Shankar Mahadeorao Babhare & 2 Ors vs Nagpur Improvement Trust,Nagpur ...
2016 Latest Caselaw 1703 Bom

       wp3681.01                                                                  1



                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                       
                               NAGPUR BENCH

                        WRIT PETITION  NO.  3681  OF  2001




                                               
      1. Shri Shankar s/o Mahadeorao
         Babhare, aged 37 years,
         occupation - Service, r/o




                                              
         Chitnispura, Nagpur.

      2. Shri Haripal s/o Sukhdeo Ukey,
         aged 40 years, occupation -




                                     
         Service, r/o Siddartha Nagar,
         Teka, Nagpur.       
      3. Shri Bhimrao s/o Diwalu
         Deshpande, aged 40 years,
                            
         occupation - Service, r/o Plot
         No. 1, Ashirwad Nagar Layout,
         Nagpur.                                 ...   PETITIONERS

                        Versus
      
   



      1. Nagpur Imrovement Trust,
         Nagpur thr. its Chairman.

      2. Superintending Engineer,





         Nagpur Improvement Trust,
         Nagpur.

      3. Establishment Officer, Nagpur
         Improvement Trust, Nagpur.





      4. Shri Mohan s/o Bhagwan Amle,
         Junior Engineer (Civil),
         Nagpur Improvement Trust,
         Nagpur.

      5. Shri Bharat s/o Sakharam Mundle,
         Junior Engineer (Civil,
         Nagpur Improvement Trust,
         Nagpur.
      6. Shri Arvind Vinayak Pathak,



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        wp3681.01                                                                        2



           Junior Engineer (Civil),




                                                                             
           Nagpur Improvement Trust,
           Nagpur.




                                                     
      7. Shri Rajanand Kailash Uke,
         Junior Engineer (Civil),
         Nagpur Improvement Trust,
         Nagpur.                                       ...   RESPONDENTS




                                                    
      Shri A.Z. Jibhakate, Advocate for the petitioners.
      Mrs. Bharti H. Dangre, Advocate for the respondents.




                                         
                         .....
                             
                                    CORAM :      B.P. DHARMADHIKARI &
                                                 P.N. DESHMUKH, JJ.

APRIL 21, 2016.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

Heard Shri Jibhkate, learned counsel for the

petitioners and Mrs. Dangre, learned counsel for the

respondents.

2. The effort of Shri Jibhkate, learned counsel, is to

demonstrate that as per Government Resolution dated

16.12.1998, vacancies in the cadre of Junior Engineer could

have been filled-in in proportion of 85% by nomination, 10%

by promoting Senior Engineering Assistants who have cleared

qualifying examination conducted by the Engineering Officers'

Staff College, Nasik and 5% from amongst those who have

obtained Diploma through correspondence. He submits that on

25.10.2000, four vacancies have been filled in and all through

the persons who have got Diploma through correspondence

course. In addition, he points out that in the seniority list, the

petitioners are placed at Sr. Nos. 18, 23 and 34. He submits

that respondent Nos. 4 to 7 who have been promoted are

placed at Sr. Nos. 12, 21, 27 & 29 in that seniority list. Thus, at

least two of the respondents are junior to the petitioners. He,

therefore, submits that in this situation, promotions effected on

25.10.2000 are unsustainable.

3. He further submits that due to passage of time, the

petitioners who were stagnating, got pay-scale of Junior

Engineer in the year 2003. Thus, according to him, they have

been working as in-charge Junior Engineers from 2003. The

only question i.e. grant of deemed date remains to be answered

and no monetary liability is being cast upon the respondent -

employer. He submits that all these facts are pleaded in writ

petition and the respondent - Nagpur Improvement Trust has

not filed any reply and, therefore, these facts should be deemed

to be admitted and accordingly petition should be decided.

4. Mrs. Dangre, learned counsel submits that the

petitioners have to stand on their own legs and Nagpur

Improvement Trust being an independent statutory body,

various Government Resolutions, ipso facto, are not applicable

to it. She invites attention to a document on record to urge

that Nagpur Improvement Trust has only adopted Government

Resolution dated 21.03.1990. By that Government Resolution,

the requirement of filling in 25% vacancies by promotion has

been brought down to 10%. Later Government Resolution

which prescribe quota of 85%, 10% and 5% has not been

adopted by the Nagpur Improvement Trust. She further invites

attention to Rules framed by the Nagpur Improvement Trust in

this respect which have come into force on 01.07.2005. As per

those rules, the promotional quota of 25% is made available to

the candidates who have qualified from Engineering Officers'

Staff College, Nasik and by correspondence course. Therefore,

according to her, after 27.05.1996 for the first time, change has

been brought about on 01.07.2005. She, therefore, contends

that as the quota pointed out by the petitioner has not be made

applicable to the employees of the Nagpur Improvement Trust,

the grievance made is misconceived.

5. The documents available on record show that on

27.05.1996 vide Resolution No. 2 of 901, Nagpur Improvement

Trust has adopted the Government Resolution dated

21.03.1990. The petitioners have not produced any other

resolution or document showing that later Government

Resolutions have been made applicable to the employees

working with the Nagpur Improvement Trust. The Government

Resolution dated 16.12.1998 provides for above mentioned

quota of 85%, 10% and 5%. The burden to show that this

quota is made applicable, was upon the petitioners. Even if we

presume that this quota is applicable, the petitioners are further

obliged to demonstrate total number of vacancies available on

25.10.2000 and how above mentioned quota can then be

applied to those vacancies. That material is lacking on record.

The impugned order of promotion dated 25.10.2000 promotes

respondent Nos. 4 to 7 on probation for a period of one year in

the purely temporary capacity.

6. However, other contentions raised by the learned

counsel for the petitioners cannot be discarded. Only one of

the respondents is senior to the petitioners whose name figures

at Sr. No. 18 in the seniority list. Respondent Nos. 6 & 7 are

junior to petitioner No. 2 whose name figure at Sr. No. 23.

Thus, this material, prima facie, demonstrates that persons

junior to the petitioners have been promoted and thereby

seniority of the petitioners have been superseded. The

petitioners have questioned these promotions only by pointing

out above mentioned quota rule. They have not pointed out

any other basis or raised any other challenge.

7. In this situation, when seniority can be overstepped

on account of certain other considerations, like reservation, we

are not inclined to observe anything in that respect in present

writ petition. The respondents have not filed any reply.

8. We find that interest of justice can be met with by

directing the Chairman of Respondent No. 1 to examine the

grievance of the petitioners in accordance with relevant policy

and law. We grant the petitioners leave to make appropriate

representation pointing out their case within three weeks from

today. If such a representation is made, Respondent No. 1 shall

look into it within next four weeks and take suitable decision

upon the entitlement of the petitioners to grant of deemed date

within said time. Participation in this exercise and acceptance

of deemed date shall not preclude the petitioners from

challenging the correctness of the exercise undertaken.

9. With these directions and keeping all rival

contentions open in this respect, we dispose of the present writ

petition. Rule is made absolute in above terms. However, in

the facts and circumstances of the case, there shall be no order

as to costs.

               JUDGE                                                    JUDGE
                                          ******
      *GS.