In all the promotions, those with outstanding remarks shall be given higher ranking upto the 6th place while including their names in the Select List."
17. In the light of all the Government Resolutions and Circulars laying down the procedure for recruitment and criteria for appointment by way of promotion, issued in consultation with the Maharashtra Public Service Commission, we examine the findings of the Tribunal and consider the case of the petitioner and the stand of the respondent Nos.1 and 2. The other respondents neither did participate in the proceedings before the Tribunal nor before this Court and they did not even file their ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 17 reply.
18. It is a fact that neither the confidential records of the petitioner and the respondent Nos.4 and 5 nor the minutes of meeting dated 1-2-1991 in which the consideration took place, were either produced before the Maharashtra Administrative Tribunal or before this Court in spite of specific orders. The Tribunal records a specific finding after taking into consideration the averments made in the Original Application and the return filed by the respondent Nos.1 and 2 that the petitioner was graded as "Outstanding A+" during the period of five years preceding the date of consideration, i.e. 1-2-1991. The Tribunal also records a specific finding that the respondent Nos.4 and 5, viz. P. B. Sawant and V. V. Malkalpatte respectively, were given promotion in spite of their comparatively less meritorious C.Rs. than the petitioner, that too without following the criteria for promotion by strict selection on merits. These findings are not challenged by any of the respondents either by filing return before this Court by way of separate petition. We, therefore, concur with such findings recorded by the Tribunal and hold by drawing an adverse inference that the petitioner was more meritorious than the respondent Nos.4 and 5 on the basis of the ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 18 confidential reports.
19. In our view, there was a complete deviation of the principles of selection on the basis of merits to a Super Class-I post in question. In fact, the zone of consideration prepared was the placement in the seniority list of Class-I officers in the post of Superintendent, which was contrary to the aforesaid Government Resolution and norms. As per the guidelines laid down in consultation with the Maharashtra Public Service Commission, a select list of the candidates working in Class-I post of Superintendent, State Excise, fit for promotion on the basis of their confidential reports was required to be prepared. For the purposes of the zone of consideration, such a select list was required to be operated, and on the basis of comparative assessment of merits of the candidates in the zone of consideration, the selection and appointments were required to be made.
20. There was a total failure on the part of the respondent Nos. 1 and 2 to - (i) prepare a select list as contemplated by the guidelines at Serial Nos. 1, 2 and 3 of the Government Resolution dated 11-9-1975, 18-5-1983 and 18-10-1988, which are reproduced ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 19 above, and (ii) make comparative assessment of merits as per the norms prescribed in the Government Resolution dated 28-1-1975, 1-4-1976 and 19-9-1977. If the petitioner had been given the benefit of these Government Resolutions on the basis of his "Outstanding A+" grade for five years preceding the date of consideration, he would have definitely come in the zone of consideration, and on comparative assessment on merits, according to us, doubtlessly, the petitioner could have been selected for appointment by way of promotion to the post in question on 1-2-1991.
21. The post of Divisional Deputy Commissioner was above the Class-I post of Superintendent and was required to be filled in by selection on merits from amongst the candidates in the zone of consideration. On 1-4-1990, the consideration took place for promotion to this post, in which the petitioner was selected and ultimately appointed by an order dated 8-5-1990. The respondent Nos.4 and 5 were not selected and they continued to work in the Class-I post of Superintendent, which was lower in rank. The Tribunal records the finding that the petitioner had been a Divisional Deputy Commissioner earlier than at least four of those, who were above him in the seniority ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 20 list of Class-I post of Superintendent. The Tribunal holds that in fact the reason of the zone of consideration assigned, had lost its significance in view of the Government Resolution dated 18-10-1988, which permitted the petitioner to jump the queue by six places. The Tribunal overlooked and missed such findings recorded by it.
22. The question is whether the Tribunal was right in rejecting the claim of the petitioner on the ground that the promotion is not a matter of right and even if the petitioner possesses the outstanding record, he cannot claim appointment by way of promotion over the seniors, who are considered suitable for promotion by the Government in spite of their less meritorious record.
23. In the decision of the Constitution Bench of the Apex Court in the case of Ajit Singh II v. State of Punjab, reported in (1999) 7 SCC 209, it has been held that the word 'employment' under Article 16(1) of the Constitution of India being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. It further holds that Article 16(1) provides to every employee otherwise eligible for promotion or who ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 21 comes within the zone of consideration, the fundamental right to be 'considered' for promotion. It holds that equal opportunity here means the right to be considered for promotion and if a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be 'considered' for promotion, which is his personal right. We are of the view that in the light of this decision of the Apex Court, there was a clear violation of the fundamental rights of the petitioner contained in Article 14 read with Article 16(1) of the Constitution of India while promoting the respondent Nos. 4 and 5 to the post in question on 1-2-1991. The view taken by the Tribunal is contrary to the law laid down by the Apex Court.
