Bombay High Court
Dilip Jagnnath Rathod vs The Divisional Controller And ... on 22 June, 2016
Bench: S.S. Shinde
1 wp7975-2015
IN T
HE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7975 OF 2015
Dilip s/o Jagannath Rathod,
Age : 53 years, Occu. Service
as Assistant Traffic Inspector,
M.S.R.T.C., Aurangabad,
R/o Plot No. 49, New S.T. Colony,
Thakare Nagar, CIDCO, N-2,
Aurangabad PETITIONER
VERSUS
1.
The Divisional Controller,
Maharashtra State Road Transport
Corporation, Divisional Office,
Aurangabad, Dist. Aurangabad
2. The Divisional Personnel Officer,
Maharashtra State Road Transport
Corporation, Aurangabad
3. Gokulsingh s/o Sandusingh Bainade,
Age : 57 years, Occu. Service,
R/o c/o The Divisional Controller,
M.S.R.T.C., Divisional Office,
Aurangabad, District Aurangabad RESPONDENTS
----
Mr. Pandurang M. Gaikwad, Advocate for the Petitioner
Smt. R.D. Reddy, Advocate for respondent Nos. 1 and 2
Mr. R.O. Awasarmal, Advocate for respondent No. 3
----
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGEMENT RESERVED ON : 13th JUNE, 2016
JUDGEMENT PRONOUNCED ON: 22nd JUNE, 2016
::: Uploaded on - 11/07/2016 ::: Downloaded on - 30/07/2016 06:19:32 :::
2 wp7975-2015
JUDGEMENT (PER : SANGITRAO S. PATIL, J.):
Rule. Rule made returnable forthwith and with
consent of the learned counsel for the parties, heard
finally.
2. By this writ petition under Article 226 of the
Constitution of India, the petitioner has challenged the
vires of the order dated 18th/19th June, 2015, whereby
respondent No. 1 - the Divisional Controller of
Maharashtra State Road Transport Corporation (for short,
"M.S.R.T.C."), Divisional Office, Aurangabad has demoted
the petitioner from the post of Assistant Traffic
Inspector to his original post of driver.
3. The petitioner belongs to Vimukta-Jati - A (for
short, "VJ-A") category. He joined the service with
respondent No. 1 as a driver on 16 th November, 1988. He
rendered his services as a driver to the great
satisfaction of his superiors. Respondent No. 1 issued
a circular on 9th June, 2014, calling for the
applications from the eligible traffic
controllers/drivers for filling up five posts of
Assistant Traffic Inspectors by promotion. Out of the
3 wp7975-2015
said five posts, one post was reserved for the
employees/candidates belonging to VJ-A category. The
petitioner applied for the said promotional post. He
came to be selected and appointed on temporary basis to
the said post as per the order dated 19th December, 2014.
He joined the said post on 1st January, 2015. He
presented an application on 24th July, 2015 before
respondent No. 1 claiming for his regularization to the
post of Assistant Traffic Inspector. He did not receive
any positive response on that application from
respondent No.1. On the contrary, he received the
impugned order whereby he was informed that he was
appointed to the post of Assistant Traffic Inspector on
temporary basis, that the order whereby he was promoted
to that post has been cancelled and he has been demoted
to his original post of driver. This order, according
to the petitioner, infringes his fundamental right under
Article 14 of the Constitution of India. Therefore, it
is prayed that it may be set aside and the petitioner
may be ordered to be continued to the post of Assistant
Traffic Inspector.
4 wp7975-2015
4. During pendency of the petition, one Gokulsingh
s/o Sandusingh Bainade came to be impleaded as party-
respondent No. 3, who has been posted by respondent No.
1 as the Assistant Traffic Inspector after demoting the
petitioner.
