Bombay High Court
Prakash Kashiramji Borkar vs State Of Maharashtra Through Its ... on 21 July, 2016
Bench: V.A. Naik
1/8 2107WP3445.14-Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3445 OF 2014
PETITIONER:- Prakash Kashiramji Borkar, Aged about 48
years, Occupation: Service, Resident of Plot
No.3, Sai Baba Nagar, Near Santoshi Mata
Mandir, Kharbi, Nagpur.
...VERSUS...
RESPONDENTS :- 1) State of Maharashtra, through its Secretary,
ig Revenue and Forest Department,
Mantralaya, Mumbai-400 032.
2) Collector, Nagpur, Civil Lines, Nagpur.
3) Shri P.M.Hargude, Circle Officer,
Patansawangi C/o. S.D.O. Saoner, District
Nagpur.
4) Laxman Janrao Deshmukh, Circle Officer,
Aadegaon, Resident of 48, Mahalaxmi
Nagar, Manewada Road, Nagpur.
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Mr. Anand Parchure, counsel for the petitioner.
Mr.Ambarish Joshi, Asstt.Govt. Pleader for the respondent Nos.1 and 2.
None for the respondent Nos.3 and 4.
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CORAM : SMT. VASANTI A. NAIK &
MRS.SWAPNA JOSHI, JJ.
DATED : 21.07.2016
O R A L J U D G M E N T (Per Smt.Vasanti A. Naik, J.)
Rule. Rule made returnable forthwith. The petition is
heard finally, as the notice for final disposal was issued to the
respondents on 11/07/2014 and the respondents are duly served.
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2) By this writ petition, the petitioner challenges the order of
the Maharashtra Administrative Tribunal, dated 24/10/2013,
dismissing an original application filed by the petitioner. The petitioner
also challenges the order of the Tribunal, dated 27/03/2014, refusing to
review the order, dated 24/10/2013.
3) The petitioner was appointed as a Talathi in Katol Sub-
Division on 14/01/1991, after following the due process of selection.
According to the petitioner, he was confirmed in service on
31/12/1996. The certificate of permanency was also served on the
petitioner. In the year 1997, the State Government framed the
Maharashtra Sub-Service Departmental Examination (Cadre of Talathis)
Rules, that were brought into effect on 29/10/1997. As per Rule 7 of
the said Rules, a Talathi was exempted from passing the departmental
examination, if he was confirmed in the category of Talathi on or before
the cut-off date, i.e. 29/10/1997. The respondent Nos.1 and 2 did not
ask the petitioner to appear at the departmental examination. Suddenly,
on 23/01/2010, the Collector cancelled the order of confirmation of
services of the petitioner. The order of the Collector was challenged by
the petitioner before the Appellate Authority and the Collector's order,
cancelling the order of confirmation of services was set aside on
28/09/2011. Since the petitioner was not considered for promotion to
the post of Circle Officer, the petitioner filed the original application
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before the Maharashtra Administrative Tribunal for a declaration that
he was entitled to be promoted as a Circle Officer and he was illegally
superseded while issuing the promotion orders to the other similarly
situated Talathis on 26/04/2010. The petitioner sought a direction
against the respondent Nos.1 and 2 to promote the petitioner as a Circle
Officer, immediately. The Maharashtra Administrative Tribunal,
however, by the order, dated 24/10/2013, dismissed the original
application filed by the petitioner after holding that the petitioner was
confirmed in service on 31/12/1997 and not on 31/12/1996 as claimed
by him and hence, as per the Rules referred to herein above, the
petitioner was not exempted from passing the departmental
examination. The petitioner, filed a review application pointing out
certain documents to demonstrate that the petitioner was confirmed in
service before the Rules were brought into force on 29/10/1997. The
said application was rejected. Both the orders of the Tribunal are
challenged by the petitioner in the instant petition.
4) Shri Parchure, the learned counsel for the petitioner,
submitted that the Tribunal was not justified in refusing to grant the
relief, as sought by the petitioner. It is stated that several Talathis, who
were junior to the petitioner, were promoted to the post of Circle
Officer while refusing to consider the claim of the petitioner. It is stated
that the Tribunal did not consider the note-sheet, dated 31/01/1997,
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which clearly shows that services of 15 Talathis including the petitioner
were confirmed. It is stated that the Tribunal unnecessarily went on
conjunctures and surmises, without looking into the basic documents,
which proved that the petitioner was confirmed in service as a Talathi
before 29/10/1997. It is stated that though an effort was made by the
petitioner before the Tribunal to seek the review of its order, the review
application was rejected. It is submitted that had the petitioner not
been confirmed before the cut-off date i.e. 29/10/1997, the respondents
would have asked the petitioner to appear at the examination and pass
the same within the period stipulated by the Rules. It is stated that the
inaction on the part of the respondent Nos.1 and 2 to do so, clearly
demonstrates that the petitioner's services were confirmed before
29/10/1997.
