Malojirao B. Bhosale vs The State Of Maharashtra And Ors
2016 Latest Caselaw 4518 Bom

                                                                        213-wp-307-07


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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION




                                                          
                            WRIT PETITION NO. 307 OF 2007

      Malojirao B. Bhosale                          ...        Petitioner




                                                         
                   Vs.
      The State of Maharashtra and ors.             ...        Respondents

                                      ***




                                            
      Mr. Sandeep V. Marne for the Petitioner.
      Mr. Vishal Thadani, AGP for State-Respondent Nos.1 to 4.
                                  ig  ***
                                           CORAM : V. M. KANADE, AND
                                                   M. S. SONAK, JJ.
                                
                                           DATE  : AUGUST 08, 2016.

      JUDGMENT (PER M.S. SONAK, J.)

1] The challenge in this petition is mainly to the judgment

and order dated 1 October 2004 made by the Maharashtra Administrative Tribunal (MAT), Mumbai in Original Application No. 44 of 2004, to the extent the relief of promotion with effect from 1994

came to be denied to the petitioner.

2] Mr. Sandeep Marne, learned counsel for the petitioner,

submitted that the impugned judgment and order has in fact accepted the contention of the petitioner that the petitioner was unjustifiably by-passed in the matter of consideration for promotion to the post of

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Deputy Draftsman-cum-Deputy Secretary on the sole basis that the

petitioner was on deputation in some other department. Mr. Marne

submitted that once this contention came to be accepted, the petitioner was entitled for promotion to the said post with effect from 1994, since, some persons junior to the petitioner were promoted in the year

1994. Mr. Marne submitted that in pursuance of directions in the impugned judgment and order, the petitioner was ultimately considered for promotion with effect from 2004. However, the

petitioner was found not to be fit for promotion. Mr. Marne has

submitted that in case the petitioner were to be considered for promotion with effect from 1994, which was due date, then, the

petitioner's confidential report for years prior to 1994 would have been taken into consideration and the petitioner would have surely been found fit for promotion. Therefore, Mr. Marne submitted that non-

consideration of the case of the petitioner for promotion with effect

from 1994 constitutes an error apparent on the face of record.

3] We have considered the submissions of Mr. Marne. We

have also perused the record as also the impugned judgment and order. We are, however, satisfied that the petitioner has failed to make out any case warranting interference with the impugned judgment and

order under Articles 226 and 227 of the Constitution of India.

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4] The MAT, has quite consciously molded the reliefs taking

into consideration the peculiar facts and circumstances of the

petitioner's case. The petitioner was not considered for promotion in the year 1994, possibly, on the mistaken premise that he held no lien on his parent post. The cause of action, with regard to such non-

consideration therefore, arose in the year 1994. The petitioner has instituted the original application only in the year 2004. In the meanwhile, several other employees, some of whom junior to the

petitioner, were considered and promoted. The MAT records that the

petitioner did not react for a period of almost ten years. The juniors who were promoted in the meanwhile were also not impleaded as

respondents. However, with a view to balance the equities, the MAT directed that the case of the petitioner be considered for promotion with effect from 2004. In pursuance to this direction, the case of the

petitioner was in fact considered for promotion. However, the

petitioner was not found to be fit for promotion. The petitioner has chosen not to challenge this decision of the DPC.

5] The decision in case of Shri. Parvez Qadir Vs. Union of India - (1975) 4 SCC 318, is not applicable to the facts and circumstances of the present case. The said decision holds that for

purpose of initial recruitment the confidential report of the officer as on the date of initial recruitment is to be considered and not the confidential reports available till the date of selection. In this case,

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since, there is no warrant to interfere with the directions to consider

the case of the petitioner for promotion with effect from 2004, the

respondents have rightly considered the ACRs, in the context of year 2004. The decision in case of Parvez Qadir (surpa) is therefore, of no assistance to the petitioner.

6] If all the aforesaid circumstances are cumulatively considered, then there is no error, much less any error apparent on the

face of record in the reasoning of the MAT. No case is therefore, made

out to interfere with the impugned judgment and order. Accordingly, we dismiss the petition. There shall however, be no order as to costs.

    [M. S. SONAK, J.]                                 [V. M. KANADE, J.]