Bombay High Court
Chimanrao Morbaji Patil vs Nasik on 8 November, 2011
Bench: B. P. Dharmadhikari, A. B. Chaudhari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
WRIT PETITION NO.3167 OF 1996
Chimanrao Morbaji Patil,
aged about - major,
occupation : service
r/o 571, Hivrey Layout,
Nagpur. ............. Petitioners
VERSUS
1]
State of Maharashtra through
its Secretary, Social Welfare,
Cultural Affairs, Sports & Tourism
Department, Mantralaya, Annexe,
Bombay
2] The Managing Director,
Mahatma Fuley Backward Class
Development Corporation Ltd.
office at Supreme Shopping Center,
Gul Mohar Cross Road,
No.9 J.V.P.D. Scheme Juhu,
Bombay 400 049
3] Shri P.B. Patil,
Regional Manager,
Mahatma Fuley Backward Class
Development Corporation, Pune
4] Smt. V.A. Suratkar,
Regional Manager, Mahatma Fuley
Backward Class Dev. Corporation,
Bombay 49.
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5] D.R. Lokhande, aged - major,
Regional Manager,
Mahatma Fuley Backward Class
Development Corporation Ltd.
Aurangabad (M.S.)
6] M.K. Bansod, aged- major,
Dy. General Manager (Project II),
Head Office - Mahatma Fuley Backward
Class Development Corporation Ltd.
Bombay
7] Smt. S.P.Surpam,
Regional Manager,
Mahatma Fuley Backward
Class Development Corporation
Nasik. .........Respondents
000
Shri S.W.Sambre, advocate for petitioner
Shri A. R. Taiwade, Asstt Government Pleader for respondent no.1
Shri Tejas Patil h/f Shri Anand Parchure Adv for respondent no.2
000
CORAM: B.P. DHARMADHIKARI & A.B. CHAUDHARI, JJ.
DATE : 8th November, 2011
ORAL JUDGMENT [PER : B.P. DHARMADHIKARI,J]
Heard advocate Shri Sambre for the petitioner.
2] In this petition filed under article 226 of Constitution of India
two challenges are placed before this court. First challenge is to order
of reversion dated 24.1.1995 and second challenge is to a subsequent
order dated 22.5.1995 by which juniors to petitioner have been
promoted as Regional Managers.
3] Shri Sambre has invited our attention to seniority list prepared
for the cadre of Field Officers/ Assistant Managers in the year 1983
and thereafter in the year 1985 to show that name of petitioner
appears at serial no.1 in said list and other persons who are promoted
on 22.5.1995 are placed below him. His contention is, if reply of
respondent no.2 is perused, it would reveal that promotion is to be
given on the basis of seniority-cum-merit and as there is no dispute of
seniority of petitioner, he ought to have been promoted. He points out
that in said reply respondent no.2 has come up with defence that
confidential reports for the year 1989-90 onwards till 1993-94 were
not satisfactory and hence he was not found eligible for promotion.
He states that this action is nothing but refusal on the part of
respondent no.2 to consider the entitlement of petitioner to be
promoted.
4] In so far as challenge to order of reversion is concerned,
learned counsel states that though respondent no.2 has pleaded that
there is no reversion, the order itself uses word "reversion" and
attention is also invited to order of posting dated 2.2.1995 to show
that because of said reversion, petitioner has been placed in the office
of General Manager, Nagpur as Assistant General Manager and his
pay-scale is also shown as Rs.2675/- due to said reversion. Learned
counsel states that there is absolutely no justification for such
reversion and no reasons are disclosed therefor. Hence that order of
reversion must be quashed and set aside.
5] Shri Sambre, has also invited attention to rejoinder filed on
12.7.1991 to demonstrate that confidential reports were never
communicated to petitioner and he is relying upon instructions
issued by State Government on 1st February 1996 to show that in
view of clause no.52 therein, those confidential reports could not
have been used against petitioner.
6] Shri Patil at the outset requested for adjournment as advocate
Parchure is not available. However, as matter was called out before
vacation, and adjournments were sought, we rejected that request.
Shri Patil has relied upon reply - affidavit placed on record by
respondent no.2 on 28.7.1997. He states that there is nothing on
record to show that petitioner has been reverted. Learned counsel has
invited attention to position as disclosed in paragraph 13 of said
affidavit and urged that promotion given to other respondents is
therefore legal and valid. He has further stated that as promotions are
valid and there is no reversion proved before this court, petition
should be dismissed.
7] Learned Assistant Government Pleader appearing for
respondent no.1 has supported arguments of advocate Patil.
8] Nobody has appeared for respondent no.3 to 7 though served.
9] The perusal of seniority lists placed on record by petitioner
reveal that petitioner was at serial no.1. The order by which petitioner
came to be promoted as District Manager has not been placed on
record. Perusal of provisional seniority list circulated on 25.11.1983
reveals that it is for cadre of Field Officers / Assistant Managers.