5. Respondent No. 2 is the Divisional Personnel
Officer of the M.S.R.T.C. Respondent Nos. 1 and 2 have
filed a common reply while respondent No. 3 has filed
his separate reply and opposed the petition almost on
the same grounds. The sum and substance of their
defence is that the petitioner was appointed to the
promotional post of Assistant Traffic Inspector
temporarily as a stopgap arrangement because respondent
No. 3, who is much senior to the petitioner, had already
been promoted to the said post as per the order dated 8 th
December, 2011, subject to his production of caste
validity certificate. Since he did not produce the
caste validity certificate within the given time, he was
demoted with effect from 23rd February, 2012 as per the
order dated 23rd February, 2012 with a clear
understanding that on production of the caste validity
certificate, he would again be appointed to the
5 wp7975-2015
promotional post of Assistant Traffic Inspector. In the
meantime, the petitioner came to be selected for the
promotional post of Assistant Traffic Inspector on
temporary basis vide order dated 19th December, 2014.
Thereafter, respondent No. 3 produced the caste validity
certificate. Consequently, he was re-posted as the
Assistant Traffic Inspector as per the order dated 23 rd
May, 2015. There were in all eighteen posts of
Assistant Traffic Inspectors on the establishment of
respondent No. 1. There was no post available for
continuation of the petitioner to the said post.
Therefore, he was ordered to be demoted vide order dated
18th/19th June, 2015. It is stated that the petitioner is
not entitled to claim the post of the Assistant Traffic
Inspector since he was appointed to that post purely on
temporary basis as a stopgap arrangement. It is stated
that the selection of respondent No. 3 to the said post
was much prior to that of the petitioner and that too on
regular basis. Respondent No. 3 is much senior to the
petitioner. Therefore, the petitioner cannot be posted
as the Assistant Traffic Inspector. With these
averments, the respondents prayed for dismissal of the
writ petition.
6 wp7975-2015
6. Respondent No. 3 additionally contended that
the present writ petition is not maintainable in view of
availability of efficacious remedy to redress the
grievance of the petitioner vide section 28 of the
Maharashtra Recognition of Trade Unions and Prevention
of Unfair Labour Practices Act, 1971 (for short, "MRTP &
PULP Act").
7. The learned counsel for the petitioner points
to the circular dated 1st June, 2010, issued by
respondent No. 1 whereby the applications were invited
from the eligible employees for filling up three
unreserved promotional posts of Assistant Traffic
Inspectors. He then pointed out to the appointment
order dated 8th December, 2011 wherein it is specifically
mentioned that respondent No. 3 and two others were
appointed by promotion to three unreserved/open posts.
The learned counsel for the petitioner then points out
to the circular dated 9th June, 2014, issued by
respondent No. 1 whereby the applications were invited
from the eligible employees for filling up five posts of
Assistant Traffic Inspector by promotion. Out of the
said five posts, two posts were reserved for the
7 wp7975-2015
candidates/employees belonging to scheduled castes, one
post for VJ-A, one post for Nomadic Tribe (NT) - C,
while one post was kept unreserved. He referred to the
result of the selection process (Exhibit-C to the
petition) wherein the petitioner (serial No. 11) alone
is the employee from VJ-A category amongst all the
successful employees. He then referred to the order
dated 19th December, 2014 whereby the petitioner was
appointed to the promotional post of Assistant Traffic
Inspector wherein he is shown to have been selected from
VJ-A category. He submits that respondent No. 3 did not
participate in the selection process that was held
pursuant to the circular dated 9th June, 2014.
Therefore, there was no question of appointing
respondent No. 3 to the promotional post of Assistant
Traffic Inspector which was reserved for VJ-A category
employee as per the circular dated 9th June, 2014 and
held by the petitioner.
8. The learned counsel for the petitioner further
submits that respondent No. 3 had applied for the
promotional post of Assistant Traffic Inspector in
response to the circular dated 1st June, 2010 whereby
8 wp7975-2015
three unreserved/open posts were to be filled up. The
said circular was not meant for filling up any post
reserved for VJ-A category. Therefore, according to
him, there was no question of demoting the petitioner
from the promotional post of Assistant Traffic Inspector
which was reserved for VJ-A category, on the say that
respondent No. 3 was already appointed to that post and
since respondent No. 3 had not produced the caste
validity certificate, the petitioner was promoted to
that post on temporary basis as a stopgap arrangement.
