Amrut Pusaji Ilme vs State Of Maharashtra And Anr.
2007 Latest Caselaw 831 Bom

JUDGMENT

R.C. Chavan, J.

1. These two petitions can be disposed of by a common judgment, since the question involved in the petitions is the same.

2. The petitioner in Writ Petition No. 3070 of 1998, Dr. Ilme, and the respondent in Writ Petition No. 3776 of 2001, Dr. Smt. Bhagwat, were serving as Medical Officers, Class-III, at Nagpur. There was a scandal of bogus medical reimbursement bills and a crime had been registered at Police Station Ambazari, bearing No. 199 of 1976. Dr. Ilme was suspended in 1976 and Dr. Smt. Bhagwat was suspended in 1974 pending investigation of the crime. On writ petitions filed by the doctors, the criminal proceedings were quashed. In view of this, by an order dated 2-2-1991, the Government of Maharashtra in Public Health Department decided to drop the charges against the two doctors and some others and ordered the entire period of suspension to be treated as duty period.

3. Dr. Ilme, petitioner in Writ Petition No. 3070 of 1998, was accordingly reinstated on 8-2-1991. Dr. Ilme attained the superannuation subsequently. Dr. Smt. Bhagwat, respondent in Writ Petition No. 3776 of 2001 had, however, attained superannuation on 31-10-1987. It is substantially not in dispute that some juniors of Dr. Smt. Bhagwat and Dr. Ilme had been promoted during the period of their suspension.

4. Dr. Ilme filed Original Application No. 21 of 1993 before the Maharashtra Administrative Tribunal, Nagpur Bench, Nagpur, and Dr. Smt. Bhagwat filed Original Application No. 21 of 1992 before the Tribunal. While Dr. lime's application came to be decided against him by an order dated 19-5-1998 making him approach this Court, the application of Dr. Smt. Bhagwat was decided on 26-2-2001 in her favour, prompting the State to file Writ Petition No. 3776 of 2001.

5. We have heard the learned Advocates for the two doctors and the learned AGP for the State.

6. The learned Advocates for the two doctors do not dispute that promotion to the post claimed by them was available under rules by selection and not merely by seniority. They submitted that their clients ought to have been considered for promotion and if found fit, could have been promoted. According to the learned Advocates, since the proceedings against the two doctors have been dropped and all charges have also been dropped, their suspension or prosecution cannot at all be taken into consideration for denying promotion to them. It was incumbent upon the State to consider the doctors for promotion when their turn came and decide their entitlement on the basis of the available material. The act of respondents in declining to promote them because their confidential records were not available amounts to failure or denial to consider their candidature for no fault on their part. They, therefore, claimed that in these premises, respondents were under obligation to promote them. For this purpose, the learned Advocates relied on a judgment of the Supreme Court in C.O. Arumugam and Ors. v. The State of Tamil Nadu and Ors. reported at 1990 (1) Services Law Reporter 288,

7. It is the contention of the learned AGP that the promotion to Class-II post, which was claimed as of right by the two doctors in the two proceedings before the Tribunal, was, in fact, to be granted by selection and not in a routine manner.

8. Therefore, the learned AGP submitted that the two doctors could not have claimed promotion with effect from the dates their juniors were promoted merely because the proceedings against these two doctors were dropped subsequently. For this purpose, he relied on a judgment of the Supreme Court in R. Veerabhadram v. Govt. of Andhra Pradesh reported at AIR 2000 SC 1918, where the Apex Court held in para 10 that since promotional post is a selection post, the petitioner could not have claimed that he must be deemed to have been selected and granted promotion.

9. The learned AGP, therefore, submitted that the Administrative Tribunal was in error in allowing the Original Application of Dr. Smt. Bhagwat and directing the State to give deemed date of promotion to Dr. Smt. Bhagwat as per seniority list along with all other consequential pensionary benefits. He submitted that the Tribunal had rightly rejected the application of Dr. Ilme, holding that he was not entitled to such deemed date of promotion.

10. The difficulty, which the State faced, seems to be the total absence of any material, which would have justified denial of promotion to the two doctors in routine course when their turn came. Neither the recitals in Writ Petition No. 3776 of 2001, nor the return in Writ Petition No. 3070 of 1998 show that there were any adverse entries in the ACRs for the five years preceding the date on which the doctors would have been eligible for promotion to justify denial of promotion to them. As mentioned in para 6 of return in Writ Petition No. 3070 of 1998, for promotion to Class-II post, a Government employee has to acquire the standard of "Good". It is stated that in absence of confidential reports for the previous five years, the case of the two doctors was kept open by the Committee. Now absence of ACRs for the relevant period cannot lead to the inference that their ACRs would have been less than "Good" to justify denial of promotion to the petitioners, particularly when the State has dropped all the charges against the petitioners and treated the period of suspension as duty period.

11. The Administrative Tribunal has rightly held, while deciding Original Application No. 21 of 1992 filed by Dr. Smt. Bhagwat, that the State was not prevented from proceeding departmentally against the two doctors, if it so desired. However, having dropped the charges and thus having given a clean chit to the doctors, it would have to be presumed that there is nothing to show that the performance of the two doctors would have been less than "Good", had they continued to work during the relevant period.

12. In this view of the matter, we uphold the order of the Tribunal in Original Application No. 21 of 1992 and consequently, discharge the rule in Writ Petition No. 3776 of 2001.

13. Writ Petition No. 3070 of 1998 is allowed in terms of prayer Clauses (i) to (vi) and rule is made absolute therein.

14. In the circumstances, we direct the parties to bear own costs.