Bombay High Court
Deorao Bhujangrao Fuke vs The State Of Maharashtra And ... on 1 August, 2016
Bench: S.S. Shinde
3217.16WP
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3217 OF 2016
Deorao S/o Bhujangrao Fuke
Age : 55 years, Occ : Service
as Secretary of Agriculture
Produce Market Committee
Majalgaon, Tq. Majalgaon,
Dist. Beed. ig PETITIONER
VERSUS
1. The State of Maharashtra
Through its Secretary
Marketing and Textile
Maharashtra State,
Mantralaya, Mumbai.
2. The Director of Marketing
Maharashtra State, Central Building,
Pune-1.
3. The District Deputy Registrar
Co-operative Societies,
Beed, Tq. & dist. Beed.
4. The Agriculture Produce
Market Committee, Majalgaon,
Tq. Majalgaon, Dist. Beed.
RESPONDENTS
...
Mr.V.D. Salunke, Advocate for petitioner.
Mr. V.H. Dighe, A.G.P. Respondent Nos.1 to 3.
Mr. D.B. Kale, Advocate for Respondent
No.4.
...
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3217.16WP
2
CORAM : S.S. SHINDE &
SANGITRAO S. PATIL, JJ.
RESERVED ON : 15TH JULY, 2016
PRONOUNCED ON : 1st August, 2016
JUDGMENT : (S.S. SHINDE, J)
Rule. Rule made returnable
forthwith. Heard finally with the consent of
the learned counsel appearing for the
parties.
2. It is the contention of the
petitioner that he was initially appointed as
a clerk in Agriculture Produce Market
Committee, Majalgaon, by an order dated 3rd
October, 1981. After completion of five years
satisfactory service, he was appointed as
Cashier. He was further promoted as
Statistician on 1st October, 1994 and worked
on the said post satisfactorily. On 12th
January, 2005, he was given additional charge
of Secretary. Respondent no.4 passed
unanimous resolution in its administrative
3217.16WP
meeting on 24th February, 2005 and decided to
appoint him as Secretary. Accordingly, the
appointment order was issued on 6th September,
2005. Considering his experience,
Agricultural Produce Market Committee, Parli-
Vaijanath passed resolution on 13th May, 2015
to appoint him as Additional Secretary for
six months. It is the case of the petitioner
that under Service Rules, one Secretary can
act as an additional Secretary in another
Agricultural Produce Market Committee and
accordingly he worked at both the places i.e.
at Majalgaon and Parali-Vaijanath. However,
the Director of Marketing directed him to
join at Agricultural Produce Market
Committee, Majalgaon only. On 2nd November,
2015, the Agricultural Produce Market
Committee, Majalgaon passed resolution and
forwarded the same to the District Deputy
Registrar for approval to his appointment as
Secretary. However, the said authority
3217.16WP
rejected the proposal. Hence this Petition.
3. The learned counsel appearing for
the petitioner submits that the petitioner
was already promoted as Secretary in the year
2005 and to that effect on 6th September,
2005, the approval was granted by the
District Deputy Registrar, Beed vide approval
letter at Exhibit `J' Page 32. He further
submits that respondent no.3 has not
considered the contention of the petitioner
that as per the requirements of the Rules
prevailing at the relevant time, he was
appointed as Secretary and the approval was
granted in his favour. It is submitted that
so far preparation of list of
candidates/panel for appointment to the post
of Secretary is concerned, would be contrary
to the provisions of Rules 12 and 46 of the
Agricultural Produce Marketing Committee
(Recruitment and Promotion) Rules, 1969,
3217.16WP
hence formation of panel would not come in
the way of the petitioner in getting promoted
as per the Rules earlier prevailing.
Therefore, the learned counsel appearing for
the petitioner submits that the Petition
deserves to be allowed.
4.
On the other, the learned A.G.P.
appearing for the Respondent/State submits
that there is amendment to the provisions of
Section 35(1) of the Maharashtra Agriculture
Produce Marketing (Development of Regulation)
Act, 1963 and it is necessary for the
Market Committee to appoint the Secretary
from the panel of Secretaries prepared by the
State Marketing Board. It is submitted that
in view of the said amendment, the proposal
for approval to the appointment of the
petitioner on the post of Secretary was
rejected by the Respondent Authority.