He submits that the impugned order dated 18th/19th June,
2015 demoting the petitioner without due procedure of
law is illegal and unconstitutional.
9. As against this, the learned counsel appearing
for the respondents have tried to justify the impugned
order on the say that the petitioner was appointed to
the promotional post of Assistant Traffic Inspector on
temporary basis until production of the caste validity
certificate by respondent No. 3. They stated that
respondent No. 3 was already appointed to the
promotional post of the Assistant Traffic Inspector. He
being much senior to the petitioner is entitled to
9 wp7975-2015
continue to hold that post on production of the caste
validity certificate. They, therefore, prayed that the
petition may be dismissed.
10. From the above referred documents, and
particularly from the circular dated 1st June, 2010 it is
quite clear that respondent No. 3 was selected to the
promotional post of Assistant Traffic Inspector which
was not reserved for any category. The circular dated 9 th
June, 2014 shows that the applications were invited from
the eligible employees for filling up five posts of
Assistant Traffic Inspectors. Out of those five posts,
two posts were meant for the candidates/employees
belonging to Scheduled Castes and one post each for VJ-A
and NT-C categories. The petitioner had applied for the
promotional post of Assistant Traffic Inspector meant
for VJ-A category, in response to the circular dated 9th
June, 2014. It is quite clear that respondent no.3 had
not applied for the promotional post of Assistant
Traffic Inspector, reserved for VJ-A category in
response to the circular dated 9th June, 2014. If that be
so, there was no question of appointing respondent No. 3
to the promotional post of Assistant Traffic Inspector,
10 wp7975-2015
reserved for the candidate/employee belonging to VJ-A
category, for which the petitioner had applied and was
selected vide order dated 19th December, 2014.
Consequently, there was no question of demoting the
petitioner abruptly from the promotional post of
Assistant Traffic Inspector reserved for VJ-A category
for accommodating respondent No. 3, who had applied for
and got appointed through the earlier selection process
to the post of Assistant Traffic Inspector, which was
not reserved for any category.
11. The petitioner could not and should not have
been demoted from the post of Assistant Traffic
Inspector without following due procedure of law.
Undisputedly, he has not been demoted from that post
because the performance of the petitioner was found to
be unsatisfactory. As stated above, the reason given by
respondent No. 1 for demotion of the petitioner from the
post of Assistant Traffic Inspector is not at all
sustainable. The petitioner has been demoted from the
post of Assistant Traffic Inspector without following
due procedure of law, which amounts to infringement of
the fundamental right of the petitioner guaranteed under
11 wp7975-2015
Article 14 of the Constitution of India.
12. Since the petitioner has alleged and
established that because of his illegal demotion, his
fundamental right under Article 14 of the Constitution
of India has been infringed, we are of the view that the
present writ petition is maintainable. Consequently,
the contention of respondent No. 3 that the present writ
petition is not maintainable in view of the provisions
of Section 28 of the MRTU & PULP Act, cannot be said to
have any substance.
13. In view of the above facts and circumstances of
the case, we are of the considered view that the
impugned order dated 18th/19th June, 2015, passed by
respondent No. 1 is liable to be quashed and set aside.
The petitioner is entitled to continue to hold the post
of Assistant Traffic Inspector, without any
interruption/break, in pursuance of the order dated 19th
December, 2014. Respondent No. 1 will have to be
directed to allow the petitioner to join the post of
Assistant Traffic Inspector. In the result, we pass the
following order :-
12 wp7975-2015
(i) The writ petition is allowed.
(ii) The impugned order dated 18th/19th June, 2015,
passed by respondent No.1, demoting the petitioner from
the post of Assistant Traffic Inspector, is quashed and
set aside.
(iii) Respondent No. 1 is directed to allow the
petitioner to discharge his duties as the Assistant
Traffic Inspector in terms of the promotional order
dated 19th December, 2014, with continuity in service to
the said post even after issuing the impugned order
dated 18th/19th June, 2015.
(iv) The parties shall bear their own costs.
(v) The Rule is made absolute accordingly.
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
npj/wp7975-2015
