Bombay High Court
Rafia Begam Ansari Sabbir Ahmed ... vs The State Of Mah & Ors on 30 November, 2016
Bench: S.V. Gangapurwala
1 WP 875.05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 875 OF 2005
Smt. Rafia Begam Ansari W/o Sabbir
Ahmed Ansari,
Age : 53 Years, Occu. : Service,
R/o Inside Panchakki, Magrabhi House,
Near Ghati Hospital, Aurangabad. .. Petitioner
Versus
1. The State of Maharashtra,
Through the Divisional Commissioner,
Revenue Division, Aurangabad.
2. Zilla Parishad, Aurangabad,
Through it's Chief Executive Officer.
3. Smt. Hemlata Baliram Meshram,
Age: 51 Years, Occu.: Service,
R/o C/o C.E.O., Z.P., Aurangabad. .. Respondents
Mr. Ajay S. Deshpande, Advocate for the Petitioner.
Ms. Rashmi P. Gour, A. G. P. for the Respondent No. 1.
Shri. D. R. Irale Patil, Advocate for the Respondent No. 2.
Shri. Ajit B. Kadethankar, Advocate for the Respondent No. 3.
CORAM : S. V. GANGAPURWALA AND
K. L. WADANE, JJ.
DATE : 30TH NOVEMBER, 2016.
ORAL JUDGMENT (Per S. V. Gangapurwala, J.) :-
. The order reverting the petitioner from the post of
Assistant Child Development Officer, Integrated Child
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Development Scheme (I.C.D.S.) to the post of Supervisor District
Technical Services Class III (Social Welfare) under I.C.D.S.
Scheme is assailed in the present writ petition.
2. The petitioner was promoted as an Assistant Child
Development Project Officer under order dated 19.07.2001.
However, vide order dated 15.01.2005, the petitioner was demoted
to the post of supervisor.
3. Mr. Deshpande, the learned counsel for the petitioner
submits that, in the provisional seniority list published on
01.01.1996, the petitioner is shown senior to one Meshram and
also Gaherwar. So also in the final seniority list the petitioner is
shown senior to Meshram and Gaherwar. The respondent No. 3
had filed an appeal before the Divisional Commissioner in a way
challenging the promotion of one Gaherwar in her place. The
Divisional Commissioner allowed the appeal and directed the
respondent No. 2 to promote Meshram with effect from
21.02.1999. Consequent to the order of Divisional Commissioner,
the respondent No. 2 on 15.01.2005 demoted the petitioner.
According to the learned counsel the petitioner was not concern
with the dispute between Meshram and Gaherwar. After
considering the case of the petitioner, the petitioner was
promoted on 19.07.2001. No cause existed for reverting the
petitioner.
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4. Mr. Iral Patil, the learned counsel for the respondent No. 2
submits that, it is not only the seniority that is relevant for
promotion but even the performance has to be considered. The
performance of Gaherwar was found to be better than the
petitioner and Meshram. As such, Gaherwar was promoted.
According to the learned counsel, the petitioner has an alternate
efficacious remedy as per Rule 14 of the Zilla Parishad District
Services (Discipline and Appeal) Rules.
5. Mr. Kadethankar, the learned counsel for the respondent
No. 3 submits that, pursuant to the orders of the Divisional
Commissioner, the respondent No. 3 has been promoted. The
said order is not subject matter of challenge in the present writ
petition.
6. We have also heard the learned Assistant Government
pleader for the respondent/State.
7. It is true that while considering promotion seniority may
not be the only criteria and the performance also would be
relevant. In the present case, considering all these aspects, the
petitioner was promoted as an Assistant Child Development
Officer on 19.07.2001. It appears that, the petitioner is reverted
only because the Divisional Commissioner had directed that the
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respondent No. 3 herein should have been promoted in the year
1999. In the judgment delivered by the Divisional Commissioner,
it was observed that, Meshram is senior to Gaherwar and ought
to have been promoted. The authorities ought to have considered
that, the petitioner is senior to both of them and was already
promoted with effect from 19.07.2001. The petitioner only on the
ground that Meshram is directed to be promoted could not have
been reverted. The case of the petitioner ought to have been
considered.
8. As the petitioner has already retired on attaining age of
superannuation and since 2005 the petitioner has worked on the
post on which the petitioner was reverted, we are not inclined to
grant actual benefit with regard to the pay of the promotional
post. However, the same shall be computed notionally for the
purpose of retiral and pensionary benefits. The arguments of
alternate remedy, now would not be available, as the writ
petition is already admitted in the year 2005.
9. In the result we pass following order.
10. The action of reverting the petitioner under order dated
15.01.2005 is quashed and set aside. The petitioner shall be
deemed to have continued on the post of Assistant Child
Development Project Officer since 19.07.2001 and the increments
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or otherwise shall be notionally computed till the age of
retirement of the petitioner and the same be actually considered
for the benefit and payment of retiral benefits including pension,
gratuity, commutation of pension, leave encashment, etc. It is
made clear that, we have not disturbed the post of the respondent
No. 3.
Rule accordingly is made absolute in above terms. No
costs.
Sd/- Sd/-
[ K. L. WADANE, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/Nov. 16
