Bombay High Court
3] Kashinath Shivba Khillare vs Scheme on 11 November, 2011
Bench: B. P. Dharmadhikari, A. B. Chaudhari
1
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
000
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
000
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
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
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
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
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