24. In our view, the findings recorded by the Tribunal in rejecting the claim of the petitioner for appointment by way of promotion to the post in question with effect from 1-2-1991 cannot be sustained and the appointments of the respondent Nos.4 and 5 to post in question by issuing notification dated 8-2-1991 are required to be quashed and set aside. The respondent No.4 retired from service on 30-6-1997 from the post of Joint Commissioner, whereas the petitioner attained the age of superannuation on 31-1-2007, on which date he was ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 22 granted promotion and appointment to the post in question. The respondent Nos.4 and 5 neither did oppose the claim of the petitioner, nor did defend their appointment to the post in question - either before the Tribunal or before this Court. All the confidential reports of the petitioner and the respondent Nos.4 and 5 have been destroyed along with the minutes of meeting dated 1-2-1991, in which the respondent Nos.4 and 5 were selected for the post in question. In such situation, we have to consider as to what relief the petitioner can be granted in the present petition, after a period of about 26 years.
25. Normally in such cases, after setting aside appointments by promotion on the basis of selection on merits, the matter should go back to the respondent Nos.1 and 2 for reconsideration as on 1-2-1991 and there cannot be an order directing appointment of the petitioner to such post. However, keeping in view of the findings of the Tribunal, which we have confirmed, and the fact that all the records are destroyed, it is not possible to send the matter back for reconsideration. But the matter cannot be left out by saying that our hands are tied or that this is an incident of service or life or that there is delay. It is always said that the justice delayed is justice denied, but the delay cannot defeat justice. We ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 23 must see that the justice is not only done, but it must appear to have been done. The petitioner, who has struggled for maintaining his grading as "Outstanding A+" with a legitimate expectation of attaining the highest position in service cannot be left with frustration by saying that there is no solution. The High Court cannot be a stamper of the illegal appointments and permit the respondent Nos.4 and 5 to enjoy it in Super Class-I post because the matter is pending since last 26 years. In such cases, if the reliefs are not granted to the litigants, the faith in the judicial institution shall be eroded. We have, therefore, to allow this petition and grant the appropriate reliefs to the petitioner.
26. Before exercising our jurisdiction under Articles 226 and 227 of the Constitution of India, we must look into the aspect of delay. The promotions to the post in question were made on the basis of the provisional seniority list of persons working in the Class-I post of Superintendent, State Excise, on 13-2-1990. The objections to the said list were not finalized. Perusal of the order dated 8-2-1991, appointing the respondent Nos.4 and 5 to the post in question, shows that the appointments were purely on temporary basis, subject to finalization of the recruitment rules and the gradation list. The order clearly states that ::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:32:04 ::: wp.1657.98 24 the promotion shall be treated as purely fortuitous in nature. On 18-2-1994, a provisional seniority list showing the position of officers as on 31-7-1993 in Gazetted Class-I Cadre of State Excise Department was published inviting objections thereon. It is for the first time this seniority list gives the deemed date of promotion to the respondent Nos.4 and 5 as 1-2-1991 in the post of Joint Commissioner, State Excise. The cause of action for approaching the Tribunal arose on 18-2-1994 and as per the provisions in the Administrative Tribunals act, there has to be a demand of claim by making representation before approaching the Tribunal. The petitioner raised an objection by way of detailed representation submitted on 11-3-1994, and after waiting for certain period, filed Original Application No.220 of 1995 before the Tribunal on or about 5-4-1995. We do not find that there was any delay in filing such Original Application, and even if it was there, the same was condoned by the Tribunal and ultimately the Original Application was decided on 12-3-1998, and this petition filed on 8-6-1998 is being decided now.
27. In the result, we allow this petition and pass an order as under :
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wp.1657.98 25 O R D E R (1) The findings recorded by the Maharashtra Administrative Tribunal in its judgment dated 12-3-1998 delivered in Original Application No.220 of 1995, denying the claim of the petitioner for grant of deemed date of promotion to the post of Joint Commissioner, State Excise, with effect from 1-2-1991, is hereby quashed and set aside. The said Original Application is allowed. (2) The appointments of the respondent Nos.4 and 5 to the post of Joint Commissioner, State Excise, by notification dated 8-2-1991 on the basis of their selection on 1-2-1991, are hereby quashed and set aside.
(3) The respondent Nos.1 and 2 are directed to grant to the petitioner a deemed date of appointment as 1-2-1991 in the post of Joint Commissioner, State Excise, and to pay him the entire difference in the salary for the period from 8-2-1991 to 31-1-2007. (4) The petitioner shall be entitled to all consequential benefits flowing from the grant of the aforesaid reliefs, including the rise in the pension, if any, along with the interest thereon in terms of the relevant provisions of the Maharashtra Civil Services (Pension) Rules, 1982.
(5) The entire exercise be carried out within a period of three months from today.
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28. Rule is made absolute in the aforesaid terms. However, in the circumstances of the case, there shall be no order as to costs.
29. Put up after three months to see compliance.
JUDGE JUDGE
Lanjewar/Jalit
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