Final seniority list circulated on 30.12.1985 is again for very same
cadre. In communication dated 21.5.1992 it has been stated that as
per letter of Head Office dated 30.12.1985 a final seniority list of the
employees in cadres of Assistant Managers / District Managers was
published. It also shows that it was in accordance with date of
selection of incumbent in the cadre of District Manager. Then some
administrative problems are pointed out and reasons which
necessitated preparation of fresh seniority lists of these cadres, are
mentioned. Accordingly a provisional seniority list as per the date of
joining was circulated. Though this communication says that it is
accompanied by a provisional seniority list, copy of said provisional
list is not annexed. Reply / objection by petitioner dated 26.6.1992
reveals his grievance that in that list his name was shown at serial
no.2, but it should have appeared at serial no.1.
10] The order dated 25.4.1994 needs to be viewed in this
background. That order shows that petitioner, a District Manager at
Chandrapur was transferred on promotion at Aurangabad and on his
request he was then sent as Assistant Regional Manager, Mumbai. At
Mumbai he was expected to take charge of the post of Deputy
General Manager (Project). The impugned order dated 24.1.1995
mentions designation of petitioner as Assistant General Manager and
states that he is being reverted. It also states that orders of his posting
would be issued after he joins back after leave.
11] By communication dated 25.1.1995, petitioner has urged that at
Nagpur he should be given charge of the post of Assistant Regional
Manager so as to enable him to continue with his medical treatment.
The order of posting is issued on 2.2.1995 and it again shows that he
has been posted in the office of General Manager at Nagpur as
Assistant General Manager. It is further stated that as he is reverted,
his basic wage would be Rs.2675/-.
12] The petitioner has not produced before us the salary payable to
District Manager or then to Assistant Manager. On 28.7.1997 the
respondent no.2 has filed reply stating that there is no reversion and
petitioner was given his substantive post. Even the order by which
the petitioner was promoted in the cadre of Assistant Regional
Manager, is also not produced before this court. While narrating
events, learned counsel has stated that post of District Manager is
next below the post of Assistant Regional Manager. In view of the
material which we have noted above, we find it difficult to accept this
submission. In short, we do not find any material on record to
disbelieve the defence raised by respondent no.2 that there was no
reversion and petitioner has been sent back on his substantive post.
13] However, in so far as order of promotion dated 22.5.1995 is
concerned, we have already noted that prior to fresh preparation of
seniority list i.e. on 21.5.1992, petitioner was appearing at serial no.1
in seniority lists of Field Officers/ Assistant Managers. The
representation made by petitioner on 26.6.1992 shows grievance that
his name could not have been shown at serial no.2 and he had
requested for placing him at serial no.1. Reply - affidavit filed by
respondent no.2 shows that out of total 11 posts then available, six
posts were filled in by promotion and one post was reserved for
Scheduled Caste. In paragraph 13 it is mentioned that in 1989-90,
confidential report of petitioner revealed his placement in "B(-)"
category, 1990-91 in "B(-)" category, 1991-92 in "C" category, 1992-
93 "No Remarks" and 1993-94 in "B" category. Thus on an average
petitioner was placed in "B(-) category. The respondent no.2 states
that therefore he would not eligible for promotion. In paragraph 9 of
very same affidavit norm for promotion is disclosed as seniority-
cum-merit. The affidavit states that it was decided by promotion
committee. We fail to understand that how promotion committee can
decide any such norms. We are however, not concluding this issue.
Seniority-cum-merit is a well settled concept and merit becomes
relevant only when there are two candidates with same seniority or
senior candidate is found unfit. Here that is not a position. It appears
that petitioner was promoted and transferred to Aurangabad from
Mumbai (on request) in 1994 itself. Shri Sambre has relied upon the
government resolution dated 1.2.1996 and clause no.52 therein which
shows that adverse comments or criticism or then instructions
recorded in confidential reports, should not be used for promotion
purposes if the same are not communicated to the employee. Though
Shri Patil has contended that the said government resolution dated
1.2.1996 is not applicable to establishment of respondent no.2.
Specific assertions of petitioner in paragraph 5 of his rejoinder has
not been refuted by respondent no.2. In view of the finding already
reached by us above in respect of promotion norms, we leave that
issue also open. We therefore, find non-consideration of claim of
petitioner for promotion by respondent no.2 unjustified. However, we
are not inclined to set aside the promotion given to other respondents
only on that count after so many years.
14] We direct respondent no.2 to consider afresh entitlement of
petitioner for said promotion in accordance with relevant service
conditions requiring communication or otherwise of the adverse
remarks in confidential reports. The respondent no.2 shall complete
the said exercise within a period of four months from today. If the
petitioner is found entitled and eligible for promotion, he shall be
given deemed date with consequential benefits and placed just above
his junior so as to avoid loss of seniority in promotional cadres.
Appropriate orders in this respect shall be issued to him by
respondent no.2 within a further period of one month thereafter.
15] Thus we partly allow the petition accordingly. Rule made
absolute. No costs.
JUDGE JUDGE
SMP