3217.16WP
5. We have given careful consideration
to the submissions advanced by the learned
counsel appearing for the petitioner and the
learned A.G.P. appearing for the
Respondent/State. With their able assistance,
we have perused the pleadings in the
Petition, annexures thereto and reply filed
by Respondent Nos. 2 and 3. Upon careful
perusal of the documents placed on record, it
is abundantly clear that the petitioner was
appointed as Secretary on promotion in the
year 2005 itself and to that effect the
District Deputy Registrar has accorded
approval to his appointment. It is not the
case of the Respondents that pursuant to the
amendment to Section 35 of the Maharashtra
Agriculture Produce Marketing (Development of
Regulation) Act, 1963, certain provisions are
re-framed or amended, and therefore, the
petitioner is not entitled for promotion to
the post of Secretary.
3217.16WP
6. Rule 46 of the Market Committee
Employees (Service) Rules reads thus :-
"46- c<rh % cktkj lferhrhy fjdkE;k >kysY;k fdaok fuekZ.k
dsysY;k inkoj djko;kph deZpk&;kph fu;qDrh gh 'kD;rksoj
cktkj lferhps lsosr vlysY;k deZpk&;klp c<rh nsmu
dj.;kr ;koh- ;k dkeh cktkj lferh] deZpk&;kP;k oxZokjhizek.ks
Eg.ktsp vf/kdkjh] ofj"B deZpkjh o dfu"B deZpkjh ;kizek.ks
osxosxGh T;s"Brk lwph r;kj djhy o R;k R;k oxkZrhy
deZpk&;kaP;k lsok T;s"Brsuqlkj c<rh ns.;kr ;sbZy- ek=
vioknkRed ckcrhr dkj.ks uewn d:u] dks.kR;kgh deZpk&;kl
dks.kR;kgh oxkZrhy inkoj cktkj lferh c<rh nsm 'kdsy- v'kh
c<rh fnysY;k deZpk&;kapk ixkj uohu osru Js.khrhy iq<hy
VII;koj fuf'pr d:u ,d osruok< ns.;kr ;sbZy- egkjk"Vª d`"kh
mRiUu [kjsnh&fodzh ¼ fu;eu ½ fu;e] 1967 ;krhy fu;e 102
e/;s uewn dsysY;k 'kkLrhiSdh dks.kR;kgh izdkjph 'kkLrh >kysY;k
deZpk&;kpk] rks T;s"B vlyk rjh] T;s"Brk lwphrhy dze 'ksoVpk
vlsy-"
7. The true translation of the above
Rule 46 is as under :-
"46. Promotion : The appointments of
employees to be made on the posts
fallen vacant in Market Committee
shall, as far as possible, be made by
3217.16WP
promoting the employee in service of
the Market Committee only. For this
purpose, the Market Committee will
prepare separate seniority list as
per categories of employees i.e.
Officers, Senior employees and junior
employees and promotions will be
given as per seniority of the
employees in the respective class.
However, in exceptional cases, the
Market Committee can promote employee
from any class to any post by giving
reasons. The pay of such promoted
employee shall be fixed on the next
stage in the new pay-scale and one
increment will be given. The employee
who has been awarded penalties as
per Rule 102 of the Maharashtra
Agricultural Produce Marketing
(Development & Regulation) Rules,
1967, though happens to be senior,
shall be placed at the end of the
seniority list."
8. It is not in dispute that by
invoking the said provision, the petitioner
was promoted as Secretary and to that effect,
3217.16WP
at the relevant time, the District Deputy
Registrar has granted approval to the
appointment of the petitioner as Secretary.
It is true that those Rules are issued by the
Executive Instructions, but nevertheless
approved by the State Government at the
concerned Department level. In that view of
the matter, the petitioner's case ought to
have been considered, keeping in view the
aforementioned provisions from the said
Rules.
9. In the result, the Petition partly
succeeds. The impugned order dated 22 nd
December, 2015 passed by the Director of
Marketing, Maharashtra State, Pune is quashed
and set aside. Respondent No.2 is directed to
consider the issue of granting ex post facto
sanction/approval to the promotional post of
Secretary held by the petitioner, keeping in
view the aforementioned Rules and the fact
3217.16WP
that the petitioner's case is on the basis of
the length of service rendered by him,
however, without raising the same grounds, as
raised in the impugned order dated 22nd
December, 2015, as expeditiously as possible,
and preferably within eight weeks from today
and communicate the said decision to the
petitioner as well as to the Respondent -
Agricultural Produce Market Committee,
Majalgaon. Till such decision is taken, the
petitioner's service status shall remain
unaffected.
10. The Petition is disposed of in the
above terms.
Sd/- Sd/-
(SANGITRAO S. PATIL, J.) (S.S. SHINDE, J.)
SGA