5) Shri Ambarish Joshi, the learned Assistant Government
Pleader appearing on behalf of the respondent Nos.1 and 2, has
supported the order of the Tribunal. It is stated that since there was
some over writing on the order of confirmation, the Tribunal has
recorded a finding that the petitioner's services were confirmed on
31/12/1997 and not on 31/12/1996 as claimed by him. It is, however,
fairly admitted that the note-sheet that bears the signature of the Sub-
Divisional Officer shows that 15 Talathis including the petitioner were
entitled to be confirmed on 31/01/1997. It is stated that in view of the
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limited scope in a matter of review, the Tribunal has rejected the review
application.
6) On hearing the learned counsel for the parties and on a
perusal of the impugned orders as also the documents annexed to the
petition, we find that the Tribunal was not justified in dismissing the
original application, filed by the petitioner. Admittedly, the petitioner
was appointed as a Talathi in the Katol Sub-Division, in the year 1991.
The dispute only pertains to the date of confirmation, which according
to the petitioner, is 31/12/1996 and which as per the order of the
Tribunal is 31/12/1997. Admittedly, the Rules grant exemption to a
Talathi, whose services were confirmed before the Rules were brought
into effect on 29/10/1997. Even assuming that there was some over
writing on the order of confirmation, dated 31/12/1996, admittedly,
the note-sheet prepared by the Sub-Divisional Officer and which refers
to the confirmation of 15 Talathis including the petitioner was signed
on 31/01/1997. It is clear from the aforesaid note-sheet that the
petitioner was entitled to be confirmed on 31/01/1997. The petitioner
had not only produced the note-sheet before the Tribunal, but had also
produced a copy of a communication received by the Tahsil Office at
Narkhed, dated 07/02/1997, which showed that the petitioner and 14
other Talathis were confirmed. The document, dated 07/02/1997
appears to have been signed by more than a couple of persons in the
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Tahsil Office at Narkhed. This document was also lightly brushed aside
by the Tribunal in the order of review, dated 27/03/2014. By taking a
pedantic approach, the Tribunal observed that no weightage could be
given to the endorsement on the document, dated 07/02/1997 that
refers to the confirmation of 15 Talathis including the petitioner, as
there was no clinching material to point out as to who were the
authorities that had actually signed the document. We find that the
Tribunal did not consider the material in the right perspective while
considering whether the petitioner's services were confirmed before
29/10/1997. As rightly submitted on behalf of the petitioner, had the
petitioner not been confirmed before 29/10/1997, the respondent
Nos.1 and 2 would have terminated the services of the petitioner on the
ground that he had not passed the departmental examination within the
specified time. It is apparent from the material available on record that
the services of the petitioner were confirmed before the Rules were
brought into force on 29/10/1997. In any case, it would be necessary
to hold that the petitioner's services were confirmed in February, 1997,
if not on 31/12/1996. We find that the approach of the Tribunal in
deciding the original application was not just and proper and the claim
of the petitioner was wrongfully rejected.
7) Hence, for the reasons aforesaid, the writ petition is
allowed. Since the petitioner's services were confirmed before the Rules
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were brought into force on 29/10/1997, the petitioner is entitled to be
considered for promotion along with the other Talathis, after taking
into consideration the fact that he was transferred from one division to
another. In view of the aforesaid, we direct the respondents to consider
the claim of the petitioner for promotion to the post of Circle Officer, in
accordance with law, and grant the deemed date of promotion to the
petitioner, after determining the date on which the petitioner would be
entitled to the promotion. The aforesaid exercise must be completed by
the respondent Nos.1 and 2 within a period of three months. Rule is
made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
8/8 2107WP3445.14-Judgment
C E R T I F I C A T E
I certify that this Judgment uploaded is a true and correct copy of
original signed Judgment.
Uploaded by : G.S.Khunte, Uploaded on : 27/07/2016
P.A.to Hon'ble Judge
